EXHIBIT 99.1
ONLINE SYSTEM SOFTWARE LICENSE AGREEMENT
BETWEEN
EXCALIBUR TECHNOLOGIES CORPORATION
AND
WEBADTV.COM, INC.
This Online System Software License Agreement (this "Agreement") is
made by and between Excalibur Technologies Corporation, a corporation organized
and existing under the laws of the State of Delaware, with its principal place
of business at 1921 Gallows Road, Suite 200 Vienna, VA 22182 ("Excalibur"), and
webADTV.com, a corporation organized and existing under the laws of the State of
Minnesota, with its principal place of business at 5501 Excelsior Boulevard,
Minneapolis, MN 55416 ("webADTV"). This Agreement shall be effective on July 31,
2000 ("Effective Date").
WHEREAS, Excalibur has developed proprietary software referred to and
defined herein as "Licensed Product"; and
WHEREAS, webADTV desires to integrate the Licensed Product into its
commercially available Online System and to allow its customers to access the
Licensed Product through said Online System; and
WHEREAS, Excalibur is willing to grant webADTV the right to incorporate
the Licensed Product into the Online System in exchange for license payments and
other valuable consideration; and
WHEREAS, webADTV desires and, subject to the payment of certain fees,
Excalibur is willing to perform certain maintenance and support services; and
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions, and other valuable consideration contained herein, Excalibur and
webADTV agree:
1. DEFINITIONS.
In this Agreement, the following terms shall have the meaning specified.
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1.1 AFFILIATE. The term, "Affiliate" means any majority owned
subsidiary which is controlled by or under common control with a
party to this Agreement.
1.2 DOCUMENTATION. The term, "Documentation" shall include textual
material, revised as appropriate to reflect updates, enhancements
and custom work, consisting of End-User manuals relating to the
installation and use of the Licensed Product which enables
webADTV to operate the Licensed Product in accordance with the
specifications contained therein.
1.3 END-USER. The term "End-User" means a person who accesses the
Licensed Product by accessing the Online System.
1.4 ONLINE SYSTEM. The term "Online System" means webADTV's
commercially available webADTV-branded online system which is a
suite of products and services to be marketed and sold solely to
the advertising agency industry.
1.5 LICENSED PRODUCT. The term "Licensed Product" means the object
code form of the Licensed Product identified on Schedule 1
attached hereto and all patches, updates, enhancements, revisions
and new versions thereto that Excalibur may make generally
available to its other customers.
1.6 webADTV SUPPORT. The term "webADTV Support" shall mean the level
of technical support provided to webADTV in support of End-Users
of the Online System for which support fees shall be paid by
webADTV to Excalibur described in Schedule 2 to this Agreement
("webADTV Support Description").
1.7 TERM. The term "Term" shall have the meaning set out in Section
14.
1.8 TERRITORY. The term "Territory" means Worldwide.
2. LICENSE.
2.1 In accordance with the terms of this Agreement, Excalibur grants
to webADTV, and webADTV accepts from Excalibur, the following
licenses:
2.1.2 A license to sublicense the Licensed Product, in
binary code form, to end-users of the Online
System but only for the purpose of accessing the
Online System.
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2.2 Excalibur hereby grants to webADTV a non-transferable license in
the Territory during the Term to:
2.2.1 Install the object code form of the Licensed
Product on an unlimited number of server machines
that are part of the operational use, maintenance,
backup or further development of the Online
System.
2.2.2 Perform demonstrations of the Licensed Product for
webADTV's current or prospective customers for the
Online System.
2.3 Restrictions. The Licensed Product is licensed for an unlimited
number of concurrent users. Use of the Licensed Product for
internal or external uses other than those specified in
subsections 2.1 and 2.2 , or use of the Licensed Product in
online services other than the Online System or stand-alone
applications is prohibited. Except for temporary copies of the
Licensed Product created for program error verification, the
Licensed Product may not be copied, distributed or modified by
webADTV other than as set forth in this Agreement. A reasonable
number of copies of the Licensed Product may be made for backup
purposes. The Licensed Product and its related Documentation
represent confidential information and trade secrets belonging to
Excalibur and its licensors. Except as provided in the license
grant in this Section 2, webADTV shall not make the Licensed
Product available on a time-sharing or online service basis.
webADTV shall not remove or alter any designation or mark on the
Licensed Product.
2.4 Use of Excalibur's Logo. Excalibur's trademarked graphical logo
shall be displayed on webADTV's search pages that use the
Licensed Product as well as the associated page where the search
results are displayed for the purpose of specifically identifying
that webADTV's search engine is RetrievalWare. The graphical logo
shall be prominently displayed and shall be no less than one (1)
square inch in size on a 1074 x 768 pixels computer monitor
display. Excalibur's trademarked graphical logo is displayed as
Schedule 3.
2.5 Exclusivity. Upon execution of this Agreement, Excalibur agrees
to refrain from marketing the Screening Room or related video
indexing products to advertising agencies or companies that, to
Excalibur's knowledge, plan to market Screening Room or the
related video indexing products to advertising agencies for a
period of eighteen
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(18) months from the effective date of this Agreement. The
exclusivity provision will remain in effect during the eighteen
(18) month period provided that webADTV is current on all payment
obligations due to Excalibur under this Agreement. Following the
eighteen (18) month exclusivity period, webADTV may extend the
exclusivity provision for one (1) additional eighteen (18) month
period provided that at that time there are a minimum of four
thousand five hundred (4,500) users of the Online System who are
registered and paying for use of the Online System.
3. OWNERSHIP.
3.1 Subject to the licenses granted herein, Excalibur owns all right,
title and interest in and to the Licensed Product.
3.2 The Licensed Product and updates of the Licensed Product are
proprietary to Excalibur, and title to them shall remain with
Excalibur. All applicable common law and statutory rights in the
Licensed Product and updates thereto, including, but not limited
to, rights to confidential and trade secret material, source
code, object code, trademarks, service marks, patents, and
copyrights, shall be and will remain the property of Excalibur.
webADTV shall have no right, title, or interest in such
proprietary rights. Ownership of derivative works completed as a
direct result of webADTV's input and not contemplated at that
time as an enhancement to the Licensed Product by Excalibur will
be discussed by the parties and mutually agreed upon on a case by
case basis.
4. DELIVERY OF LICENSED PRODUCT; DOCUMENTATION.
4.1 Delivery of Code. Excalibur shall deliver the object code form of
the Licensed Product to webADTV within ten (10) business days of
the Effective Date.
4.2 Documentation Provided. Excalibur has or will provide to webADTV
two (2) hard copies and any available electronic copy of
Documentation for the Licensed Product at no charge to webADTV.
4.3 Reproduction of Documentation; Marking. webADTV shall be granted
the right to make copies of all or any part of the Documentation
for training of and use by its customers, subject to restrictions
elsewhere set forth herein. webADTV will retain on all such
copies of the Documentation all of Excalibur's trademarks,
copyright, and other proprietary marking and legends.
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4.4 Documentation Updates. If the Documentation is updated, revised,
enhanced, or otherwise modified, Excalibur will provide to
webADTV at no charge, two (2) copies hard copies and an
electronic copy of such revised Documentation indicating the
changes being made. webADTV may also distribute such revised
Documentation to its customers in connection with their access to
and use of the Online System.
5. GENERAL DUTIES OF webADTV.
5.1 During the Term and any extension of this Agreement, webADTV
agrees to use its commercially reasonable best efforts to
actively promote and market in the Territory the Online System
incorporating the Licensed Product. webADTV shall prominently
feature the Excalibur and RetrievalWare logos on the Online
System, and Excalibur shall not unreasonably withhold or delay
its approval in advance of all such uses.
5.2 Excalibur shall have no obligation to support End-Users.
5.3 Upon execution of this Agreement by Excalibur and webADTV,
webADTV and Excalibur shall jointly issue a general press
announcement to mutually agreed upon publications. In addition,
Excalibur shall have the right to use webADTV as a reference
account in selected publications as agreed to by webADTV, which
consent will not be unreasonably withheld or delayed. It shall
not be deemed a breach of this Agreement for either party to
unilaterally make public statements or to submit
publicly-available reports regarding its transactions with the
other party, including without limitation the terms of this
Agreement but only if and to the minimum extent that any
governmental agency legitimately and legally requires such
statements or reports to be made.
6. GENERAL DUTIES OF EXCALIBUR.
6.1 Excalibur shall support webADTV's marketing activities in
relation to the Licensed Product by providing, at no additional
charge to webADTV, such advice and assistance, in relation to the
Licensed Product as webADTV may reasonably request from time to
time. Such assistance may include but shall not be limited to
technical support in the preparation of proposals and operation
and use of the Licensed Product, competitive product research and
information, oral presentations to prospective End-Users, and
joint marketing, sales, and promotional programs in which the
parties agree to collaborate. The
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foregoing notwithstanding, webADTV shall reimburse Excalibur for
all reasonable and approved out of pocket expenses incurred by
Excalibur in supporting and assisting webADTV as contemplated in
this section; and Excalibur may decline to support and assist
webADTV in the event that webADTV's requests therefore become
burdensome or a drain on Excalibur's existing resources.
6.2 Excalibur will assist webADTV in developing a business and
marketing plan with specific goals for developing the markets for
the Online System as well as meeting the sales objectives
identified by the parties.
6.3 During the Term, Excalibur will make updates, new releases and
versions to the Licensed Product available to webADTV, without
additional charge, contemporaneously with their availability to
other Excalibur customers.
6.4 Support. A more complete description of the services to be
provided by Excalibur in support of the Licensed Product is
described in Schedule 2. webADTV will be responsible for
providing technical support to end-users of the webADTV system.
Excalibur will provide two levels of support services to webADTV.
6.4.1 For a period of one year from the Effective Date
of this Agreement, Excalibur will provide one
full-time dedicated engineer to support webADTV in
assistance of ongoing and future development
activities related to webADTV's use of the
Licensed Product. The projects undertaken by the
full-time dedicated engineer will be prioritized
by webADTV's Chief Technical Officer. The cost for
dedicated engineer support will be $150,000 per
annum and will be invoiced on a quarterly basis in
advance. Following the period of one year from the
Effective Date of this Agreement, webADTV may
elect to purchase the support services of one
full-time dedicated engineer at a cost of $150,000
per annum for one (1) additional year.
6.4.2 For a period of two years from the Effective Date
of this Agreement, Excalibur will provide standard
support consisting of telephone support, bug fixes
and enhancements at no additional charge.
Following the period of two years at no cost,
webADTV may purchase standard support services set
forth in Schedule 2 for the Licensed Product at a
price determined by applying a factor of 10% to
the total cumulative price of the Licensed Product
set forth in Subsection 7.1.1 and 7.1.3.
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6.4.3 webADTV will be provided administrative access to
servers.
7. LICENSE AND SUPPORT FEES.
7.1 In consideration of the license granted by Excalibur to webADTV
under this Agreement, webADTV agrees:
7.1.1 For the right to integrate the Licensed Product
into its Online System and make no additional
license payments during the Term:
(i) Upon the Effective Date, issue two
hundred thousand (200,000) shares
of its common stock valued at $2.50
per share. In the event that
webADTV common stock shares are not
publicly traded within thirty (30)
months of the Effective Date and
provided that Excalibur still holds
the webADTV common stock, webADTV
agrees to pay an amount of $
500,000 to Excalibur in cash on the
thirty (30) month anniversary of
the Effective Date. In the event of
a change in control of webADTV,
whether by merger, acquisition, or
otherwise, prior to webADTV's
common stock being publicly traded,
Excalibur may elect to receive the
greater of: (a) $500,000 in cash
less the price per share paid by
the acquirer multiplied by the
number of webADTV common shares
held by Excalibur at the time of
the acquisition; or (b) the price
per share paid by the acquirer
multiplied by the number of webADTV
common shares held by Excalibur at
the time of the acquisition.
(ii) within 30 days from the Effective
Date, pay Excalibur $ 100,000.
(iii) within 10 days from the closing of
webADTV's private placement,
expected to close by October 31,
2000, pay Excalibur $ 400,000.
7.1.2 For the right to receive dedicated engineering
support more completely described in Schedule 2 to
this Agreement:
(i) pay Excalibur a total of $150,000
in four (4) quarterly installments
of $37,500 each. Each quarterly
installment will be billed in
advance and payment shall be due
within thirty (30) days of receipt
of the invoice.
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7.1.3 Following the Term of this Agreement, webADTV may
continue to deploy the Licensed Product in the
Online System and remit license payments to
Excalibur in accordance with the pricing schedule
set forth in Schedule 4 to this Agreement.
7.2 Annual Audit
7.2.1 At Excalibur's own expense and upon reasonable
notice to webADTV, Excalibur shall be entitled to
an annual audit of the records by an independent
firm of certified public accountants, certifying
that the account summary statements provided to
Excalibur under this Agreement are a true and fair
representation of the royalties and due. The
independent auditor must be reasonably acceptable
to both parties. Such auditor will execute a
confidentiality agreement with webADTV and the
auditor's report to Excalibur will not include any
webADTV confidential materials.
7.2.2 In the event that the reports provided and
royalties paid to Excalibur are deficient, webADTV
agrees to pay Excalibur the deficiency. In the
event that the reports provided and royalties paid
to Excalibur were deficient by ten percent (10%)
or more of the royalty otherwise payable, webADTV
agrees to pay Excalibur the deficiency as well as
the reasonable costs of the independent auditor
conducting the audit
8. LIMITED WARRANTY AND DISCLAIMER OF LIABILITY.
8.1 Excalibur warrants that it has, and on the Effective Date and
during the Term will have, the full right and authority to enter
into and perform under this Agreement.
8.2 Excalibur warrants that the Licensed Product will substantially
perform in accordance with the product specifications for a
period of 90 days following its delivery to webADTV. In the event
the Licensed Product fails to perform substantially in accordance
with the product specifications, and Excalibur is unable to
correct any material non-conformance within a reasonable period
of written notification thereof by webADTV, webADTV's sole remedy
shall be that upon demand Excalibur shall return to webADTV any
and all cash and stock delivered to Excalibur pursuant to this
Agreement.
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8.3 Excalibur does not warrant that the functions contained in the
Licensed Product or in any update will meet the requirements of
webADTV or that the operation of the Licensed Product or update,
alone or as part of the Online System, will be uninterrupted or
error free.
8.4 Excalibur represents and warrants that the Licensed Product is
Year 2000 Qualified. "Year 2000 Qualified" means that the
Licensed Product stores, processes (including sorting and
performing mathematical operations), inputs, and outputs data
containing date information correctly regardless of whether the
data contains dates before, on, or after January 1, 2000 or
during any leap year. Excalibur products which do not perform
date manipulation, and which do not alter any date information
that flows through them, are also considered Year 2000 Qualified.
8.5 Excalibur warrants that the Licensed Product and Documentation
delivered to webADTV under this Agreement shall not infringe on
any United States patent or copyright, or trade secret or
trademark right of any third party. To the extent this material
contains matter proprietary to a third party, Excalibur shall
obtain a license from the owner permitting the use of such matter
and granting Excalibur the right to sub-license its use.
8.6 Excalibur expressly warrants that no portion of the Licensed
Product contains or will contain any protection feature designed
to prevent its use. This includes, without limitation, any
computer virus, worm, Licensed Product lock, drop dead device,
Trojan-horse routine, trap door, time bomb or any other codes or
instructions that may be used to assess modify, delete, damage or
disable the Online System or the related computer system.
Excalibur further warrants that it will not impair the operation
of the Licensed Product in any way other than by order of a court
of law.
8.7 THE WARRANTIES CONTAINED IN SECTIONS 8.1 THROUGH 8.4 ARE MADE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND EXCALIBUR
HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Only an authorized officer of Excalibur may make
modifications to this warranty or additional warranties binding
on Excalibur, and such modifications or additional warranties
must be in writing. Accordingly, additional statements such as
those made in advertising or presentations, whether oral or
written, do not
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constitute warranties by Excalibur to webADTV and should not be
relied upon as such.
9. INDEMNIFICATION.
9.1 Excalibur shall indemnify webADTV and any of its employees or
agents against all liabilities, claims and legal costs (including
reasonable attorneys' fees) arising from any claim or suit
alleging infringement by the Licensed Product, in a use within
the scope of this Agreement, of any United States patent or
copyright, or the trade secret or trademark rights of any third
party. Excalibur's obligations hereunder will survive any
expiration or termination of this Agreement. webADTV shall
promptly notify Excalibur of any third party claim or suit and
Excalibur shall have sole control of the defense of any such
action and all negotiations for its settlement or compromise.
webADTV may participate at its own expense in the defense of any
such action of such claim is against webADTV. The foregoing
represents Excalibur's entire liability to webADTV in connection
with claims alleging intellectual property infringement by the
Licensed Product. The Excalibur shall have no liability for any
claim under this section if a claim for patent, copyright,
license, or trade secret infringement is based on the
modification or use of the Licensed Product or any update or
derivative work thereto by webADTV.
9.2 If a third party infringement claim is sustained in a final
judgment from which no further appeal is taken or possible, and
such final judgment includes an injunction prohibiting webADTV
from continued use of the Licensed Product or portions thereof,
Excalibur shall, at its sole election and expense:
9.2.1 procure for webADTV the right to continue to use
the Licensed Product pursuant to this Agreement;
9.2.2 replace or modify the Licensed Product to make it
non-infringing, provided that the modifications or
substitutions will not materially and adversely
affect the Licensed Product's performance or
lessen its utility to webADTV; or
9.2.3 if none of the above options is reasonably
available, refund to webADTV all amounts paid to
Excalibur by webADTV which represent fees paid for
future use of Licensed Product or for future
services from Excalibur.
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9.3 webADTV, at its own expense, will indemnify, hold harmless, and
defend Excalibur from any suit, action, loss, damage or other
expense arising out of or in connection with any claim that a
derivative work or other changes made to the Licensed Product
other than by Excalibur infringes any United States patent,
copyright, trademark, trade secret or other proprietary right of
a third party; provided that webADTV is promptly notified in
writing of such a claim and is granted the right to control the
defense of all such claims and to settle them. In no event shall
Excalibur settle any such claim, lawsuit, or proceeding without
webADTV's prior approval. webADTV shall have no liability for any
claim under this section to the extent that such claim is based
on (i) the Licensed Product, (ii) the modifications of the
Licensed Product made by or on behalf of Excalibur, or (iii)
modifications of a Derivative Work of the Licensed Product made
by or on behalf of Excalibur.
10. CONFIDENTIALITY.
10.1 Each party shall use the same degree of care to prevent
disclosure of Confidential Information to any other person as its
uses to protect other information of a similar nature which it
owns or possesses, but in no event less than reasonable care,
unless disclosure is required by law. Each party shall not use
such information, nor disclose such information to any third
party, except to the extent that will enable webADTV to exercise
its rights and to fulfill its obligations under this Agreement,
including the right to disclose such information as may be
necessary in promoting the Licensed Product to prospective
End-Users in the Territory. "Confidential Information" shall mean
information in tangible form that is clearly marked as
confidential or information in oral or other intangible form that
is be identified as confidential at the time of disclosure, or is
summarized in tangible form clearly marked as confidential and
delivered to the recipient within ten (10) calendar days
thereafter. Confidential Information also includes source code
whether or not marked and information which the recipient knows
or should have known to be confidential, but does not include
information which is or becomes available without restriction to
the recipient or any other person through no wrongful act.
10.2 The obligations in Section 10.1 will apply for a period of three
(3) years from the date of disclosure. The obligations above
shall not apply to any such information that has been disclosed
in publicly available sources; is, through no fault of the party
receiving the Confidential Information, hereafter disclosed in a
publicly available source; is independently developed; is in
rightful possession of the
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party receiving the Confidential Information without an
obligation of confidentiality; or is required to be disclosed by
operation of law. The recipient may disclose Confidential
Information to its affiliates or contractors with a legitimate
need to know who agree in writing to confidentiality obligations
consistent with this Agreement. All materials to the extent
containing Confidential Information are and remain the disclosing
party's property, and upon no longer having a right to such
Confidential Information, the receiving party will promptly
destroy, or at the receiving party's option return them, and all
copies of them, less a single archival copy.
10.3 Excalibur represents and webADTV hereby acknowledges that the
Licensed Product and updates of the Licensed Product which are
embodied on magnetic or other storage media contains confidential
and trade secret material. webADTV, its employees, and agents
agree that they will not attempt to de-compile or disassemble the
object code portions of the Licensed Product or updates. webADTV
further agrees to use all reasonable efforts to ensure that its
employees and agents observe this Subsection 10.3.
10.4 Except as otherwise specified in Section 3.2, this Agreement does
not restrict either party from developing, improving, or
marketing competitive products or services, so long as a party
does not infringe the intellectual property rights of the other
party. This Agreement does not restrict the assignment of
employees within either party to any other department, division,
subsidiary or Affiliate of a party hereto. Nothing contained in
this Agreement shall be construed as to prohibit employees of the
recipient who have been exposed to the Confidential Information
from using residual knowledge, provided that, a) no direct
reference is made to Confidential Information in tangible form,
and b) the recipient, in good faith, does not recall that the
residual knowledge was acquired as a result of exposure to the
Confidential Information. "Residual knowledge" shall mean
information in intangible form that is retained as part of a
person's general skill, knowledge talent or experience from
exposure to the Confidential Information.
11. PROPRIETARY NOTICES.
11.1 webADTV will place appropriate copyright notices in the Online
System stating that portions are the copyrighted work of
Excalibur. Furthermore, webADTV agrees not to remove the
copyright and other
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proprietary notices contained in the Licensed Software and
updates as delivered by Excalibur hereunder.
12. LIMITATION OF REMEDIES.
12.1 IN NO EVENT SHALL EITHER PARTY OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR ADVISORS BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, FOR ANY LOSS OF USE, PROFIT OR REVENUE, INCURRED OR
SUFFERED, IN CONNECTION WITH SUCH PARTY'S PERFORMANCE HEREUNDER.
THE LIABILITY OF EITHER PARTY FOR ANY CLAIM, LIABILITY, DAMAGE,
PENALTY, LOSS OR EXPENSE UNDER THIS AGREEMENT SHALL IN NO EVENT
EXCEED THE AMOUNT PAID BY WEBADTV TO EXCALIBUR HEREUNDER. THE
PROVISIONS OF THIS SECTION 12.1 SHALL BE SUBJECT TO, AND SHALL
NOT LIMIT, THE PROVISIONS OF SECTIONS 8 AND 9 OF THIS AGREEMENT.
13. TAXES.
13.1 webADTV shall, in addition to other amounts payable under this
Agreement, pay all taxes, levied or imposed by reason of the
transactions contemplated in this Agreement. webADTV shall
promptly pay to Excalibur an amount equal to any such tax(es)
actually paid or required to be collected or paid by Excalibur
unless webADTV provides proof of an exemption. However, Excalibur
shall be liable for payment of all taxes levied on its net income
or taxes arising out of or related to this Agreement for which it
receives a credit or other reimbursement.
14. AGREEMENT TERM.
14.1 This Agreement, and all licenses granted herein, shall commence
on the Effective Date and shall, unless terminated pursuant to
Section 15, be in effect for a period of three (3) years from the
Effective Date. webADTV may elect to renew or extend this
Agreement, and the licenses, on an annual basis by paying to
Excalibur the license fees described in Schedule 4.
15. DEFAULT AND TERMINATION.
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15.1 Excalibur may terminate this Agreement if webADTV fails to make
timely payments to Excalibur of the amounts set forth in this
Agreement (including its attachments) and has not cured such
default within thirty (30) days following written notice thereof
by Excalibur.
15.2 Either party may terminate this Agreement thirty (30) days after
giving the other party written notice of the occurrence of one of
the following and a sixty day opportunity to cure: (i) the other
party materially defaults on any of its obligations under this
Agreement; or (ii) the other party becomes insolvent, declares
bankruptcy or is petitioned into bankruptcy; or (iii) the other
party ceases or threatens to cease the operations of its business
in the normal course.
15.3 Without limiting any of the provisions contained in Sections 15.1
or 15.2, in the event of termination as a result of webADTV's
failure to comply with any of its obligations under this
Agreement, webADTV shall continue to be obligated for any
payments due as of the date of termination. Termination of the
license shall be in addition to, and not in lieu of, any
equitable remedies available to the parties.
15.4 Sections 8, 9, 10, 11, 12, 13, 15.3, and the ownership provision
of Section 3 shall survive termination of this Agreement.
16. GENERAL.
16.1 Independent Contractor. It is understood that each party is an
independent contractor and not partner, joint venturer or agent
of the other. Neither party may act on behalf of nor bind the
other party in any manner whatsoever.
16.2 Notices. Notices to the parties to this Agreement shall be sent
by certified mail, return receipt requested, or other method
providing for proof of delivery, to their respective addresses as
first set forth at the beginning of this Agreement, but either
party may from time to time change such address by written notice
to the other party. As for all notices sent to webADTV under this
Agreement, Excalibur will send an additional copy to:
General Counsel
WebADTV.com, Inc.
5501 Excelsior Boulevard
Minneapolis, MN 55416
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16.3 Governing Law and Jurisdiction. This Agreement shall be construed
and interpreted in accordance with the laws of the Commonwealth
of Virginia. Any dispute hereunder shall be brought in the state
or federal courts in Northern Virginia as though between
residents of that Commonwealth.
16.4 Assignment. No assignment of this Agreement will be valid without
the prior written consent of the other party which will not be
unreasonably withheld, provided however, that the assignment of a
party's rights and obligations hereunder to an Affiliate shall
not be deemed an assignment hereunder. The assignment of a
party's rights and obligations hereunder pursuant to a change of
control, merger or acquisition of a majority of the equity of
that party shall not be deemed an assignment and shall not need
approval of the other party unless such transaction is with a
direct competitor of the non-assigning party. This Agreement
shall be binding upon and inure to the benefit of any permitted
successor or assigns.
16.5 Force Majeure. Neither party shall be liable for failure to
fulfill its obligations under this Agreement or any purchase
order issued hereunder or for delays in delivery due to causes
beyond its reasonable control, including, but not limited to acts
of God, acts or omissions of the other party, man-made or natural
disasters, material shortages, strikes, delays in transportation
or inability to obtain labor or materials through its regular
sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
16.6 Severability. Any provision of this Agreement which is prohibited
or unenforceable shall be ineffective without invalidating the
remaining provisions hereof, provided the intent of the parties
has not been materially frustrated.
16.7 Entire Agreement. This Agreement contains the entire agreement
and understanding of the parties with respect to the subject
matter hereof and supersedes all prior agreements, written or
oral, between the parties including without limitation, the Prior
License Agreement for Online Services previously executed between
Excalibur and Intelefilm Corporation having an effective date of
November 30, 1999. Amendments to this Agreement must be in
writing, signed by both parties.
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<PAGE>
16.8 Authority. Excalibur and webADTV represent and warrant that the
execution, delivery and performance of this Agreement have been
duly authorized and that no further action, including without
limitation, the vote or consent of their respective Boards of
Directors or other controlling bodies, is necessary to make this
Agreement valid and binding upon them and legally enforceable
against them.
16.9 Affiliates. Any webADTV subsidiary or Affiliate may place orders
or otherwise operate under this Agreement and thereafter will
become a party to this Agreement. webADTV hereby guarantees the
performance of its subsidiaries and Affiliates under this
Agreement.
16.10 Counterparts. This Agreement may be executed in counterparts each
of which may be designated an original and all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
AGREED: AGREED:
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<PAGE>
EXCALIBUR TECHNOLOGIES WEBADTV, INC.:
CORPORATION:
/s/ Patrick Condo /s/ James Gilbertson
---------------------------------- ------------------------------------
Signature Signature
Patrick Condo James Gilbertson
---------------------------------- ------------------------------------
Name Name
President and CEO President and CEO
---------------------------------- ------------------------------------
Title Title
July 31, 2000 July 31, 2000
---------------------------------- ------------------------------------
Date Date
Schedules to this Agreement
---------------------------
Schedule 1: Licensed Product.
Schedule 2: webADTV Support Description.
Schedule 3: Excalibur's Trademarked Graphical Logo.
Schedule 4: Licensed Product Unit Pricing
Page 17 of 22
<PAGE>
SCHEDULE 1
LICENSED PRODUCT
Excalibur Screening Room (including SDK)
Excalibur RetrievalWare
Excalibur RetrievalWare SDK
Page 18 of 22
<PAGE>
SCHEDULE 2
webADTV
SUPPORT DESCRIPTION
DEDICATED SUPPORT:
For a period of one (1) year from the Effective Date of this Agreement,
Excalibur will provide one (1) full-time dedicated engineer to support webADTV
in assistance of ongoing and future development activities related to webADTV's
use of the Licensed Product. This support will be directed by webADTV and will
include, but is not limited to the following:
o The dedicated resources will have access to internal Excalibur reporting
systems and provide status updates to webADTV on problem reports, system
enhancement request, etc.
o The dedicated resources will provide webADTV with monthly updates as to any
new features and/or functionality incorporated in the product line
o The dedicated resource will have access to both the Licensed Product code
lines and applicable webADTV code lines and work directly with the
Excalibur development engineers and the webADTV development team to resolve
any product issues
Support shall be limited to programs that make use or plan to make use of the
Licensed Product. These services shall be in addition to the services normally
provided through the maintenance provisions of the Agreement. webADTV agrees
that Excalibur Technologies will own all rights to any unique/critical
engineering and integration capabilities made to the Licensed Product.
STANDARD SUPPORT:
webADTV is required to designate no more than two points of contact ("POCs") to
the Excalibur Product Support organization. The names of the POCs will be
entered into the Excalibur product support database. The POCs will be
responsible for the communication of problems with the Licensed Product to
Excalibur and the dissemination within webADTV's organization of resolutions
thereof. Likewise, Excalibur shall designate one POC within its US support
organization to receive calls on webADTV's behalf. The Excalibur POC shall be
responsible for logging each support incident reported by webADTV's POC,
assigning the Severity Levels described below, and enacting the Escalation
Procedure also described below.
Support and Maintenance Services consist of the following:
Hot-Line Support
----------------
Excalibur will consult with webADTV for a reasonable amount of time by telephone
during normal business hours to assist with the use of the Licensed Product by
answering questions and discussing problems. Normal business hours are defined
as Monday through Friday, 9:00 AM to 5:00 PM, PST, excluding major holidays
observed by Excalibur. Such telephone consulting shall be enacted by a single
POC designated by Excalibur from time to time. This POC will assign one of the
following Severity Levels to each new incident logged:
Severity 1 - Minor implementation questions, fix delivery and
instructions, performance review questions, documentation questions,
GUI questions, known bug fixes.
Severity 2 - Query processing errors, new bugs identified, system
performance issues.
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<PAGE>
Severity 3 - Errors/bugs rendering system unusable.
Additionally, the Excalibur POC shall enact the following Escalation Procedure
as necessary:
Level 1 Telephone Consultant (usually POC)
Level 2 Senior Engineer - If incident is not resolved in 5 days.
Level 3 Technical Management - If incident is not resolved in 10 days.
Enhancements
------------
Excalibur will supply program code to correct or bypass any reproducible errors
in the Licensed Product which causes it to deviate materially from the
specifications for the Licensed Product contained in the related user manuals.
Notification of all enhancements to the Licensed Product will be made to the
appropriate holders of licenses for the use of the Licensed Product. If a user
of the Licensed Product desires the enhancement, it will generally be made
available at no additional charge.
Future Releases (Updates)
-------------------------
Excalibur will supply webADTV with future releases of the Licensed Product. As
long as a user of the Licensed Product is an active participant in the support
and maintenance program, future releases will be made available at no additional
charge. New products are not included.
On-Site Support
---------------
Excalibur will investigate and correct suspected errors at its offices to the
extent possible. If Excalibur cannot duplicate the error condition at its
office, Excalibur, at webADTV's request, may travel to webADTV's place of
business to attempt to resolve the matter. In such an event, the Excalibur will
be paid for the reasonable travel and living expenses of the Excalibur's
employee dispatched to resolve the problem. If Excalibur determines that a
suspected software error is attributed to webADTV's negligence, Excalibur will
be paid for the work on a time and materials basis in accordance with the
Excalibur's standard rates.
SERVICE PLAN
------------------------------------------------ -------------------------------
SERVICE SERVICE PLAN
------------------------------------------------ -------------------------------
Hot line telephone support 8:00 AM to 5:00 PM customer's
local time, Mon. - Fri.
------------------------------------------------ -------------------------------
Designated number of support contacts 2
------------------------------------------------ -------------------------------
Direct access to Product Support Specialists Yes
------------------------------------------------ -------------------------------
Toll-Free Telephone Number Yes
------------------------------------------------ -------------------------------
Real-Time Problem Reporting Via E-Mail Yes
------------------------------------------------ -------------------------------
Periodic Maintenance Releases Yes
------------------------------------------------ -------------------------------
Access to FTP Server Yes
------------------------------------------------ -------------------------------
Support Fee Per Year 10%
------------------------------------------------ -------------------------------
Page 20 of 22
<PAGE>
SCHEDULE 3
EXCALIBUR'S TRADEMARKED GRAPHICAL LOGOS
[LOGO] EXCALIBUR
[LOGO] POWERED BY EXCALIBUR(R)
[LOGO] RETRIEVAL WARE(TM)
Page 21 of 22
<PAGE>
SCHEDULE 4
LICENSED PRODUCT UNIT PRICING
Following the initial three year Term of this Agreement, webADTV may continue to
deploy the Licensed Product in the Online System and make license payments to
Excalibur according to the following schedule:
----------------------- ------------------------- -----------------------------
Product Description Cost per Unit Unit of Measurement
----------------------- ------------------------- -----------------------------
Video Asset Server $19,560 Server
----------------------- ------------------------- -----------------------------
Capture Client 1,980 Client
----------------------- ------------------------- -----------------------------
Edit Client 2,160 Client
----------------------- ------------------------- -----------------------------
Browser Client 21 User
----------------------- ------------------------- -----------------------------
All such license payments will be paid in arrears to Excalibur by webADTV on a
quarterly basis with payment occurring within thirty (30) days after the end of
webADTV's business quarter. For purposes of this Agreement a webADTV business
quarter shall be defined as the end of webADTV's accounting month in March,
June, September, and December of each calendar year.
Page 22 of 22
