{"id":41990,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/adserver-license-agreement-netgravity-inc-and-netzero-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"adserver-license-agreement-netgravity-inc-and-netzero-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/adserver-license-agreement-netgravity-inc-and-netzero-inc.html","title":{"rendered":"Adserver License Agreement &#8211; NetGravity Inc. and NetZero Inc."},"content":{"rendered":"<pre>\n                     NETGRAVITY ADSERVER LICENSE AGREEMENT\n\n     This Agreement is made and entered into as of this 28th day of August, \n1998 (\"Effective Date\") by and between NetGravity, Inc., a Delaware \ncorporation, having its principal place of business at 1700 S. Amphlett \nBlvd., Suite 350, San Mateo, CA 94402 (\"NetGravity\") and the entity at the \nlocation listed on Exhibit A hereto (\"Licensee\").\n                                       \n                                   RECITALS\n\nA.   NetGravity is the owner of proprietary Internet web site advertising \nsales and management software products.\n\nB.   Licensee wishes to obtain a license to use such software on the terms \nand conditions of this Agreement.\n\n     NOW, THEREFORE, for good and valuable consideration, the parties hereby \nagree as follows:\n\n1.   DEFINITIONS\n\n     The following terms shall have the following meanings:\n\n1.1  \"SOFTWARE\" means the proprietary Internet web site advertising sales and \nmanagement software program developed by NetGravity known as AdServer which \nis comprised of the Program Components, in object code form only, and any \nupdates and upgrades as may be issued to Licensee by NetGravity after the \nEffective Date.\n\n1.2  \"PROGRAM COMPONENT(S)\" means the AdManager component, AdServer \ncomponent, the AdClient component, the AdConsole component, and the AdInsight \nServer as further described on Exhibit A.\n\n1.3  \"SITE(S)\" means Licensee's site or sites on the World Wide Web.\n\n2.   GRANT OF RIGHTS\n\n2.1  GRANT OF LICENSE.  Subject to the terms and conditions of this \nAgreement, NetGravity hereby grants to Licensee a perpetual, worldwide, \nnonexclusive, nontransferable (except in accordance with Section 12.1) \nlicense, to install and use the number of copies of each Program Component of \nthe Software licensed as indicated on Exhibit A internally to manage \nadvertising on the Site(s).  Licensee may make backup copies of the Software \nfor archival or disaster recovery purposes.\n\n2.2  RESTRICTIONS.  The license granted herein is granted solely to the \nperson or entity set forth on Exhibit A, and not, by implication or \notherwise, to any parent, subsidiary or affiliate of such person or entity.  \nNo right is granted hereunder to use the Software to perform advertising \nmanagement services for third parties (so-called \"service bureau\" uses).  All \nrights not expressly granted hereunder are reserved to NetGravity.  Licensee \nmay not copy, distribute, reproduce, use or allow access to the Software \nexcept as explicitly permitted under this Agreement, and Licensee will not \nmodify, adapt, translate, prepare derivative works from, decompile, reverse \nengineer, disassemble or otherwise attempt to derive source code from the \nSoftware or any internal data files generated by the Software. Licensee shall \nnot remove, obscure, or alter NetGravity's copyright notice, trademarks, or \nother proprietary rights notices affixed to or contained within the Software.\n\n2.3  OWNERSHIP.  NetGravity owns and shall retain all right, title, and \ninterest in and to the Software, including all copyrights, patents, trade \nsecret rights, trademarks and other intellectual property rights therein.   \nLicensee shall provide NetGravity with access to Licensee's facilities, at \nreasonable times and upon reasonable notice, to verify Licensee's compliance \nwith the terms of this Agreement.\n\n3.   DELIVERY OF THE SOFTWARE\n\n3.1  DELIVERY.  As soon as practicable following the Effective Date, \nNetGravity shall deliver the Software electronically or by other means \nmutually agreed upon to Licensee at the location(s) set forth on Exhibit A.\n\n3.2  INSTALLATION AND TRAINING.  As soon as practicable following the \ndelivery of the Software, NetGravity will provide reasonable assistance to  \nLicensee by telephone and e-mail in installing the Software.  At Licensee's \nrequest, on-site installation assistance and training may be provided at \nNetGravity's standard rates, plus reasonable travel expenses.\n\n4.   FEES\n\n4.1  LICENSE FEE.  In consideration for the rights granted hereunder, \nLicensee shall pay NetGravity license fees in the amounts and on the payment \nterms set forth on Exhibit A.\n\n4.2  TAXES.  Licensee shall be responsible for all sales taxes, use taxes and \nany other similar taxes imposed posed by any federal, state or local \ngovernmental entity on the transactions contemplated by this Agreement, \nexcluding U.S. taxes based upon NetGravity's income.  When NetGravity has the \nlegal obligation to pay or collect such taxes, the appropriate amount shall \nbe invoiced to and paid by Licensee unless Licensee provides NetGravity with \na valid tax exemption certificate authorized by the appropriate taxing \nauthority.\n\n4.3  U.S. DOLLARS.  All fees quoted and payments made hereunder shall be in \nU.S. Dollars.\n\n                                       1\n\n\n                     NETGRAVITY ADSERVER LICENSE AGREEMENT\n\n5.   NETGRAVITY SUPPORT\n\nAt Licensee's request, NetGravity will offer maintenance and technical \nsupport with respect to the Software under its then current standard Software \nMaintenance Subscription and Support Agreement, a copy of which is attached \nas Exhibit B.\n\n6.   WARRANTY AND DISCLAIMER\n\nNetGravity warrants that for a period of forty-five (45) days following the \ndelivery of the Software:  (i) the Software shall operate substantially in \naccordance with the then current documentation for such Software and (ii) the \nmedia on which the Software is furnished shall be free from defects in \nmaterials and faulty workmanship under normal use.  NetGravity does not \nwarrant that the Software will meet all of Licensee's requirements or that \nthe use of the Software will be uninterrupted or error-free.  NetGravity's \nsole obligation under this warranty is to use reasonable efforts to correct \nany non-conforming Software.  Except as expressly provided herein, NETGRAVITY \nLICENSES THE SOFTWARE TO LICENSEE ON AN \"AS IS\" BASIS.  NETGRAVITY MAKES NO \nOTHER WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, \nOR OTHERWISE INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR \nCONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A \nPARTICULAR PURPOSE, AND NONINFRINGEMENT.\n\n7.   INDEMNIFICATION\n\n7.1  BY NETGRAVITY.  NetGravity shall indemnify, defend and hold harmless \nLicensee from any and all damages, liabilities, costs and expenses (including \nreasonable attorneys' fees) incurred by Licensee as a result of any claim \nthat the Software, when used within the scope of this Agreement, infringes \nany copyright, trademark, or trade secret of any third party;  provided that \nLicensee promptly notifies NetGravity in writing of any such claim and \npromptly tenders the control of the defense and settlement of any such claim \nto NetGravity at NetGravity's expense and with NetGravity's choice of \ncounsel.  Licensee shall cooperate with NetGravity, at NetGravity's expense, \nin defending or settling such claim and Licensee may join in defense with \ncounsel of its choice at its own expense. If the Software is, or in the \nopinion of NetGravity may become, the subject of any claim for infringement \nor if it is adjudicatively determined that the Software infringes then \nNetGravity may, at its option and expense, either (i) procure for Licensee \nthe right from such third party to use the Software or (ii) replace or modify \nthe Software with other suitable and reasonably equivalent products so that \nthe Software become noninfringing or (iii) if (i) and (ii) are not \npracticable, terminate this Agreement.\n\n7.2  EXCLUSIONS.  NetGravity shall have no liability for any infringement \narising from (i) the use of other than the then-current, commercially \navailable version of the Software; (ii) the use of the Software other than as \nset forth in its accompanying documentation; (iii) the modification of the \nSoftware unless such modification was made or authorized by NetGravity, when \nsuch infringement would not have occurred but for such modification; or (iv) \nthe combination or use of the Software with other software, hardware or other \nproducts not approved by NetGravity in advance if such infringement would \nhave been avoided by the use of the Software not in such combination.  THIS \nSECTION 7 STATES NETGRAVITY'S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM \nREGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.\n\n7.3  BY LICENSEE.  Licensee shall indemnify, hold harmless and defend \nNetGravity from and against any and all claims, liabilities, damages and \nexpenses (including reasonable attorneys' fees) incurred by NetGravity as a \nresult of any breach by Licensee of this Agreement; provided that NetGravity \npromptly notifies Licensee in writing of any such claim and promptly tenders \nto Licensee the control and defense and settlement of such claim at \nLicensee's expense and with Licensee's choice of counsel.  NetGravity shall \ncooperate with Licensee, at Licensee's expense, in defending or settling such \nclaim and NetGravity may join in defense with counsel of its choice at its \nown expense.\n\n8.   LIMITATION OF LIABILITY\n\nIN NO EVENT WILL NETGRAVITY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE \nUSE OR PERFORMANCE OF THE SOFTWARE EXCEED THE SUM OF THE LICENSE FEES \nACTUALLY PAID BY LICENSEE HEREUNDER.  IN NO EVENT SHALL EITHER PARTY HAVE ANY \nLIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF \nSUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL \nDAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT \nSUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; PROVIDED, \nHOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO ANY BREACH BY LICENSEE OF \nTHE LICENSE RESTRICTIONS OR ITS CONFIDENTIALITY OBLIGATIONS.  THE PARTIES \nAGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.\n\n                                       2\n\n\n                     NETGRAVITY ADSERVER LICENSE AGREEMENT\n\n9.   CONFIDENTIALITY\n\n9.1  DEFINITION.  The term \"Confidential Information\" shall mean any \ninformation disclosed by one party to the other party in connection with \nthis Agreement which is disclosed in writing, orally or by inspection and is \nidentified as \"Confidential\" or \"Proprietary\" or which a party has reason to \nbelieve is treated as confidential by the other party.  Any information, in \nwhatever form, disclosed by NetGravity that relates to the Software and that \nis not publicly known is \"Confidential Information.\"\n\n9.2  OBLIGATION.  Each party shall treat as confidential all Confidential \nInformation received from the other party, shall not use such Confidential \nInformation except as expressly permitted under this Agreement, and shall not \ndisclose such Confidential Information to any third party without the other \nparty's prior written consent.  Each party shall  take reasonable measure to \nprevent the disclosure and  unauthorized use of  Confidential Information of \nthe other party.\n\n9.3  EXCEPTIONS.  Notwithstanding the above, the restrictions of this Section \nshall not apply to information that:\n\n     a)  was independently developed by the receiving party without any use \nof the Confidential Information of the other party and by employees or other \nagents of (or independent contractors hired by) the receiving party who have \nnot been exposed to the Confidential Information;\n\n     b)  becomes known to the receiving party, without restriction, from a \nthird party without breach of this Agreement and who had a right to disclose \nit;\n\n     c)  was in the public domain at the time it was disclosed or becomes in \nthe public domain through no act or omission of the receiving party;\n\n     d)  was rightfully known to the receiving party, without restriction, \nat the time of disclosure; or\n\n     e)  is disclosed pursuant to the order or requirement of a court, \nadministrative agency, or other governmental body; provided, however, that \nthe receiving party shall provide prompt notice thereof to the other party \nand shall use its reasonable best efforts to obtain a protective order or \notherwise prevent public disclosure of such information.\n\n10.  TERM AND TERMINATION\n\n10.1 TERM.  The term of this Agreement shall commence on the Effective Date \nand shall continue in force until terminated as follows:\n\n     a)  If Licensee fails to make any payment due within thirty (30) days \nafter receiving written notice from NetGravity that such payment is \ndelinquent, NetGravity may terminate this Agreement on written notice to \nLicensee at any time following the end of such thirty (30) day period.\n\n     b)  If either party materially breaches any term or condition of this \nAgreement and fails to cure that breach within thirty (30) days after \nreceiving written notice of the breach, the nonbreaching party may terminate \nthis Agreement on written notice at any time following the end of such thirty \n(30) day period.\n\n     c)  This Agreement shall terminate immediately upon notice in the event \nLicensee becomes insolvent (i.e., becomes unable to pay its debts in the \nordinary course of business as they come due) or makes an assignment of this \nAgreement for the benefit of creditors.\n\n10.2 SURVIVAL.  The following sections shall survive the termination, for any \nreason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12.\n\n10.3 REMEDIES.  Licensee acknowledges that its breach of Section 2.2 or 9 \nwould cause irreparable harm to NetGravity, the extent of which would be \ndifficult to ascertain.  Accordingly, Licensee agrees that, in addition to \nany other remedies to which NetGravity may be legally entitled, NetGravity \nshall have the right to obtain immediate injunctive relief in the event of a \nbreach of such sections by Licensee or any of its officers, employees, \nconsultants or other agents.\n\n11.  EXPORT REGULATIONS\n\nWithout affecting the scope of the license granted herein, in the event \nLicensee is permitted to transfer the Software to any location outside the \nUnited States under this Agreement, Licensee hereby agrees it will comply \nwith all applicable United States export laws and regulations.\n\n12.  MISCELLANEOUS.\n\n12.1 ASSIGNMENT.  Licensee may not assign any of its rights or delegate any of \nits obligations under this Agreement, whether by operation of law or \notherwise, without the prior express written consent of NetGravity.  Subject \nto the foregoing, this Agreement will bind and inure to the benefit of the \nparties, their respective successors and permitted assigns.\n\n12.2 WAIVER AND AMENDMENT.  No modification, amendment or waiver of any \nprovision of this Agreement shall be effective unless in writing and signed \nby the party to be charged.  No failure or delay by either party in \nexercising any right, power, or remedy under this Agreement, except as \n\n                                       3\n\n                     NETGRAVITY ADSERVER LICENSE AGREEMENT\n\nspecifically provided herein, shall operate as a waiver of any such right, \npower or remedy.\n\n12.3  GOVERNING LAW; ARBITRATION.  This Agreement shall be governed by the laws \nof the State of California, USA, excluding conflict of laws provisions and \nexcluding the 1980 United Nations Convention on Contracts for the \nInternational Sale of Goods.  Any disputes arising out of this Agreement \nshall be resolved by binding arbitration in Santa Clara County California in \naccordance with the rules of the American Arbitration Association.   The \narbitrator shall have the power to grant injunctive relief.\n\n12.4  NOTICES.  All notices, demands or consents required or permitted under \nthis Agreement shall be in writing.  Notice shall be considered effective on \nthe earlier of actual receipt or  (a) the day following transmission if sent \nby facsimile followed by written confirmation by registered overnight carrier \nor certified United States mail; or (b) one (1) day after posting when sent \nby registered private overnight carrier (e.g.,  DHL, Federal Express, etc.); \nor (c) five (5) days after posting when sent by certified United States mail. \nNotice shall be sent to the NetGravity at the addresses set forth on the \nfirst page of this Agreement and to Licensee at the address set forth on \nExhibit A, or at such other address as shall be given by either party to the \nother in writing.   Notices to NetGravity shall be addressed to the attention \nof Contracts Administrator.\n\n12.5  INDEPENDENT CONTRACTORS.  The parties are independent contractors.  \nNeither party shall be deemed to be an employee, agent, partner or legal \nrepresentative of the other for any purpose and neither shall have any right, \npower or authority to create any obligation or responsibility on behalf of \nthe other.\n\n12.6  SEVERABILITY.  If any provision of this Agreement is held by a court of \ncompetent jurisdiction to be contrary to law, such provision shall be changed \nand interpreted so as to best accomplish the objectives of the original \nprovision to the fullest extent allowed by law and the remaining provisions \nof this Agreement shall remain in full force and effect.\n\n12.7  COMPLETE UNDERSTANDING.  This Agreement, including all Exhibits \nattached hereto, constitutes the final, complete and exclusive agreement \nbetween the parties with respect to the subject matter hereof, and supersedes \nany prior or contemporaneous agreement.\n\n12.8  FORCE MAJEURE.  Except for Licensee's obligations to pay NetGravity \nhereunder, neither party shall be liable to the other party for any failure \nor delay in performance caused by reasons beyond its reasonable control.\n\n12.9  PURCHASE ORDERS. This Agreement shall control Licensee's use of the \nSoftware.  All different or additional terms or conditions in any Licensee \npurchase order or similar document shall be null and void.\n\n12.10 EXECUTION.  The parties have shown their acceptance of this Agreement \nby causing it to be executed below by their duly authorized representatives.  \nThis agreement may be executed in counterparts which together shall \nconstitute one agreement, and each party agrees that a copy of a counterpart \nexecuted by it and sent to the other by any method including without \nlimitation facsimile shall constitute acceptance of this Agreement.\n\n                                  NETGRAVITY\n\n                                  By: \/s\/ Chris J. Krook\n                                      ------------------------------------\n                                  Name: \/s\/ Chris J. Krook\n                                        ----------------------------------\n                                  Title: Corporate Controller\n                                         ---------------------------------\n\n\n                                  \"LICENSEE\"\n\n                                  By: \/s\/ Ronald T. Burr\n                                      ------------------------------------\n                                  Name: Ronald T. Burr\n                                        ----------------------------------\n                                  Title: CEO \n                                         ---------------------------------\n\n                                       4\n\n\n                                   EXHIBIT A\n\n    LICENSEE:     NetZero \n                  P.O Box 5365 \n                  Glendale, CA 91221\n\n    Attention: License Administrator:  Ronald Burr 818-673-4900\n\n    ADSERVER SOFTWARE LICENSED COMPONENTS:\n\n    PROGRAM COMPONENTS DESCRIPTION:\n\n    The Admanager component contains the user interface and management \ndatabase.  The Adserver is a server application responsible for delivering \nadvertisements. The AdClient component is the technology that integrates with \nweb server software to receive ads from the ad server.  The AdConsole \ncomponent serves as a report publishing platform to advertisers and agencies.\n\n\n\n\n          PROGRAM COMPONENT                LICENSED NUMBER OF COPIES\n          -----------------                -------------------------\n                                        \n              AdManager                              1\n              AdServer                               2\n              AdClient                               2\n              AdConsole                              1\n           AdInsight Server                          1\n\n\n\n*   Licensee shall have the right to copy the right to copy the AdServer for \n    AdInsight (reporting) purposes.  This additional copy of AdServer shall not \n    be used for additional adserving capability.\n\nSureStart Deployment Package: \n\n     Plus related travel expenses\n\nTOTAL PACKAGE PRICE:  [***]\n\nCONSULTING:  [***]\n\nFEES DUE:    [***] (price good through September 15, 1998)\n\nPAYMENT TERMS:\n\n     Payment is due Net 30 days from the Effective Date\n\n--------------\n[***]  Confidential treatment has been requested for the bracketed portions. \n       The confidential redacted portion has been omitted and filed separately \n       with the Securities and Exchange Commission.\n\n                                       1\n\n                                       \n                                   EXHIBIT B\n\nDATE OF THIS AGREEMENT: AUGUST 28, 1998\n\n                 SOFTWARE SUBSCRIPTION AND SUPPORT AGREEMENT\n\n                                    BETWEEN\n\n                                NETGRAVITY, INC.\n\n                                      AND\n\n                                    NETZERO\n\n    NetGravity, Inc. (\"NetGravity\") has granted Licensee a license to certain \nsoftware in accordance with a license agreement dated August 28, 1998 (the \n\"License Agreement\").  Licensee wishes to obtain maintenance and support of \nsuch software pursuant to this Agreement.\n\n                                   SECTION 1\n                                  DEFINITIONS\n\n1.1   \"Product(s)\" means the software programs licensed to Licensee pursuant \nto the License Agreement together with any Updates furnished by NetGravity to \nLicensee under this Agreement.\n\n1.2   \"Updates\" means a software Product release containing error corrections \nand minor enhancements, in object code form, which is made commercially \navailable by NetGravity and generally indicated by a change in the revision \nnumber in the tenths or hundredths digit to the right of the decimal point \n(e.g., a change from version x.xx to x.xy or x.yx) and any corrections and \nupdates to the associated documentation.\n\n1.3    \"Upgrades\" means a software Product release containing significant \nfunctional enhancements and feature additions of the Software, in object code \nform, which is made commercially available by NetGravity and generally \nindicated by a change in the revision number to the left of the decimal point \n(i.e., 4.00).\n\n                                   SECTION 2 \n                                TECHNICAL SUPPORT\n\n2.1    SUPPORT.  NetGravity will provide Licensee with technical support \n(\"Support\") during the hours indicated on the attached Schedule 1.  Support \nwill be provided by at least one of the following methods: telephone, email, \nWorld Wide Web, or fax. NetGravity, at its sole discretion, will choose which \nmethod(s) it uses to provide support to Licensee.  Support will include:\n\n       a)  assistance related to questions on the installation and \noperational use of the Product(s);\n\n       b)  assistance in identifying and verifying the causes of suspected \nerrors in the Products(s); and \n\n                                       1\n\n\n       c)  providing workarounds for identified Product errors or \nmalfunctions, where reasonably available to NetGravity.\n\nLicensee will designate the number of persons set forth in Schedule 1 to act \nas support liaisons to utilize the support and will ensure that such person \nwill be properly trained in the operation and usage of the Products.  Upon \nrequest, Licensee will allow the use of on-line diagnostics of the Products \nduring error diagnosis.\n\n2.2    ERROR CORRECTIONS.  During the term of this Agreement, NetGravity \nshall use its reasonable efforts to correct any reproducible error in the \nProduct with a level of effort commensurate with the severity of the error. \nNetGravity shall have no obligation to correct all errors in the Product.  \nUpon identification of any error, Licensee shall notify NetGravity  of such \nerror and shall provide NetGravity with enough information to reproduce the \nerror.\n\n2.3    ERROR CORRECTIONS.  NetGravity shall not be responsible for correcting \nany errors not reproducible by NetGravity on the unmodified Product or errors \ncaused by: (i) Licensee's failure to implement all Updates issued under this \nAgreement; (ii) changes to the operating system or environment which \nadversely affect the Product;(iii) any alterations of or additions to the \nProduct made by parties other than NetGravity; (iv) use of the Product in a \nmanner for which it was not designed; (v) interconnection of the Product with \nother software products not supplied by NetGravity; or (vi) use of the \nProduct on an unsupported platform.  NetGravity shall only be obligated to \nsupport the then current production version of the Product and the \nimmediately prior release for a period of three (3) months after such \nrelease.  Support for any earlier versions or for errors not covered under \nthis Agreement may be obtained at NetGravity's then current rates.\n\n2.4    ON-SITE TRAINING AND SUPPORT.  Upon request, and provided that \nLicensee is current with fees due under this Agreement, NetGravity will \nprovide training for Licensee's administrators and trainers and\/or direct \nsupport at Licensee's site at NetGravity's then applicable standard training \nrates and charges.\n                                       \n                                   SECTION 3\n                           MAINTENANCE SUBSCRIPTION\n\nNetGravity will provide each Update and Upgrade to Licensee within a \nreasonable time after publication (\"Subscription\").  Licensee may acquire \nadditional copies of the documentation at NetGravity's then current standard \nrates.\n\n                                   SECTION 4 \n                                     FEES\n\n4.1    SUPPORT AND SUBSCRIPTION FEES.  For NetGravity technical Support \nservices covered by Section 2 of this Agreement, Licensee agrees to pay \nNetGravity the annual technical Support fee in the amount set forth in \nSchedule 1 for the first year following the Date of this Agreement.  Licensee \nshall pay the annual fees each year at the beginning of each renewal term of \nthis Agreement. For NetGravity Subscription Service provided under Section 3 \nof this Agreement, Licensee shall pay the annual Subscription fee set forth \nin Schedule 1 beginning one year from the Date of this Agreement.  Licensee \nshall pay the annual fees at the beginning of each renewal term of this \nAgreement. NetGravity reserves the right to change the annual fees from time \nto time effective at the commencement of the next annual period by giving \nLicensee at least sixty (60) days' prior written notice of such change.  \nNetGravity reserves the right to charge Licensee a reinstatement fee to \nresume services if Licensee has not continuously maintained this Agreement in \neffect.  Annual fees on any additional units licensed beyond the initial \npurchase will be prorated and billed at the time of the applicable license \ngrant.\n\n4.2    PAYMENT.  Any amount payable to NetGravity under this Agreement will \nbe due and payable within thirty (30) days after Licensee's receipt of \nNetGravity's invoice. All monetary amounts are specified and shall be paid in \nthe lawful currency of the United States of America.  Licensee shall pay all \namounts due under this Agreement to NetGravity at the address indicated at \nthe beginning of this Agreement or such other location as NetGravity \ndesignated in writing. Any amount not paid when due will bear interest at the \nrate of one and one-half percent (1.5%) per month or the maximum rate \npermitted by applicable usury law, which is less, determined and compounded \non a daily basis from the date due until the date paid.\n\n4.3    TAXES.  Unless otherwise specified, the fees, charges and other \namounts specified in this Agreement\n\n--------------\n\n[***] Confidential treatment has been requested for the bracketed portions. \n      The confidential redacted portion has been omitted and filed separately \n      with the Securities and Exchange Commission.\n\n\n                                       2\n\n\ndo not include any sales, use, excise or other applicable taxes.  Licensee \nwill pay or reimburse NetGravity for any and all such taxes (excluding any \napplicable federal and state taxes based on NetGravity's income).\n\n                                   SECTION 5\n                                  TERMINATION\n\n5.1    TERM.  The term of this Agreement shall be one year and shall \nautomatically renew unless Licensee  notifies NetGravity of  its intention \nnot to renew at least 60 days prior to the renewal date or unless terminated \npursuant to paragraph 5.2.\n\n5.2    TERMINATION FOR DEFAULT.  If either party defaults in the performance \nof or compliance with any of its material obligations under this Agreement, \nand such default has not been remedied or cured within thirty (30) days after \nwritten notice specifying the default or, if the nature of the default is \nsuch that more than (30) days are required for the cure thereof, the \ndefaulting party fails to commence its efforts to cure such breach or default \nwithin such thirty (30) days and to diligently prosecute the same to \ncompletion thereafter, the non-defaulting party may terminate this Agreement \nin addition to its other rights and remedies under law.\n\n5.3    SURVIVAL.  Sections 4.2, 4.3, 5,  6 and 7 shall survive the \ntermination of this Agreement.\n\n                                   SECTION 6\n                             LIMITATIONS OF LIABILITY\n\n       LIMITATION. NETGRAVITY'S LIABILITY (WHETHER IN CONTRACT, WARRANTY, \nTORT OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, \nREPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY OF NETGRAVITY) UNDER \nTHIS AGREEMENT WITH REGARD TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER \nITEMS SUBJECT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL \nCOMPENSATION PAID BY LICENSEE TO NETGRAVITY UNDER THIS AGREEMENT.  IN NO \nEVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR \nANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED \nAND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT, \nEVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. \n\n                                  SECTION 7\n                                MISCELLANEOUS\n\n7.1    ASSIGNMENT. Licensee may not assign any of its rights or delegate any \nof its obligations under this Agreement, whether by operation of law or \notherwise, without the prior express written consent of NetGravity.  Subject \nto the foregoing, this Agreement will bind and inure to the benefit of the \nparties, their respective successors and permitted assigns.\n\n7.2    WAIVER AND AMENDMENT.  No modification, amendment or waiver of any \nprovision of this Agreement shall be effective unless in writing and signed \nby the party to be charged.  No failure or delay by either party in \nexercising any right, power, or remedy under this Agreement, except as \nspecifically provided herein, shall operate as a waiver of any such right, \npower or remedy.\n\n7.3    GOVERNING LAW; ARBITRATION.  This Agreement shall be governed by the \nlaws of the State of California, USA, excluding conflict of laws provisions \nand excluding the 1980 United Nations Convention on Contracts for the \nInternational Sale of Goods.  Any disputes arising out of this Agreement \nshall be resolved by binding arbitration in Santa Clara County California in \naccordance with the rules of the American Arbitration Association.   The \narbitrator shall have the power to grant injunctive relief.\n\n7.4    NOTICES.  All notices, demands or consents required or permitted under \nthis Agreement shall be in writing.  Notice shall be considered effective on \nthe earlier of actual receipt or  (a) the day following transmission if sent \nby facsimile followed by written confirmation by registered overnight carrier \nor certified United States mail; or (b) one (1) day after posting when sent \nby registered private overnight carrier (e.g.,  DHL, Federal Express, etc.); \nor (c) five (5) days after posting when sent by certified United States mail. \nNotice shall be sent to the parties at the addresses set forth on the first \npage of this Agreement or at such other address as shall be given by either \nparty to the other in writing.   Notices to NetGravity shall be addressed to \nthe attention of Contracts Administrator.\n\n7.5    INDEPENDENT CONTRACTORS.  The parties are independent contractors.  \nNeither party shall be deemed to be an employee, agent, partner or legal \nrepresentative of the other for any purpose and neither shall have any right, \npower or authority to create any obligation or responsibility on behalf of \nthe other.\n\n                                       3\n\n\n7.6    SEVERABILITY.  If any provision of this Agreement is held by a court \nof competent jurisdiction to be contrary to law, such provision shall be \nchanged and interpreted so as to best accomplish the objectives of the \noriginal provision to the fullest extent allowed by law and the remaining \nprovisions of this Agreement shall remain in full force and effect.\n\n7.7    COMPLETE UNDERSTANDING.  This Agreement, including all Exhibits \nattached hereto, constitutes the final, complete and exclusive agreement \nbetween the parties with respect to the subject matter hereof, and supersedes \nany prior or contemporaneous agreement.\n\n7.8    EXCUSED PERFORMANCE.  Neither party will be liable for, or be \nconsidered to be in breach of or default under this Agreement on account of, \nany delay or failure to perform as required by this Agreement (other than \nmonetary obligations) as a result of an event of force majeure or any cause \nor condition beyond such party's reasonable control.\n\n                                  NETGRAVITY\n\n                                  Signature: \/s\/ Chris J. Krook\n                                             -------------------------------\n                                  Printed Name: \/s\/ Chris J. Krook\n                                                ----------------------------\n                                  Title: Corporate Controller\n                                         -----------------------------------\n                                  Date Signed: 8\/28\/98\n                                               -----------------------------\n\n\n                                  Licensee:\n\n                                  Signature: \/s\/ Ronald T. Burr\n                                             -------------------------------\n                                  Printed Name: Ronald T. Burr\n                                                ----------------------------\n                                  Title: CEO\n                                         -----------------------------------\n                                  Date Signed: 8\/28\/98\n                                               -----------------------------\n\n                                       4\n\n\n                                  SCHEDULE 1\n\nSUPPORT HOURS:  AdService 24 (24 hours a day -- 7 days a week)\n\nSUPPORT CONTACTS: Please List 3:\n\nFEES:\n\n\n\n\nPRODUCTS              LICENSE DATE          ANNUAL SUPPORT FEE       ANNUAL SUBSCRIPTION FEE\n--------              ------------          ------------------       -----------------------\n                                                            \nAdManager \nAdServer              August ___, 1998             [***]                      [***]\nAdClient \nAdConsole \nAdInsight \n\nFees are payable in advance.\n\n\n\n\n--------------\n\n[***] Confidential treatment has been requested for the bracketed portions. \n      The confidential redacted portion has been omitted and filed separately \n      with the Securities and Exchange Commission.\n\n                                         5\n\n\n                                              Date:      June-29-1999\n[LOGO]                                        Customer:  NetZero\n\n                               ORDER FORM\n-------------------------------------------------------------------------------\nADVERTISING VOLUME*: NETZERO'S NEEDS\n-------------------------------------------------------------------------------\n\nAccording to Shane, NetZero is currently getting 400 ads\/second per AdServer \nat peak \n\nAccording to Shane's number of 9600 ads\/second, NetZero will require a total of \n24 AdServers (9600\/400 = 24) to manage peak loads. \n\nThis number does not include any failover servers- NetGravity recommends \nanother 10% serving capacity or an additional 3 AdServers.\n\nNetZero is currently licensed for 14 AdServers, thus would require an additional\n13 AdServers \n\n(27 recommended - 14 licensed = 13 additional)\n\n*All AdServer volume figures discussed in this document are for reference only.\nThey are based upon NetZero's own experience, warranty, express or implied.\n\n-------------------------------------------------------------------------------\nEXISTING LICENSES: RENEWALS\n-------------------------------------------------------------------------------\n\nCurrent Licensing with upcoming renewal August 31, 1999\n\n\nItem           QTY        List Each    Total List License      Support     Subscription\n                                                               [***]          [***]\n---------------------------------------------------------------------------------------\n                                                            \nAdManager        1         16,985       16,985                 [***]         [***]\nAdClient         2          2,495        2,495                 [***]         [***]\nAdServer        14         14,995       14,995                 [***]         [***]\n---------------------------------------------------------------------------------------\n                                       231,905                 [***]         [***]\n\n\nRenewal Due (8\/31\/99)                    [***]\n[***]                                    [***]\n-----------------------                -------\nTotal Renewal of Existing Licenses      [***]\n\n*The [***] represents support fees already paid by NetZero thru 8\/31\n\n-------------------------------------------------------------------------------\nNEW PURCHASES: ADDITIONAL ADSERVERS &amp; CONSULTING\n-------------------------------------------------------------------------------\n\nTo buy the needed additional 13 AdServers\n\n\n\n-------------------------------------------------------------------------------\n        List    Total List   NetZero        Net\nQTY     Each     License     Discount     License $     Support     Subscription\n                                                  \n                                                        [***]         [***]\n13      14,995   194,935    [***]         [***]         [***]         [***]\n-------------------------------------------------------------------------------\n\nNew Licenses      Current Year              [***]\n                  Year 2 Total              [***]\n                                            -----\n                                            [***]\n\n\n* Confidential treatment has been requested for the bracketed portions.  The \nconfidential redacted portion has been omitted and filed separately with the \nSecurities and Exchange Commission.\n\n                                  Page 1 of 2\n\n\n\n                                               \n                                                     --------------------------\nPlus,                                     -------  --Renewals from above rolled\nRenewal of Existing Renewal Due 8\/31\/99    [***]     into purchase of new \n(see above)         Year 2 Total           [***]     licenses, synching up the\n                                            -        renewal dates of all \n                                                     NewZero licenses.\n       ------------------------------------------    --------------------------\n       TOTALS        Year 1 Total          [***]\n                     Year 2 Total          [***]\n                                          -------\n                                           [***]\n       --------------------------------\n\n-------------------------------------------------------------------------------\nConsulting Credits* (to be applied to future engagements with NetGravity \nProfessional Services)\n-------------------------------------------------------------------------------\n     Days       List Pricing           [***]           [***]          [***]\n     ----       ------------\n      50         $1,600                [***]           [***]          [***]\n-------------------------------------------------------------------------------\n[***]\n\n-------------------------------------------------------------------------------\n          Grand Total         Licenses, Renewals &amp; Support 2 years    [***]\n                              [***]                                   [***]\n                                                                      ---------\n                                          Grand Total (due net 30)    [***]\n-------------------------------------------------------------------------------\n\n\n-------------------------------------------------------------------------------\nCONDITIONS\n-------------------------------------------------------------------------------\n\n\nsee attached word document\n\nAuthorized Licensee Signature:                  Title:                Date:\n\n                                              Senior V.P.\n\/s\/ Frederic A. Randall, Jr.                &amp; General Counsel        6\/29\/99\n--------------------------------            -----------------        -------\n\nAuthorized NetGravity Signature:                Title:                Date:\n\n\/s\/ Stephen E. Recht                            CFO\n--------------------------------            -----------------        -------\n\n\n* Confidential treatment has been requested for the bracketed portions.  \nThe confidential redacted portion has been omitted and filed separately with \nthe Securities and Exchange Commission.\n\n                                  Page 2 of 2\n\n\n1.     Software purchased under this Order Form shall be governed by the \nterms and conditions of the NetGravity AdServer License Agreement dated \nAugust 28, 1998 (the \"License Agreement\") and NetGravity Software \nSubscription and Support Agreements (the \"Support Agreement\") entered into by \nNetGravity and NetZero, dated August 31, 1998 (collectively, the \"Existing \nAgreements\").  The Existing Agreements are hereby amended to incorporate the \nterms of this Order Form.  Payment terms are net 30.  So long as Licensee is \nnot in breach hereunder, Licensee shall have an option by delivery of written \nnotice to extend the License Agreement, as amended hereunder, for an \nadditional two year term on the terms set forth herein, provided that in \nregards to consulting Licensee shall receive a [***] discount off of \nNetGravity list at the time the services are ordered instead of the [***] per\nday rate listed herein.\n\n2.     Notwithstanding anything to the contrary in Section 5.1 of the Support \nAgreement referenced herein, the term of this purchase shall be two years.\n\n3.     Because this quotation represents a two year obligation on the part of \nLicensee and Licensee is paying for both years under net 30 payment terms, in \nthe event that Licensee purchases additional copies of the AdManager \nAdServer, and AdClient component(s) during the two years from the date of \nthis quotation, Licensee shall receive a [***] discount off of NetGravity \nlist pricing in effect when the software is ordered.  In addition, if \nNetGravity provides a greater discount to a purchaser of such products and \nsuch purchaser has purchased, in the aggregate, an equal or lesser dollar \nvalue of comparable products, then Licensee shall be offered the same discount \nfor future purchases hereunder.\n\n4.     During the two year term of this Order Form, Licensee shall have the \nright to purchase an additional 100 days of consulting at the discounted \nrates listed above.  Additionally, NetGravity shall use its commercially \nreasonable efforts to develop custom software programs requested by Licensee. \n In the event NetGravity is not able to develop a custom software program \nrequested by Licensee using commercially efforts, NetGravity agrees to \nprovide Licensee with such technical information as Licensee may reasonably \nrequest to enable Licensee to develop such custom programs on its own, it \nbeing understood that Licensee shall be required to keep such information \nconfidential and shall only be entitled to use such information in \nconjunction with the products purchased hereunder.\n\n5.     The Support Subscription Agreement entered into by the parties on \nAugust 31, 1998 is hereby amended to include the attached Exhibit's C and D.\n\n6.     The parties agree that in the event that NetGravity provides \nconsulting services pursuant to this Order Form, the parties shall, on a case \nby case basis, decide upon intellectual property ownership produced by said \nconsulting services.  In particular, if specific programs are proposed, \ndesigned and paid for by Licensee, then appropriate restrictions shall be \nplaced on NetGravity;s ability to use the same to benefit Licensee's \ncompetitors.\n\n7.     The parties agree to amend the Assignment sections of the above \nmentioned AdServer License Agreement and the Support Subscription Agreement \nby replacing the existing language with the following:\n\n       This Agreement is not assignable by Customer without the prior written \n       consent of NetGravity; provided however, this entire Agreement may be \n       assigned without NetGravity's consent to an affiliate controlled by or \n       under common control with Licensee or to any successor by merger or \n       acquisition of all or substantially all of Licensee's assets, provided \n       that such assignee is bound by law or written agreements to all of the \n       obligations of the assigning party under this Agreement. Subject to \n       the 1foregoing, this Agreement will bind and inure to the benefit of \n       the parties, their respective successors and permitted assigns.  If \n       such acquiror is [***], then Licensee shall have no further rights to \n       any custom development and the support obligations under the Existing \n       Agreements shall terminate six months after the effective date of such \n       acquisition and such competitor shall not be entitled to source code \n       under the escrow provisions herein.\n\n[***] Confidential treatment has been requested for the bracketed portions. \n      The confidential redacted portion has been omitted and filed separately \n      with the Securities and Exchange Commission.\n\n\n\n8.     NetGravity agrees to enter into within 15 days of the date hereof a \nSource Code Escrow Agreement in the form of the Preferred Escrow Agreement \nattached hereto as Exhibit E and will place into escrow the source code, \ndesign, documentation, information and instructions on the building\/compiling \nof the source code, and such other materials as may reasonably necessary for \nLicensee to utilize such escrow materials for support of the Software.  The \nconditions for release of the source code shall be, in addition to those set \nforth therein, limited to (i) NetGravity's material breach of its warranty \nobligations and support obligations under the Existing Agreement which \nremains uncured for 30 days (or 10 days with respect to Priority 1 or \nPriority 2 errors as defined in the attached Exhibit C) from notice to cure \nor if not capable of being cured within such time NetGravity fails to use its \nbest efforts to effect such cure.\n\n9.     In the event of release of source code from the escrow, Licensee shall \nhave the right to use the escrowed materials to perform support services and \nto make modifications to the Licensed Software for internal use consistent \nwith the license granted in the License Agreement.  The escrow license shall \nbe perpetual or until such time as NetGravity has cured the breach which gave \nrise to the release from escrow. Licensee shall be responsible for a \nassociated escrow fees after the first year, the first year of which shall be \nborne by NetGravity.\n\n10.    The parties agree to amend the Indemnity section of the above \nreferenced NetGravity AdServer License Agreement by adding the following to \nthe end of Section 7.1:\n\n       If NetGravity terminates under subsection (iii) within the first four \n       (4) years from the Effective Date, NetGravity will refund a pro-rata \n       portion of the license fees (the refundable amount being determined by \n       the total license fees reduced reduced each month by 1\/48th of the \n       total).  If NetGravity terminates under subsection (iii) at any time \n       after the Effective Date, NetGravity will refund any prepaid \n       subscription and support fees applicable to the remaining period for \n       which the services will be terminated.\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8325,8334],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9613,9616],"class_list":["post-41990","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netgravity-inc","corporate_contracts_companies-netzero-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41990","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41990"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41990"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41990"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41990"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}