SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ('Agreement') is between
E.piphany, Inc., a Delaware corporation ('E.piphany') and eGroups, Inc., a
Delaware corporation ('Customer.') The terms of this Agreement shall apply to
each Application license granted and to all services provided by E.piphany under
this Agreement, which will be identified on one or more Order Forms.
I. DEFINITIONS
1.1. 'APPLICATION' means the software application(s) in object code form
distributed by E.piphany for which Customer is granted a license
pursuant to this Agreement, and Updates therefore.
1.2. 'COMMENCEMENT DATE' means the date on which the Applications are
delivered by E.piphany to Customer, or if no delivery is necessary, the
Effective Date set forth on the relevant Order Form.
1.3 'DESIGNATED SYSTEM' means the computer hardware and operating system
designated on the relevant Order Form
1.4 'DOCUMENTATION' means the user guides and manuals for installation and
use of the Application.
1.5 'ORDER FORM' means the document attached as Exhibit A in hard copy or
electronic form by which Customer orders Application licenses and
services, and which is agreed to and signed by the parties. Each Order
Form shall reference the Effective Date of this Agreement.
1.6 'SOLUTION' means the Technical Support and consulting services.
1.7 'TECHNICAL SUPPORT' means the application support services provided
under E.piphany's policies in effect on the date Technical Support is
ordered.
1.8. 'UPDATE' means a subsequent release of the Application that E.piphany
generally makes available for Application licensees at no additional
license fee other than media and handling charges provided Customer has
ordered Technical Support for such licenses for the relevant time
period. Update shall not include any release, option or future product
that E.piphany licenses separately
II. LICENSE
2.1. RIGHTS GRANTED
We have requested confidential treatment of this exhibit pursuant to Rule 406,
promulgated by the Securities and Exchange Commission, under the Securities Act
of 1933, as amended.
A. E.piphany grants to Customer a nonexclusive license to use the
Application(s) specified on an Order Form under this Agreement
and Documentation as follows:
i. to use the Applications solely for Customer's operations
on the Designated System and on a backup system which may
run simultaneously with the Designated System, consistent
with the use limitations specified or referenced in this
Agreement, an Order Form, or the Documentation;
ii. to use the Documentation provided with the Applications in
support of Customer's use of the Applications as
authorized under this Agreement;
iii. to copy the Applications for archival or backup purposes,
and to make a sufficient number of copies for the use
specified in the Order Form. All titles, trademarks, and
copyright and restricted rights notices shall be
reproduced in such copies; and
iv. to allow third parties to use the Applications for
Customers operations so long as Customer ensures that use
of the Applications is in accordance with the terms of
this Agreement.
B. Customer shall not copy or use the Applications or Documentation
except as specified in this Agreement or an Order Form. Customer
shall have no right to use any other software applications that
may be delivered with ordered Application(s). Customer agrees not
to cause or permit the reverse engineering, disassembly or
decompilation of Applications, except to the extent required to
obtain interoperability with other independently created software
or as specified by law. Customer may not relicense, rent or lease
the Applications or use Applications for third-party training,
commercial time-sharing or service bureau use.
C. E.piphany shall retain all title, copyright and other proprietary
rights in the Applications. Customer does not acquire any rights,
express or implied, in the Applications, other than those
specified in this Agreement.
2.2. TRANSFER AND ASSIGNMENT
A. Customer may transfer an Application license within its
organization provided Customer gives reasonable prior notice to
E.piphany.
B. Neither party may assign this Agreement, in whole or in part,
without the prior written consent of the other (which will not be
unreasonably withheld or
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delayed), provided however that either party may assign this
Agreement: (1) to a transferee of substantially all of the
business operations of such party (whether by asset sale, stock
sale, merger, reorganization, operation of law, or otherwise)
unless such entity is a competitor of the other party, or (2) to
any entity that is controlled by, or is under common control
with, such party. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by and against the respective
heirs, executors, administrators, personal representatives,
successors and permitted assigns of any of the parties to this
Agreement. Any attempt to assign this Agreement other than as
permitted above will be null and void.
2.3. VERIFICATION
At E.piphany's written request, not more frequently than annually,
Customer shall furnish E.piphany with a signed certification verifying
that the Applications are being used pursuant to the provisions of this
Agreement and applicable Order Forms. E.piphany may audit Customer's use
of the Applications. Any such audit shall be conducted during regular
business hours at Customer's facilities and shall not unreasonably
interfere with Customer's business activities. If an audit reveals that
Customer has underpaid fees to E.piphany, Customer shall be invoiced for
such underpaid fees and shall also pay E.piphany for the cost of the
audit if the underpayment exceeds 5% of fees due during the audited
period. Audits shall be conducted no more than once annually.
III. TECHNICAL SERVICES
3.1. TECHNICAL SUPPORT SERVICES
Technical Support services may be ordered by Customer in the Order Form
and will be provided under E.piphany's Technical Support terms and
conditions in effect on the date Technical Support is ordered. A copy of
E.piphany's current Technical Support terms and conditions are attached
hereto as Exhibit B and incorporated herein.
3.2. CONSULTING AND TRAINING SERVICES
E.piphany will provide consulting and training services agreed to by the
parties under the terms of this Agreement. All consulting services shall
be billed on a time and materials basis unless the parties expressly
agree otherwise in writing.
3.3. INCIDENTAL EXPENSES
For any on-site services requested by Customer, Customer shall reimburse
E.piphany for actual, reasonable travel and out-of-pocket expenses
approved in advance by Customer.
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IV. TERM AND TERMINATION
4.1. TERM
If not otherwise specified on the Order Form, this Agreement and each
Application license granted under this Agreement shall continue
perpetually unless terminated under this Article IV.
4.2. TERMINATION BY CUSTOMER
Customer may terminate any Application license at any time; however,
termination shall not relieve Customers obligations specified in Section
4.4.
4.3. TERMINATION BY E.PIPHANY
E.piphany may terminate this Agreement or any Application license upon
written notice if Customer materially breaches this Agreement and fails
to correct the breach within thirty (30) days following written notice
specifying the breach.
4.4. EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either
party from pursuing other remedies available to it, including injunctive
relief, nor, shall such termination relieve Customer's obligation to pay
all fees that have accrued or are otherwise owed by Customer under any
Order Form. The parties' rights and obligations under Sections 2.1.B,
2.1.C, and 2.2.B, and Articles IV, V, VI, and VII (excluding Section
7.3) shall survive termination of this Agreement. Upon termination,
Customer shall cease using, and shall return or destroy, all copies of
the applicable Applications.
V. INDEMNITY, WARRANTIES, REMEDIES
5.1. INFRINGEMENT INDEMNITY
E.piphany will defend and indemnify Customer against any, cost, expense
(including reasonable attorneys fees incurred as a result of any third
party claim that the Applications infringe a copyright, patent, trade
secret or other intellectual property right, provided that: (a) Customer
notifies E.piphany in writing within thirty (30) days of the claim; (b)
E.piphany has sole control of the defense and all related settlement
negotiations; and (c) Customer provides E.piphany with the assistance,
information and authority necessary to perform E.piphany's obligations
under this Section. E.piphany will reimburse Customer's reasonable
out-of-pocket expenses incurred in providing such assistance. E.piphany
shall have no liability for any claim of infringement based on use of a
superseded or altered release of the Applications if the infringement
would have been avoided by the use of a current unaltered release of the
Applications provided that E.piphany has provided such release prior to
the date of alleged infringement without charge to Customer.
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If the Applications are held or believed by E.piphany to infringe,
E.piphany shall have the option, at its expense, to (a) modify the
Applications to be noninfringing; or (b) obtain for Customer a license
to continue using the Applications. If it is not commercially reasonable
to perform either of the above options, (then E.piphany may terminate
the license for the infringing Applications and refund the license fees
paid for the Applications, prorated over a five (5) year term from the
date of this Agreement). THIS SECTION 5.1 STATES E.PIPHANY'S ENTIRE
LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR INFRINGEMENT.
5.2. WARRANTIES AND DISCLAIMERS
A. APPLICATION WARRANTY
E.piphany warrants for a period of one (1) year from the
Commencement Date that each Application licensed will perform
substantially as described in the Documentation (unless modified
by a party other than E.piphany in which case this warranty is
void.) E.piphany warrants for a period of one (1) year from the
delivery of any Upgrade, Patch or Enhancement (as defined in this
Agreement and the Technical Services Agreement) that such
Upgrade, Patch or Enhancement will perform substantially as
described in the Documentation therefore if any.
B. MEDIA WARRANTY
E.piphany warrants the tapes, diskettes or other media to be free
of material defects in materials and workmanship under normal use
for ninety (90) days from the Commencement Date.
C. SERVICES WARRANTY
E-piphany warrants that its Technical Support, training and
consulting services will be performed consistent with generally
accepted industry standards. This warranty shall be valid for
ninety (90) days from performance of service.
D. YEAR 2000 WARRANTY
E.piphany warrants that Applications will be Year 2000 Compliant.
'Year 2000 Compliant' means that Applications will perform
without error, loss of data or loss of functionality arising from
any failure to process, calculate, compare or sequence date data
accurately if all associated products, such as hardware, software
and firmware, used in combination with Applications properly
exchange date data with Applications. In addition, Year 2000
Compliant Applications will not cause any associated products or
systems in which they may be used to fail in any of the ways
described above. THIS WARRANTY SHALL NOT APPLY TO ANY THIRD PARTY
PRODUCTS USED IN COMBINATION WITH APPLICATIONS.
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E. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF AND E.PIPHANY
DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. E.PIPHANY DOES NOT WARRANT THAT THE
APPLICATIONS WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED
IN THE DOCUMENTATION OR THAT THE OPERATION OF THE APPLICATIONS
WILL BE UNINTERRUPTED OR ERROR-FREE. PRE-PRODUCTION RELEASES OF
APPLICATIONS, COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED
'AS IS.'
5.3. EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5.2, Customers
exclusive remedy, and E.piphany's entire liability, shall be:
A. FOR APPLICATIONS
The correction of Application errors that cause breach of the
warranty, or if E.piphany is unable to make the Application
operate as warranted, Customer shall be entitled to terminate the
Application license and recover the fees paid to E.piphany for
the Application license.
B. FOR MEDIA
The replacement of defective media returned within ninety (90)
days of the Commencement Date.
C. FOR SERVICES
The reperformance of the services, or if E.piphany is unable to
perform the services as warranted, Customer shall be entitled to
recover the fees paid to E.piphany for the unsatisfactory
services.
5.4 ACKNOWLEDGEMENT
Customer acknowledges that: (i) Customer has requested that E.piphany
integrate the Applications with software and systems owned or licensed
by Customer; (ii) Customer has valid existing rights to any and all such
third party software and systems; (iii) E.piphany is not an agent or
otherwise acting on behalf of any such third party licensor; and (iv)
except pursuant to the indemnification provided above, Customer will not
sue or seek to hold E.piphany liable for any third party claim that such
integration activities violate such third party's patent, copyright or
other right in such software or systems.
VI. PAYMENT PROVISIONS
6.1. INVOICING AND PAYMENT
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All undisputed fees shall be due and payable thirty (30) days from
receipt invoice date. Any amounts payable by Customer hereunder which
remain unpaid after the due date shall be subject to a late charge equal
to 1% per month from the due date until such amount is paid. Customer
agrees to pay applicable media and shipping charges. Customer shall
issue a purchase order, or alternative document acceptable to E.piphany,
on or before the Effective Date of the applicable Order Form.
6.2. TAXES
The fees listed in this Agreement do not include taxes; if E.piphany is
required to pay sales, use, property, value-added or other taxes based
on the licenses or services granted in this Agreement or on Customer's
use of the Solutions or training, then such taxes shall be billed to and
paid by Customer. This Section shall not apply to taxes based on
E.piphany's income. E.piphany shall deliver the Applications and
Documentation in electronic form.
VII. GENERAL TERMS
7.1. NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ('Confidential Information').
Confidential Information shall be limited to the Applications,
Documentation, the terms and pricing under this Agreement, all
information clearly identified as confidential, a parties' code,
processes, architecture and any other information that may be accessed
by a party hereunder that should reasonably be deemed as confidential. A
party's Confidential Information shall not include information that: (a)
is or becomes a part of the public domain through no act or omission of
the other party; (b) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on
disclosure; or (d) is independently developed by the other party without
reference to the Confidential Information. Customer shall not disclose
the results of any benchmark tests of the Applications to any third
party without E.piphany's prior written approval.
The parties agree to hold each others Confidential Information in
confidence for a period of five years after disclosure of the
Confidential Information or for a period of two years after termination
of this Agreement, whichever is earlier. The parties agree, unless
required by law, not to make each other's Confidential Information
available in any form to any third party for any purpose other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees or agents in violation of the
terms of this Agreement.
7.2. GOVERNING LAW AND JURISDICTION
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This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California
without reference to conflicts of laws principles. Any legal action or
proceeding relating to this Agreement shall be instituted in a state or
federal court in San Francisco or San Mateo County, California.
E.piphany and Customer agree to submit to the jurisdiction of, and agree
that venue is proper in, these courts in any such legal action or
proceeding.
7.3 PUBLICITY.
Upon execution of the Agreement, E.piphany shall be entitled to
represent that Customer is a customer, disclose that the parties have
entered into an Agreement to the extent necessary to comply with SEC
requirements and issue a press release mutually acceptable to the
parties.
7.4. NOTICES
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given
when mailed by first class mail to the first address listed in the
relevant Order Form (if to Customer) or to the E.piphany address on the
Order Form (if to E.piphany).
To expedite order processing, Customer agrees that both parties may
treat documents faxed one to the other as original documents;
nevertheless, either party may require the other to exchange original
signed documents.
7.5. LIMITATION OF LIABILITY
EXCEPT FOR E.PIPHANY'S OBLIGATIONS UNDER SECTION 5.1 (INFRINGEMENT
INDEMNITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF
PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY'S
LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE AMOUNT OF FEES PAID BY
CUSTOMER UNDER THIS AGREEMENT.
The provisions of this Agreement allocate the risks between E.piphany
and Customer. E.piphany's pricing reflects this allocation of risk and
the limitation of liability specified herein.
7.6. SEVERABILITY
If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force.
7.7. WAIVER
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The waiver by either party of any default of breach of this Agreement
shall not constitute a waiver of any other or subsequent default or
breach. Except for actions for nonpayment or breach of E.piphany's
proprietary rights in the Applications, no action, regardless of form,
arising out of this Agreement may be brought by either party more than
two years after the cause of the action has accrued.
7.8. EXPORT ADMINISTRATION
Customer agrees to comply fully with all relevant export laws and
regulations of the United States ('Export Laws') to assure that neither
the Applications nor any direct product thereof are (1) exported,
directly or indirectly, in violation of Export Laws; or (2) are intended
to be used for any purposes prohibited by the Export Laws, including,
without limitation, nuclear, chemical, or biological weapons
proliferation.
7.9. ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
and supercedes all prior or contemporaneous agreements or
representations, written or oral, concerning the subject matter of this
Agreement. This Agreement may not be modified or amended except in
writing signed by a duly authorized representative of each party; no
other act, document, usage or custom shall be deemed to amend or modify
this Agreement.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Customer purchase order or other
ordering document. This Agreement shall also supersede all terms of any
unsigned or 'shrinkwrap' license included in any package, media, or
electronic version of E.piphany-furnished software and any such software
shall be licensed under the terms of this Agreement, provided that the
use limitations contained in an unsigned ordering document shall be
effective for the specified licenses.
7.10. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure to
perform any obligation under this Agreement if the delay or failure is
due to circumstances beyond the reasonable control of the non-performing
party.
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE MARCH 3, 2000.
Executed by eGroups, Inc.: Executed by E.piphany, Inc.:
Authorized Signature: Authorized Signature:
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Name: Name:
----------------------------- -----------------------------
Title: Title:
----------------------------- -----------------------------
Address: 2688 Middlefield Road Address: 1900 Norfolk Street
San Mateo, CA 94403 Ste. 310 Redwood City, CA 94063
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EXHIBIT A
Order Form
This Order Form to the Software License and Services Agreement ('Order Form') is
made between E.piphany, Inc. ('E.piphany') and eGroups, Inc. ('Customer.') This
Order Form is part of the Software License and Services Agreement between the
parties dated March 3, 2000 ('Agreement'). It is expressly agreed that the terms
of the Agreement and the Order Form shall supersede the terms in any Customer
purchase order or other ordering document. The Agreement and the Order Form
shall also supersede all terms of any unsigned or 'shrinkwrap' license included
in any package, media, or electronic version of E.piphany furnished software and
any such software shall be licensed under the terms of this Agreement, provided
that the use limitations contained in an unsigned ordering document shall be
effective for the specified licenses.
1. Agreement Effective Date: March 3, 2000
2. Order Form Effective Date: March 3, 2000
3. Licenses/Services Support:
--------------------------------------------------------------------------------
ITEM PRICE
--------------------------------------------------------------------------------
Current E.4 Tier 1 Reporting and Analysis Program
BBB - Sales Reporting Analysis & application
Channel Sell Through Management application
Call Center Reporting & Analysis application
Customer Profitability application
Current E.4 Tier 1 Distributed Database Marketing Programs
Loyalty Program Management application
Campaign Performance Measurement application
Current E.4 Tier 2 Distributed Database Marketing Programs
Cross-Sell/Up-Sell application
Attrition Management application
Customer Acquisition application
Current E.4 Tier 3 E-Commerce Programs
E-Commerce Campaigns application
Current E.4 Tier 4 E-Mailer application
Subtotal [ * ]
Name Users - 15 Names Users for Tier 1-4 applications [ * ]
Extractors (unlimited) [ * ]
Current Realtime Personalization Campaign Management
An * indicates that information has been redacted pursuant to a request for
confidential treatment filed separately with the Securities and Exchange
Commission.
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Programs
RTM Server (4CPUs) included
Web Point (4CPUs)
Control Center (5 Users)
Campaign Workshop (5 Users)
Subtotal License and Per Seat $[*]
Less Discount $[*]
Total License $[*]
First Year Enterprise Support (at 18%) $[*]
Training (2 persons for 5 days at $500 each) included
Professional Services (Phase 1 implementation services
described in attached Statement of Work) $[*]
Total $[*]
Unless otherwise specified, all Software Licenses listed above are licensed for
UNIX Applications and the application release generally available as of the
Order Form Effective Date.
3.1. Technical Services. Technical Support Services fees shall be subject to
change by E.piphany from time to time upon ninety (90) days' written notice to
Customer; provided, however, for the second, third and fourth year terms of the
Agreement, E.piphany shall not increase the Technical Support Fees payable by
Customer in excess of nine percent (9%) over the prior year's fees. After the
first year term of the Agreement, Technical Services fees shall be due net
thirty (30) days from the first day of the applicable Technical Services term.
3.2 Expenses. The professional services fees are exclusive of actual, reasonable
travel and out-of-pocket expenses for which Customer shall reimburse E.piphany.
4.0 Designated System: 1 server with Oracle UNIX Database Server, MS ISS
Application Server; 2688 Middlefield Road, Redwood City, CA 94063
4. Notice Addresses:
Customer Contact E.piphany, Inc.
Jiff Winner & Rikk Carey Director of Legal Affairs
VP, Engineering E.piphany, Inc.
eGroups, Inc. 1900 S. Norfolk St., Suite 310
2688 Middlefield Road San Mateo, CA 94403
Redwood City, CA 94063 650-356-3800 (phone)
650-868-3158 (phone) 650-356-3907 (fax)
650-303.8260 (phone)
__________ 650-216-3999 (fax)
An * indicates that information has been redacted pursuant to a request for
confidential treatment filed separately with the Securities and Exchange
Commission.
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Technical Technical
Rikk Carey Director, Technical Support
VP, Engineering E.piphany, Inc.
eGroups, Inc. 1900 S. Norfolk St., Suite 310
2688 Middlefiled Road San Mateo, CA 94403
Redwood City, CA 94063 650-356-3800 (phone)
650-303-8260 (phone) 650-356-3801 (fax)
650-216-3399 (fax)
6. Technical Support. Notwithstanding anything to the contrary in Exhibit B,
E.piphany shall provide 7 x 24 support for Realtime Personalization and respond
with in two (2) hours for Critical Errors for such programs.
7. Payment Terms: all fees set forth above are due and payable in three equal
installments of $[*] as follows:
Net 30 days from Effective Date of the Agreement
Net 60 days from Effective Date of the Agreement
Net 90 days from Effective Date of the Agreement
8. Marketing. As a partial consideration for the license and net fees charged to
Customer, Customer agrees that, immediately upon execution of the Agreement,
Customer will participate in a joint release with E.piphany regarding the
Agreement which shall not be released prior to obtaining written approval from
Customer (such approval not to be unreasonably withheld or delayed); and
thereafter, Customer will allow E.piphany to use it as a reference account for
marketing purposes, including (i) allowing E.piphany to reference Customer on
its reference account customer lists in print and on its website; (ii) providing
quotes for E.piphany's press releases and website, subject to Customer's prior
review and approval of text; and (iii) participating in four (4) pre-approved
reference conference calls and one (1) site visit per month.
Executed by eGroups, Inc.: Executed by E.piphany, Inc.:
Authorized Signature: Authorized Signature:
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Name: Name:
----------------------------- -----------------------------
Title: Title:
----------------------------- -----------------------------
Address: 2688 Middlefield Road Address: 1900 Norfolk Street
San Mateo, CA 94403 Ste. 310 Redwood City, CA 94063
An * indicates that information has been redacted pursuant to a request for
confidential treatment filed separately with the Securities and Exchange
Commission.
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EXHIBIT B Technical Support Services Terms and Conditions
These Technical Support Terms and Conditions ('Terms') are referenced in and
incorporated into the Software License and Service Agreement ('Agreement')
between E.piphany, Inc. ('E.piphany') and eGroups, Inc. ('Licensee.') Upon
reasonable notice, E.piphany reserves the right to modify the Terms under which
it provides Support Services to reflect current market conditions.
1.0. DEFINITIONS. Unless otherwise defined in the Terms, the capitalized terms
used herein shall have the same meaning as set forth in the Agreement and
applicable Schedule.
1. 1. 'Critical' means an Error that: (1) renders the Software inoperative; or
(2) causes the Software to fail catastrophically.
1.2. 'Dial In Access' means direct connection to the designated System, via
PPTP, SLIP/PPP, direct TCP/IP, or other such point-to-point network access.
1.3. 'Enhancement' means technical or functional additions to the Software to
improve software functionality and/or operations. Enhancements are delivered
with new releases of the Software.
1.4. 'Error' means a malfunction in the Software that degrades the use of the
Software.
1.5. 'Major' means an Error that seriously affects performance of the Software,
but does not prohibit Licensee's use of the Software.
1.6. 'Minor' means an Error that causes only minor impact to the use of the
Software.
1.7. 'Patch' means the repair or replacement of source or object or executable
code versions of the Software to remedy an Error.
1.8. 'Previous Sequential Release' means a release of the Software for use in a
particular operating environment that has been replaced by a subsequent release
of the Software in the same operating environment. E.piphany will support a
Previous Sequential Release for a period of one hundred eighty (180) days after
the release of the subsequent release. Multiple Previous Subsequent Releases may
be supported at any given time.
1.9. 'Schedule' means the schedule set forth in the Order Form that describes
when the Services will be provided.
1.10. 'Site' means the single centralized location set forth in the Schedule
where E.piphany will provide the Support Services.
1.11 'Software' means the application software programs licensed to Licensee
under the Agreement.
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1.12. 'Support Services' means the maintenance and support services described
herein.
1.13. 'System' means the computer running the E.piphany application server and
E.piphany database server.
1.14. 'Update' means all published revisions to the Documentation and one (1)
copy of the new release of the Software that are not designated by E.piphany as
new products for which it charges separately
1.15. 'Workaround' means a change in the procedures followed or data supplied,
to avoid an Error without significantly impairing performance of the Software.
2.0. COVERAGE. In consideration for Licensee's payment of the applicable Support
Services fees to E.piphany, E.piphany will provide Licensee with the Support
Services for the Software for the Site. Only designated Licensee employees may
contact E.piphany to receive the Support Services. Licensee may acquire Support
Services for additional Licensee sites by paying to E.piphany the applicable
annual fee.
3.0. E.PIPHANY SOFTWARE MAINTENANCE AND SUPPORT SERVICE OFFERINGS. E.piphany
offers the following two (2) levels of Annual Support Services for its Products:
Enterprise Support Priority Enterprise Support
2 named contacts, 2 backup contacts Hot Line 6AM - 6PM Pacific
1st call log via web only Down System Hot Line 7 x 24
Patches 4 named contacts, 2 backup contacts
Updates and Enhancements 1st call log phone or web
Priority Levels: Urgent, Major and Minor Patches
Updates and Enhancements Priority
Levels: All
Regardless of the level of support, E.piphany will periodically issue Patches,
Updates, and Enhancements to improve the operation of Software. All Patches,
Updates and Enhancements provided to Licensee are subject to the terms and
conditions of the Agreement.
4.0. PRIORITY LEVEL OF ERRORS. E.piphany shall reasonably determine the priority
level of Error in accordance with the following protocols: Critical: 4 Hour
Response Time. E.piphany promptly initiates the following procedures: (1) assign
E.piphany specialist(s) to correct the Error; (2) provide ongoing communication
on the status of the correction; and (3) immediately begin to provide a
Workaround or Patch.
Urgent: 8 Hour Response Time. E.piphany will:
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(1) assign a specialist to commence correction of the Error; and (2) provide
escalation procedures as reasonably determined by E.piphany Support staff.
E.piphany exercises all commercially reasonable efforts to include the Patch for
the Error in the next Software Update release.
Major: 2 Day Response: E.piphany will:
(1) assign a specialist to commence correction of the Error; and (2) provide
escalation procedures as reasonably determined by E.piphany support staff.
E.piphany may include the Patch for the Error in the next Update.
Minor: 5 Day Initial Response Time/ Monthly Update Response. E.piphany may
include the Patch for the Error in the next major Software release.
5.0. TELEPHONE SUPPORT. E.piphany provides telephone support concerning
installation and use of the Software. Except for designated holidays, Priority
Enterprise telephone support hours are Monday through Friday, 6:OOAM to 6:OOPM,
Pacific Time. Telephone support is also available for Priority Enterprise
customers 24 hours a day, 7 days a week for in-production customers who need to
resolve downs problems outside of normal support hours.
6.0. DIAL IN ACCESS. To provide timely service, E.piphany requires that Licensee
provide Dial-in Access to all systems covered under the Agreement. In the event
Licensee does not provide Dial-in Access, E.piphany will not be held liable for
failure to meet the response times set forth in Section 4 above. If Licensee
does not provide Dial-in Access, E.piphany may, at its sole discretion, elect to
provide on-Site support to Licensee for Errors reported by Licensee. In such
case, Licensee will reimburse E.piphany for the reasonable travel and living
expenses related to on-Site support activity.
7.0. ACCOUNT MANAGER. E.piphany may assign an Account Manager to assist with the
on-going support relationship between E.piphany and Licensee. Licensee will
reimburse E.piphany for the reasonable travel and living expenses of the Account
Manager for on-Site support activity.
8.0. ECSWEB. ECSWeb is an on-line, self-service system that features postings by
E.piphany and E.piphany Software users regarding technical and non- technical
topics of interest. Licensee may access ECSWeb via the Internet. At Licensee's
expense, Licensee is responsible for independently acquiring appropriate
Internet access.
a. All Software maintenance releases and Patches may be delivered to Licensee
through ECSWeb or by mail from E.piphany upon Licensee's written request. All
information provided by E.piphany in ECSWeb is confidential and proprietary to
E.piphany and shall only be used in connection with Licensee's use of the
Software and informational communications with other ECSWeb participants.
E.piphany reserves the right to modify
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information posted to ECSWeb. E.piphany shall have the right to publish and
distribute only through ECSWeb in all languages and in association with
Licensee's name any material or Software Applications provided by Licensee to
ECSWeb. Licensee shall not use ECSWeb for advertising or public relations
purposes and shall only submit information to ECSWeb which is owned by Licensee
or which Licensee has third party permission to submit to ECSWeb for use by all
other ECSWeb users,
b. In the interest of diminishing the exposure to software viruses, E.piphany
tests and scans for software viruses all information entered by E.piphany prior
to posting information to ECSWeb. Licensee shall also use a reliable virus
detection system on any software or information posted to ECSWeb, utilize backup
procedures, monitor access to ECSWeb, promptly notify E.piphany of any virus
detected within Licensee's systems associated with ECSWeb and generally exercise
a reasonable degree of caution when utilizing information from ECSWeb. E.piphany
provides the ECSWeb 'AS IS' and does not warrant that ECSWeb will operate
without interruption or without errors. E.piphany reserves the right to modify
or suspend ECSWeb service in connection with E.piphany's provision for Support
Services.
9.0. FEES. The initial period of Support Services for the Site is included in
the Agreement; thereafter, in the event Licensee elects to continue to receive
Support Services, Licensee shall pay E.piphany the annual Support Services fee,
as set forth in the Schedule. Support Services are billed on an annual basis,
payable in advance. Licensee shall be responsible for all taxes associated with
Support Services, exclusive of taxes based on E.piphany's income. Licensee's
payment shall be due within thirty (30) days of receipt of the E.piphany
invoice. In the event Licensee elects not to renew Support Services and
subsequently requests Support Services, E.piphany shall reinstate Support
Services only after Licensee pays E.piphany the then-current annual fee plus all
cumulative fees that would have been payable had Licensee not suspended Support
Services.
10. 0. TERM AND TERMINATION. Support Services shall be provided for the Initial
Support Services Term as set forth in the Schedule, and shall be extended each
additional year unless terminated by either party. Each one (1) year term shall
commence on the anniversary of the Schedule Effective Date. Licensee may
terminate the Support Services provisions at the end of the original term or at
the end of any renewal term by giving E.piphany written notice at least ninety
(90) days prior to the end of any term. In the event Licensee fails to make
payment pursuant to the section titled 'Fees', or in the event Licensee breaches
the Support Services provisions and such breach has not been cured within thirty
(30) days of written receipt of notice of breach, E.piphany may suspend or
cancel Support Services without further notice.
11.0. EXCLUSIONS. E.piphany shall have no obligation to support:
A. Altered, damaged or substantially modified software;
B. Software that is not the then-current release, or a Previous Sequential
Release;
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C. Errors caused by Licensee's gross negligence, hardware malfunction, or
other causes beyond the reasonable control of E.piphany;
D. Software installed in a hardware or operating environment not supported
by E.piphany; or
E. Third party software not licensed through E.piphany.
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EXHIBIT C
Statement of Work
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