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HNC/INFOSEEK SOFTWARE LICENSE AGREEMENT
EXHIBIT 10.53
LICENSE AND SOFTWARE DISTRIBUTION AGREEMENT
This License and Software Distribution Agreement is made and entered
into effective as of April 25, 1996 (the "EFFECTIVE DATE") by and between HNC
Software Inc., a Delaware corporation ("HNC"), and Infoseek Corporation, a
California corporation ("INFOSEEK").
RECITALS
A. HNC develops and distributes proprietary software for use in
analyzing, modeling, and making predictions from information content.
B. The parties desire to enter into this Agreement in order to
allow INFOSEEK and its customers to use the HNC software known commercially as
SelectCast(TM) (as customized by HNC for the INFOSEEK System) pursuant to a
license granted by HNC.
NOW, THEREFORE, in consideration of the mutual agreements and
obligations contained herein, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth herein:
1.1 "ACCEPTANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit B.
1.2 "ACCEPTANCE CRITERIA" means the criteria mutually determined and
agreed upon by HNC and INFOSEEK which describe the level and standards of
functionality and performance of the HNC Software that the parties agree shall
establish prima facie that the HNC Software is performing in accordance with its
Documentation and Specifications. INFOSEEK and HNC shall document the Acceptance
Criteria in writing prior to HNC's Delivery of the HNC Software to INFOSEEK.
1.3 "ACCEPTANCE DATE" means the date defined as the "Acceptance
Date" in Section 3.3.
1.4 This "AGREEMENT" means this License and Software Distribution
Agreement between INFOSEEK and HNC, as it may be amended from time to time by a
writing signed by authorized representatives of both HNC and INFOSEEK.
1.5 "BUSINESS DAY" means any calendar day other than a Saturday or
Sunday and those national holidays then recognized by INFOSEEK which, as of the
Effective Date of this Agreement are: New Year's Day, Memorial Day, July 4,
Labor Day, Thanksgiving Day and Christmas Day. All times referenced in this
Agreement will be Pacific Time.
1.6 "CONFIDENTIAL INFORMATION" has the meaning set forth in Section
11.1.
1.7 "DELIVERY" means that date upon which HNC provides a copy of a
Version of the HNC Software (as tested by HNC as provided in Section 3.3) to a
representative of INFOSEEK.
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CONFIDENTIAL AND PROPRIETARY INFORMATION
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1.8 "DESIGNATED SYSTEM" means a computer system (including a system
that utilizes client servers or a distributed network environment) located in
the Territory that is (i) compatible with a system described in the
Documentation or the Specifications and (ii) owned or controlled by INFOSEEK or
an INFOSEEK Client (as defined below).
1.9 "DOCUMENTATION" means the human readable user manuals, and
related written materials provided by HNC that describe the use, functionality,
output and/or other characteristics of the HNC Software or guidance regarding
proper Use of the HNC Software, which shall conform to industry end user
documentation standards.
1.10 "FULL SUBLICENSEE" means an INFOSEEK Client who receives a
sublicense of all of INFOSEEK's rights under this Agreement through an INFOSEEK
Client Contract which includes significant additional services and/or software
provided by INFOSEEK.
1.11 "INFOSEEK CLIENT" means an entity which has entered into a
contractual relationship, with INFOSEEK or a Full Sublicensee, for the purpose
of securing a sublicense of all or some of the HNC Software.
1.12 "INFOSEEK CLIENT CONTRACT" means a set of contractual terms and
conditions which maintain the substance of those set forth in Exhibit C.
1.13 "INFOSEEK SOFTWARE AND DATA" means the source code, object
code, microcode, data and documentation licensed, owned and/or developed by
INFOSEEK and executing on INFOSEEK computer systems which is used by INFOSEEK
in conjunction with the HNC Software provided that (i) the "INFOSEEK Software"
includes only the portion of the foregoing that is the process, source and
*object code and all documentation [ ] by INFOSEEK and [ ] for [ ] and [ ]
*an Advertising Server System [ ] data processing system and (ii) the "INFOSEEK
Data" includes only the portion of the foregoing that is information provided
*to HNC for the purpose of [ ] to [ ] in [ ].
* 1.14 "HNC SOFTWARE" means the [ ] of HNC's proprietary SelectCast
*System to be [ ] to this Agreement as more fully described in Exhibit A.
*The term "HNC Software" includes the [ ] for the HNC Software, [ ]
*of the HNC Software that INFOSEEK [ ] to License from HNC pursuant to
*[ ] of this Agreement. HNC agrees that HNC Software will [ ] the
*SelectCast System (which will be [ ] of the HNC Software) and will be
*HNC's [ ] Advertising Server System.
1.15 "INTELLECTUAL PROPERTY" means, collectively, patents,
copyrights, trademarks, trade names, trade secrets, and other proprietary and
intellectual property rights.
1.16 "LICENSE" means the license rights granted by HNC to INFOSEEK
in Article 2 of this Agreement with respect to the HNC Software.
1.17 "NEW VERSION" means any version of the HNC Software subsequent
to the version initially licensed to INFOSEEK hereunder, including any
replacements, enhancements, updates, fixes, or other changes made by or for HNC
*to the HNC Software during the Term (as defined below). [ ].
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* 1.18 [ ] means a software based system for
*[ ] content on Internet as directed by [ ]
*that [ ] to on-line advertising.
1.19 "SELECTCAST SYSTEM" means the commercial HNC software products
currently known by the SelectCast name, as more fully described in Exhibit A.
1.20 "SPECIFICATIONS" means the functional and operational
*descriptions and performance standards applicable to the [ ].
1.21 "TERM" has the meaning set forth in Section 16.1.
1.22 "TERRITORY" means the geographic area comprised of the
*countries of the [ ]. Within the one-year
period from initial System Acceptance, HNC and INFOSEEK agree to extend the
Territory through an INFOSEEK-provided attachment to this Agreement which
documents a) a significant INFOSEEK or Full Sublicensee presence in the new
geographic area; and b) the availability, or INFOSEEK's agreement to support
the development (under Section 10.1), of a local language version of the HNC
Software. After the one-year period, the parties agree to meet every six months
to discuss plans for Territory expansion.
1.23 "TERRITORY PATENT" means a patent issued by the applicable
patent authorities of a country in the Territory.
* 1.24 [ ] means [ ] content in a [ ]
location on the Internet.
* 1.25 [ ] means a client which has contracted with a
*[ ] of advertising (such as INFOSEEK) to [ ]
*content on the [ ] Internet site.
1.26. "TRIGGERING EVENT" has the meaning set forth in Section 17.2.
1.27 "USE" means to load, execute, employ, utilize, store, display,
distribute or copy any machine readable portion of software or data or to make
use of any documentation or related materials in connection with the execution
of any machine readable portion of software or data.
1.28 "VERSION" refers, as applicable, to the initial version of the
HNC Software delivered hereunder and to each New Version that INFOSEEK elects
to have installed on the Designated System as provided in Section 4.1 and that
does not become a Rejected New Version.
* 1.29 [ ] refers to a [ ] representation of the
*Infoseek [ ] which is not capable of being [ ] into such [ ].
ARTICLE 2
HNC SOFTWARE LICENSE; EXCLUSIVELY PERIOD; TERM;
DISTRIBUTION BY INFOSEEK;
INTELLECTUAL PROPERTY RIGHTS
2.1 Grant of License. Subject to the terms and conditions of this
Agreement, HNC hereby grants to INFOSEEK, effective during the Term (as defined
*in Section 16.1), [ ] (except as
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*provided in Section [ ]), [ ] (except as permitted by Section [ ])
*license to: (a) Use the HNC Software only in [ ], only in the [ ],
*only on [ ] defined in this Agreement, solely [ ] of INFOSEEK and
*INFOSEEK Clients and solely for the purpose of [ ] of the HNC Software
*in connection with [ ] of INFOSEEK, INFOSEEK Clients or INFOSEEK [ ]
*on the Internet; (b) use the [ ]; and (c) to [ ] Licensed INFOSEEK
*Clients to (i) do [ ] of the same, and (ii) Use HNC Software for [ ]
*both in and outside of the [ ], provided that an INFOSEEK [ ] may not
*create a [ ]. [ ] has [ ] any license to Use, utilize or
*sublicense the [ ] in any manner that would apply any function of the [ ]
*for [ ], and [ ] agrees with [ ] not to Use, utilize
*or apply the [ ] in any manner that would apply any function of the [ ]
*for [ ] in support of the [ ]. As used herein, a [ ] means an
*[ ] who executes either an [ ] Contract or another written agreement with
*[ ] that binds such [ ] to observe terms and conditions which maintain the
*substance of those set forth in [ ]. Except for agents or contractors of
*[ ] and [ ] who Use the [ ] in accordance with this Agreement solely
*for the purpose of [ ] in [ ] its License under this Agreement in the
*performance of their duties for [ ] or [ ], [ ] will not
*permit any other person or entity to [ ]. HNC shall deliver to INFOSEEK
*[ ] of the HNC Software, and INFOSEEK may make a [ ] of [ ] of the HNC
Software to the extent reasonably needed to enable INFOSEEK to exercise its
rights under this Agreement and to follow normal backup and disaster recovery
procedures.
* 2.2 [ ]. Provided that INFOSEEK makes the [ ] required
*under Article [ ], including [ ], then HNC agrees with INFOSEEK
*that, during the term of this Agreement, HNC will not: (a) [ ] to Use or
*distribute the HNC Software for the purpose of processing [ ] in Internet
*applications; (b) license any of the [ ] Parties (as defined below) to
*Use or distribute the HNC Software or any [ ]; (c) conduct [ ] of
*the HNC Software or any [ ] similar to that provided for by the terms of
*this Agreement, with any of the [ ] Parties, or (d) license to a [ ]
*Party for the benefit of a [ ] Party. As used herein, the term [ ]
means (i) companies which maintain sites on the World Wide Web which provide
*general purpose [ ], [ ], [ ], or other collections and which provide [ ]
*to more than [ ] to such companies' Internet domains. The parties hereto
intend that this definition of Prohibited Parties applies to companies such as
*[ ], Inc., [ ] Inc., [ ] Inc., and [ ], Inc. as of the
Effective Date.
2.3 Transfers. INFOSEEK may transfer the HNC Software on any
Designated System to another Designated System without additional charge upon
reasonable advance written notice to HNC; however if any installation work is
required to be performed by HNC to effect such transfer, then INFOSEEK will pay
HNC for such work on a time and materials basis at HNC's then-effective
commercial labor rates.
2.4 Protection of HNC Intellectual Property. HNC represents that the
HNC Software and all associated Intellectual Property Rights arising under laws
of jurisdictions in the Territory are owned by and/or licensed to HNC. INFOSEEK
shall reproduce on each copy of the HNC Software the HNC copyright notice and
other customary proprietary legends that were in the original copy of the HNC
Software or New Version thereof supplied by HNC. INFOSEEK shall not remove or
destroy any such copyright notice or other proprietary legends or markings
placed upon or contained in the HNC
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Software and INFOSEEK shall include such legends or markings whenever
referencing the HNC Software other than casual references. INFOSEEK agrees not
to decompile, reverse engineer, disassemble, or otherwise reduce the HNC
Software to a human perceivable form. Except as may be otherwise provided in
this Agreement, INFOSEEK may not copy, modify, adapt, translate, rent, lease,
loan, resell for profit, or create derivative works based upon, the HNC
Software. No right, title, or interest in or to the HNC Software or any
Intellectual Property in or related thereto is conveyed or assigned by HNC by
virtue of this Agreement, except as may be expressly licensed under the terms
and conditions set forth herein, except as provided for under Article 17. HNC
retains and reserves all rights not expressly granted to INFOSEEK hereunder.
2.5 Trademark Usage. During the Term, INFOSEEK and INFOSEEK Clients
are licensed by HNC to use the HNC trademark "SelectCast" on a non-exclusive
basis and only as is reasonably necessary or useful in connection with
INFOSEEK's provision of services to INFOSEEK Clients related to the HNC Software
in accordance with this Agreement and reasonable HNC trademark usage guidelines.
On all marketing and external documents of INFOSEEK in which any HNC trademark
appears, INFOSEEK shall insert a statement acknowledging HNC's ownership of the
trademark. Nothing contained herein shall give INFOSEEK any right, title or
interest whatsoever in any HNC trade name or trademark.
* 2.6 Protection of INFOSEEK Intellectual Property. INFOSEEK [ ]
*that the INFOSEEK Software and Data provided by INFOSEEK for [ ] and/or
*[ ] by INFOSEEK. HNC shall not remove or destroy any copyright notice
or other proprietary legends or markings placed upon or contained in the
INFOSEEK Software or Data. HNC agrees not to decompile, reverse engineer,
disassemble, or otherwise reduce the INFOSEEK Software to a human perceivable
form. HNC may not copy, modify, adapt, translate, rent, lease, loan, resell for
profit, distribute, network, or create derivative works based upon the INFOSEEK
Software, and no title or interest in the INFOSEEK Software or Data is conveyed
or assigned by INFOSEEK by virtue of this Agreement.
Infoseek shall have all right, title and ownership in all the
intellectual property rights in the data and HNC will not use them in any way
which violates the scope of the license granted below. INFOSEEK grants to HNC a
*non-exclusive, non-transferable, non-sublicensable license to use the [ ]
*as [ ] the HNC Software to INFOSEEK's internal system and to [ ] as
provided elsewhere in this Agreement. Unless expressly permitted by Infoseek,
*HNC may [ ] provided that such [ ] will not be provided or used
*directly or indirectly (i) for the [ ] or other information on the
*Internet or (ii) to any [ ] Party for any purpose.
ARTICLE 3
CUSTOMIZATION, INSTALLATION, TESTING AND ACCEPTANCE
3.1 Customization and Installation. HNC agrees to perform for
INFOSEEK (with INFOSEEK's reasonably required services and cooperation) the
customization and installation of the initial Version of the HNC Software
according to the estimated schedule in Part 2 of Exhibit A ("INSTALLATION
SCHEDULE") at a location designated by INFOSEEK. The Installation Schedule will
consist of specific customization and installation milestones as described in
more detail in Part 2 of Exhibit A ("INSTALLATION MILESTONES") and provides that
modules of the initial Version of the HNC Software described in Exhibit A will
be delivered and installed in three separate phases (each, an "INSTALLATION
PHASE") as more fully described in Exhibit A hereto. To the extent not already
specified in
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Exhibit A, between the time of the implementation kickoff meeting and the
release of the implementation plan for such Installation Phase, the parties
will agree in writing on the identity and description of each deliverable to be
delivered by HNC to INFOSEEK as part of such Installation Phase, the estimated
delivery date of each such deliverable. The parties must act reasonably and in
good faith in coming to any of the mutual decisions or agreements to be made.
With respect to each New Version of the HNC Software that INFOSEEK elects to
have installed on the Designated System as provided in Section 4. 1, the
parties shall agree in writing on a customization and installation schedule for
such New Version (each a "NEW SCHEDULE") and the terms of this Section 3.1
shall apply to the customization and installation of each such New Version,
except that the New Schedule for such New Version shall apply in lieu of the
original Installation Schedule in Exhibit A. HNC agrees that it will commit and
utilize sufficient personnel and resources to timely complete the customization
and installation services called for by this Section (with INFOSEEK's
reasonably required services and cooperation). INFOSEEK agrees that it will
provide HNC with the services and cooperation reasonably required on the part
of INFOSEEK to enable HNC to complete customization and installation of (a) the
initial Version of the HNC Software in accordance with the Installation
Schedule and (b) each New Version in accordance with its New Schedule. INFOSEEK
*shall pay [ ] provided by HNC under this Section and [ ]
*in providing such services as provided in Section 10.1. HNC [ ]
*by HNC of the HNC Software and [ ] therein. If
INFOSEEK determines that HNC Software is more than sixty (60) days behind its
Attachment A schedule for delivery of the Initial Version, then it shall give
HNC written notice of such schedule delays, specifying such delivery failures
in reasonable detail. Upon receipt of such schedule delay notice from INFOSEEK,
HNC will use diligent efforts to meet the agreed-upon schedule for the Initial
Version. Should HNC be unable to deliver the Initial Version of the HNC
Software within sixty (60) days after INFOSEEK gives HNC schedule delay notice,
then INFOSEEK shall be entitled to treat such failure as a material breach and
shall, as its sole and exclusive remedy for such breach, be entitled to
terminate this Agreement.
* 3.2 Progress Meetings. On a [ ] basis during the period of the
initial installation of the initial Version of the HNC Software delivered to
INFOSEEK hereunder, INFOSEEK and HNC will meet via conference call (or in
person as may be mutually agreed by the parties) to discuss the progress of the
installation and achievement of Installation Milestones, a summary of
*accomplishments and difficulties experienced during the [ ], and the
*anticipated results during the [ ].
3.3 Testing. Prior to Delivery to INFOSEEK of each Version of the HNC
Software, HNC agrees to perform all reasonably necessary tests of such Version
of the HNC Software to assure material compliance with the Specifications of
such Version. INFOSEEK shall have the right, at its sole expense, to perform
any additional tests of the Version of the HNC Software on the Designated
*System within [ ] after HNC's Delivery and installation of that Version
*of the HNC Software to INFOSEEK. INFOSEEK shall notify HNC within such [ ]
period of either (a) INFOSEEK's acceptance of such Version of the HNC
Software (the date of such acceptance by INFOSEEK being hereinafter called the
*"ACCEPTANCE DATE"), or (b) if INFOSEEK determines within such [ ] period
that such Version of the HNC Software does not meet its Specifications in all
material respects, then it shall give HNC written notice of such material
performance failures, specifying such performance failures in reasonable
*detail ("FAILURE NOTICE") within such [ ] period. Upon receipt of such
Failure Notice from INFOSEEK, HNC will use diligent efforts to make such
modifications as are reasonably required to bring such Version of the HNC
Software into conformity with its Specifications in all material respects.
Following such corrective action by HNC, the modified HNC Software shall again
be submitted for retesting by INFOSEEK. Should HNC be unable to bring the
initial Version of the HNC Software into material conformity with its
*Specifications within [ ] after INFOSEEK
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gives HNC the Failure Notice with respect to such initial Version, then
INFOSEEK shall be entitled to treat such failure to respond as a material
breach and shall, as its sole and exclusive remedy for such breach, be entitled
to terminate this Agreement. If INFOSEEK (i) employs the HNC Software in a
production system for the benefit of INFOSEEK Clients (except when the HNC
Software is employed on a non-revenue-generating testing or evaluation basis),
or (ii) does not affirmatively accept or reject any Version of the HNC Software
*delivered hereunder within [ ] days of the initial Delivery date of
such version of the HNC Software, or, if INFOSEEK gives Failure Notice, then
*[ ] days of the initial Delivery date of such Version of the HNC
Software, then INFOSEEK will conclusively be deemed to have accepted such
Version of the HNC Software. INFOSEEK agrees to work closely in good faith
cooperation with HNC to correct any performance failures in any Version of the
HNC Software.
3.4 Performance. INFOSEEK and HNC agree that, in the event that INFOSEEK
provides documentary evidence which (a) demonstrates that the performance of
*the HNC Software does not meet competitive performance standards [ ]
and (b) outlines the performance improvements necessary for the HNC Software
*to meet competitive performance standards [ ], the parties shall
cooperate to improve the performance of the HNC Software under the terms of
Section 10.1. Should HNC in good faith be unable to (1) deliver a development
plan within thirty (30) days and (2) a New Version of the HNC Software which
*meets [ ] after INFOSEEK gives HNC the competitive performance
documentary evidence, at INFOSEEK's option the parties may be (i) relieved of
their respective obligations under Sections 2.2, 9.2, and 9.3.9 and, if
INFOSEEK does not continue using the HNC Software, 10.3 and/or (ii) INFOSEEK
shall be relieved of any further obligation of payments under Section 10.1.
ARTICLE 4
NEW VERSIONS
4.1 Election to Install New Versions; Effect on HNC Support
Obligations. HNC will notify INFOSEEK of the future availability of a New
*Version of the HNC Software at least [ ] days prior to HNC's
anticipated release of such New Version, and in such notice to INFOSEEK will,
to the extent then reasonably practicable, provide a summary of
then-anticipated specifications for such New Version. This summary shall be
*updated periodically within the [ ] day period. INFOSEEK must, within [ ]
days after HNC notifies INFOSEEK of the availability of a New Version, notify
HNC whether it wishes to have installed on the Designated System such New
Version. During the Term, HNC shall provide INFOSEEK with Specifications,
Documentation, and installation support for such New Version, unless and until
it becomes a Rejected New Version (as defined below). INFOSEEK's acceptance of
*any New Version will be subject to Acceptance Criteria. If, within [ ]
*days after HNC gives INFOSEEK notice of the availability of a [ ],
INFOSEEK does not notify HNC as to whether or not INFOSEEK desires to install a
New Version that includes the functional equivalent of the replacements,
enhancement, updates, fixes or other changes that HNC incorporates into such
*new [ ], or if INFOSEEK chooses not to install such New Version,
then INFOSEEK shall immediately return the Specifications and Documentation for
such New Version ("REJECTED NEW VERSION") to HNC and shall be entitled to
continue to Use the Version of the HNC Software then used by INFOSEEK hereunder
(the "PRIOR VERSION") as permitted by this Agreement. HNC will continue to
support the Prior Version of the HNC Software (and only that Version) for a
*period of time at least equal to the longer of (a) [ ] months after
the date such Prior Version was first commercially released by HNC, or (b)
*[ ] months after the successor New Version satisfies the
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Acceptance Criteria, and thereafter, notwithstanding anything to the
contrary in this Agreement, HNC shall have no obligation to continue to support
such Prior Version, unless INFOSEEK agrees to, and does pay HNC its
then-current charges for support of the HNC Software in addition to the Monthly
License Fees payable by INFOSEEK to HNC hereunder. Any New Version of the HNC
Software shall operate in a manner that is reasonably transparent to the
INFOSEEK Client, enabling such INFOSEEK Client to continue to Use the HNC
Software as readily as if such New Version had not been installed.
4.2 Return of Prior Version. If a New Version has been delivered to
and accepted by INFOSEEK, then INFOSEEK shall be entitled to retain copies of
the Prior Version provided that it will attempt to implement the New Version
*within [ ] after the Acceptance Date of such New Version. At
INFOSEEK's request and if HNC is supporting beta site testing at such time, HNC
shall allow INFOSEEK to serve as a beta or test site for any New Versions.
ARTICLE 5
TRAINING; CUSTOMER SERVICE; SALES SUPPORT
5.1 Initial On-Site Training. In consideration of INFOSEEK's payment
to HNC of the Client Start-Up Fee (as defined in Section 10.2) due in respect
of each INFOSEEK Client who uses the HNC Software, HNC shall provide each such
*INFOSEEK Client with [ ], on-site training session with respect
to the HNC Software which shall include, but not be limited to, system design,
installation elements, benefits, operation and strategies applicable to the use
of specific HNC Software. HNC will also provide INFOSEEK personnel with
necessary training and instruction in the use and benefits of the HNC Software.
5.2 Group Training. In addition to the on-site INFOSEEK Client
*training described in Section 5. 1, at least once during the [ ] that
the HNC Software is available for Use by INFOSEEK Clients and at least once
*during [ ] period during the Term thereafter, INFOSEEK and HNC will
hold group training sessions to train INFOSEEK Clients on the Use of the HNC
Software. Each party shall pay its own expenses incurred in connection with
such training sessions. Training sessions shall be held on dates and at places
mutually agreeable to INFOSEEK and HNC.
5.3 Account Manager. HNC shall assign an appropriately trained
Account Manager who will serve as the primary contact for INFOSEEK and INFOSEEK
Clients for questions and issues related to the HNC Software as it functions at
INFOSEEK. This HNC Account Manager will visit on-site at INFOSEEK for no less
*than [ ].
5.4 Sales Support. HNC agrees to assist INFOSEEK, upon INFOSEEK's
reasonable request, by providing sales support activities including sales calls,
telephone conferences, benefit analyses, reference site services, site visits,
and presentation development.
ARTICLE 6
TECHNICAL SUPPORT AND MAINTENANCE
6.1 Documentation. HNC shall provide INFOSEEK with a reasonably
adequate number of copies of Documentation for the HNC Software.
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6.2 Maintenance and Support Services to be Provided. As used herein,
the "SERVICE PERIOD" means that period of time commencing on the Effective Date
and ending on the earlier to occur of (i) expiration of the Term, or (ii) the
date of termination of this Agreement in accordance with Sections 16.2 or 16.3.
During the Service Period, HNC agrees to provide INFOSEEK the following
maintenance services for the HNC Software to support INFOSEEK's licensed Use of
the HNC Software hereunder:
6.2.1 HNC will provide INFOSEEK with any known problem solutions
relating to HNC Software as such solutions become known to HNC.
6.2.2 HNC will provide INFOSEEK with any commercially released
modifications, improvements, and refinements to existing Versions and New
Versions of HNC Software then used by INFOSEEK or INFOSEEK Clients that HNC may
develop as soon as they are commercially available.
6.2.3 Subject to the provisions of Section 4.1, HNC will provide the
services described in Section 6.3 for the then most current Version of the HNC
Software consistent with the latest published Documentation for such Version.
6.2.4 HNC will provide INFOSEEK with reasonable access to HNC
technical support personnel to address production software problems 365 days
per year, seven (7) days per week, twenty four (24) hours per day via hotline
telephone support and paging capability.
6.3 Problem Corrections. If during the Service Period, INFOSEEK
notifies HNC of any problem that it is experiencing with a Version of the HNC
Software then supported by HNC under Section 6.2.3, or any material deviation
from the Documentation of such Version, then HNC shall use its good faith
efforts to promptly correct the problem or provide an adequate workaround
solution for the problem in accordance with the terms of this Section 6.3.
Subsections 6.3.1 through 6.3.4 below set forth the required standards for
HNC's performance of its obligations under Section 6.2.3 and this Section 6.3
in response to the respective levels of outages of the HNC Software described
in this Section 6.3 that are caused by the HNC Software:
6.3.1 A "SEVERITY 1 OUTAGE" is critical and either (a) stops
operations of the HNC Software with no reasonable bypass or recovery
procedures, or (b) consists of a system failure and crash of operations caused
by the HNC Software. For a Severity 1 Outage, HNC will use its best efforts to
*restore operations within [ ] hours after HNC
is notified by INFOSEEK of such Severity 1 Outage. Recovery status will be
*reported to INFOSEEK [ ]. INFOSEEK will participate
round-the-clock in HNC's recovery effort.
6.3.2 A "SEVERITY 2 OUTAGE" does not stop operations of the HNC
Software but severely impedes effective operations. For a Severity 2 Outage,
*HNC will use its best efforts to restore operations within [ ]
after HNC is notified by INFOSEEK of such Severity 2 Outage. Recovery status
*will be reported to INFOSEEK [ ].
6.3.3 A "SEVERITY 3 OUTAGE" occurs when HNC Software operates
effectively but does not provide all defined functions. For a Severity 3
Outage, HNC will use its best efforts to restore the impaired functionality
*within [ ] after HNC is notified by INFOSEEK of
such Severity 3 Outage. Recovery status will be reported to INFOSEEK
*on a [ ].
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6.3.4 A "SEVERITY 4 OUTAGE" occurs when HNC Software provides all
functions defined in the Documentation, but performance of a function is
reasonably deemed by INFOSEEK to be unsatisfactory. For a Severity 4 Outage,
resolution will be provided within a mutually agreed upon time frame, but in
any event such time frame will be within a reasonable time. Recovery status
*will be reported to INFOSEEK [ ].
In the event that any outage as defined in any of the above subsections
of this Section 6.3 is found not to have been caused by the HNC Software, then
INFOSEEK shall reimburse HNC for all costs and expenses (including but not
limited to travel, accommodation, meal and overtime expenses) that HNC
reasonably incurred in responding to such outage situation.
ARTICLE 7
* [ ]; CONSULTING; ANALYSIS
* 7.1 Contracts for [ ]. INFOSEEK or INFOSEEK Clients choosing
*to have [ ] based on INFOSEEK or INFOSEEK
*Client [
* ].
7.2 Installation and Training. HNC will assist with installation of
custom models for INFOSEEK Clients or INFOSEEK at INFOSEEK and will provide
support and training on the use of those models to INFOSEEK or the INFOSEEK
Client. Specific support and maintenance requirements and the fees payable to
*HNC for such support and maintenance will be outlined in a [ ] agreement
between HNC and INFOSEEK or the INFOSEEK Client.
7.3 Consulting and Analysis. HNC will provide ongoing consulting and
*analysis to INFOSEEK Clients to optimize performance of the [ ] in the
client environment. This consulting will include telephone support and on-site
meetings.
* 7.4 Rates and Ownership. All foregoing will be provided on [ ]
*rates and terms that are [ ] rates and terms for similar services and
*INFOSEEK or the INFOSEEK Client will have [
* ] therein. HNC will [
* ] only as expressly authorized herein.
ARTICLE 8
ADDITIONAL PRODUCTS AND SERVICES
* 8.1 HNC Sales of [ ]. HNC may market [ ] directly
*[ ], regardless of whether such [ ] are INFOSEEK [ ],
*subject to the limitations of Section [ ], provided that HNC [ ] to INFOSEEK
*[ ] as indicated in Article [ ].
8.2 Additional Services by HNC. INFOSEEK acknowledges that, upon
request by INFOSEEK or an INFOSEEK Client, HNC will agree, subject to
availability, to provide additional services to either or both, including but
*not limited to, [ ] in consideration for the payment of fees to HNC
such fees to be calculated on a reasonable time and, materials basis. If
applicable, INFOSEEK Clients will contract directly with HNC for these
services. Except as provided in Section 10.1, all support, maintenance and
consulting services performed by HNC for InfoSeek under this Agreement shall be
*provided at a [ ] HNC's
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*[ ] time and materials basis or [ ] rates, whichever applicable.
* 8.3 [ ]. INFOSEEK and HNC agree to develop [ ] in order
*to provide [ ] to HNC for the sole purpose of enabling HNC to improve and
enhance the HNC Software. INFOSEEK will cooperate with HNC in developing and
*operating [ ]. All [ ] provided to HNC for use in [ ] will be
considered Confidential Information of INFOSEEK Clients and, subject only to
the restrictions contained in Article 11, and subject to the agreement of
Infoseek clients, may be used by HNC to improve and enhance the HNC Software
*and HNC will [ ] and to any such improved and enhanced HNC Software;
*provided however [ ] or to any HNC Software or any improvement or
*enhancement thereof that results from use of the [ ] provided to HNC
*through any [ ].
ARTICLE 9
INFOSEEK RESPONSIBILITIES
9.1 INFOSEEK Client Agreements. Agreements for the use of the HNC
Software on Designated Systems may be made between INFOSEEK and INFOSEEK
*Clients, provided that: (a) the terms of such agreements [ ] of this
*Agreement and [ ] hereunder; and (b) such agreements [ ] (by
*addendum or otherwise) [ ] attached as Exhibit C hereto that are
*binding on each INFOSEEK Client. INFOSEEK Clients may also [ ], in all
cases subject to the [ ] restrictions in Article 2 of this Agreement.
9.2 Restrictions on INFOSEEK. INFOSEEK agrees that, so long as
during the term of this Agreement as HNC is obligated under Section 2.2,
*INFOSEEK [
* ], similar to that
*provided by the terms of this Agreement, of any [ ] or
*other product or service similar to the HNC Software or the [ ].
9.3 INFOSEEK Responsibilities. Subject to the license provision in
2.6, INFOSEEK will use diligent efforts to provide the following (which HNC
shall have no responsibility to provide):
* 9.3.1 INFOSEEK [ ] for use with the HNC
Software, to HNC; as outlined in Exhibit A.
* 9.3.2 [
* ] to HNC;
* 9.3.3 [ ] specifications for the [ ],
*including, but not limited to, [ ]
specifications;
* 9.3.4 Computer [ ]
of INFOSEEK Clients;
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9.3.5 On-line telecommunications link (with minimum speed
as mutually agreed) into the Designated System for the purpose of
troubleshooting and maintenance of the HNC Software; and
* 9.3.6 [ ] appropriate under the
circumstances for INFOSEEK Clients on the Use and operation of the HNC
Software.
* 9.3.7 Appropriate [ ] to assist HNC in the
*[ ] of HNC Software.
* 9.3.9 [ ] of the HNC Software [ ]
*INFOSEEK [ ] INFOSEEK Clients (subject to the provisions of Section 5.4).
ARTICLE 10
FEES; PAYMENT TERMS
10.1 Customization and Installation Fees. INFOSEEK will pay and
reimburse HNC for its fees and expenses for the customization and installation
services regarding the HNC Software that are be provided by HNC pursuant to
*Section 3.1 (the "INSTALLATION/CUSTOMIZATION CHARGES") [ ] (approved
*in advance by INFOSEEK) basis at [ ] of HNC's [ ] labor rates
then in effect. HNC will invoice INFOSEEK monthly for its
Installation/Customization Charges, which will be payable by INFOSEEK to HNC in
*full within [ ] days of HNC's invoice.
* 10.2 [ ] Start-Up Fee. For [ ] INFOSEEK
*[ ] for INFOSEEK and who purchases or subscribes to any service
provided by INFOSEEK involving use of the HNC Software and for which INFOSEEK
*requests support, [ ]. Both parties
*recognize that it is in their best interests [ ] and will
*cooperate with each other to find [ ]. Therefore, the
*[ ] including without limitation those resulting from [ ].
* 10.3 [ ] License Fees. For each calendar [ ] (or
*partial calendar [ ]) during the Term, [
* ] license fee. This fee will cover [ ].
*The [ ] license fee ("[ ] LICENSE FEE") shall be calculated as follows:
* (a) A [ ] fee equal to [ ]
*per [ ] for the [ ] following the initial Acceptance Date,
*[ ] per [ ] for the [ ]
*following the initial Acceptance Date, and an amount equal to the [ ]
*plus the [ ]
*since the initial Acceptance Date for all remaining [ ]; plus
* (b) A [ ] fee based on revenue generated
*through the HNC Software equal to [ ] of the [
* ]
*accrued by INFOSEEK for [ ] provided which employ the HNC
*Software. INFOSEEK shall [ ] the
HNC Software to all Placement Accounts.
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* (c) A [ ] fee based on [ ] through the HNC Software
*equal to the [ ] or a [ ] received by HNC [ ]
*for the HNC Software or [ ] the Full Sublicensee executes the INFOSEEK
Client Agreement, such percentage to be provided by HNC to INFOSEEK upon
*request by INFOSEEK) of any Full Sublicensee's [ ]
*Full Licensee for [ ] provided which employ the HNC Software.
* 10.4 Royalty Payments to [ ]. During the Term of this
*Agreement, [ ] shall pay to [ ] percent [ ] of
*[ ] [ ] (net of any [ ] pays to a [ ])
*derived from [ ] built from [ ] or other [ ]
*provided by INFOSEEK. During the initial Term of this Agreement, [ ]
*shall pay to [ ] [ ] percent [ ] of HNC [ ]
*(net of any [ ] pays to a third-party) derived from [ ]
*(other than fees paid by [ ]).
* 10.5 Payment Reports. Concurrent with each [ ] payment of
*[ ] License Fees to HNC as provided in Sections 10.2 and 10.3. [ ], in
*a format mutually agreed to by HNC and INFOSEEK, setting forth [ ]
*License Fee [ ] for such calendar [ ] under this Agreement
*and, if applicable, the amount of any [ ] in respect of such calendar [ ].
*[ ] records in accordance with Section 18.13 to validate the appropriate
*computation of any [ ] License Fee payment and/or [ ]
*Start-Up Fee payment [ ] hereunder.
* Concurrent with each payment of Royalty Fees [ ] as provided
*in Section 10.4, [ ] will send [ ] a written report, in a format
*mutually agreed to by HNC and INFOSEEK, setting forth [ ] of the amount
*of the Royalty Fees [ ] for such calendar [ ] under this
*Agreement. [ ] records in accordance with Section 18.13 to validate
*the appropriate computation of any [ ] Royalty Fee payment.
* 10.6 Payment Schedule. [ ] shall compute amounts payable
*hereunder for each calendar [ ] (or partial calendar [ ])
*during the Term, and shall remit payment in full of such [ ] License
*Fees and [ ] Start-Up Fees to [ ] by no later than the [ ]
*of the calendar [ ] immediately following the calendar [ ]
*with respect to which such fees were computed. [ ] shall remit each
payment via electronic funds transfer into an account designated by
*the [ ].
* 10.7 Fees [ ]. The amount of payments payable to
*[ ] by the [ ] hereunder are [ ] or any other
*[ ] of any kind imposed by any governmental authority (other than a
*[ ] imposed upon the [ ] of the [ ]), all of which
*[ ].
10.8. Cooperation. HNC and INFOSEEK agree to use their mutual good
*faith efforts to vigorously [ ] (as
*[ ] into an [ ] product offering) through INFOSEEK to
*[ ].
* 10.9 [ ]. In order to
*maintain the [ ] provided under Section 2.2, the
*[ ] amounts paid [ ] under Section
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10.3(b) must be greater than or equal to the following amounts; if at the end
*of [ ] this is not true, within [ ]:
* (a) For a period of [ ] after initial System
*Acceptance, [ ];
* (b) For the [ ] period beginning [ ] after
*initial System Acceptance and [ ] after initial System Acceptance, [ ];
* (c) For the [ ] period beginning [ ] after initial
*System Acceptance and [ ] after initial System Acceptance, [ ];
* (d) For the [ ], beginning
*[ ] after initial System Acceptance, [ ].
* If the payments made [ ], pursuant to Section 10.3(b) are
*greater than the [ ] set forth above, then the [ ].
* 10.10 [ ] Customer. If HNC provides [ ] with
*[ ] or [ ] with respect to the subject matter of this
Agreement, INFOSEEK will be entitled to the benefit of any such provision.
ARTICLE 11
CONFIDENTIALITY
11.1 Confidential Information. HNC and INFOSEEK each agree to hold in
strictest confidence any information and material that is related to the other
party's business or that is designated by the other party as its proprietary
and confidential information, ("CONFIDENTIAL INFORMATION") unless such
information or material is disclosed other than due to a breach of the
confidentiality obligations of the parties hereunder. Confidential Information
includes information related to research, development, pricing, trade secrets
*[ ],
customer lists, salaries, business affairs, or any other similar information
regarding the other party to this Agreement. Notwithstanding the foregoing, as
used in this Agreement, "Confidential Information" of a party shall not include
any information that (a) the other party rightfully possessed before it
received such information, as evidenced by written documentation; (b)
subsequently becomes publicly available through no fault of the other party;
(c) is furnished rightfully to the other party by a third party without
restriction on use or disclosure; (d) is required to be disclosed by law,
provided that the disclosing party will exercise reasonable efforts to notify
the other party prior to disclosure; or (e) information that is independently
developed by a party without use of or reference to any of the other party's
Confidential Information.
11.2 Restrictions on Use and Disclosure. Each party agrees not
to make any use of Confidential Information of the other party other than for
the specific purposes of using such Confidential Information as contemplated by
this Agreement. Each party's obligations of confidentiality under this Article
11 shall survive the termination of this Agreement. Without limiting the
generality of the foregoing, each party agrees:
11.2.1 Not to disclose, or permit access to, any Confidential
Information of the other party to any other person or entity, except that such
disclosure or access shall be permitted to any
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employee, agent, representative or independent contractor of such party who
requires access to such Confidential Information in the course of his or her
employment or services to the extent reasonably required to carry out the
purposes of this Agreement;
11.2.2 To ensure that its employees, agents, representatives,
and independent contractors who are given access to any Confidential Information
of the other party are advised of the confidential nature of such information
and agree (and in the case of independent contractors, such agreement is in
writing) not to take any action prohibited under this Article 11;
11.2.3 Not to alter or remove any identification, copyright
or proprietary rights notice which indicates the ownership of any part of the
Confidential Information of the other party; and
11.2.4 To notify the other party promptly and in writing of
the circumstances surrounding any possession, use or knowledge of any
Confidential Information of the other party by any person or entity other than
those authorized by this Agreement.
* 11.3 [ ] Data. [
* ] (subject to the exceptions to the definition of
Confidential Information in Section 11.1 hereof) and shall use such data only in
performing services in accordance with this Agreement or as may be permitted by
*[ ]. Such data shall only be made available to those [ ] who need such
information in order to perform their responsibilities hereunder.
* 11.4 [ ] Agreements. In all instances where [
* ] which
includes the terms set forth in Exhibit C.
11.5 Confidentiality of Agreement. The terms and conditions of this
Agreement are and shall remain and be kept completely confidential by the
parties and their employees and agents and shall not be disclosed to any third
party without the prior written consent of the other party; provided, however,
that either party may disclose the terms and conditions of this Agreement to (i)
potential acquirers or financial investors or (ii) to their legal counsel and
accountants, and to governmental agencies or authorities (including but not
limited to the Securities and Exchange Commission) or otherwise if such party
believes such disclosure is legally required. If a party needs to disclose the
terms of this Agreement for financial investment purposes or is legally required
to disclose the terms of this Agreement to any governmental agency or authority
it will promptly so advise the other party and attempt to limit disclosure and
seek confidential treatment of such disclosed information.
11.6 Remedies; Survival. HNC and INFOSEEK agree that in the event
that either party breaches any of the provisions contained in this Article 11,
then, notwithstanding the provisions of Article 19, the nonbreaching party shall
be authorized and entitled to seek from any court of competent jurisdiction (i)
a temporary restraining order, (ii) preliminary and permanent injunctive relief,
and (iii) an equitable accounting for all profits or benefits arising out of
such breach. Such rights or remedies shall be cumulative and in addition to any
other rights or remedies to which the non-breaching party may be entitled. The
provisions of this Article 11 shall continue in effect following termination of
this Agreement and expiration or termination of the Term.
ARTICLE 12
REPRESENTATIONS OF THE PARTIES
12.1 HNC. HNC represents and warrants to INFOSEEK that: (i) it is
a corporation duly organized,
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validly existing and in good standing under the laws of the State of Delaware;
(ii) it has the corporate power and authority to enter into this Agreement and
perform all of its obligations hereunder, (iii) it has the right to grant all
licenses granted by HNC to INFOSEEK herein; (iv) HNC is the owner of and/or has
all necessary rights in all the HNC Software necessary to grant INFOSEEK the
rights and licenses relating to the HNC Software granted by HNC to INFOSEEK
under this Agreement; and (v) during the Term neither the HNC Software nor any
portion thereof, nor the Documentation, will (a) infringe any copyright,
Territory Patent, trade secret, or other non-patent Intellectual Property
rights of any third party that arise under the laws of any country within the
Territory or (b) misappropriate any trade secret of a third party that is
protected under the laws of any country within the Territory; (vi) to the best
of HNC's knowledge, no party (other than HNC) has the legal right to interrupt
or otherwise disturb INFOSEEK's licensed Use and possession of the HNC Software
in accordance with this Agreement; provided INFOSEEK is in compliance with this
Agreement in all material respects and all amounts due HNC under this Agreement
have been timely paid in full; (vii) any maintenance or other services to be
provided by HNC hereunder will be performed by HNC personnel in accordance with
reasonable industry standards; and (viii) HNC is at the time of its execution
of this Agreement financially solvent. There is no action, suit, claim,
arbitration, or other proceeding pending or threatened which questions this
Agreement or HNC's ownership of the HNC Software or any intellectual property
rights therein or otherwise relating to the HNC Software. HNC makes the same
representations with respect to the SelectCast System.
12.2 INFOSEEK. INFOSEEK represents and warrants to HNC that: (i) it
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware; (ii) it has the corporate power and
authority to enter into this Agreement and perform all of its obligations
hereunder; (iii) any services to be provided by INFOSEEK shall be performed in
accordance with reasonable industry standards; (iv) to the best of INFOSEEK's
*knowledge, no party (other than INFOSEEK, its successors and assigns) [ ]
*with this Agreement; (v) that [ ] and has the [ ]; (vi) INFOSEEK
*will not authorize any [ ] in Exhibit C; and (vii) INFOSEEK is
at the time of its execution of this Agreement financially solvent.
ARTICLE 13
LIMITED WARRANTY; CONFORMITY TO SPECIFICATIONS; INSURANCE
13.1 Limited Warranty. HNC hereby warrants to INFOSEEK that, during
the Service Period, the HNC Software, as delivered by HNC and accepted by
INFOSEEK, will conform in all material respects to its Documentation and
Specifications. This warranty remains valid except to the extent affected by
INFOSEEK making material changes to the HNC Software, other than those changes
made at the direction of HNC or with HNC's approval.
13.2 Warranty Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW,
EXCEPT FOR THE REPRESENTATIONS IN SECTION 12.1 HEREOF AND THE LIMITED WARRANTY
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PROVIDED IN SECTION 13.1 HEREOF, HNC HEREBY DISCLAIMS ALL WARRANTIES,
REPRESENTATIONS, LIABILITIES AND OBLIGATIONS WITH RESPECT TO THE HNC SOFTWARE,
WHETHER EXPRESS OR IMPLIED, WHETHER ARISING FROM CONTRACT OR TORT, IMPOSED BY
STATUTE OR OTHERWISE, INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTIES AS
TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN ARTICLES 12 AND 13 OF THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES AND HNC HEREBY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO HNC-S SOFTWARE AND SERVICES.
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ARTICLE 14
INDEMNIFICATION
14.1 Loss Defined. As used in this Article 14, the term "LOSS"
means, collectively, loss, liability, damages, judgments, awards of settlement,
cost or expense (including court costs and reasonable attorneys' fees) paid to
a third party.
14.2 HNC Infringement. Subject to the terms and conditions of this
Article 14, HNC shall indemnify, hold harmless and defend INFOSEEK, its
affiliates and their respective employees, officers and directors
(collectively, "INFOSEEK INDEMNITEES") from and against any and all Loss with
respect to any suit or proceeding brought against INFOSEEK arising out of or
based on any claim, demand, or action alleging that the HNC Software or any
portion thereof as furnished under this Agreement and used within the scope of
the License granted to INFOSEEK hereunder misappropriates a trade secret
protected under the laws of any country within the Territory (or political
subdivision thereof) or infringes any copyright, Territory Patent, or other
non-patent Intellectual Property rights of any third party that are protectable
under the laws of any country within the Territory (or political subdivision
thereof); provided however, that in order to receive such indemnification
INFOSEEK must comply with all INFOSEEK's obligations under Section 14.6.
Notwithstanding the foregoing, HNC shall not be required to indemnify, hold
harmless or defend INFOSEEK: (a) to the extent such infringement is caused by
the combination, operation or use of the HNC Software with: (i) any INFOSEEK
Software, except as such combination, operation or use is contemplated by this
Agreement; or (ii) any other equipment, software, data or programming not
supplied by HNC; (b) to the extent such infringement arises from any alteration
or modification of the HNC Software not authorized by HNC; or (c) for any
settlement or compromise of a suit, proceeding, claim, demand or action unless
HNC has consented in advance to such settlement or compromise in writing (with
HNC's consent thereto not to be unreasonably withheld). In the event that the
HNC Software or any portion thereof, as furnished by HNC under this Agreement
and used within the scope of the License granted to INFOSEEK hereunder, is held
in such a suit or proceeding to misappropriate a trade secret protected under
the laws of any country within the Territory (or any political subdivision
thereof) or to infringe a copyright, Territory Patent, or any other non-patent
Intellectual Property rights of a third party that arise, and are enforceable,
under the laws of a country within the Territory (or any political subdivision
thereof), and as a result of such misappropriation or infringement, the use of
the HNC Software or portion thereof by INFOSEEK or Licensed INFOSEEK Clients as
licensed by HNC hereunder is enjoined, then HNC shall use its best efforts to,
at HNC's sole option and expense: (1) procure for INFOSEEK the right to
continue using the HNC Software or portion thereof; or (2) replace the same
with noninfringing software of equivalent functions and efficiency as described
in the Specifications for the then-current Version of the HNC Software that is
then being used by INFOSEEK on the Designated System.
14.3 INFOSEEK Infringement. Subject to the terms and conditions of
this Article 14, INFOSEEK shall indemnify, hold harmless and defend HNC, its
affiliates and their respective employees, officers and directors
(collectively, "HNC INDEMNITEES") from and against any and all Loss with
respect to any suit or proceeding brought against HNC arising out of or based
*on any claim, demand, or action alleging that the [ ] as furnished
under this Agreement and used within the scope of this Agreement
misappropriates a trade secret protected under the laws of any country within
the Territory (or political subdivision thereof) or infringes any copyright,
Territory Patent, or other non-patent Intellectual Property rights of any third
party that are protectable under the laws of any country within the Territory
(or political subdivision thereof); provided, however, that in order to receive
such indemnification HNC must comply with all HNC's obligations under Section
14.6. Notwithstanding the foregoing, INFOSEEK shall not be required to
indemnify, hold
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harmless or defend HNC: (a) to the extent such infringement is caused by the
*combination, operation or use of the [ ] with: (i)
any HNC Software, except as such combination, operation or use is contemplated
by this Agreement; or (ii) any other equipment, software, data or programming
not supplied by INFOSEEK; (b) to the extent such infringement arises from any
*alteration or modification of the [ ] not authorized by INFOSEEK; or
(c) for any settlement or compromise of a suit, proceeding, claim, demand or
action unless INFOSEEK has consented in advance to such settlement or
compromise in writing (with INFOSEEK's consent thereto not to be unreasonably
*withheld). In the event that the [ ], as furnished by INFOSEEK
under this Agreement and used within the scope of this Agreement, is held in
such a suit or proceeding to misappropriate a trade secret protected under the
laws of any country within the Territory (or any political subdivision thereof)
or to infringe a copyright, Territory Patent, or any other non-patent
Intellectual Property rights of a third party that arise, and are enforceable,
under the laws of a country within the Territory (or any political subdivision
thereof), and as a result of such misappropriation or infringement, the use of
the INFOSEEK Software, Data or portion thereof by HNC hereunder is enjoined,
then INFOSEEK shall use its best efforts to, at INFOSEEK's sole option and
expense: (1) procure for HNC the right to continue using the INFOSEEK Software,
Data or portion thereof, or (2) replace the same with noninfringing software or
data.
14.4 HNC Gross Negligence or Willful Misconduct. Subject to the terms
and conditions of this Article 14 and the limitations on HNC's liability under
Article 15, HNC shall indemnify and hold harmless INFOSEEK Indemnitees and
Licensed INFOSEEK Clients against any and all direct pecuniary Loss actually
suffered or incurred by any INFOSEEK Indemnitee or any Licensed INFOSEEK Client
as a result of claims or demands for recovery for personal injury or damage to
tangible property brought by a third party or parties against any INFOSEEK
Indemnitee or any Licensed INFOSEEK Client that arise out of HNC's gross
negligence or willful misconduct in performing any of the services to be
performed by HNC pursuant to this Agreement; provided, however, that HNC shall
not be obligated to so indemnify INFOSEEK or any Licensed INFOSEEK Client for
any such claim or demand unless INFOSEEK has complied with all INFOSEEK's
obligations under Section 14.6 with respect to such claim or demand.
14.5 INFOSEEK Gross Negligence or Willful Misconduct. Subject to the
terms and conditions of this Article 14 and the limitations on INFOSEEK's
liability under Article 15, INFOSEEK shall indemnify and hold harmless HNC and
its employees, officers and directors (collectively, "HNC INDEMNITEES") against
any and all direct pecuniary Loss actually suffered or incurred by any HNC
Indemnitee as a result of claims or demands for recovery for personal injury or
damage to tangible property brought by a third party or parties against HNC
Indemnitees that arise out of INFOSEEK's gross negligence or willful misconduct
in performing any of the services to be performed by INFOSEEK pursuant to this
Agreement; provided, however, that INFOSEEK shall not be obligated to so
indemnify HNC or any HNC Client for any such claim or demand unless HNC has
complied with all HNC's obligations under Section 14.6 with respect to such
claim or demand.
14.6 Conditions to Indemnification. In the event that a claim,
demand, suit or proceeding for which indemnification or defense may be
available under the foregoing provisions of this Article 14 (a "CLAIM") is
brought, made or filed, then as a condition to receiving indemnification for,
or defense of, such Claim, the party to this Agreement against whom (or against
whose eligible client or customer) the Claim is brought, made or filed (the
"INDEMNIFIED PARTY") shall: (i) promptly notify the other party (the
"INDEMNIFYING PARTY") in writing of such Claim; provided, however, that any
delay in providing notice of a Claim shall not relieve the indemnifying party
from its obligation hereunder to provide indemnity for such Claim unless such
delay is materially prejudicial to the indemnifying party's ability to defend
such Claim; (ii) allow the indemnifying party to control and direct the defense
and settlement of such
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Claim; and (iii) provide the indemnifying party with information and assistance
as reasonably required by the indemnifying party for the defense and settlement
of the Claim. The indemnified party may at all times participate in the defense
or settlement of the Claim at its own expense, subject to the indemnifying
party's right to direct and control such defense and settlement; provided,
however, that, notwithstanding the foregoing, if the indemnifying party does not
assume the defense of any such Claim, then, without forfeiting its rights to
indemnification hereunder, the indemnified party may assume, direct and control
the defense of the Claim. Subject to the immediately preceding sentence, the
indemnifying party shall have the right, at its cost and expense, to direct and
control the defense of any Claim for which it must provide indemnification or
defense hereunder with counsel selected by the indemnifying party unless the
indemnified party reasonably objects to use of such counsel on the basis that:
(i) such counsel has a conflict of interest in representing both of the parties
or (ii) the indemnified party determines in good faith that such counsel does
not have the required expertise to adequately represent the indemnified party in
connection with such type of Claim. In such case the indemnifying party will
promptly select new counsel to defend the Claim. Without giving up the right to
indemnity, the indemnified party shall not compromise or settle any such Claim
without the prior written consent of the indemnifying party, which consent shall
not be unreasonably withheld. Any claim for indemnification under this Agreement
must be made prior to two (2) years after the party claiming indemnification
becomes aware of the Claim with respect to which indemnification is claimed.
14.7 Exclusive Remedy. The rights of a party hereto to
indemnification under the provisions of this Article 14, as limited by the
provisions of Article 15, are intended by the parties to be the sole and
exclusive rights and remedies of the party entitled to indemnification with
respect to the matters with respect to which such party has is entitled to
indemnification under this Article 14.
ARTICLE 15
LIMITATION OF LIABILITY
15.1 HNC. Except for HNC's obligations to indemnify under Section
14.2 and Section 14.4, notwithstanding any contrary provision of this Agreement,
in no event shall the total lifetime cumulative liability of HNC to INFOSEEK,
any INFOSEEK Client or any INFOSEEK Indemnitee for any claims or Loss arising in
any manner whatsoever and related to the HNC Software, this Agreement or any
Placements or services contemplated by this Agreement (including, but not
limited to, any liability of HNC to indemnify and/or defend INFOSEEK Indemnitees
under the provisions of Section 14.4) exceed a total amount equal to the
aggregate Monthly License Fees actually paid to HNC by INFOSEEK during the first
twelve (12) months following the Effective Date. Notwithstanding any contrary
provision of this Agreement, in no event shall HNC be liable to INFOSEEK or any
INFOSEEK Client for any indirect, special, consequential, punitive or exemplary
damages of any kind whatsoever, regardless of whether such damages were
foreseeable or whether HNC had been advised of the possibility of such damages.
In addition, HNC shall not be liable to INFOSEEK, any INFOSEEK Client or any
INFOSEEK Indemnitee for any claims or Loss to the extent such claims or Loss
relate to or arise from a defect or other inherent failure of INFOSEEK Software
used in connection with the HNC Software or are due to other causes that are
beyond the reasonable control of HNC.
15.2 INFOSEEK. Except for INFOSEEK's obligations to indemnify under
Section 14.3 and Section 14.5, notwithstanding any contrary provision of this
Agreement, in no event shall the total lifetime cumulative liability of INFOSEEK
to HNC or any HNC Client for any claims or Loss arising in any manner whatsoever
and related to the HNC Software, this Agreement or any Placements or services
contemplated by this Agreement (including, but not limited to, any liability of
INFOSEEK to indemnify
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and/or defend HNC under the provisions of Section 14.5) exceed a total amount
equal to the aggregate Quarterly License Fees actually paid to HNC by INFOSEEK
during the first twelve (12) months following the Effective Date.
Notwithstanding any contrary provision of this Agreement, in no event shall
INFOSEEK be liable to HNC or any HNC Client for any indirect, special,
consequential, punitive or exemplary damages of any kind whatsoever, regardless
of whether such damages were foreseeable or whether INFOSEEK had been advised
of the possibility of such damages. In addition, INFOSEEK shall not be liable
to HNC or any HNC Indemnitee for any claims or Loss to the extent such claims
or Loss relate to a defect or other inherent failure of HNC Software or are due
to other causes that are beyond the reasonable control of INFOSEEK.
ARTICLE 16
TERM; MATERIAL BREACH; TERMINATION
16.1 Term; Potential for Extension. The "TERM" of this Agreement
means that period of time commencing on the Effective Date of this Agreement
and ending on the earlier to occur of: (a) the Expiration Date (as defined
below); or (b) if this Agreement is terminated prior to the Expiration Date in
accordance with the provisions of this Agreement. As used herein, the term
*"EXPIRATION DATE" shall initially mean that date which is the [ ]
*Acceptance Date (the [ ]); provided, however, if this Agreement has not
*been terminated prior to the [ ], then, commencing on the [ ],
*the Expiration Date shall be extended for a period of [ ] Acceptance
Date , this Agreement has been terminated in accordance with the terms of this
Agreement.
16.2 Termination for Material Breach. If a party to this Agreement
commits a material breach of any of its material obligations or covenants under
this Agreement (the "BREACHING PARTY"), then the other party to this Agreement
(the "TERMINATING PARTY") may terminate this Agreement if such material breach
*remains uncured for [ ] days after the date the Terminating Party has
given written notice of such material breach to the Breaching Party; provided,
*however, that in the event of [ ], and if the
material breach remains uncured after such applicable cure period, then
(provided that the Terminating Party is not itself then in material breach of
this Agreement) the Terminating Party may terminate this Agreement immediately
by giving written notice of its termination of this Agreement to the Breaching
party.
16.3 Other Grounds for Termination. To the extent permitted by
applicable law (including 11 U.S.C. Section 365) a party (the "NON-DEFAULTING
PARTY") may terminate this Agreement immediately by written notice to the other
in the event the other party makes an assignment for the benefit of its
creditors, admits in writing an inability to pay debts as they mature, a
trustee or receiver is appointed respecting all or a substantial part of the
other party's assets, or a proceeding is instituted by or against the other
party under any provision of the Federal Bankruptcy Act and is acquiesced in or
is not dismissed within sixty (60) days, or results in an adjudication of
bankruptcy. To the extent applicable law prevents the non-defaulting party from
terminating this Agreement, if it should wish to do so as described above, then
the parties shall have only those rights and remedies permitted by applicable
law, including the United States Bankruptcy Act including but not limited to 11
U.S.C. Section 365. However the non-defaulting party has the unrestricted right
at its option not to terminate this Agreement and, to continue to exercise its
rights under this Agreement.
6.4 Effect of Termination. Upon termination of this Agreement, (a)
*all rights of INFOSEEK and [ ] to Use the HNC Software
hereunder will cease; (b) INFOSEEK shall cease
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all use of the HNC Software and Documentation and shall take reasonably
*diligent steps to ensure that [ ] all use of the HNC
Software and Documentation; (c) INFOSEEK shall, as soon as practicable, return
all copies of the HNC Software in its possession or control to HNC, together
with any back-up copies; (d) INFOSEEK shall use its reasonably diligent efforts
*to obtain any copies of the HNC Software in the [ ] and to
*promptly return all such copies to HNC, unless such [ ] has a [ ]
*with HNC [ ] the HNC Software; (e) INFOSEEK shall purge all copies of the HNC
*Software from the [ ]; (f) upon HNC's request, INFOSEEK shall
certify to HNC in a writing signed by an officer of INFOSEEK that all copies of
the HNC Software have been returned to HNC or destroyed and that no copy of
such HNC Software remains in the possession or control of INFOSEEK or any
*INFOSEEK affiliate; (g) all [ ] to [ ] the [ ] and
*[ ] hereunder will cease; (h) [ ] shall cease all use of the
*[ ] and [ ]; (i) [ ] shall, as soon as practicable,
*return all copies of the [ ] and [ ] in its possession
*or control to [ ], together with any back-up copies; and (j) upon
*[ ] request, [ ] shall certify to [ ] in a writing signed by an
*officer of [ ] that all copies of the [ ] and [ ] have
*been returned to [ ] or destroyed and that no copy of such [ ] or
*[ ] remains in the possession or control of [ ]. The foregoing does not
*apply to [ ] who continue to comply with the license and royalty
provisions of this Agreement.
16.5 Survival. The following provisions will survive termination of
this Agreement: Sections 2.4, 2.6 (except the license granted therein), 7.4,
10.4, 10.5 (second paragraph only), 10.6, 10.7, and Articles 11, 12, 13, 14, 15,
18, and 19.
ARTICLE 17
TECHNOLOGY SOURCE CODE ESCROW
17.1 Development License. HNC hereby grants INFOSEEK a non-exclusive
license to maintain, support and enhance HNC Software. INFOSEEK agrees that
until a Triggering Event it will exercise such license only by having Licensor
perform its obligations under this Agreement. INFOSEEK will own any
modifications it makes under this license, as well as the Intellectual Property
rights therein.
17.2 Escrow Agreement. HNC, Data Securities International, Inc.
("DSI") (or another escrow agent mutually agreeable to INFOSEEK and HNC) and
INFOSEEK shall enter into a Technology Escrow Agreement in substantially the
form attached hereto as Exhibit D (the "ESCROW AGREEMENT") which sets forth the
conditions under which Source Code (as defined below) for the applicable HNC
Software will be released to INFOSEEK in the event of a Triggering Event as
defined below. If the Source Code is released to INFOSEEK in accordance with
the terms of this Section 17 and the terms of the Escrow Agreement, INFOSEEK
agrees that it may use the Source Code solely for the purpose of enabling
INFOSEEK to exercise its Section 17.1 license rights. As used in this Section
17, the term "SOURCE CODE" means, collectively, source code deposited on
computer magnetic media, test programs and program specifications, compiler and
assembler descriptions, descriptions and locations of third party computer
programs required to use or support the HNC Software, and technical
documentation that HNC uses to maintain or support the HNC Software, to the
extent such exists at the time of the deposit of the Source Code into the
deposit account pursuant to the Escrow Agreement or in the month prior to such
*deposit. Within [ ] days after the Acceptance Date of each Version of
the HNC Software that INFOSEEK elects to install on the Designated System, HNC
shall deposit one (1) copy of the Source
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Code for such Version of the HNC Software into a deposit account with DSI
pursuant to the Escrow Agreement. Receipt of the Source Code by INFOSEEK under
the terms of the Escrow Agreement shall not by itself terminate this
Agreement. If INFOSEEK receives the Source Code for HNC Software under the
terms of the Escrow Agreement, such Source Code shall be subject to all terms
of ownership, use, access, disclosure, payment to HNC and termination
specified in this Agreement. HNC agrees to update escrow deposits from time to
time by promptly placing all upgrades, enhancements, and New Versions of the
HNC Software in escrow with DSI. INFOSEEK shall pay all expenses charged by
DSI to establish and maintain the escrow arrangement. In the event of any
conflict between this Agreement and the Escrow Agreement, this Agreement shall
control.
17.3 Triggering Event Defined. As used herein, "TRIGGERING EVENT"
means and includes the following:
17.3.1 Action by HNC under any state corporation or similar
law for the purposes of dissolution;
17.3.2 Action by HNC under any state insolvency or similar
law for the purpose of its bankruptcy or liquidation;
17.3.3 A voluntary filing by HNC of a petition for relief
under Chapter 7 or Chapter 11 of the United States Bankruptcy Code.
17.3.4 The filing of an involuntary petition in bankruptcy
against HNC that is not dismissed within sixty (60) calendar days after its
filing;
17.3.5 The occurrence of a material breach by HNC of its
obligations under Article 6 hereof to provide support and maintenance of the
applicable HNC Software, which material breach is not cured by HNC within
* [ ] after HNC's actual receipt of notice of such material breach from
INFOSEEK.
ARTICLE 18
GENERAL
18.1 Sections; Exhibits. All references in this Agreement to
"Sections" or "Exhibits" refer to Sections of this Agreement or Exhibits
attached to this Agreement, respectively.
18.2 Parties are Not Partners or Agents. INFOSEEK and HNC are
independent contractors and neither shall have any power, nor will either of
the parties represent that it has any power, to bind the other party or to
assume or to create any obligation or responsibility, express or implied, on
behalf of any other party or in any other party's name. This Agreement shall
not be construed as constituting HNC and INFOSEEK as partners, joint venturers
or agents of each other or to create any other form of legal association which
would impose liability upon one party for the act or failure to act of the
other.
18.3 Use of Non-HNC Employees. HNC has the sole right and
obligation to supervise, manage, contract, direct, procure, perform or cause
to be performed all work to be performed by HNC hereunder. HNC shall require
all non-HNC employees as well as employees of HNC to sign HNC's standard
confidentiality agreements which require those individuals to keep
confidential and not use third-party information such as that of INFOSEEK and
INFOSEEK Clients.
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18.4 Independence of Agreement. This Agreement is separate from
and independent of all other agreements between the parties.
18.5 Headings. The article, section, and subsection headings and
captions used herein are for reference and convenience only, and shall not
enter into the interpretation hereof. The Exhibits referred to herein and
attached hereto, (and to be attached hereto), are incorporated herein to the
same extent as if set forth in full herein.
18.6 Waiver; Remedies. No delay or omission by any party hereto to
exercise any right or power occurring upon any non-compliance or default by
the other party with respect to any of the terms of this Agreement shall
impair any such right or power or be construed to be a waiver thereof. A
waiver by either of the parties hereto of any of the covenants, conditions, or
agreements to be performed by the other shall not be construed to be a waiver
of any subsequent breach thereof or of any covenant, condition, or agreement
herein contained. Unless otherwise stated herein, all remedies provided for in
this Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity, or otherwise.
18.7 Governing Law; Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
18.8 Entire Agreement; Amendment. This Agreement and the Exhibits
annexed hereto constitute the entire agreement and understanding between the
parties with respect to the subject matter of this Agreement, and there are no
understandings or agreements relative hereto other than those which are
expressed herein, and no waiver of any rights hereunder shall be valid or
effective unless such waiver is set forth in a writing executed by the party
against whom such waiver is sought to be enforced. This Agreement may be
*amended or modified only by a writing executed by both parties hereto. [ ].
18.9 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither party shall, without the prior
written consent of the other party (which consent shall not be unreasonably
withheld) assign or transfer this Agreement, and any attempt to do so shall be
void and of no force and effect, except that a party hereto may, without the
other party's consent, assign this Agreement to a parent, subsidiary, or
purchaser of substantially all the assets or stock, or to a third party with
whom such party is directly or indirectly merged or consolidated. In the case
of any permitted assignment set forth above, the assigning party will provide
reasonable advance notice of the assignment to the other party.
18.10 Notice. If a party is required to give notice to another under
this Agreement, such notices shall be deemed to have been given (i) when
delivered by a commercial overnight delivery service or (ii) three (3) days
after such notice has been deposited in the U.S. mail, first class, postage
prepaid, via certified mail or registered mail, return receipt requested, and
addressed as follows (or to such other address for notice as may be
subsequently designated by the addressee by notice given to the other party in
accordance with this Section):
If to HNC: HNC Software Inc.
5930 Cornerstone Court West
San Diego, CA 92121-3728
Attention: Mr. Michael A. Thiemann,
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Executive Vice President
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If to Infoseek: Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara, CA 95054
Attention: Mr. Robin Johnson,
Chief Executive Officer
18.11 Force Majeure. No party shall be liable for any failure to
perform its obligations under this Agreement if it is prevented from doing so by
a cause or causes beyond its reasonable control. Without limiting the generality
of the foregoing, such causes shall include acts of God or the public enemy,
fires, floods, storms, tornadoes, earthquakes, riots, strikes, blackouts, wars
or war operations, restraints of government, or other causes which could not
with reasonable diligence be controlled or prevented by the parties.
18.12 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, then such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
18.13 Audits. Either party shall be entitled, upon five (5) business
days notice and only using independent external auditors reasonably acceptable
to the other party, to examine the other party's records pertaining to the
information necessary for enforcement of the rights and obligations under this
Agreement, but only to the extent the requesting party specifically identifies
the right or obligation it seeks to enforce and only twice each calendar year.
Any information received as a result of an audit shall be considered
Confidential Information and the auditor must be bound in confidence to only
disclose evidence of non-compliance. If such audit reveals that there was an
underpayment of more than 5%, then the audited party shall pay reasonable
expenses associated with such audit.
18.14 Press Release. HNC and INFOSEEK shall be allowed to issue press
releases stating factual information regarding the relationship between HNC and
INFOSEEK upon execution of this Agreement, provided such press releases have
been reviewed and approved by each party prior to release. Each party agrees
that it will work promptly to review and approve (such approval not to be
unreasonably withheld) press releases. Neither party shall release or publish
any other news releases, public announcements, advertising or other publicity
relating to this Agreement without the prior review and written approval of the
other party (which review and approval shall not be unreasonably withheld or
delayed), provided, however, that either party may make such disclosures as are
required by legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other party.
ARTICLE 19
DISPUTE RESOLUTION
19.1 Informal Dispute Resolution. Any controversy or claim between
INFOSEEK and HNC, arising from or in connection with this Agreement or the
relationship of the parties under this Agreement, whether based on contract,
tort, common law, equity, statute, regulation, order or otherwise, other than a
dispute regarding ownership of software, documentation or Intellectual Property
rights (a "DISPUTE"), shall be resolved as follows:
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19.1.1 First, upon written request of either INFOSEEK or
HNC, the parties will each appoint a designated representative whose task it
will be to meet for the purpose of endeavoring to resolve such Dispute. The
designated representatives shall be senior level managers of each party with the
authority to make decisions and/or commitments on behalf of the respective party
to resolve the Dispute.
19.1.2 The designated representatives shall meet as often as
the parties reasonably deem necessary to discuss the problem in an effort to
resolve the Dispute without the necessity of any formal proceeding.
19.1.3 Unless delay would impair a party's rights under
applicable statutes of limitations, formal proceedings for the resolution of a
Dispute may not be commenced until the earlier of:
19.1.3.1 the designated representatives concluding
in good faith that amicable resolution through continued negotiation of the
matter does not appear likely; or
19.1.3.2 the expiration of the thirty (30) day
period immediately following the initial request to negotiate the Dispute;
provided, however, that this Section 19.1 will not be construed to prevent a
party from instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors, or to seek temporary or preliminary injunctive relief from a
court pursuant to Article 11.
19.2 Temporary Restraining Order. Nothing in Section 19.1 shall be
construed to prevent any party from seeking from a court a temporary restraining
order or other temporary or preliminary relief pending final resolution of a
Dispute pursuant to Section 19.1.
19.3 Other Dispute Resolution. If the parties fail to resolve any
dispute under Section 19.1 then they pursue any other available remedies.
IN WITNESS WHEREOF, HNC and INFOSEEK have caused this Agreement to be
signed and delivered by their duly authorized officers, as of the Effective
Date.
HNC SOFTWARE INC., INFOSEEK CORPORATION,
a Delaware corporation a California corporation
By: By:
-------------------------------- ---------------------------------
Title: Executive Vice President Title: CEO
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LIST OF EXHIBITS
TO
LICENSE AND SOFTWARE DISTRIBUTION AGREEMENT
Exhibit A - Specifications and Description of HNC Software;
Installation Schedule
Exhibit B - Form of Acceptance Certificate
*Exhibit C - [ ]
Exhibit D - Technology Escrow Agreement
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EXHIBIT A
PART 1: SPECIFICATION AND DESCRIPTION OF HNC SOFTWARE
1. HNC Software
As used in the Agreement of which this Exhibit is a part, the HNC Software
consists of a HNC-developed, proprietary software-based advertising
dissemination system known commercially as the SelectCast(TM) system, and
specifically defined as the following:
1. SelectCast Context Vector Learning Service (a service provided to
INFOSEEK).
2. SelectCast Analysis and Characterization Module, Versions 1.0, 2.0 and 3.0
*supplied as object code [ ] performed as a
service to INFOSEEK.
*3. SelectCast Real-Time [ ] Module, Versions 1.0, 2.0 and 3.0
supplied as object code.
The sections below describe these software components. The development and
*installation of these components will be performed in [ ]. The schedule
*of implementation of the [ ] is shown in Section 2. The summary of
*functionality, by component, by [ ] is shown below in Figure 1.
*1.1 HNC SelectCast [ ] Learning Service Functional Description
*SelectCast [ ] Learning Service is a set of tasks and services provided
by HNC to INFOSEEK in support of the INFOSEEK operation of the SelectCast
system and is common to all implementation phases. This service will learn a
*set of [ ] given a [ ] provided by INFOSEEK to HNC. The
Teaming operation will be performed at HNC's facilities in San Diego, CA. The
results of the teaming process will be delivered to INFOSEEK in an electronic
format compatible with the balance of the SelectCast system as outlined in
Section 1 above. The specific tasks and actions associated with this service
are as follows:
*1. HNC will accept [ ] from INFOSEEK to be used as
*part of the [ ] learning process. This data will be provided as a
*UNIX tar tape of flat ASCII files. This electronic [ ] may consist of
*[ ], and [ ] and/or
*[ ].
2. If the volume of data is insufficient, HNC may, at its option, elect to
augment this data set with "general knowledge" corpora to meet training volume
requirements.
*3. HNC will apply its patented [ ] learning algorithm to learn
*[ ] relationships based on the information provided by INFOSEEK
for training purposes. HNC will perform testing to insure the quality of the
*resulting [ ].
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*4. The resulting trained and tested [ ] set will be provided to
INFOSEEK to provide the basis for operation of the balance of the SelectCast
system as described in Section 1. This data will be provided to INFOSEEK as a
UNIX tar tape.
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*COMPONENT [ ] [ ] [ ]
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*[ ] -Learns [ -Learns [ -Learns [
*Learning ] based on ] based on ] based on
Service information contained in information contained in information contained in
* [ ] [ ] [ ]
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*Analysis and -Transforms [ -Transforms [ -Transforms [
*Characterization ] of [ ] ] of [ ] ] of [ ]
*Module into a [ ] into a [ ] into a [ ]
-Creates and maintains -Creates and maintains -Creates and maintains
* [ ] database [ ] database [ ] database
-Correlates information -Correlates information
* across [ ] across [ ]
* and develops [ and develops [
* ] ]
-Generates effectiveness -HNC acts as a service
metrics based on bureau to build [
* analysis of [ ]
* ] and produces
management reports
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*[ ] -[ ] selection of -[ ] selection of -[ ] selection of
*Module best ad based on [ best ad based on [ best ad based on [
* ] compared ] ]
* to [
* ] -Develops and tracks -Develops and tracks
user behavior profile user behavior profile
* across [ ] across [ ]
* -Exploits [ -Exploits [
* ] in serving process ] in serving process
* -Produces [ ] for -Produces log file for
off-line analysis off-line analysis
* -Incorporates [
* ] into user profile and
serving process
-Utilizes results from [
* ](s) in serving
* process
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* FIGURE 1. [ ] BY [ ] BY [ ].
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1.2 HNC SelectCast Analysis and Characterization Module Functional Description.
1.2.1 SelectCast Analysis and Characterization Module Version 1.0
Functional Description.
*The SelectCast Analysis and Characterization Module V1.0 transforms [ ],
*[ ] and [ ] as [ ], into a context vector
*representation usable by the SelectCast Real-Time system. These [ ]
*are stored in a [ ] file that will provide the basis for
real-time processing of the SelectCast system. The Version 1 system will be
delivered as object code compatible with a mutually-agreeable version of the
*[ ] system. This module will provide the following functionality:
1. Provides a Graphical User Interface (GUI) that allows system operator to
*enter [ ] of [ ] and [ ].
*2. Allows importing files of [ ] of [ ] and
*[ ] into the system.
*3. Allows the association of [ ] with the [
* ] and associated [ ]. This [ ] will be used by
INFOSEEK to generate dynamic advertising during real-time operation.
*4. Stores [ ], [ ] and
*HNC-internal support information in a [ ] file
for subsequent use by the real-time portion of the SelectCast system.
5. Documentation to allow operation of this module by INFOSEEK personnel and
describe the theory/concept of operations.
1.2.2. SelectCast Analysis and Characterization Module Version 2.0
Functional Description
The Version 2 SelectCast Analysis and Characterization Module will provide all
the features contained in Version 1 plus a set of enhancements. Specific
enhancements to be provided include:
*1. [ ] of [ ].
*2. [ ] of [ ] of [ ] across
*[ ].
*3. [ ] and [ ]
provided as a service by HNC.
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4. System performance calculations and management reports.
5. Updated documentation to reflect enhanced functionality.
*As part of Phase 2, HNC will provide to INFOSEEK SelectCast [ ] and
*[ ] to be included as part of the Version 2 functionality. The
results of this analysis will be provided to INFOSEEK in electronic format
compatible with the Version 2 SelectCast system. Additionally, a report
*documenting [ ] will be provided.
The operating environment for Version 2 will be identical to Version 1 (i.e.
*[ ]).
1.2.3 SelectCast Analysis and Characterization Module Version 3.0
Functional Description
The Version 3 SelectCast Analysis and Characterization Module will provide all
the features contained in Version 1 and Version 2 plus a set of enhancements.
Specific enhancements to be provided include:
*1. [ ] of [ ] based on [ ] and
*[ ].
2. Enhanced system performance calculations and management reports.
3. Updated documentation to reflect all enhanced functionality.
*As part of Phase 3, HNC will build INFOSEEK SelectCast [ ] to be
included as part of the Version 3 functionality. The process of building a
*SelectCast [ ] is called training because a [ ] training
process is used to determine the numerical parameters used in a SelectCast
*[ ]. As part of this process, INFOSEEK will supply to HNC the source
*data required to build these [ ]. The exact content and format of this
data will be defined as part of the Version 3) project definition process.
*The results of the [ ] operation will be provided to INFOSEEK in
electronic format for incorporation as part of SelectCast realtime operation.
*New [ ] will be constructed from time to time as mutually agreed upon
and determined by measured system performance.
It is expected the model development services will conform to schedule shown in
*Figure 4, subject to delivery of a mutually agreed upon complete [ ]
*development dataset by INFOSEEK. The [ ] development dataset will
*comprise no less than [ ] of [ ] and [ ] plus
other information to be identified during the development of the Version 3
*system requirements. This data will be augmented with [ ] data and
*[ ] information. [ ] developed by HNC will be delivered in
an electronic format compatible with the SelectCast real-time system.
Unless mutually agreed otherwise, the operating environment for Version 3 will
*be identical to Version 2 (i.e. [ ].
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*1.3 SelectCast Real-Time [ ] Module Functional Description.
*The SelectCast Manage Real-Time [ ] Module provides the [ ] to
*[ ] the [ ] by the [ ] as [ ] of [ ] of
*[ ]. This module will be provided as a [ ] task that will act as a
server to the INFOSEEK system acting as a client. Communication between client
*and server will be via an API [ ] (or other mutually agreed upon method).
*1.3.1 SelectCast Real-Time [ ] Module Version l.0 Functional
Description
*The SelectCast Real-Time [ ] Module Version 1.0 server will provide
*capability to perform [ ] of [ ] to be offered to the user based
*on [ ] of [ ] to a dataset of advertising represented as
*[ ]. In this role, the server will be presented with the [ ] and
*the will respond to the client with the INFOSEEK [ ] to be presented to
the user. Mechanism to invoke, control and terminate this server shall be
provided. Additionally, documentation of the operation, controls and features
of this module will be provided. This server will be provided as object code
*compatible with a mutually agreeable version of the [ ] operating system
*to execute on an INFOSEEK-provided [ ] workstation with a minimum of
*[ ] of [ ] and [ ] of [ ].
*1.3.2 SelectCast Real-Time [ ] Module Version 2.0 Functional
Description
*The Version 2 SelectCast Real-Time [ ] Module will provide all the
features contained in Version 1 plus a set of enhancements. Specific
enhancements to be provided include:
*1. Develop and track of [ ] of [ ] across
*[ ] and providing a [ ] for improving
*selectivity and precision of [ ] served.
*2. Utilize relationships derived from analysis of [ ] performed by the
*Version 2 Analysis and Characterization Module. These user [ ] will be
incorporated in the serving process to improve selectivity and precision of
*[ ] served.
*3. Produce [ ] of [ ] to be used as
*[ ]. This information will provide the basis for
*[ ] to be provided by the Version 2 Analysis and
*Characterization Module. [ ] shall not be disclosed.
4. Updated documentation to reflect enhanced functionality.
*1.3.3 SelectCast Real-Time [ ] Module Version 3.0 Functional
Description
*The Version 3 SelectCast Real-Time [ ] Module will provide all the features
contained in Version 1 and Version 2 plus a set of enhancements. Specific
enhancements to be provided include:
*1. Incorporate [ ] of served material into the
*[ ].
*2. Utilize [ ] parameters derived by the Version 3 Analysis and
Characterization Module.
*3. Produce enhanced [ ] to be used as input
*to [ ] and [
* ]. This information will provide the basis for server
*effectiveness metrics and improved [ ].
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to be provided by the Version 3 Analysis and Characterization Module
4. Updated documentation to reflect enhanced functionality.
2. Customization and Installation Schedule
INFOSEEK and HNC agree that the HNC software will be customized for INFOSEEK
*and installed in [ ] implemented as software versions
*implemented [ ]. Prior to the start of software development
of each version, HNC shall provide to INFOSEEK a time and materials cost
estimate for that phase of the development. The parties agree to cooperate to
meet mutually-agreeable cost goals. In addition, the parties agree that in some
cases development will require modification or enhancements to existing
*INFOSEEK software. The parties will work together on each of the [ ],
generally described below. The version descriptions and functionality may
require amendments after the execution of this Agreement. The parties will
*jointly describe any changes to the [ ] and [ ] as well as
*determine when to begin development on [ ].
*2.1 SelectCast Version [ ]-Estimated Schedule and Milestones
Note: The Target Dates below are estimates and are linked to the signing of
the contractual agreement. The schedule for customization and installation is
provided below in Figure 2.
========================================================================================================================
*[ ] [ ] [ ] [ ] [ ] [ ] [ ]
===================================================================================================
* [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
========================================================================================================================
* FIGURE 2. VERSION [ ] SCHEDULE AND MILESTONES.
*2.2 SELECTCAST VERSION [ ] - ESTIMATED SCHEDULE AND MILESTONES
Note: The Target Dates below are estimates and are linked to the start of the
*Version [ ] effort. The schedule for customization and installation is
provided below in Figure 3.
- --------------------
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For Redacted Portion
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========================================================================================================================
*[ ] [ ] [ ] [ ] [ ] [ ] [ ]
===================================================================================================
* [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
========================================================================================================================
* FIGURE 3. VERSION [ ] SCHEDULE AND MILESTONES.
*2.3 SelectCast Version [ ] - Estimated Schedule and Milestones
Note: The Target Dates below are estimates and are linked to the start of the
*Version [ ] effort. The schedule for customization and installation is
provided below in Figure 4.
=========================================================================================================================
*[ ] [ ] [ ] [ ] [ ] [ ] [ ]
===================================================================================================
* [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*[ ] [ ]
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*Confidential Treatment Requested
For Redacted Portion
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- --------------------------------------------------------------------------------
* [ ] [ ]
- --------------------------------------------------------------------------------
* [ ] [ ]
- --------------------------------------------------------------------------------
* [ ] [ ]
- --------------------------------------------------------------------------------
* [ ] [ ]
- --------------------------------------------------------------------------------
* [ ] [ ]
================================================================================
* FIGURE 4. VERSION [ ] SCHEDULE AND MILESTONES.
3. Software Acceptance Criteria and Testing
3.1 Criteria
HNC agrees to test the HNC Software as installed on the INFOSEEK system to
detect and remedy material malfunctions. Such testing shall be designed to
discover material defects that might prevent proper operation of the HNC
Software in the INFOSEEK system environment. This testing will be performed as
part of mutually agreed upon software acceptance test criteria. The criteria
will be defined by version by module with the definition of the criteria to
occur during the requirements definition portion of each phase. It is expected
that the software acceptance test will contain, as a minimum, the following
criteria:
1. Throughput rate in terms of transactions per second.
*2. Method for establishment of a performance baseline for [ ]
precision.
- -------------------------
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For Redacted Portion
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*3. SelectCast precision of [ ] over baseline performance in terms of
false positive selections.
Other criteria, as appropriate, may be defined as part of the requirements
analysis process for each phase.
3.2 Testing
Testing will be conducted in three steps:
1. A factory test shall be performed to establish the correct operation of the
specific version of the SelectCast system relative to the agreed upon
requirements for that version. This test will verify correct API behavior
between the client and server and will verify the responses for a fixed set of
*test data consisting of a sample of [ ].
2. An installation test shall be performed to establish the correct operation
of the SelectCast system in the INFOSEEK environment. In this test, the test
data set utilized for the factory test will be submitted to the SelectCast
system. The results will be logged and compared to the results of the factory
test. The SelectCast system shall be deemed operational if the results are
identical.
3. A performance test suite shall be developed to assess the precision and
throughput of the SelectCast system in the INFOSEEK environment. This set of
tests and the data to be used for the test will be mutually agreed upon.
INFOSEEK should be aware that a set of relevance judgments, provided by
INFOSEEK, will be required to test precision of the SelectCast system. These
judgments necessarily will be produced as a result of human intellectual effort
and, ad such, will require expenditure of labor hours. These relevance
judgments can be captured in a database for re-use, thus minimizing recurring
costs. However, the setup costs will remain. It is anticipated that the
planning for the development of this testing data set will be performed during
the requirements and planning portion of each phase. The actual testing will be
performed first at HNC as part of the software customization process, then
again at INFOSEEK to complete the testing process.
- -------------------------
*Confidential Treatment Requested
For Redacted Portion
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EXHIBIT B
FORM OF ACCEPTANCE CERTIFICATE
This Acceptance Certificate has been executed this day of
, 19 , by authorized representatives of HNC Software Inc., a
Delaware corporation ("HNC") and Infoseek Corporation, a Delaware corporation
("INFOSEEK") under a certain License and Software Distribution Agreement dated
, 1996, between HNC and INFOSEEK.
RNC Software:
Date of INFOSEEK's Acceptance:
Conditional Acceptance by INFOSEEK (if applicable):
Requirements for Final Acceptance by INFOSEEK:
----------------------------------
INFOSEEK hereby accepts [OR (IF SO INDICATED ABOVE) CONDITIONALLY ACCEPTS] the
HNC Software described above effective as of the day and date first written
above.
INFOSEEK CORPORATION HNC SOFTWARE INC.
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
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EXHIBIT C
* INFOSEEK [ ] CONTRACT
*1. INFOSEEK [ ] to INFOSEEK [ ].
*INFOSEEK [ ],
whether by operation of law or otherwise, except as specifically set forth in
*this Contract and except that it [ ].
*INFOSEEK [ ]. The terms
*must inform the INFOSEEK [ ].
*2. INFOSEEK [ ] acknowledges that the HNC Software is copyrighted
and is the sole and exclusive property of HNC Software Inc. No right, title, or
interest in or to the HNC Software (including any right, title or interest in
or to any patent, copyright, trademark, or other Intellectual Property or
*proprietary rights in or related to the HNC Software), [ ], is
*transferred from INFOSEEK [ ]. Title to and ownership of the HNC
Software shall remain exclusively with HNC and its licensors (if any). INFOSEEK
*[ ] appearing on the HNC Software.
*3. The HNC Software [ ], and to protect them,
*INFOSEEK Client agrees not to [ ]. Except as otherwise
*provided in this Contract, INFOSEEK [ ].
*4. The INFOSEEK [ ] only.
*INFOSEEK [ ].
INFOSEEK Client shall reproduce all copyright and proprietary notices on the
*HNC Software in their exact form [ ]. Upon INFOSEEK's request,
*INFOSEEK [ ] shall inform INFOSEEK of the [ ].
*5. HNC and its licensors (if any) [
* ], whether or
not HNC or anyone else has been advised of the possibility of such damages.
*6. INFOSEEK [ ] Contract if: (a) INFOSEEK
*[ ] and
*does not cure [ ] after notice thereof by INFOSEEK or HNC; or (b) INFOSEEK
*[ ] contained in this Contract and [ ] after notice
*thereof by INFOSEEK or HNC. If INFOSEEK [ ], INFOSEEK may terminate
*INFOSEEK [ ] Contract and require INFOSEEK [ ].
- -------------------------
* Confidential Treatment Requested
For Redacted Portion
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TECHNOLOGY ESCROW AGREEMENT
This Technology Escrow Agreement, including any exhibits (this
"AGREEMENT"), is effective this _________ day of ____________________, 1996 by
and between Data Securities International, Inc., a Delaware corporation ("DSI"),
HNC Software Inc., a Delaware corporation ("DEPOSITOR") and Infoseek
Corporation, a Delaware corporation ("USER").
WHEREAS, Depositor has deposited or will deposit with DST, for the benefit of
User, the related proprietary data to provide for retention and controlled
access under the conditions specified;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. DEPOSIT ACCOUNT. Following the execution and delivery of this Agreement and
the payment of the first-year escrow fee to DST, DST shall open a SAFE deposit
account (the "DEPOSIT ACCOUNT") for Depositor and User. The opening of the
account means that DST shall establish an account ledger in the name of
Depositor and User, calendar renewal notices to be sent to Depositor and User as
provided in Section 6, and request the deposit materials (the "DEPOSIT") from
Depositor until a Deposit is received. Unless and until Depositor makes the
Deposit with DST, DST shall have no further obligation to Depositor and User
except as defined by this Section. Depositor and User agree to designate one
individual at each organization to receive notices from DST and to act on behalf
of Depositor and User in relation to the performance of their obligations as set
forth in this Agreement and to notify DST immediately in the event of any change
from one designated representative to another in the manner stipulated in
Exhibit A.
2. EXHIBIT B. Depositor must submit material to DST for retention and
administration in the Deposit Account, together with a completed document
describing the Deposit called a "Description of Deposit Materials," hereinafter
referred to as an Exhibit B. Each Exhibit B should be signed by Depositor prior
to submittal to DST and will be signed by DST upon completion of the Deposit
inspection.
3. DEPOSIT INSPECTION. Upon receipt of an Exhibit B and the Deposit, DST will
visually match the listed items on the Exhibit B to the labeling of the material
(the "DEPOSIT INSPECTION"). DST will not be responsible for the contents or for
validating the accuracy of Depositor's labeling. Acceptance will occur when DST
concludes that the Deposit Inspection is complete. Upon acceptance, DST will
sign the Exhibit B, assign the next sequential number to the Exhibit B and
provide a copy of Exhibit B to Depositor and User.
4. DEPOSIT OBLIGATIONS OF CONFIDENTIALITY. DST agrees to establish a locked
receptacle in which it shall place the Deposit and shall put the receptacle
under the administration of one or more of its officers, selected by DST, whose
identity shall be available to Depositor and User at all times. DST shall
exercise a professional level of care in carrying out the terms of this
Agreement. DST acknowledges Depositor's assertion that the Deposit shall contain
proprietary data and that DST has an obligation to preserve and protect the
confidentiality of the Deposit Except as provided for in this Agreement, DST
agrees that DST shall not divulge, disclose, make available to third parties or
make any use whatsoever of the Deposit.
5. DEPOSIT DEPOSITION AFTER EXPIRY. Upon nonrenewal or termination of this
Agreement by HNC pursuant to Section 16.2, 16.3 or 14.2, if Depositor requests
the return of the Deposit, DST shall return the Deposit to Depositor only after
receiving from User an affidavit ("USER'S AFFIDAVIT") authorizing such return
and all outstanding invoices and the Deposit return fees are paid. If the fee(s)
are not received by the anniversary date of this Agreement, DST may destroy the
Deposit, provided that Depositor has given User notice and an opportunity to pay
the fees.
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6. TERM OF AGREEMENT. This Agreement will have an initial term of one (1)
year, commencing on the effective date. This Agreement may be renewed for
additional one (1) year periods upon receipt by DSI of the specified renewal
fees prior to the last day of the term (the "EXPIRATION DATE"). DSI will give
notices of the need to renew the term of this Agreement to Depositor and User at
least sixty (60) days prior to the scheduled Expiration Date of the then-current
term. In the event that renewal fees are not received thirty (30) days prior to
the Expiration Date, DSI shall so notify Depositor and User. If the renewal fees
are not received from either party by the Expiration Date, DSI may terminate
this Agreement without further notice and without liability of DSI to Depositor
or User.
7. RELEASE OF DEPOSIT COPY TO USER. Upon the occurrence of a "TRIGGERING
EVENT" as defined in Section 17.2 of that certain License and Software
Distribution Agreement regarding Depositor's "SelectCast(TM)" software entered
into between Depositor and User on ___________________, 1996, (the "LICENSE
AGREEMENT"). User shall provide DSI with a User's Affidavit setting forth the
facts associated with the occurrence of such Triggering Event, as defined in the
License Agreement, entitling User to receive a copy of the Deposit. DSI shall
notify Depositor by certified mail or commercial express mail service of its
receipt of such User's Affidavit and shall concurrently provide Depositor with a
copy of the User's Affidavit. If DSI does not receive a letter from Depositor
contesting release of the Deposit to User within ten (10) days after the mailing
of the User's Affidavit to Depositor, then DSI shall furnish one copy of the
Deposit to User, who may use such Deposit only as permitted by the provisions of
Section 17 of the License Agreement. If Depositor does contest the release
leading to a dispute between the parties, the Dispute provision set forth in
Section 11 shall be carried out.
8. OTHER THIRD PARTIES. DSI shall have no obligation to any other third
party.
9. VERIFICATION RIGHTS. If requested by this User, Depositor grants to DSI the
right to verify the Deposit for accuracy, completeness and sufficiency.
Depositor hereby also permits DSI to verify, audit, and inspect the proprietary
materials to be held or held in deposit to confirm the quality of the
proprietary materials for the benefit of the User. Upon request by Depositor,
DSI will issue a copy of the verification results to Depositor.
In the event that the User has separately retained DSI to perform verification
of the Deposit, Depositor agrees to cooperate with DSI and make reasonably
available any technical and support personnel necessary for DSI to perform
verification of the Deposit.
Depositor hereby grants DSI the permission to release to User information
pertaining to directory lists and/or table of contents of computer media,
manuals, schematics, and manufacturing documents. Depositor grants to DSI the
permission to release to User copies of any executables or object code modules
prepared by DSI during its "Load and Compile" validation level solely for the
purposes of determining the content and quality of the Deposit.
If requested by User, Depositor agrees to permit one employee of User to be
present at Depositor's facility and to observe the compilation or verification
of the material to be deposited by Depositor.
10. INDEMNIFICATION. Depositor and User agree to defend and indemnify DSI and
hold DSI harmless from and against any and all claims, actions and suits,
whether in contract or in tort, and from and against any and all liabilities,
losses, damages, costs, charges, penalties, counsel fees and other expenses of
any nature (including, without limitation, settlement costs) incurred by DSI as
a result of performance of this Agreement except in the event of a judgment
which specifies that DSI acted with gross negligence or willful misconduct.
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43
11. DISPUTES. In the event of a dispute as to which this section applies, DSI
shall so notify Depositor and User in writing. Such dispute will be settled by
arbitration (which arbitration shall be binding for purposes of this Agreement
only) as follows: (a) the parties shall each select one independent arbitrator
within ten (10) days, (b) such arbitrators shall select in good faith a third
arbitrator within five (5) days, (c) each party will have one (1) day to present
its case (presentation shall be made on a date selected by the arbitrators which
shall be at least five (5) and no more than fifteen (15) days after selection of
the third arbitrator), (d) the arbitrators shall have ten (10) days from
completion of such presentation to render their decision (the decision of a
majority of the arbitrators will be deemed the decision of the arbitrators), (e)
if one party fails to timely appoint an arbitrator, the arbitration shall be
conducted solely by the other party's arbitrator, and (f) such arbitration shall
be informal and need not conform to AAA or other established procedures. Unless
otherwise agreed to by Depositor and User, arbitration will take place at a site
selected by the arbitrators.
12. GENERAL.
(a) Reliance on Instructions. DSI may act in reliance upon any written
instruction, instruments, or signature believed to be genuine and may assume
that any person giving any written notice, request, advice or instruction in
connection with or relating to this Agreement has been duly authorized to do so.
DSI is not responsible for failure to fulfill its obligations under this
Agreement due to causes beyond DSI's control.
(b) Governing Law. This Agreement is to be governed by and construed in
accordance with the laws of the State of California.
(c) Notices. Notices to Depositor, User and DSI should be sent to the
parties at the addresses identified in the attached Exhibit A.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
previous communications, representations, understandings and agreements, either
oral or written, between the parties.
(e) Severability. If any provision of this Agreement is held by any
court to be invalid or unenforceable, that provision will be severed from this
Agreement and any remaining provisions will continue in full force.
13. FEES. All Fees hereunder shall be the sole responsibility and obligation
of User. Fees are due upon receipt of signed contracts, receipt of Deposit
materials or when service is requested, whichever is earliest. All service fees
will be due in full at the time of the request for service. Renewal fees will be
due in full upon the receipt of invoice unless otherwise specified by the
invoice. If invoiced fees are not paid within sixty (60) days of receipt of
invoice, DSI may terminate this Agreement. If the payment is not timely received
by DSI, DSI shall have the right to accrue and collect interest at the rate of
1/2% per month (18% per annum) from the date of the invoice for all late
payments.
All service fees and renewal fees will be those specified in DSI's
Standard Fee and Services Schedule in effect at the time of renewal or request
for service, except as otherwise agreed. For any increase in DSI's standard
fees, DSI shall notify User at least ninety (90) days prior to the renewal of
this Agreement. For any services not listed on the Fee and Services Schedule,
DSI shall provide a quote prior to rendering such service.
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44
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
their behalf as of the day and year first above written.
DATA SECURITIES INTERNATIONAL, INC. HNC SOFTWARE INC. ("DEPOSITOR")
("DSI")
By:
---------------------------------
By:
--------------------------------
------------------------------------
(Print Name)
- -----------------------------------
(Print Name)
Title:
------------------------------
Title:
-----------------------------
INFOSEEK CORPORATION ("USER")
By:
--------------------------------
- -----------------------------------
(Print Name)
Title:
-----------------------------
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EXHIBIT A
SAFE TECHNOLOGY ESCROW AGREEMENT
ACCOUNT NUMBER
----------------
DESIGNATED REPRESENTATIVES AND LOCATIONS
Notices to Depositor and User regarding Agreement terms and conditions should be
addressed to:
Depositor: HNC Software Inc.
Address: 5930 Cornerstone Court West
San Diego, CA 92121-3728
Depositor's
Designated
representative:
-----------------------------------------------------------------
Telephone:
----------------------------------------------------------------------
Facsimile:
----------------------------------------------------------------------
User: Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara, CA 95054
User's
Designated
representative:
-----------------------------------------------------------------
Telephone:
----------------------------------------------------------------------
Facsimile:
----------------------------------------------------------------------
All requests from Depositor to User to change the designated representative must
be given in writing an signed by the designated representative or an authorized
member of Depositor or User, as the case may be.
Contracts, Deposits and official notifications to
DSI should be addressed to:
Data Securities International, Inc.
Suite 220
6165 Greenwich Drive
San Diego, CA 92122
Attention: Contract Administration
Telephone: (619) 457-5199
Facsimile: (619) 457-4252
Invoice inquiries and remittance of fees to DSI
should be addressed to:
Data Securities International, Inc.
Suite 550
49 Stevenson Street
San Francisco, CA 94105
Attention: Accounts Receivable
Telephone: (415) 541-9013
Facsimile: (415) 541-9424
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OBLIGATIONS
Depositor, pursuant to a Technology Escrow Agreement (the "Agreement"), hereby
deposits the Deposit Material into the Deposit Account by transferring it to
Data Securities International, Inc. ("DSI"). DSI is
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47
obligated to hold the Deposit Material as called for in this Agreement between
the parties and, among other things, not to disclose, divulge or otherwise make
the Deposit Material available, except as permitted by the Agreement.
DEFINITIONS
The Initial Deposit will consist of all material initially supplied by Depositor
to DSI.
The Supplemental Deposit is Deposit Material which is to be added to the Deposit
Account.
The Replacement Deposit is Deposit Material which is to replace existing Deposit
Material as identified by any one or more Exhibit B(s) in the Deposit Account.
DEPOSIT INSPECTION
Upon receipt of an Exhibit B and Deposit Material, DSI will be responsible only
for reasonably matching the labeling of the materials to the item descriptions
listed on the Exhibit B and validating the count of the materials to the
quantity listed on the Exhibit B. DSI will not be responsible for any other
claims made by the Depositor on the Exhibit B.
DEPOSIT ACCEPTANCE
Deposit Acceptance will occur when DSI concludes that the Deposit Material
Inspection is complete. Upon Deposit Acceptance, DSI will sign the Exhibit B and
assign it the next Exhibit B number and issue a copy of the Exhibit B to
Depositor and User within 10 days. If no Deposit Type is checked on the reverse
by Depositor, the Deposit Material will be deemed to be an Initial or
Supplemental Deposit.
WARRANTY BY DEPOSITOR
Deposit Material will be proprietary data, typically deposited on computer
magnetic media and other related materials of Depositor.
Depositor represents and warrants that it lawfully possesses all Deposit
Material, can transfer Deposit Material to DSI and has the authority to store
Deposit Material in accordance with the terms of this Agreement.
AMENDMENT
This Document acts as an Amendment if one is called for.
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EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIAL
Deposit Account Number
----------------------------------------------------------
Depositor Company Name
----------------------------------------------------------
DEPOSIT TYPE: Initial Supplemental Replacement If
------- ---------- -------
Replacement: Destroy Deposit Return Deposit
----- -------
ENVIRONMENT
Host System CPU/OS Version Backup
------------------------ ---------------------
Source System CPU/OS Version Compiler
---------------------- --------------------
Special Instructions:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DEPOSIT MATERIAL:
Exhibit B Name: Version
-------------------- ---------------------
Item Label Description Media Quantity
- ---------------------- ----- --------
For Depositor, I certify that the above-
described Deposit Material was sent to DSI:
By:
----------------------------------------
Print Name
---------------------------------
Date
---------------------------------------
For DSI, I received the above-described
Deposit Material subject to the terms on the
reverse side of this Exhibit.
By:
------------------------------------------
Print Name
-----------------------------------
Date of Accepance
----------------------------
PAGE 48