EXHIBIT 10.8.9
Tidestone
TECHNOLOGIES
SOFTWARE LICENSE AGREEMENT
FOR
ANNUNCIO SOFTWARE, INC.
Effective Date: May 19, 1999
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SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is made as of the effective date set forth below by and between
TIDESTONE TECHNOLOGIES, INC., a corporation organized and existing under the
laws of the State of Kansas ("Tidestone") and ANNUNCIO SOFTWARE, INC., a
corporation organized and existing under the laws of California ("Licensee"),
both having principal places of business at the addresses specified in the
signature block of this Agreement. Capitalized terms used in this Agreement
shall have the meanings specified in Section 9.
WHEREAS, Licensee desires to obtain from Tidestone a license to use, reproduce
or display and sell, lease or otherwise distribute or transfer copies of the
computer software and documentation specified hereinafter;
WHEREAS, Tidestone desires to license such computer software and documentation
to Licensee upon and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises, covenants and conditions
contained hereinafter, the parties agree as follows:
SECTION 1. DISTRIBUTION LICENSE
1.01 GRANT OF LICENSE. Effective upon the payment of the license fee as set
forth in Section 2 of Exhibit A, Tidestone will hereby grant to Licensee a non-
exclusive, worldwide right and license under the Tidestone intellectual property
rights and information contained in and associated with the Software Program and
Documentation to use, reproduce (or have reproduced), display and sell, lease
and otherwise distribute, sublicense and transfer copies, directly or
indirectly, of the Software Program and Documentation, in executable code form
only, as parts of Products, for the purposes of marketing such Products to
Licensee's customers.
1.02 DELIVERABLES. Promptly upon receipt of the license fee as set forth in
Section 2 of Exhibit A, Tidestone shall deliver to Licensee the Software Program
described in the Specifications as set forth in Exhibit B together with the
appropriate Documentation and other information and materials relating to such
Software Program.
1.03 LICENSEE'S OBLIGATIONS.
(a) Licensee shall be solely responsible for any marketing,
manufacturing, packaging, documentation production, distribution and
customer pricing of the Products. Except as otherwise provided in this
Agreement, Licensee also shall assume all responsibility and liability to
customers for related support and assistance.
(b) Under no circumstances may Licensee modify, decompile or reverse
assemble any executable code contained within the Software Program.
(c) Licensee agrees that it will not, nor will it authorize or license
another to, sell, market or license the Software Program, or any portion
thereof, as a standalone computer software program, component or software
development tool, or as a component or components of a computer software
program, the chief marketability and functionality of which is the
Software Program. Licensee further agrees that it will not provide
documentation to the API of the Software Program to its customers or
license its customers to use the API other than as part of the Product.
(d) Licensee shall take actions with the same degree of care, but in no
event with less than reasonable care, accorded its own technology to
ensure that all sublicensees, resellers or other parties involved in the
reproduction or distribution of Products containing the Software Program
or otherwise afforded access to the Software Program shall be subject to
reasonable provisions regarding protection of Tidestone's intellectual
property rights in the Software Program.
1.04 COPYRIGHT AND TRADEMARK. Licensee acknowledges that all copyrights in the
Software Program and the goodwill associated therewith are vested in and belong
to Tidestone; and Licensee agrees to reproduce and include the following
copyright and trademark notice in the user's manual and "about box" for the
Product:
In the user's manuals and packaging for the Product, Licensee shall use the
trademark TIDESTONE FORMULA ONE to identity the Software Program and shall
indicate that TIDESTONE is a trademark and FORMULA ONE is a licensed trademark
of Tidestone. Licensee will not in any way identify itself as the owner of any
such trademark or any other Tidestone trademark, service mark or logo or
register the same in Licensee's name or in any other name.
1.05 RESERVATION OF TITLE; UNAUTHORIZED USE OR DISCLOSURE. Licensee
acknowledges that Tidestone claims and reserves all rights and benefits afforded
under federal and international copyright law in the Software Program and
Documentation and other information and materials furnished to Licensee
(including any modified or derivative Software Program developed pursuant to
this Agreement). This Agreement does not effect any transfer of copyright title
or other interest in or to such Software Program, Documentation or other
information and materials and Licensee expressly disclaims any such interest
therein. Tidestone shall remain entitled to enforce its copyright and other
interests in the Software Program, Documentation and other information and
materials produced or disclosed in connection therewith. Licensee shall devote
all reasonable efforts (commensurate with Licensee's standard business
practices) to ensure that all entities and persons afforded access to the
Software Program, Documentation and other information and materials produced or
disclosed in connection therewith protect the same against unauthorized use,
dissemination or disclosure.
SECTION 2. PAYMENT
Subject to the terms and conditions of this Agreement, and in consideration for
the license granted and the services
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provided by Tidestone hereunder, Licensee shall pay the license fees, royalties
and other charges relating to the Software Program, and to the performance of
any services provided by Tidestone, in accordance with the provisions of Exhibit
A.
SECTION 3. ERROR CORRECTION AND MAINTENANCE
Tidestone shall provide to Licensee such Error correction and maintenance
services with respect to the Software Program as are specified in Exhibit C,
subject to Licensee's payment of such fees and charges as are set forth therein.
SECTION 4. LIMITED WARRANTY; LIMITATION OF WARRANTY AND LIABILITY
4.01 LIMITED WARRANTY. Tidestone warrants:
(a) It is a corporation duly incorporated, organized under the laws of
Kansas and has all requisite power and authority, corporate and otherwise,
to own its assets, to carry on its business as now conducted, to execute
and deliver this Agreement, and to consummate the transactions
contemplated herein, and that all such matters have been duly authorized
by all requisite corporate actions.
(b) For the period during which services are provided under Exhibit C,
the Software Program shall substantially conform to the Specifications and
Documentation. Licensee's sole remedy for any breach of the warranty set
forth in this paragraph (b) shall be the provision of Error correction
services by Tidestone as set forth in Exhibit C, subject to Licensee's
payment of such charges as are set forth therein.
(c) The use or distribution of unaltered Software Program and
Documentation, or the exercise of the licenses granted hereunder, will not
infringe any valid and enforceable U.S. copyright, patent, trademark or
other intellectual property rights of any third party, and Tidestone has
all rights necessary for the grant of the rights and licenses granted by
this Agreement. Tidestone agrees to indemnify, defend and hold Licensee
harmless from any and all actions, causes of action, claims, demands,
reasonable costs, liabilities, reasonable expenses and damages
(collectively, a "Loss" or "Losses") arising from any claim that the
Software Program infringe any valid and enforceable U.S. copyright,
patent, trademark or other intellectual property right of a third party,
provided, however:
(1) To be entitled to the indemnification hereunder, Licensee
shall promptly deliver to Tidestone notice in writing of any claim
for recovery under this Paragraph (c), specifying in reasonable
detail the nature of the Loss, and, if known, the amount, or an
estimate of the amount, of the liability arising therefrom.
Licensee shall provide to Tidestone as promptly as practicable
thereafter information and documentation reasonably requested by
Tidestone to support and verify the claim asserted, provided that,
in so doing, it may restrict or condition any disclosure in the
interest of preserving privileges of importance in any foreseeable
litigation.
(2) If the facts pertaining to the Loss arise out of the claim
of a third party, or if there is any claim against a third party
available by virtue of the circumstances of the Loss, Tidestone may
assume the defense or the prosecution thereof, including the
employment of counsel or accountants, at its cost and expense.
Licensee shall have the right to employ counsel separate from
counsel employed by Tidestone in any such action and to participate
therein, but the fees and expenses of such counsel employed by
Licensee shall be at its expense. Tidestone shall have the right to
determine and adopt (or, in the case of a proposal by Licensee, to
approve) a settlement of such matter in its reasonable discretion.
Tidestone shall not be liable for any settlement of any claim
effected without its prior written consent, which shall not be
unreasonably withheld. Whether or not Tidestone chooses to so
defend or prosecute such claim, Licensee and Tidestone shall
cooperate in the defense or prosecution thereof and shall furnish
such records, information and testimony, and attend such
conferences, discovery proceedings, hearings, trials and appeals,
as may be reasonably requested in connection therewith.
(3) If such a claim arises, or in either party's judgment is
likely to arise, Licensee agrees to allow Tidestone, at Tidestone's
option, to either (i) procure the right to permit the continued
exercise of the rights and licenses in the Software Program and
Documentation granted under this Agreement; (ii) replace or modify
the Software Program and Documentation so they become non-
infringing, while affording equivalent performance; or (iii) as its
sole obligation, terminate the license for the infringing Software
Program and upon return thereof by Licensee, refund the unearned
portion of any license fees paid by the Licensee for the remainder
of the current term hereof.
(4) No indemnification shall be payable by Tidestone to Licensee
with respect to matters as to which Tidestone has not received
written notice required under this Paragraph (c) from Licensee
within three (3) years after the termination of this Agreement.
Tidestone shall have no indemnity obligation for claims of
infringement resulting from any combination, operation or use of
the Software Program and Documentation, or any components thereof,
with any software programs or data not supplied by Tidestone if
such infringement would have been avoided by use of the Software
Program and Documentation alone.
Licensee acknowledges and agrees that this Paragraph (c) is the
exclusive remedy of Licensee for damages for breach of warranty or
representations contained in this Paragraph (c).
4.02 LIMITATION OF WARRANTY. Except as specifically set forth herein, the
Software Program is provided "as is" for Licensee's use subject to the terms and
conditions of this Agreement, and, as between the parties, Licensee assumes
responsibility for determining the suitability of the Software Program for its
use in Products and for results obtained. Tidestone makes no warranty that all
Errors have been or can be eliminated from the Software Program or
Documentation, and Tidestone shall in no event be responsible for losses of any
kind resulting from the use of the Software Program or the Documentation,
including, but not limited to, any liability for business expense, machine
downtime or damages caused to Licensee or Licensee's customers by any
deficiency, defect, error or malfunction. In no event shall Tidestone be liable
to Licensee or Licensee's customers for any indirect, special, incidental or
consequential damages (including lost profits), even if Tidestone has been
advised of the possibility of such damages. EXCEPT AS SPECIFICALLY SET FORTH
HEREIN, TIDESTONE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF
OR RELATING TO THE SOFTWARE PROGRAM OR DOCUMENTATION OR ANY USE THEREOF,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WHATSOEVER AS TO THE FITNESS FOR A
PARTICULAR USE OR THE MERCHANTABILITY OF THE SOFTWARE PROGRAM OR DOCUMENTATION.
4.03 LIMITATION OF LIABILITY. Tidestone's total liability for any claim arising
as a result of, or related to, the Software Program, whether under infringement
indemnity, in contract, in tort (including negligence or strict liability),
under any warranty, or otherwise, shall in no event exceed the consideration
paid by Licensee to Tidestone for the rights and licenses granted under this
Agreement.
4.04 CONFLICT WITH APPLICABLE LAW. Some jurisdictions limit the right to
exclude or limit implied warranties and liabilities. Nothing contained in this
Section 4 shall be applied or interpreted in such a manner as to be inconsistent
with or in violation of any applicable laws or regulations of such
jurisdictions.
4.05 LICENSEE'S LIMITED WARRANTY; LICENSEE'S INDEMNITY. Licensee warrants:
(a) It is a corporation duly incorporated, organized under the laws of
the state in which it is incorporated and has all requisite authority,
corporate and otherwise, to own its assets, to carry on its business as
now conducted, to execute and deliver this Agreement, and to consummate
the transactions contemplated herein, and that all such matters have been
duly authorized by all requisite corporate actions.
(b) It shall, at its expense, defend, indemnify and hold harmless
Tidestone and its affiliates from and against any claim or action arising
from Licensee's activities, including without limitation in its relations
with vendors, distributors and end-users, other than claims covered by
Tidestone's indemnity of Licensee as provided in Section 4.01.
SECTION 5. TERM AND TERMINATION
5.01 TERM. The term of this Agreement shall commence on the effective date and
continue for a period of years as specified in Exhibit A, unless sooner
terminated under Section 5.02.
5.02 TERMINATION; EFFECT OF TERMINATION.
(a) Should either party commit a material breach in its obligations
hereunder, the other party may, at its option, terminate this Agreement by
written notice to the other party. Such notice shall identify and describe
the default upon which termination is based. The defaulting party shall
have thirty (30) days from the effective delivery of the notice to cure
such default, which, if effected, shall prevent termination by virtue of
such default.
(b) Notwithstanding Section 5.02(a), and notwithstanding any other
provision of this Agreement, should Licensee fail to pay any amounts due
to Tidestone under Section 2 and Exhibit A promptly when due and payable,
then Tidestone, at its option, may declare all unpaid fees and royalties
immediately due and payable and may terminate this Agreement and any
rights and licenses that otherwise would survive termination hereof.
Licensee shall have thirty (30) days from the effective delivery of the
notice to cure such default by full payment to Tidestone of all unpaid
amounts (including any penalties and/or interest due under the General
Payment Provisions of Exhibit A) which, if effected, shall prevent
termination by virtue of such nonpayment. In the event of such termination
for nonpayment, all rights and licenses granted Licensee hereunder shall
terminate, and Tidestone shall have all available remedies at law or in
equity, including injunction, damages (direct, consequential or punitive),
and the right to recover attorney fees and all costs of suit.
5.03 OBLIGATIONS AFTER TERMINATION OF AGREEMENT. Upon termination of this
Agreement, Licensee will, at Licensee's option, either return to Tidestone or
destroy all copies of the Software Program and Documentation then in its
possession; provided, however, that Licensee is hereby granted a limited license
for a period of three (3) months following the date of termination to distribute
Products containing the Software Program which were already in Licensee's
inventory as of the date of termination. Licensee shall, within thirty (30) days
after the date of such termination (or the expiration of such three (3) month
period if applicable), furnish Tidestone with a certificate of compliance in
accordance with this Section. The parties agree that Tidestone shall have the
right to enforce the obligations arising under this Section by specific
performance and to enjoin or compel Licensee through injunctive relief. The
obligations of this Section and those additional obligations of Licensee as set
forth in Sections 1.03(b),
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1.05 and 4.05(b) hereof shall survive the termination of this Agreement.
SECTION 6. INTERNATIONAL PROVISIONS
6.01 EXPORTS. Licensee shall comply with, and request of and/or notify its
sublicensees and resellers that they comply with, all applicable laws,
regulations, rulings and executive orders of the United States relating to the
export and re-export of Products containing the Software Program. Licensee shall
not directly or indirectly export or re-export any Products containing the
Software Program unless it has obtained a license to do so from the U.S. Office
of Export Administration if such a license is required.
6.02 WITHHOLDING TAXES. If any applicable law or treaty requires Licensee to
withhold income tax of Tidestone from payments to be made to Tidestone, Licensee
shall comply with such withholding requirements but will notify Tidestone in
advance of such withholding and will furnish Tidestone with all such documents
needed by Tidestone to reclaim such tax or to claim an appropriate tax credit.
SECTION 7. SOURCE CODE ESCROW
(a) Upon receipt of full payment of all license fees due upon execution
of this Agreement as set forth in Section 2 of Exhibit A and written
notice from Licensee of their desire to do so, Tidestone agrees to deposit
into escrow one copy of the Software Program source code on. CD-ROM or
magnetic media. Licensee agrees to pay the annual fee to the third party
escrow firm in connection with being a beneficiary to the source code
escrow agreement. Tidestone hereby acknowledges that the escrow agreement
is not an "executory" agreement within the meaning of U.S. bankruptcy laws
and shall not be subject to rejection by any debtor in possession,
bankruptcy trustee or the like.
(b) In the event Tidestone becomes subject to dissolution, or the
liquidation of Tidestone's assets, or the filing of a petition in
bankruptcy or insolvency or for an arrangement of reorganization by, for
or against Tidestone, or an assignment for the benefit of creditors, or
should Tidestone commit any action for or in bankruptcy or become
insolvent, then Licensee may elect to receive from escrow, pursuant to the
escrow agreement referred to in Section 7(a) above, the source code.
(c) If Licensee gains access to the Software Program source code under
the provisions of Section 7(b) above, Tidestone will thereby effectively
grant to Licensee a nonexclusive, personal, nontransferable (except under
Section 8.08), worldwide, royalty-free license for the term of this
Agreement to use and modify such source code to support, correct and
enhance the Software Program. Licensee agrees to treat such Source Code as
confidential and proprietary information in accordance with Section 1.05.
SECTION 8. GENERAL PROVISIONS
8.01 HEADINGS. Headings used in this Agreement are for reference purposes only
and shall not be deemed part of this Agreement or in the interpretation or
construction thereof.
8.02 ENTIRE AGREEMENT; AMENDMENT. This Agreement, including any Exhibits
attached hereto, constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes all prior agreements, both oral and
written, representations, statements, negotiations and undertakings, with
respect to the subject matter hereof, which such agreements, representations,
statements, negotiations and undertakings are merged herein. No amendment or
modification of this Agreement or any provision or attachment of this Agreement
shall be effective unless in writing and signed by both parties.
8.03 MULTIPLE COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement, or the terms hereof, to produce or
account for more than one of such counterparts.
8.04 SEVERABILITY. If any term or provision of this Agreement shall be held to
be invalid, illegal or unenforceable, the remaining terms and provisions of this
Agreement shall remain in full force and effect; and such invalid, illegal or
unenforceable term or provision shall be deemed not to be part of this
Agreement.
8.05 GOVERNING LAW AND DISPUTE SETTLEMENT. The validity, construction and
performance of this Agreement shall be governed by the substantive laws of the
State of Kansas (excluding conflicts of law principles). Licensee hereby submits
to the non-exclusive jurisdiction of the appropriate courts in Johnson County,
Kansas, U.S.A. In the event Licensee's principal place of business is located
outside the United States, the parties agree that (a) the substantive laws of
the State of Kansas applicable to agreements made and performed entirely in
Kansas by parties domiciled therein, and not the United Nations Convention on
Contracts for the International Sale of Goods, shall apply, and (b) Tidestone
may seek to enforce or to prevent a breach of any terms of this Agreement in the
appropriate courts of any jurisdiction in which Software Program are distributed
under this Agreement or in which Licensee maintains an office.
Licensee hereby consents to service of process by mail and waives any claim
against jurisdiction in Johnson County, Kansas, arising under any theory or
doctrine, including, without limitation, forum non conveniens or lack of
sufficient contacts.
8.06 NOTICES. Any notice shall be delivered by hand, by courier service, or by
registered or certified mail (return receipt requested, postage prepaid).
Notices shall be addressed to the other party at the address given on the
signature block of this Agreement, or to another address which may subsequently
be specified in writing by a party. Notices shall be effective: (a) as of the
date personally delivered if by hand or courier service; or (b) for notices sent
by mail, on the earlier of receipt or five (5) business days after the postmark
date. Notices also may be delivered
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by facsimile or other electronic means if possible (but must be confirmed in
writing as above) and notices so delivered shall be effective upon actual
receipt of the electronic transmission.
8.07 WAIVER. Except as specifically provided in a written waiver signed by a
duly authorized officer of the party seeking enforcement, the failure to enforce
or the waiver of any term of this Agreement shall not constitute the waiver of
such term at any time or in any circumstances and shall not give rise to any
restriction on or condition to the prompt, full and strict enforcement of the
terms of this Agreement.
8.08 ASSIGNMENT AND BENEFIT. Without the consent of the other party in writing,
neither party may assign this Agreement; provided, however, Tidestone or
Licensee may assign this Agreement to a wholly-owned subsidiary of the
respective corporation or a corporation in which the shareholders of the
respective corporation own a majority interest of the voting control provided
that the assigning party remains obligated hereunder; further provided,
Tidestone or Licensee may assign this Agreement to another corporation in
connection with a merger or a sale of all or substantially all of its stock or
assets so long as, if the assignor is Licensee, the assignee's license to use
the Software Program is limited to use in Products which were offered by
Licensee to its customers or potential customers and the assignee is prohibited
from use of the Software Program in other products or parts of products
developed, sold or distributed by the assignee.
This Agreement shall be binding upon and shall inure to the benefit of Licensee
and Tidestone and their successors, subject to the other provisions of this
Section.
8.09 REMEDIES CUMULATIVE. All rights and remedies provided in this Agreement
shall be cumulative. If any party resorts to any one remedy it shall not be
precluded from resorting to any other remedy or right provided it in this
Agreement, by law or in equity.
8.10 PUBLICITY. Either party may refer to the name of the other party, the
name(s) of the other party's product(s) or the business in which the product(s)
are used in their customer listings, on their web site, in a customer profile,
or in a press release, without the consent of the other party-Neither party
shall use this information or any additional information in any other manner,
without securing written approval of the party whose information is to be used,
which approval shall not be unreasonably withheld.
SECTION 9. DEFINITIONS
"Documentation" shall mean written information produced by Tidestone and
relating to the Software Program, including the user and reference manuals for
the Software Program.
"Error" shall mean a defect in the Software Program, reproducible by Tidestone,
that prevents the Software Program from functioning in material conformity with
the Specifications. The parties acknowledge that no computer software program,
including the Software Program, can be designed Error-free. Each Error can be
classified at one of the following levels of severity:
LEVEL 1: FATAL ERROR. The error causes program termination, loss of
control or hangs the operating system.
LEVEL 2: PROBLEM. PROGRAM control can be maintained, but features or
functions perform incorrectly or are unavailable, causing inconvenience to
the user.
LEVEL 3: INCONVENIENCE/ENHANCEMENT. Minor ERRORS affecting small user
populations, typically resolved by a workaround, or requests for new
features or functionality.
"New Versions" shall mean changes to the Software Program which add significant
new features, enhancements and functionality, or that alter the application
programming interface (API) for the Software Program. New Versions are
identified by a change in the version number before the first decimal point,
such as 2.01.02 to 3.01.01.
"Product" shall mean the computer programs designated in Exhibit B that are
completed in marketable form by Licensee and are offered by Licensee to its
customers or potential customers, in executable code form only, and that contain
both (a) the Software Program as an insubstantial component of the Product, and
(b) a component or components (other than the Software Program) that comprise
the chief marketability and functionality of the Product. The term "Product"
shall not include any computer programs that Licensee acquires separately from a
third party, or in a direct or indirect purchase of substantially all of the
stock or assets of a third party, if at any time during the twelve (12) months
preceding their acquisition such computer programs incorporated Software Program
licensed by Tidestone.
"Software Program" shall mean the computer software provided by Tidestone under
this Agreement, as specified in the Specifications.
"Specifications" shall mean the listing of Software Program and a description of
the application programming interface (API) set forth in Exhibit B to this
Agreement which shall constitute the complete and exclusive specifications for
defining the Software Program.
"Updates" shall mean modifications or revisions to the Software Program, other
than New Versions or Upgrades, which correct Errors, but which do not alter the
functionality of the Software Program or add new functions thereto. Updates are
identified by a change in the version number after the second decimal point,
such as 2.01.02 to 2.01.03.
"Upgrades" shall mean changes or additions to the Software Program, other than
New Versions, that add new functions, new features or improve performance of the
Software Program by changes in system design or coding. Upgrades are identified
by a change in the version number after the first decimal point, such as 2.01.02
to 2.02.01.
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SECTION 10. EXHIBITS
Exhibits included and made a part of this Agreement are:
Exhibit A: TERM, LICENSE FEES, ROYALTIES
AND PAYMENTS
Exhibit B: SPECIFICATIONS
Exhibit C: ERROR CORRECTION AND
MAINTENANCE
IN WITNESS WHEREOF, the parties, by their duly authorized officers, have
executed this Agreement effective as of May 19, 1999.
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TIDESTONE TECHNOLOGIES, INC.
12980 Metcalf Avenue, Suite 300
Overland Park, Kansas 66213-2646
Telephone: (913) 851-2200
Fax: (913) 851-1390
By: /s/ Michael J. Galfman
Title: President
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Printed Name: Michael J. Galfman
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LICENSEE
Licensee Name: Annuncio Software Inc.
Address 1: 5150 El Camino Real, Suite B31
Address 2: Los Altos, CA 94022
Telephone: 650-314-6000
Fax: 650-314-6100
By: /s/ Kim Weins
Title: VP Product Marketing
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Printed Name: Kim Weins
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EXHIBIT A
TERM, LICENSE FEES, ROYALTIES
AND PAYMENTS
1. TERM.
The initial term of this Agreement shall be two (2) years. Thereafter, this
Agreement shall automatically be renewed for one (1) additional year unless
Licensee sends written notice to Tidestone at least ninety (90) days prior to
the expiration of the initial term stating their desire to not renew the
Agreement.
2. EARNED CONTINUING ROYALTIES.
With respect to all transfers for value by Licensee of Products that contain the
Software Program to distributors, dealers and customers of any class, Licensee
shall pay to Tidestone fixed earned royalties with respect to such transfers.
Licensee shall be permitted to distribute a reasonable number of copies of the
Product for demonstration, testing and promotional purposes on a royalty-free
basis. Earned royalties with respect to Products so transferred during each
calendar quarter shall be paid to Tidestone within forty-five (45) days after
the last day of such calendar quarter. Licensee shall pay Tidestone such earned
royalties determined as either 1) when Licensee licenses their Product on a fee
based license for unlimited use by their licensees, Licensee will pay Tidestone
a license fee of $500.00 for each single CPU server license sold by Licensee or
$1,000.00 for CPU server licenses of two or greater CPU's or servers sold by
Licensee; or, 2) when Licensee licenses their Product on an annual license fee
basis, Licensee will pay Tidestone a license fee of $175.00 per year for a
single CPU server annual license sold by the Licensee or $350.00 per year for a
CPU annual server license of two or greater CPU's or servers licensed. Licensee
shall pay to Tidestone the following nonrefundable annual minimum royalties:
* $10,000 Upon execution of this Agreement
* $14,000 On or before the first day of the anniversary of the execution of
this Agreement
* $14,000 On or before the first day of the second anniversary of this
Agreement (unless such additional year is not renewed as per
Section 1 of this Exhibit A)
Licensee shall receive credit for the payment of each such annual minimum
royalty against the earned royalties due Tidestone under this Section for the
four quarters following payment.
With each earned royalty payment, Licensee shall provide to Tidestone a written
statement which verifies the number of Products transferred, the revenues
received on account of all such transfers, and the calculations of the earned
royalties due and payable to Tidestone as a result of such transfers. Upon
Tidestone's request, at mutually agreeable times, but not more frequently than
once each calendar year, Tidestone, or an agent or accounting firm chosen by
Tidestone, shall be provided reasonable access during normal business hours to
the books and records of Licensee for purposes of audit of royalties and
payments due and verification of Licensee's Products so transferred. Such
records shall include, but not be limited to, all information concerning the
numbers of copies of Products so transferred, the names of transferors and
shipping and delivery information, and the revenues of such Products. Persons
conducting the audit shall be provided an opportunity to interview any employees
of Licensee who have engaged in the development, marketing or distribution of
Products, or in the making of copies shipped or delivered, and to inspect
production and inventories as necessary to accomplish such purpose. In the event
such audit reveals an underpayment of royalties, Licensee shall be obligated to
pay Tidestone all sums past due, plus interest at the rate of one and one-half
percent (1.5%) per month from the date such payment was due to the date such
payment is actually made, plus the out-of-pocket costs and expenses incurred by
Tidestone in conducting such audit.
All license fees paid pursuant to this Section shall be non-refundable.
3. GENERAL PAYMENT PROVISIONS.
3.1 Payment Terms. All amounts owed pursuant to this Agreement shall be paid
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by Licensee on a timely basis such that they are received by Tidestone on or
before the due date for such amount. Unless otherwise expressly stipulated by
Tidestone, all amounts due to Tidestone hereunder shall be paid by Licensee to
the address specified in the signature block of the Agreement. In the event
Licensee is overdue in making payments to Tidestone, Tidestone may suspend
performance until Licensee has made the required payments. Licensee shall not be
entitled by reason of any claim against Tidestone to withhold payment or to
claim any right of set-off against any payment due to Tidestone.
3.2 Currency and Interest. All payments shall be in U.S. Dollars, and any
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amount not paid when due shall bear interest at the lower of one and one-half
percent (1.5%) per month, or the maximum rate allowed by applicable law. Costs
of wire transfers,
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conversion, collection and related bank charges shall be paid by Licensee.
Licensee assumes all risks of currency shortages, repatriation restrictions and
exchange fluctuations.
3.3 Payments Net after Taxes. All amounts owed pursuant to this Agreement are
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net of any national, federal, state, province, municipal or other government
excise, sales, use, occupation or like taxes, duties, customs or penalties now
in force or enacted in the future, and may be increased by such amount that
Tidestone is required to collect and pay based on this transaction. Licensee
will pursue or obtain any certificate of exemption or similar document or
proceeding if any effort is to be made to exempt this transaction from such
obligation.
3.4 Taxes, Tariffs and Transportation Costs. All present or future domestic
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or foreign sales, use, value-added, personal property, withholding, excise or
other similar taxes (other than Tidestone's income taxes), and all export or
import taxes, duties, tariffs or charges shall be paid by Licensee.
3.5 Pro-Rata Payments. Any quarterly payments due and payable under this
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Exhibit A with respect to any partial calendar quarter shall be calculated and
paid on a pro-rata basis.
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EXHIBIT B
SPECIFICATIONS
SOFTWARE PROGRAM SPECIFICATIONS
TIDESTONE SOFTWARE PROGRAMS
Formula One for Java Version 5.5
The Software Program can accurately process and handle date and time data
(including, but not limited to calculating, comparing and sequencing) from, into
and between the twentieth and twenty-first centuries, and the years 1999 and
2000, including leap year calculations, to the extent that other information
technology used in combination with the Software Program properly exchanges
date/time data with it.
LICENSEE PRODUCTS
The Metrics module of Annuncio Software's "Annuncio Live" client application (an
internet marketing automation solution for defining, automating, tracking and
analyzing internet and integrated marketing campaigns).
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EXHIBIT C
ERROR CORRECTION AND MAINTENANCE
For so long as Licensee continues to pay quarterly Earned Continuing Royalties
as required under Exhibit A of this Agreement, Tidestone will provide Licensee
all Updates, Upgrades and New Versions of the Software Program as they are
available for general release. Such Updates, Upgrades and New Versions shall
become part of the Software Program and Documentation for purposes of this
Agreement.
For so long as Licensee is entitled to receive updated Software Program pursuant
to this Section, it also shall be entitled to receive the following Error
correction services from Tidestone in the form of Updates:
a. Tidestone will use reasonable efforts to correct Level 1 Errors in
the Software Program, or to offer an appropriate work-around,
within ten (10) business days of receipt of notice from Licensee of
such Errors;
provided, however:
b. That inspection by Tidestone validates the claim;
c. That such Errors are capable of correction;
d. That the Software Program has not been altered in any way, except
as provided in the Specifications; and
e. That the Licensee is not in arrears in any payments due to
Tidestone and that Licensee is not otherwise in breach of this
Agreement or any other Agreement dealing with the Software Program.
For so long as Licensee is entitled to receive updated Software Program pursuant
to this Exhibit C, it also shall be entitled to receive from Tidestone, at its
written request, additional planning, telephone conferences, Documentation or
training services, as requested in writing by Licensee, provided Licensee pays
Tidestone for such services at its then current hourly rates for such services
($120/hour during 1999) within thirty (30) days of receipt of invoice for same
from Tidestone. Such services may include increasing the timeliness of
correction of reported Level 2 or Level 3 Errors.
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