DEVELOPMENT AND LICENSE AGREEMENT
(as Amended)
This Development and License Agreement ("Agreement"), as amended,
is entered as of August 22, 1997 (the "Effective Date") by and between
CommerceWave, Inc., a California corporation, with its principal place of
business at 2121 Palomar Road, Suite 201, Carlsbad, California 92009
("CommerceWave"), and Encanto Networks, Inc., a California corporation, with
its principal place of business at 2953 Bunker Hill Lane, Suite 400, Santa
Clara, California 95054 ("Encanto"), and is made with respect to the
following recitals:
A. Encanto is developing a web server product that will provide,
among other things, an online storefront system allowing a
merchant to market wares on the Internet.
B. CommerceWave has developed a computer program named "Merchant
Wave" that permits creation of a multi-vendor online "shopping
mall." CommerceWave proposes to use the pre-existing code and
algorithms embodied in Merchant Wave to create an online
storefront system and an associated website builder program for
Encanto.
C. The parties wish to define their respective duties and
obligations with respect to such development by CommerceWave.
D. This Agreement has been amended as of January 29, 1999. This
Agreement, as amended, shall supersede and replace the original
in all respects and all rights and obligations in the Agreement
shall be deemed effective as of the Effective Date.
NOW, THEREFORE, in consideration of the premises, of the mutual
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. DEFINITIONS.
a. "Authorized Derivative Works" shall mean modifications to
or derivative works of the Products (including, without limitation,
Enhancements (as defined below)) developed by or for Encanto. For
purposes of this definition, the term "derivative works" shall have
the meaning used in the United States Copyright Act of 1976, as
amended, and shall also include all modified versions or releases of
the Products that are not sufficiently different from the Products
to constitute a separate derivative work under such Act.
b. "Merchant Wave" shall mean CommerceWave's existing
Merchant Wave software product as further specified in Exhibit A
attached hereto.
c. "Product(s)" shall mean (i) the products identified in
Exhibit B attached hereto and all documentation relating thereto and
(ii) bug fixes to such products.
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d. "Enhancements" shall mean modifications to the Products
that change (i) the appearance or content of displayed text,
graphics, links or similar elements of the Products and/or (ii) the
features and functions of the Products.
2. DEVELOPMENT.
CommerceWave agrees to undertake and complete development of
the Products (as defined in Exhibit B attached hereto) in accordance
with the specifications therefor set forth in Exhibit C attached
hereto and pursuant to the schedule specified in Exhibit D attached
hereto.
3. CHANGES.
If either party proposes in writing a change to Exhibit A,
Exhibit B, Exhibit C or Exhibit D, the other party will reasonably
and in good faith consider and discuss with the proposing party the
proposed change. CommerceWave agrees to accept any change proposed
by Encanto where Encanto agrees to bear any extra expense and pay
(at CommerceWave's standard time and materials rates) for any
additional work required by such change.
4. ACCEPTANCE.
a. When CommerceWave believes it has appropriately completed
a Product in accordance with the specifications therefor,
CommerceWave will deliver such Product to Encanto in both object
code and source code forms. Encanto will accept or reject such
Product within ten (10) business days after delivery; failure to
give notice of acceptance or rejection within that period or
Encanto's first commercial distribution of such Product (regardless
of notice of rejection) will constitute acceptance. Encanto may
reject a Product only if it fails in some material respect to meet
the specifications and acceptance criteria therefor set forth in
Exhibit C. If Encanto properly rejects a Product, CommerceWave will
correct the failures properly specified in the rejection notice
within ten (10) business days after the rejection notice. When
CommerceWave believes that it has made the necessary corrections,
CommerceWave will again deliver such Product to Encanto in both
object code and source code forms, and the
acceptance/rejection/correction provisions above shall be reapplied
until such Product is accepted; provided, however, that upon the
third or any subsequent rejection or if the corrections are not
made within forty-five (45) business days of the initial rejection,
Encanto may terminate this Agreement in its entirety by ten (10)
days' notice unless the Product is accepted by Encanto during the
notice period. Upon initial delivery of a Product, CommerceWave
will identify in writing all compilers, commercial libraries, and
other programming tools reasonably necessary for Encanto to
successfully compile the Products as originally delivered.
5. LICENSE GRANT TO ENCANTO.
a. Subject to all of the terms and conditions of this
Agreement, CommerceWave hereby grants to Encanto a worldwide,
perpetual, irrevocable, fully paid-up, royalty-free,
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non-transferable, license, together with the right to enter into
sub-licenses with third parties at its sole discretion, to:
(i) directly or through authorized agents use, modify,
improve, upgrade, enhance and port the source code of the
Products to create Authorized Derivative Works; and
(ii) make, use, copy, perform, display, license,
sublicense, sell, distribute and take any other actions deemed
appropriate by Encanto with respect to the Products and
Authorized Derivative Works.
b. The license granted in Section 5.a. above shall be without
limitation as to fields of use and distribution.
c. The Products may be distributed by Encanto and its
licensees under Encanto's and/or its licensees' own brand names and
trademarks but Encanto shall maintain CommerceWave's name in a
copyright notice accompanying the Products; provided, however,
that no such copyright notice shall be required for Authorized
Derivative Works.
d. Each copy of a Product sublicensed to end users hereunder
will be distributed pursuant to an end user license agreement
containing terms and conditions that are at least as protective of
the Product, CommerceWave and its intellectual property rights as
the terms and conditions of this Agreement.
e. Encanto may distribute the Products through its normal
distribution channels (including, without limitation, through
subdistributors and authorized sublicensees).
f. Except as expressly provided herein, Encanto agrees:
(i) not to delete or fail to reproduce in and on any
Product any copyright, trademark or other proprietary rights
notices appearing in or on any copy, media or master of the
Products provided by CommerceWave; provided, however, that no
such notices shall be required for Authorized Derivative Works;
and
(ii) to keep CommerceWave informed as to any problems
encountered with the Products.
g. CommerceWave agrees to provide to Encanto, within five
(5) days of the Effective Date of this Agreement, a copy of
MerchantWave (in both source code and object code forms) in such
format as is reasonably requested by Encanto.
6. ENHANCEMENTS.
a. During the term of this Agreement for so long as Encanto
is receiving Enhancements pursuant to Section 6.b. below, Encanto
hereby grants to CommerceWave, under all rights of Encanto to any
Enhancements made by or for Encanto (other than by
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CommerceWave), a worldwide, non-exclusive, perpetual, fully
paid-up, royalty-free, non-transferable license to:
(i) directly or through authorized agents use, modify,
improve, upgrade, enhance and port the source code of such
Enhancements developed by or for Encanto; and
(ii) make, use, copy, perform, display, license,
sublicense, sell and distribute such Enhancements developed by
or for Encanto in object code form. Such Enhancements may be
distributed by CommerceWave under ComerceWave's own brand name
and trademark.
b. During the term of this Agreement for so long as
CommerceWave is receiving Enhancements pursuant to Section 6.a.
above, CommerceWave hereby grants to Encanto, under all rights of
CommerceWave to any Enhancements made by or for CommerceWave a
worldwide, non-exclusive, perpetual, fully paid-up, royalty-free,
non-transferable license to:
(i) directly or through authorized agents use, modify,
improve, upgrade, enhance and port the source code of such
Enhancements developed by or for CommerceWave; and
(ii) make, use, copy, perform, display, license,
sublicense, sell and distribute the Enhancements developed by
or for CommerceWave in object code form. Such Enhancements may
be distributed by Encanto and/or its licensees under Encanto's
and/or its licensee's own brand names and trademarks.
c. Upon a party's completion of an Enhancement subject to
the cross-licensing provisions of this Section, such party agrees to
provide the other party with a copy of such Enhancement (in both
source code and object code) in such format as reasonably requested
by the other party.
7. OWNERSHIP.
a. As between the parties and subject to the licenses and
other rights granted by CommerceWave to Encanto under this Agreement,
CommerceWave shall own all rights, title and interest in and to (i)
Merchant Wave and (ii) all Enhancements made by or for CommerceWave
(other than by Encanto and whether or not at Encanto's direction).
b. As between the parties and subject to the licenses and
other rights granted by Encanto to CommerceWave under this Agreement,
Encanto shall own all rights, title and interest in and to (i) all
Authorized Derivative Works and (ii) all Enhancements made by or for
Encanto (other than by CommerceWave and whether or not at
CommerceWave's direction).
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c. With respect to inventions and works of authorship for
which employees or consultants of both parties are joint inventors
or authors, each party will equally and jointly own such inventions
and works of authorship with the right to unilaterally use or
nonexclusively license such inventions and works of authorship
without accounting to the other party.
8. SPECIAL WORK PROJECTS.
During the term of this Agreement, Encanto may request
CommerceWave to undertake special work project(s), relating to the
Products. Upon such request, CommerceWave and Encanto agree to
discuss in good faith the scope of such special work project and
the costs related thereto. CommerceWave shall not be responsible or
liable for performing any special work project unless and until
the terms and conditions relating thereto (including, without
limitation, fees to be paid to CommerceWave, if any, and ownership)
are mutually agreed upon by both parties in writing.
9. FEES.
Provided that the online storefront creation application
Product is completed and delivered by CommerceWave on or before
September 15, 1997, and subject to the final rejection provisions of
Section 4 above, Encanto agrees to pay CommerceWave a non-recurring
engineering fee for the development of the Products hereunder in
the total amount of $205,200, payable as follows:
a. $68,400 upon the execution of this Agreement by both
parties;
b. $68,400 upon CommerceWave's completion and delivery of
all Products in alpha stage, including, without limitation, all alpha source
code for the Products; and
c. $68,400 upon CommerceWave's completion and delivery and
Encanto's final acceptance of all Products (including, without limitation,
all source code for such Products).
d. Fees Paid by Date of Amended Agreement. BOTH PARTIES TO
THIS AMENDED DEVELOPMENT AND LICENSE AGREEMENT ACKNOWLEDGE THAT ALL PAYMENTS
REQUIRED BY SECTION 9 HAVE BEEN FULLY PAID BY ENCANTO.
10. TRAINING.
CommerceWave, without additional charge to Encanto, will
provide a reasonable number of Encanto's software personnel with a
class of up to three (3) consecutive days relating to the theory,
use, operation, support and maintenance of the Products. The parties
shall mutually agree upon the dates and places for such training
classes. If the classes are taught at a location other than
CommerceWave's premises, Encanto shall be responsible for the
reasonable travel and living expenses for CommerceWave's personnel
conducting such classes that are pre-approved in writing by Encanto.
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11. MAINTENANCE AND SUPPORT.
a. Encanto shall be responsible for providing first level
technical maintenance and support for the Products to its customers
and end users who are using the Products.
b. During the term of this Agreement, and without additional
charge to Encanto, CommerceWave will provide Encanto with second
level technical maintenance and support services in connection with
the Products and Enhancements made by or for CommerceWave. Such
technical maintenance and support shall include, without limitation,
(i) up to ten (10) hours per month for the first three (3) months,
and thereafter up to five (5) hours per month, of telephone and/or
electronic support during CommerceWave's normal business hours (or
such other times as mutually agreed upon by both parties in
writing), (ii) on-site visits as necessary and mutually agreed upon
by both parties in writing and (iii) good-faith commercially
diligent efforts by CommerceWave to fix all bugs within five (5)
business days after Encanto's request therefor. CommerceWave shall
promptly deliver to Encanto any new source code developed pursuant
to this Section 11.b. (including, without limitation, source code
for any bug fixes or updates to the Products) in such format as
reasonably requested by Encanto.
12. REMOTE PAYMENT HOSTING.
a. During the term of this Agreement, CommerceWave agrees to
offer and provide to Encanto's customers a remote payment hosting
service in accordance with the specifications set forth in Exhibit E
attached hereto ("Remote Payment Hosting Service") at a price
mutually agreed upon by CommerceWave and Encanto in writing.
CommerceWave agrees to produce collateral and sign-up kit,
reasonably acceptable to Encanto, for the Remote Payment Hosting
Service and for the merchant banks affiliated with the Remote
Payment Hosting Service. Encanto agrees to reasonably assist
CommerceWave in marketing the Remote Payment Hosting Service to
Encanto's customers through Encanto's normal channel of distribution
for Encanto products.
b. Encanto and CommerceWave agree to discuss with each other
in good faith the providing of joint in-store training and
demonstrations for the Remote Payment Hosting Service in connection
with Online Products and other co-marketing and collaborative
opportunities relating to the Remote Payment Hosting Service and
Online Products; provided, however, that neither party shall be
required or obligated to work exclusively with the other party in
connection with any remote payment hosting services.
13. COMMERCEWAVE CONSULTING SERVICES.
Upon Encanto's request, CommerceWave agrees to provide
consulting services to Encanto in connection with Product packaging
and integration of the Remote Payment Hosting Service with any
products or services provided by Encanto pursuant to this Agreement.
Such consulting services shall be provided by CommerceWave to
Encanto at an hourly charge mutually agreed upon by both parties in
writing.
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14. CONFIDENTIALITY.
Each party agrees that all code, inventions, algorithms,
know-how and ideas and all other business, technical and financial
information they obtain from the other are the trade secrets and
confidential property of the disclosing party ("Proprietary
Information" of the disclosing party). Except as expressly and
unambiguously allowed herein, the receiving party will hold in
confidence and not use or disclose any Proprietary Information of the
disclosing party and shall similarly bind its employees in writing.
The receiving party shall not be obligated under this Section 14
with respect to information the receiving party can document:
a. is or has become readily publicly available without
restriction through no fault of the receiving party or its employees
or agents; or
b. is received without restriction from a third party
lawfully in possession of such information and lawfully empowered to
disclose such information; or
c. was rightfully in the possession of the receiving party
without restriction prior to its disclosure by the other party; or
d. was independently developed by employees or consultants
of the receiving party without access to such Proprietary
Information.
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15. INFRINGEMENT INDEMNIFICATION.
a. CommerceWave agrees to indemnify, hold harmless and
defend Encanto and its officers, directors, employees and agents
from and against any and all losses, claims, damages, liability,
demands, actions, judgments, settlements, costs (including
attorneys' fees) and expenses arising out of or in connection with
any claim that results from a breach of any of CommerceWave's
warranties expressly set forth in Section 18 below or any claim that
any of the Products or any of the Enhancements made by or for
CommerceWave (other than by Encanto) infringes any patent, copyright,
trademark, trade secret or other similar proprietary right of a
third party. Encanto will promptly notify CommerceWave in writing of
any claims related thereto and will, upon CommerceWave's written
request, provide CommerceWave with reasonable assistance in
connection with such defense. CommerceWave will have sole control
of the defense and/or settlement of any such claim. The foregoing
obligation of CommerceWave does not apply with respect to any part
of a Product or such Enhancement that is (i) modified by Encanto, if
the alleged infringement is based solely on such modification, or
(ii) combined with any non-CommerceWave product, if the alleged
infringement is based solely on such combination, or (iii) made
solely to comply with Encanto's detailed specification, if the
alleged infringement is based solely on complying with such
specification. Following written notice of an infringement claim,
CommerceWave shall, at its cost and expense, either (a) procure for
Encanto the right to continue to use, manufacture, market, license,
sell and distribute the Product or such Enhancement, (b) replace or
modify the Product or such Enhancement to make it non-infringing,
provided such non-infringing replacement or modified product is
substantially equivalent to the Product or such Enhancement in
functionality and quality or (c) if neither (a) nor (b) are
reasonably practical, accept the return of the Product or such
Enhancement and promptly pay to Encanto a refund of all fees paid
to CommerceWave hereunder, as depreciated on a five (5) year
straight-line basis. Following notice of any claim resulting from a
breach of any of CommerceWave's warranties expressly set forth in
Section 18 below, CommerceWave shall, at its cost and expense,
resolve such claim as soon as reasonably practicable. If, within,
ninety (90) days after such a claim has been made, CommerceWave has
not resolved or taken substantive action to attempt to resolve such
claim, Encanto may terminate this Agreement.
b. Encanto agrees to indemnify, hold harmless and defend
CommerceWave and its officers, directors, employees and agents from
and against any and all losses, claims, damages, liability, demands,
actions, judgments, settlements, costs including attorneys' fees)
and expenses arising out of or in connection with any claim that
results from any claim that any of the Enhancements made by or for
Encanto (other than by CommerceWave) infringes any patent,
copyright, trademark, trade secret or other similar proprietary
right of a third party. CommerceWave will promptly notify Encanto
in writing of any claims related thereto and will, upon Encanto's
written request, provide Encanto with reasonable assistance in
connection with such defense. Encanto will have sole control of the
defense and/or settlement of any such claim. The foregoing
obligation of Encanto does not apply with respect to any part of
such Enhancement that is (i) modified by or for CommerceWave, if
the alleged infringement is based solely on such modification or
(ii) combined with any non-Encanto product, if the alleged
infringement is based solely on such combination. Following written
notice of an infringement claim, Encanto shall, at its cost and
expense, either (a) procure for CommerceWave the right to continue
to use, manufacture, market, license, sell and distribute such
Enhancement, or (b) replace or modify such Enchancement to make
it non-
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infringing, provided such non-infringing replacement or modified
product is substantially equivalent to such Enhancement in
functionality and quality.
16. LIMITATION OF LIABILITY.
a. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED UNDER ANY
SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN
EXCESS OF THE AGGREGATE OF THE FEES PAID HEREUNDER.
b. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
OTHERWISE, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
17. EXPORT CONTROL.
Each party agrees to comply with the U.S. Foreign Corrupt
Practices Act (regarding among other things, payments to government
officials) and all export laws, restrictions, national security
controls and regulations of the United States or other applicable
foreign agency or authority, and not to export or re-export, or
allow the export or re-export of any Product or Enhancement or any
technical data related thereto, or any copy or direct product
thereof, (i) in violation of any such restrictions, laws or
regulations or, (ii) without all required licenses and proper
authorizations, to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda
or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. 1 to part 740
of the U.S. Export Administration Regulations (or any successor
supplement or regulations).
18. REPRESENTATIONS, WARRANTIES AND WARRANTY DISCLAIMER.
a. CommerceWave hereby represents and warrants that:
(i) CommerceWave possesses full power and authority to
enter into this Agreement, to fulfill its obligations hereunder,
and to convey to Encanto all the rights and licenses in and to
the Products, Merchant Wave and the Enchancements granted to
Encanto hereunder;
(ii) the performance of the terms of this Agreement and
of CommerceWave's obligations hereunder shall not breach any
separate agreement by which CommerceWave is bound; and
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(iii) during the term of this Agreement, CommerceWave
shall not commit any act or make or enter into any agreement
with a third party that is in violation or breach of, or
inconsistent or in conflict with, any of the provisions of
this Agreement.
b. CommerceWave further warrants (i) that the work under
this Agreement will be performed in a professional and workman-like
manner, (ii) that it has and will obtain agreements with its
employees, contractors and/or any other third parties, including
without limitation an agreement covering any property of iXL,
sufficient to allow it to provide Encanto with the licenses and
other rights provided for herein and (iii) that the Products
shall conform to all applicable specifications therefor. EXCEPT FOR
THE WARRANTIES IN THIS SECTION 18, COMMERCEWAVE MAKES NO WARRANTIES
TO ANY PERSON OR ENTITY WITH RESPECT TO THE PRODUCT AND DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
19. TERM AND TERMINATION.
a. This Agreement will commence on the Effective Date and
shall remain in effect until terminated in accordance with the
express terms of this Agreement.
b. If Encanto materially breaches Section 5, 9 or 14 of this
Agreement, CommerceWave may terminate this Agreement upon thirty
(30) days' prior written notice to Encanto unless the breach is
cured within such notice period. Upon such termination, all rights
and licenses granted to CommerceWave under this Agreement shall
survive termination, and all rights and licenses granted to Encanto
under this Agreement shall terminate. However, such termination will
not affect the rights of end users of the Products or Enhancements
and will not prevent Encanto from (i) supporting and maintaining end
users of the Products or Enhancements, and (ii) filling orders for
Products or Enhancements or depleting inventory of Products or
Enhancements for eighteen (18) months after termination.
c. If CommerceWave materially breaches this Agreement,
Encanto may terminate this Agreement upon thirty (30) day's prior
written notice to CommerceWave unless the breach is cured within
such notice period. Upon such termination, all rights and licenses
granted to Encanto under this Agreement shall terminate. However,
such termination will not affect the rights of end users of Products
containing Enhancements licensed from Encanto hereunder, and will
not prevent CommerceWave from (i) supporting and maintaining end
users of Products containing Enhancements licensed from Encanto
hereunder, and (ii) filling orders for or depleting inventory of
Products containing Enhancements licensed from Encanto hereunder
for eighteen (18) months after termination.
d. Encanto may terminate this Agreement at any time upon
thirty (30) days' prior written notice. At any time upon three
months' prior written notice to CommerceWave, Encanto may terminate
Encanto's obligations under Section 6.a. of this Agreement with
respect to Encanto's obligations to provide Enhancements to
CommerceWave after the date of such termination. At any time upon
three months' prior written notice to Encanto,
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CommerceWave may (i) terminate CommerceWave's obligations under
Section 6.b. of this Agreement with respect to CommerceWave's
obligations to provide Enchancements to Encanto after the date of
such termination, and (ii) terminate CommerceWave's obligations under
Section 11.b. of this Agreement with respect to CommerceWave's
obligations to provide maintenance and support service to Encanto
after the date of such termination. In any event, all rights and
licenses respectively granted to Encanto and to CommerceWave under
this Agreement shall survive such termination under this subsection.
e. The following provisions shall survive any termination of
this Agreement: Sections 7, 14, 15, 16, 18, 19.b., 19.c., 19.d.,
and 25.
20. MARKETING.
Each party agrees that, upon the other party's request, it
will reasonably cooperate with and work with the requesting party
in good faith to assist in the marketing activities of the Product.
21. PUBLICITY AND PRESS RELEASES.
The parties agree to issue a joint press release regarding the
transactions contemplated by this Agreement at a time mutually
agreed upon by the parties. After such joint press release is
issued, the parties will reasonably cooperate with each other in
connection with other press releases regarding the transactions
contemplated by this Agreement.
22. RELATIONSHIP OF THE PARTIES.
Notwithstanding any provision hereof, for all purposes of this
Agreement each party shall be and act as an independent contractor
and not as partner, joint venturer, or agent of the other and shall
not bind nor attempt to bind the other to any contract.
23. ASSIGNMENT.
Neither party shall have any right or ability to assign or
transfer any obligations or benefit under this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld, except that either party may assign its
rights and obligations under this Agreement without the permission
of the other party to any majority owned subsidiary, or in the event
of a merge, consolidation, or sale of all or substantially all of
the assigning party's stock, assets or business to which this
Agreement relates. Nothing in this section shall prevent Encanto's
rights to sublicense and/or subdistribute any of the Products
and/or any Authorized Derivative Works under this Agreement as set
forth in Section 5 herein.
24. NOTICE.
All notices, consents or approvals required by this Agreement
shall be in writing sent by certified or registered air mail,
postage prepaid, or by commercial overnight courier
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service with tracking capabilities, costs prepaid, to the parties
at the following addresses or such other addresses as may be
designated in writing by the respective parties:
To CommerceWave: CommerceWave, Inc.
2121 Palomar Airport Road
Suite 201
Carlsbad, California 92009
Attention: Garland Wong
To Encanto: Encanto Networks, Inc.
2953 Bunker Hill Lane, Suite 400
Santa Clara, California 95054
Attention: Jim McHugh
25. MISCELLANEOUS.
a. Waiver. The waiver by either party of a breach of any
provisions contained herein shall be effective only if set forth
in a writing signed by both parties and shall in no way be
construed as a waiver of any succeeding breach of such provision or
the waiver of the provision itself.
b. Amendments and Modifications. This Agreement may not be
changed, modified, amended or supplemented except by a written
instrument signed by both parties. Furthermore, it is the intention
of the parties that this Agreement be controlling over additional or
different terms of any order, confirmation, invoice or similar
document, even if accepted in writing by both parties, and that
amendments and modifications shall be effective only if made by
non-pre-printed agreements clearly understood by both parties to be
an amendment or modification. No amendments or modifications to this
Agreement shall be effective unless evidenced in writing and signed
for and on behalf of both parties.
c. Severability. In the event that any provision of this
Agreement shall be determined to be illegal or unenforceable, that
provision will be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
d. Governing Law and Legal Actions. This Agreement shall be
governed by and construed in accordance with the laws of the State
of California without regard to the conflicts of laws provisions
thereof. The sole jurisdiction and venue for actions related to the
subject matter hereof shall be the California state and U.S. federal
courts having within their jurisdiction the location of Encanto's
principal place of business. Both parties consent to the
jurisdiction of such courts and agree that process may be served in
the manner provided herein for giving of notices or otherwise as
allowed by California or U.S. federal law. In any action or
proceeding to enforce rights under this Agreement, the prevailing
party will be entitled to recover reasonable costs and reasonable
attorneys' fees.
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e. Headings. Headings used in this Agreement are for
convenience only and in no way are to be construed to define, limit
or affect the construction or interpretation of this Agreement.
f. Remedies. The rights and remedies of a party set forth
herein with respect to failure of the other to comply with the terms
of this Agreement (including, without limitation, rights of full
termination of this Agreement) are not exclusive, the exercise
thereof shall not constitute an election of remedies and the
aggrieved party shall in all events be entitled to seek whatever
additional remedies may be available in law or in equity.
g. Basis of Bargain. Each party recognizes and agrees that
the warranty disclaimers and liability and remedy limitations in
this Agreement are material bargained for bases of this Agreement
and that they have been taken into account and reflected in
determining the consideration to be given by each party under this
Agreement and in the decision by each party to enter into this
Agreement.
h. Entire Agreement. This Agreement (including all Exhibits
hereto) contains the entire agreement of the parties regarding the
subject matter hereof and supersedes all prior agreements,
understandings and negotiations regarding the same.
SIGNATURE PAGE FOLLOWS
ENCANTO NETWORKS, INC.
By: /s/ Jon T. Berryhill
-----------------------------------
Printed Name: Jon T. Berryhill
-------------------------
Title: Vice President Sales
--------------------------------
COMMERCEWAVE, INC.
By: SITEMAN, INC., its successor in
interest
By: /s/ Gari Cheever
-----------------------------------
Printed Name: Gari Cheever
-------------------------
Title: President
--------------------------------
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EXHIBIT A
MERCHANT WAVE
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EXHIBIT B
PRODUCTS
"Products" shall mean the following:
1. Online storefront creation application
2. Website builder
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EXHIBIT C
SPECIFICATIONS FOR PRODUCTS
Both Products must (a) operate on and in connection with Encanto's products,
(b) have Merchant Wave as the underlying technology and (c) be able to be
packaged and distributed separately.
ONLINE STOREFRONT CREATION APPLICATION:
WEB SITE BUILDER:
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