Exhibit 10.8.3
ANNUNCIO SOFTWARE, INC.
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SOFTWARE OUTSOURCING AGREEMENT
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This Software Outsourcing Agreement (this "Agreement") is entered into as
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of the 30th day of November, 1999 (the "Agreement Effective Date") by and
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between Annuncio Software, Inc., a California corporation with an office at 2440
W El Camino Real, Suite 300 Mountain View, CA 94040 ("Annuncio"), and eBay Inc.,
a Delaware corporation having an office at 2125 Hamilton Ave., San Jose,
California 95125 ("Customer").
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RECITALS
WHEREAS, Annuncio has developed certain Internet marketing automation
software known as Annuncio Live TM; and
WHEREAS, Customer wishes to contract with Annuncio to obtain the services
described in the various Statements of Work ("SOW") in order to automate its
Internet and integrated marketing campaigns.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES HERETO
HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS:
1.1 "Annuncio Servers" means the computer hardware servers controlled by
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Annuncio.
1.2 "Materials" means Customer's advertising and marketing information stored
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and organized by Annuncio's Software.
1.3 "Outsourcing Services" means those software outsourcing and/or hosting
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services provided by Annuncio pursuant to the terms of Schedule A-1 attached
hereto
1.4 "Software" means Annuncio's proprietary software in object code form and
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any updates or upgrades thereto provided by Annuncio hereunder.
1.5 "User Data" shall mean the Customer registered users that Customer will
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provide to Annuncio under this Agreement from time to time. The User Data shall
be comprised of the Customer UserID and email address.
2. AGREEMENT.
2.1 Structure. The Agreement consists of the Agreement and the following
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Schedules, which are incorporated herein in their entirety:
Schedule A-1: Initial Statement of Work
Schedule B: Online Conduct Policies.
The parties hereby agree that the previous Software License and Services
Agreement between the parties, executed on September 16, 1999, is terminated in
its entirety upon the Agreement Effective Date.
2.2 Scope of Engagement. Annuncio will provide Customer with access to the
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Annuncio Servers, through which Customer may, using Annuncio's Software pursuant
to the limited license granted herein, organize and store Customer's advertising
and marketing Materials.
3. TERM AND RENEWAL OF TERMS.
3.1 This Agreement is for a two (2) year term, beginning on the Agreement
Effective Date.
3.2 This Agreement shall renew automatically for additional twelve (12) month
terms, unless either party notifies the other with thirty (30) days notice to
terminate the Agreement, before the end of the applicable term.
4. LIMITED SOFTWARE LICENSE.
4.1 License. Subject to the terms and conditions of this Agreement, Annuncio
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grants Customer a nonperpetual, nonexclusive, nontransferable, license to
install the client version of the Software and use or permit use of the Software
solely as follows: (i) as hosted by Annuncio hereunder, and (ii) for purposes of
defining, executing, and analyzing Internet marketing campaigns, and
transferring and storing customer data used in such marketing campaigns.
Customer may make a reasonable number of copies of the client version
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
of the Software solely for backup purposes. The license granted hereunder is
subject to the "Marketing Transactions" and server limits set forth in Schedule
A-1.
4.2 Restrictions. Customer shall not: (i) disassemble, reverse engineer,
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decompile, or otherwise attempt to derive source code from the Software, modify,
adapt, create derivative works based upon, or translate the Software; (ii)
install the server version of the Software on any of its computer systems,
servers, or networks; (iii) sublicense, transfer, lease, loan, resell for
profit, distribute or otherwise grant any rights in the Software in any form to
any other party, including commercial time-sharing, rental, or service bureau
use; or (iv) copy the Software except as permitted by Section 4.1.
4.3 Ownership. This license is not a sale and does not convey any rights of
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ownership in or to the Software. Annuncio retains all right, title, and interest
in the Software (including any updates, upgrades or modifications thereof) and
reserves all rights not explicitly granted. Customer retains all right, title,
and interest in the Materials.
5. SERVICES.
5.1 Services. Annuncio will provide those Outsourcing Services set forth in
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Schedule A-1. In addition, as Customer and Annuncio may agree from time to time
during the Term, Annuncio will provide the consulting and/or advisory services
described in each separate Schedule A attached hereto (each, a "STATEMENT OF
WORK" or "SOW") at the price set forth therein. Each Schedule A hereto shall be
sequentially numbered (i.e. Exhibit(s) A-1, A-2, etc.) and shall not be binding
until it has been signed by both of the parties
5.2 Ownership. All right, title and interest in and to any enhancements,
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modifications or updates to the Software developed by Annuncio and furnished to
Customer hereunder or developed by Customer shall be and remain with Annuncio.
Customer shall treat all enhancements, modifications and updates, whether
developed by
ANNUNCIO SOFTWARE, INC. PAGE 1 CONFIDENTIAL
Annuncio or Customer, in accordance with the restrictions and limitations set
forth in the this Agreement.
5.3 User Data Ownership. Customer shall own the User Data and does not in any
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way assign, transfer, or convey title of the user list to Annuncio. Annuncio
acknowledges and agrees that the user list and all right, title and interest, is
and shall remain the exclusive property of Customer, and except as expressly
described in section 13 of this Agreement, Annuncio shall have no rights to
copy, use, reproduce, display, perform, modify or transfer the user list and any
derivative works thereof. Annuncio acknowledges and agrees that Annuncio shall
not use the User Data for any other use other than described herein or requested
by Customer and shall not permit any facilitator to use the User Data for any
other use than otherwise described herein or requested by Customer, without the
prior written approval of Customer and that any unlicensed use of such user list
may constitute irreparable harm to Customer.
6. CONFIDENTIAL INFORMATION.
6.1 Definition. Confidential Information means any information disclosed by
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either party ("Disclosing Party") to the other party ("Receiving Part"), either
directly or indirectly, in writing, orally, electronically, visually, or by
inspection of tangible objects (including without limitation documents,
prototypes, samples, plant and equipment), which is designated as
"Confidential," "Proprietary" or some similar designation or should be
reasonably understood to be confidential or proprietary. Confidential
Information includes, without limitation, all information relating to the source
code of any Annuncio Software, the operation of the Software, the Documentation,
or the terms and conditions of this Agreement to be Confidential Information.
Customer's User Data and information concerning marketing and advertising
services, all site and business development plans, and specific events and
features planned for or by Customer are deemed confidential information.
Confidential information also includes, but is not limited to, trade secrets,
computer programs, software, documentation, formulas, data, inventions,
techniques, marketing plans, strategies, forecasts, customer lists, employee
information, financial information, confidential information concerning either
party's business or organization, as either party has conducted it or as either
party may conduct it in the future, information concerning any of either party's
past, current or possible future products or methods, including information
about either party's research, development, engineering, purchasing,
manufacturing, accounting, marketing, selling, leasing and/or software
(including third party software).
6.2 Definition Exclusion. Confidential Information shall exclude information
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that: (a) was independently developed by the Receiving Party without any use of
the Disclosing Party's Confidential Information or by the Receiving Party's
employees or other agents (or independent contractors hired by the Receiving
Party) who have not been exposed to the Disclosing Party's Confidential
Information; (b) becomes known to the Receiving Party, without restriction, from
a source other than the Disclosing Party without breach of this Agreement and
that had a right to disclose it; (c) was in the public domain at the time it was
disclosed or becomes in the public domain through no act or omission of the
Receiving Party; or (d) was rightfully known to the Receiving Party, without
restriction, at the time of disclosure. These Exclusion shall not apply to the
Confidential Information contained in the User Data.
6.3 Non-use and Non-disclosure. Each party agrees not to use any Confidential
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Information of the other party for any purpose except to perform its obligations
or exercise its rights under this Agreement. Each party agrees not to disclose
any Confidential Information of the other party to third parties or to such
party's employees, except to those employees of the receiving party who are
required to have the information in order to perform such party's obligations
under this Agreement. Neither party shall reverse engineer, disassemble or
decompile any prototypes, software or other tangible objects which embody the
other party's Confidential Information and which are provided to the party
hereunder. Each party agrees that it shall take commercially reasonable measures
to protect the secrecy of and avoid disclosure and unauthorized use of the
Confidential Information of the other party. Without limiting the foregoing,
each party shall take at least those measures that it takes to protect its own
most highly confidential information and shall ensure that its employees who
have access to Confidential Information of the other party have signed a non-use
and non-disclosure agreement in content similar to the provisions hereof, prior
to any disclosure of Confidential Information to such employees. Each party
shall reproduce the other party's proprietary rights notices on any such
approved copies, in the same manner in which such notices were set forth in or
on the original.
6.4 Compelled Disclosure. If a Receiving Party is, or believes that it will be,
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compelled by a court or other authority to disclose Confidential Information of
the Disclosing Party, it shall give the Disclosing Party prompt notice so that
the Disclosing
Party may take steps to oppose such disclosure.
6.5 User Data Confidentiality. Annuncio agrees that it shall take commercially
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reasonable steps to protect the confidential information of Customer, using
methods at least substantially equivalent to the steps it takes to protect its
own proprietary information, but not less than a commercially reasonable
standard, during the term of this Agreement and for a period of three (3) years
following the expiration or termination of this Agreement. Annuncio shall
prevent the duplication or disclosure of confidential information, other than by
or to its employees who must have access to the confidential information to
perform such party's obligations, provided that Annuncio shall make sure that
such employees are aware of the restrictions of this section 6. Annuncio agrees
that the User Data received from Customer and all lists created or derived from
such User Data (whether licensed or not) shall be treated and maintained as
confidential information under this section 6.
7. PAYMENT OBLIGATIONS.
7.1 Payment. For the Outsourcing Services provided hereunder, Annuncio will
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invoice Customer as specifically set forth in Schedule A-1 on a monthly basis.
For any additional consulting or advisory services provided pursuant to a
separate Schedule, Customer shall pay Annuncio for performing the additional
services as shown in the applicable Schedule. All fees are due and payable to
Annuncio within 30 days after the receipt of an Annuncio invoice. Fees not paid
when due will, after notice to Customer, accrue late charges at a rate of 1.5 %
per month, or the maximum rate allowed under law, whichever is lower, from the
due date until the date paid. All fees quoted and payments made hereunder are in
U.S. Dollars.
7.2 Taxes. Customer shall be responsible for all sales taxes, use taxes and any
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other similar taxes and charges of any kind imposed by any federal, state or
local governmental entity on the transactions contemplated by this Agreement,
excluding only U.S., state, local and foreign taxes based solely upon Annuncio's
income. When Annuncio has the legal obligation to pay or collect such taxes, the
appropriate amount shall be invoiced to and paid by Customer unless Customer
provides Annuncio with a valid tax exemption certificate authorized by the
appropriate taxing authority.
ANNUNCIO SOFTWARE, INC. PAGE 2 CONFIDENTIAL
7.3 Expenses. Customer will reimburse Annuncio for all reasonable and necessary
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travel and other related expenses incurred by Annuncio in the performance of
those Outsourcing Services or other consulting and/or advisory services at
locations other than Annuncio facilities, subject to Customer's receipt of an
invoice and supporting documentation.
8. INDEMNITY.
8.1 Materials. Except for unapproved changes to Customer's Materials by
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Annuncio. Customer is solely responsible for the content of the Materials (as
defined in Section 1.3). For any and all Materials, Customer shall obtain any
and all licenses to, and releases of intellectual or proprietary rights
subsisting in such Materials before delivery to Annuncio or placement within the
Service. If Customer is made aware of Materials that Customer reasonably deems
to be in violation of law, then Customer shall remove such Materials. If there
is any damage or loss of any Materials, however caused, then Customer's sole and
exclusive remedy, and Annuncio's sole and exclusive liability for such damage or
loss is for Annuncio to use all commercially reasonable efforts to provide to
Customer the version of the Materials from Annuncio's most recent regularly
scheduled backup. Customer shall, at its expense, defend and hold Annuncio, its
parent and subsidiary companies and its directors, officers and employees
harmless from any and all damages, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by Annuncio arising out of or relating to
any third party claim, suit or proceeding alleging that the Materials: (i) are
factually inaccurate, misleading or deceptive; (ii) infringe or misappropriate
any copyright, trademark, trade secret or other intellectual property right of
any third party; or (iii) are libelous, defamatory, obscene or pornographic or
violates other civil or criminal laws, including those regulating the use and
distribution of content on the Internet and protection of personal privacy;
provided that Annuncio promptly notifies Customer in writing of any such claim
and promptly tenders full control of the defense and settlement of any such
claim to Customer at Customer's expense and with Customer's choice of counsel.
Annuncio shall cooperate with Customer, at Customer's expense, in defending or
settling such claims. Notwithstanding the provisions of section 8.1 above,
Customer assumes no liability for infringement claims arising out of or by
Annuncio's modification of the Materials, unless such modification was approved
or consented to by Customer.
8.2 Intellectual Property Indemnification. Annuncio shall, at Annuncio's option
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and expense, indemnify and hold harmless Customer, from all cost (including
reasonable attorneys' fees), damage, loss or expense arising out of or relating
to any claim, suit or proceeding brought by a third party against Customer or
its parent company, subsidiaries, directors, officers and employees on the issue
of infringement by the Software of any U.S. trademark, copyright or trade
secret. For any claim made pursuant to this provisions:
(a) Annuncio shall have sole control of any such action or settlement
negotiations, and Annuncio agrees to pay any final judgment entered against
Customer or settlement entered into on such issue in any such suit or proceeding
defended by Annuncio; provided Customer promptly notifies Annuncio in writing of
such claim; and Annuncio has sole control of the defense of any such claim.
(b) If the Software, or any part thereof, is, or in the opinion of Annuncio may
become, the subject of any claim, suit or proceeding for infringement of any
such copyright if it is adjudicatively determined that the Software, or any part
thereof, infringes any such copyright or if the use of the Software, or any part
thereof, is, as a result, enjoined, then Annuncio shall, at its option and
expense, provide one of the following remedies: (i) procure for Customer and its
customers, at no cost to Customer, the right under such copyright to continue to
use, the Software or such part thereof; or (ii) replace the Software, or part
thereof, with other suitable software; or (iii) suitably modify the Software, or
part thereof; or (iv) if the use of the Software, or part thereof, is prevented
by injunction, remove the Software, or part thereof, and refund the payments
paid therefore by Customer for the then-current month, without prejudice to its
continuing indemnification obligations.
(c) Notwithstanding the provisions of Section 8.2 above, Annuncio assumes
no liability for infringement claims arising out of the Materials or by Client's
modification of the Software without Annuncio's authorization, or the use or
combination of the Software with materials, equipment or machinery not provided
by Annuncio.
(d) THE FOREGOING PROVISIONS OF THIS SECTION 8.2 STATE THE ENTIRE
LIABILITY AND OBLIGATION OF ANNUNCIO AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH
RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF COPYRIGHTS, OR OTHER
INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART THEREOF.
8.3 Indemnification. Annuncio shall, at its expense, defend and hold Customer,
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its parent and subsidiary companies and its directors, officers and employees
harmless from any and all damages, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by Customer arising out of or relating to
any third party claim, suit or proceeding arising out of Annuncio's violation or
any alleged violation of any applicable
local, state or federal law or regulation, provided that Customer promptly
notifies Annuncio in writing of any such claim and promptly tenders full control
of the defense and settlement of any such claim to Annuncio at Annuncio's
expense and with Annuncio's choice of counsel. Customer shall cooperate with
Annuncio, at Annuncio's expense, in defending or settling such claims.
9. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT EXCEED THE SUM OF FEES PAID BY CUSTOMER FOR THE SERVICES GIVING RISE
TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE
CAUSE OF ACTION AROSE. IN NO EVENT SHALL EITHER PARTY, ANNUNCIO'S LICENSORS, OR
ITS SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO ANY
BREACH BY CUSTOMER OF ANY SOFTWARE LICENSE RESTRICTIONS, ANY BREACH BY ANNUNCIO
OR CUSTOMER OF CONFIDENTIALITY OBLIGATIONS, OR ANY INDEMNIFICATION BY ANNUNCIO
UNDER SECTION 8.2. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE
ALLOCATION OF RISK.
ANNUNCIO SOFTWARE, INC. PAGE 3 CONFIDENTIAL
10. WARRANTY AND DISCLAIMER.
10.1 Mutual Warranties Each party warrants that it has the right and power to
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enter into this Agreement and authorized representative has executed this
Agreement.
10.2 Annuncio's Limited Software Warranty. Annuncio warrants that the Software:
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(a) shall operate in substantial conformity with its documentation; and (shall
contain no viruses, trap doors, Trojan Horses or disabling devices as of the
Effective Date. Annuncio does not warrant that the Software will meet all of
Customer's requirements or that the use of the Software or access to functions
of the Software will be uninterrupted or error free. Annuncio's sole and
exclusive liability, and Customer's sole and exclusive remedy, for any breach of
the warranty in this Section 10.1 is Annuncio's commercially reasonable efforts
promptly to repair or replace the Software, [*].
10.3 Annuncio's Services Warranty. Annuncio warrants that it will perform its
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obligations under the Agreement (including any applicable Schedules) in a
professional and workmanlike manner in accordance with recognized industry
standards.
10.4 Annuncio's Availability Warranty. The availability of the Annuncio
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Servers, Software and related Outsourcing Services depends on many factors,
including Customer's connection to the Internet, the availability of the
Internet and the Internet backbone and equipment that, by its nature, is not
fault tolerant. The Outsourcing Services will at least meet industry standards.
Annuncio will use all commercially reasonable efforts to: (i) make the Annuncio
Servers available 24 hours per day, 7 days per week; (ii) promptly investigate
any problems that Customer reports to Annuncio; and (iii) resolve problems or
errors promptly.
10.5 Credit for Non-Availability. If the Annuncio Servers, Software and related
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Services are available less than 90% of the time (excluding scheduled
maintenance and backups each day ("Uptime Target"), then Annuncio shall credit
Customer for the unavailable time by extending the term of this Agreement one
day, without additional charge, for each day in which the Uptime Target is not
met. In order to receive a Credit for Non-Availability, Customer must notify
Annuncio within seven (7) days from the time Customer becomes eligible to
receive the Credit. Failure to comply with this requirement will forfeit
Customer's right to receive a Credit for Non-Availability.
10.4 Customer Warranty.
(a) Code of Conduct. Customer agrees not to use the Annuncio Services or
any Annuncio equipment in a manner that is prohibited by any law or regulation
or to facilitate the violation of any law or regulation. Customer further agrees
not to use the Services in a manner that will disrupt third parties' use or
enjoyment of any communications service or outlets. Customer acknowledges that
prohibited conduct includes, but is not limited to, use of the Service to invade
the privacy of third parties, impersonation of Annuncio personnel or other
Annuncio Customers, transmitting via e-mail, USENET or chat service abusive,
profane, libelous, slanderous, threatening or otherwise harassing material and
posting material in any newsgroup that is off-topic according to the charter or
other public statement of the newsgroup. Customer also agrees not to use any of
the Services to solicit Annuncio customers to patronize competing services, and
not to violate or tamper with the security of any Annuncio computer equipment or
program.
(b) Content On Site. Customer shall be solely responsible for all content
available on or through Customer's web site. Customer acknowledges that Annuncio
exercises no control whatsoever over the content of the information passing
through Customer's site(s) and that it is the sole responsibility of Customer to
ensure that the information it and its users transmit and receive complies with
all applicable laws and regulations.
(c) Impermissible E-mail Practices. Customer shall comply at all times
with the terms and conditions of Annuncio's Online Conduct Policy, attached to
this Agreement as Schedule B. If a complaint is received regarding Customer's
violation of the terms in Schedule B, Annuncio will provide Customer with notice
of such complaint. Upon receipt of such notice, Customer will either resolve the
complaint directly with Annuncio's Internet host vendor (e.g. Exodus) or
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indemnify Annuncio pursuant to section 8.1 of this Agreement.
10.5 Disclaimer. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED,
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STATUTORY, OR OTHERWISE EXCEPT THOSE SPECIFICALLY SET FORTH IN THIS SECTION.
EACH PARTY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND THE STATUTORY WARRANTY AGAINST INFRINGEMENT.
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
11. TERMINATION OF AGREEMENT
11.1 This Agreement may be terminated as follows:
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(a) If Customer fails to make any payment due hereunder within 30 days
after receiving written notice from Annuncio that such payment is delinquent,
Annuncio may terminate this Agreement on written notice to Customer at any time
following the end of such 30 day period;
(a) If either party materially breaches any term or condition of this
Agreement and fails to cure such breach within 30 days after receiving written
notice of the breach, the nonbreaching party may terminate this Agreement on
written notice at any time following the end of such 30 day period; or
(b) Either party may terminate this Agreement immediately upon notice if
the other party hereto becomes insolvent (i.e. becomes unable to pay its debts
in the ordinary course of business as they come due) or makes an assignment for
the benefit of creditors.
11.2 Treatment of User Data Upon Termination. Upon expiration or termination of
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this Agreement, or upon request by Customer, Annuncio shall immediately (i)
cease using and destroy all copies of the User Data in its control or
possession; and (ii) require and verify that all copies of the user list in the
control of possession of all facilitator's shall be destroyed.
12. [*]
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
13. USER DATA LICENSE.
Customer grants to Annuncio for the sole purpose of facilitating the services
under this Agreement, a limited license for the duration of this Agreement, to
use the User Data to facilitate the use of the Software hereunder. This license
in no way grants Annuncio the right to alter, modify, combine, reproduce, sell,
rent, or assign the User Data to any third party, except that Annuncio may share
such User Data with a third party ("facilitator") to facilitate its services via
a strict confidentiality agreement and with the prior written approval of
Customer. Use of the User Data must at all times be in accordance with
Customer's privacy policy, which is available on Customer's website at:
http://pages.ebay.com/help/community/png-priv.html.
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14. TRADEMARKS
14.1 License of Customer's Trademarks. Subject to the terms and conditions of
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this Agreement, Customer hereby grants to Annuncio a limited, non-exclusive,
non-transferable license to publicly display and reproduce the eBay advertising
materials provided to Annuncio by Customer (the "Customer Materials"), and the
eBay trademarks, servicemarks and logos set forth therein, or as may otherwise
be specified in writing by Customer (collectively the "Customer Marks"), solely
to promote the Customer site in accordance with this contract.
14.2 License of Annuncio's Trademarks. Subject to the terms and conditions of
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this Agreement, Annuncio hereby grants to Customer a limited, non-exclusive,
non-transferable license to publicly display and reproduce the Annuncio
advertising materials provided to Customer by Annuncio (the "Annuncio
Materials") (together with the Customer Materials, the "Materials") and the
Annuncio trademarks, servicemarks and logos set forth therein, or as may
otherwise be specified in writing by Annuncio (collectively, the "Annuncio
Marks") (together with the Customer Marks, the "Marks"), solely for the purposes
set forth in this Agreement.
14.3 Approval. Prior to the display by either party of the other party's Marks,
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each party shall obtain the other party's approval of all uses of the other
party's Materials and Marks, and resulting ads and links displayed by such party
under this Agreement, unless such display was requested or approved by the other
party in advance. Each party hereby admits and recognizes the other party's
exclusive ownership of the other party's Marks and the renown of such Marks
worldwide. Each party agrees not to take any action inconsistent with the other
party's ownership of its Marks and agrees that any benefits accruing from use of
such Marks shall automatically vest in the other party.
14.4 Limitations. Neither party may modify for public display any of the other
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party's Materials, logos or marks, except upon receiving the other party's prior
written approval. Neither party may sublicense, resell, assign or transfer any
of its rights hereunder, without the prior written approval of the other party,
such approval to not be unreasonably withheld. All rights not expressly granted
hereunder are reserved to the applicable party.
15. SOURCE CODE AGREEMENT.
When and if Annuncio enters into an agreement to place its source code into an
escrow account, Annuncio shall provide Customer with the option to become a
subscriber to such source code escrow account.
16. GENERAL.
16.1 Survival. In addition to any payment obligations incurred prior to the
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expiration or termination of this Agreement, the following sections shall
survive the termination or expiration of this Agreement for any reason: 3.2,
3.3, 6, 8, 10.2, 11, 12 and 13.
16.2 Assignment. Customer may not assign any of its rights or delegate any of
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its obligations under this Agreement, whether by operation of law or otherwise,
unless it has first obtained written approval from Annuncio, and the assignee or
delegatee agrees, also in writing, to be bound by all of the terms and
conditions of this Agreement. Subject to the foregoing, this Agreement will bind
and inure to the benefit of the parties, their respective successors and
permitted assigns.
16.3 Waiver and Amendment. No modification, amendment or waiver of any
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provision of this Agreement shall be effective unless in writing and signed by
the party to be charged. No failure or delay by either party in exercising any
right, power, or remedy under this
ANNUNCIO SOFTWARE, INC. PAGE 5 CONFIDENTIAL
Agreement, except as specifically provided herein, shall operate as a waiver of
any such right, power or remedy.
16.4 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by
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the laws of the United States and the State of California, USA., excluding
conflict of laws provisions and excluding the 1980 United Nations Convention on
Contracts for the International Sale of Goods. Customer agrees to comply with
all U.S. and foreign export control laws or regulations. The parties hereto
agree to the exclusive and personal jurisdiction of the state and federal courts
located in the Central District of California.
16.5 Notices. All notices, demands or consents required or permitted under this
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Agreement shall be in writing and delivered to the addresses set forth on the
Cover Sheet. Notice shall be considered delivered and effective on the earlier
of actual receipt or when: (a) personally delivered; (b) the day following
transmission if sent by telex, telegram or facsimile when followed by written
confirmation by registered overnight carrier or certified United States mail; or
(c) 1 day after posting when sent by registered private overnight carrier (e.g.,
Airborne, DHL, Federal Express, UPS etc.); or (d) 5 days after posting when sent
by certified United States mail. Notice shall be sent to the parties at the
addresses set forth on the first page of this Agreement or at such other address
as shall be specified by either party to the other in writing.
16.6 Independent Contractors. The parties are independent contractors. Neither
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party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
16.7 Severability. If any provision of this Agreement is held by a court of
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competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
16.8 Force Majeure. Except for Customer's obligations to pay money, neither
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party shall be deemed to be in breach of this Agreement for any failure or delay
in performance caused by reasons beyond its reasonable control, including but
not limited to acts of God, earthquakes, strikes or shortages of materials.
16.9 Headings and References. The headings and captions used in this Agreement
-----------------------
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
16.10 Complete Understanding. This Agreement, including all Schedules,
----------------------
constitutes the final, complete and exclusive agreement between the parties with
respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
16.11 Counterparts. This Agreement may be signed in two or more counterparts,
------------
each of which shall be deemed an original and together which shall constitute
one instrument.
ACCEPTED AND AGREED:
- -------------------
ANNUNCIO SOFTWARE, INC. ("ANNUNCIO") EBAY INC. ("CUSTOMER")
By: /s/ Didier Moretti By: /s/ James R. Davis
Print Name: DIDIER MORETTI Print Name: JAMES R. DAVIS
-------------- --------------
Title: PRESIDENT & CEO Title: VP Marketing
--------------- ------------
Date: 12/22/99 Date: 12/22/99
-------- --------
SCHEDULE A-1
TO THE
SOFTWARE OUTSOURCING AGREEMENT
This Schedule ("Schedule") is made as of the 30th day of November, 1999,
("Schedule Effective Date") by and between Annuncio Software, Inc. ("Annuncio")
and eBay, Inc. ("Customer"). This Schedule incorporates by reference the
November 30, 1999 Software Outsourcing Agreement ("Agreement"). In the event of
a conflict in terms between this Schedule and the Agreement, the terms of this
Schedule shall prevail. All capitalized terms not otherwise defined herein shall
have the same meaning as in the Agreement.
Annuncio shall provide Customer with advice and consultation services
("Services") as defined below.
DESCRIPTION AND SCOPE OF ANNUNCIO'S SERVICES:
- ---------------------------------------------
HOSTING AND TECHNICAL SERVICES:
Annuncio Software will provide the following:
* Systems maintenance and management for a hosted version of Annuncio Live,
as well as hosting of the required hardware and third party software
required to deliver a complete system appropriately scaled for Customer's
defined marketing transaction volumes.
* Hosting and backups of the Annuncio Live database.
* High-speed Internet access for outbound emails and inbound web responses
for Customers marketing campaigns.
* Access over the Internet to the hosted system from the Annuncio Live client
installed at Customer's site for campaign development and reporting.
* Ongoing technical management of the hosted system, including management of
up to 15 email mailboxes for use in marketing campaigns, and configuration
of the hosted system for campaigns to use up to 5 web and/or email domains.
* System security.
* From time to time, Annuncio will be required to perform some system
maintenance that will result in system downtime. Annuncio will endeavor to
coordinate this maintenance with Customer and provide adequate notice of
anticipated downtime.
DATA SERVICES:
Standard Services
-----------------
* Definition and setup of customer profile fields in the Annuncio Live
database. Customer will assist in the definition and design of the profile
fields to meet Customer requirements.
* Ongoing management of customer profile fields.
* Maintenance of 90 days of transaction data from marketing campaigns.
Transaction data over 90 days old will be archived. Profile data will be
maintained on an ongoing basis.
Custom Batch Data Uploads and Download
--------------------------------------
* Annuncio will provide the number of batch uploads and/or downloads of data
to/from the Annuncio Live database specified in the Pricing section.
* Data uploads and/or downloads will be in a flat file format specified by
Annuncio.
* Data uploads and/or downloads will be automated on a scheduled basis using
an FTP site for exchange between Customer and the hosted system.
* Customer will assist with the testing of uploads/downloads between Customer
and the hosted system.
1
* The data provided by Customer will be "clean" and will not require
manipulation or "scrubbing" by Annuncio. Any additional manipulation by
Annuncio will be charged at then current consulting rates.
* If there are any errors in the data upload due to Customer providing data
in the wrong format, Customer will be responsible for Annuncio consulting
services required to restore the data and any resulting downtime.
* Extracts from the Annuncio Live database will be made from the Profile
tables. Data from multiple choice fields will be stored in separate flat
files. Additional consulting regarding the integration of data into
Peachtree Software Inc.'s systems and databases will be charged at then
current consulting rates.
Standard Bounce/Unsubscribe Downloads
-------------------------------------
* Annuncio will provide scheduled downloads of bounce/unsubscribe lists from
the Annuncio system.
* Downloads will be in a standard format defined by Annuncio.
* Data downloads will be automated on a scheduled basis using an FTP site for
exchange between Customer and the hosted system.
Additional Campaign Services
----------------------------
* Consulting services provided previously to build Offers Engine.
PRICING:
- -------
Level of Use:
-------------
The pricing herein is based on a two (2) year term, as set forth in the
Agreement, and is for the following levels of use:
MAXIMUM NUMBER OF MARKETING TRANSACTIONS (defined as emails and web [*] pages
served by the Software per Month;
MAXIMUM NUMBER OF CUSTOMERS
---------
MONTHS [*] [*]
MONTHS [*] [*]
Additional transactions or customers will result in additional fees being due at
Annuncio's then standard rate.
Monthly Fees:
-------------
Hosting and Software License Fees COST
Months [*] [*]
Months [*] [*]
- -------------
OUTSOURCING SERVICES PRICING: CAMPAIGN SERVICES COST
Months [*] [*]
Months [*] [*]
TOTAL FEES: MONTHS [*] [*]
MONTH [*] [*]
MONTHS [*] [*]
CONSULTING:
CONSULTING FULL-TIME EMPLOYEES ("FTE") PROVIDED PER MONTH FTE
Account Management [*]
Project Management [*]
2
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Producer [*]
Data Loads/DB Mgmt [*]
An FTE is equal to one employee working 40 hours per week. Any additional
consulting time will be at Annuncio's then-current standard consulting rates.
Monthly consulting hours will expire if not used within that month.
PAYMENT:
Payment for the first and second month of the Agreement, [*], is due on the
Schedule Effective Date. Thereafter, payment for a given month will be due 30
days upon receipt of invoice from Annuncio, Except as expressly provided, all
fees detailed herein are non-cancelable and non-refundable.
[*]
ANNUNCIO CONTACTS:
Name: Name:
Address: Address:
Phone Phone:
Fax: Fax:
E-mail: E-mail:
ANNUNCIO Work Order #: CUSTOMER P.O. # [if known]:
Customer Contracts:
PROJECT CONTACT BILLING CONTACT
Name: Kellie Markey Customer Name: Accounts Payable
------------- ----------------
E-mail:kmarkey@ebay.com Contact Name: David Anthony
---------------- -------------
Address: 2125 Hamilton Ave. Address: 2125 Hamilton Ave
------------------ -----------------
City/State/Zip: San Jose, California, 95125 City/State/Zip: San Jose, California, 95125
--------------------------- ---------------------------
Phone: 408-558-6477 Phone: 408-558-6163
------------ ------------
Fax: 408-558-6401 Fax: 408-558-6401
------------ ------------
The Parties hereby agree to all of the above terms and have executed this
Agreement by a duly authorized officer or officer representative.
ACCEPTED BY: EBAY, INC. ACCEPTED BY: ANNUNCIO SOFTWARE, INC.
/s/ James R. Davis /s/ Didier Moretti
3
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Authorized Signature Authorized Signature
James R. Davis, V.P. Marketing Didier Moretti, President and CEO
- ------------------------------ ---------------------------------
Printed Name and Title Printed Name and Title
4
SCHEDULE B
ONLINE CONDUCT POLICIES
Customer using Annuncio Live Campaign Services may not send unsolicited
commercial emails ("spam"). Each prospective email recipient included in an
Annuncio Live Campaign Services mailing must have provided its permission
("opted in") to receive the specified communication.
CONSEQUENCES OF MISCONDUCT
In the event a complaint is received at Abuse@annuncio.com or Abuse@Exodus.net,
------------------ ----------------
Annuncio will document the relevant information from the complaint. A copy of
the complaint(s) is attached to a letter describing Annuncio's policies with the
address or URL of the original sender highlighted and this is sent to our
customer via email to the contact email address provided or another designated
----- -------
address. The customer is not expected to respond to this email, but should be
aware that if more complaints are received, Annuncio will escalate the process
and send the second of the series of three letters.
After receipt of a complaint with the original spam/email dated more recent than
that of the spam/email sent with complaint one, relevant information is again
recorded and a copy of the complaint(s) is attached to the second in the series
of letters and sent to the customer. This letter will require a response by the
customer as to the status of resolution to the complaint.
If any complaint arrives at Abuse@annuncio.com or Abuse@Exodus.net with a
------------------ ----------------
spam/email dated more recent than that of the spam sent with the second letter,
relevant information is again recorded and a copy of the complaint(s) is
- ------------------------------------------------------------------------
attached to the third in the series of letters and sent to the customer. The
- -----------------------------------------------------------------------
third and last letter will be sent to the customer along with a copy of the
current complaint(s). This letter will require a response by the customer and
inform them of the time they have to resolve this issue before Annuncio
evaluates whether to discontinues service to that customer.
- --------------------
Customer shall indemnify Annuncio for all fines assessed by Annuncio's Internet
- -------------------------------------------------------------------------------
host vendor for a violation of the vendor's Internet use guidelines, where the
- ------------------------------------------------------------------------------
fines are directly attributable to and caused by Customer, in accordance with
- -----------------------------------------------------------------------------
Section 8.1 of the Agreement.
- -----------------------------
OTHER MISCONDUCT:
Annuncio Live campaign services may not be used for any of the following
activities:
* Infringe or misappropriate the intellectual property rights of others. This
includes posting copyrighted materials without appropriate permission,
using trademarks of other without appropriate permission or attribution,
and posting or distributing trade secret information of others in violation
of a duty of confidentiality.
* Violate the personal privacy rights of others. This includes collecting and
distributing information about Internet users without their permission,
except as permitted by applicable law.
* Send, post or host harassing, abusive, libelous or obscene materials or
take any similar actions.
* Intentionally omit, delete, forge or misrepresent transmission information,
including headers, return addressing information and IP addresses or take
any other actions intended to cloak Customer's or its users' identity or
contact information.
* Use the online facilities for any illegal purposes.
* Assist or permit any persons in engaging in any of the activities described
above.
If Customer becomes aware of any such activities, Customer will use best
efforts to stop such activities immediately. If Annuncio notifies Customer of
such conduct, Customer is required to provide written proof that such activities
have been remedied within 2 business days or Annuncio will discontinue its
Services until such time as the activities have been resolved. Annuncio reserves
the right to terminate services permanently if such activities reoccur or are
deemed exceptional in nature.
ANNUNCIO SOFTWARE, INC. 1