Oem Software Order Form Dated 5-19-1998

Exhibit 10.8.1


N NETSCAPE


OEM Software Order Form
(With Terms and Conditions)


No. 004125
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Annuncio Software, Inc.
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Full Legal Name of OEM ("Licensee") 5150 El Camino Real, Suite B31 Los Altos, CA 94022 ----------------------------------------------------------------------------------------- Address of Principal Place of Business City State/Province Postal Code/Country


Contact Person: Didier Moretti Telephone: (650) 404-9801 Fax: (650) 404-9807
-------------- -------------- --------------


Licensee is incorporated in the state/country of: ______________________________


TERRITORY (Country(ies) of Installation of Product(s)): Worldwide ("Territory")
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Licensee Products (name and description): Annuncio Marketing Automation Software
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IMPORTANT NOTICE: UPON EXECUTION BY THE PARTIES, LICENSEE WILL HAVE THE RIGHT TO MAKE AND DISTRIBUTE COPIES OF THE NETSCAPE PRODUCTS INDICATED IN ATTACHMENT A, SOLELY ON A BUNDLED BASIS AND NOT AS A STAND-ALONE PRODUCT, AT THE PRICING SET FORTH THEREIN AND ON THE TERMS AND CONDITIONS SET FORTH IN ATTACHMENT B. BY SIGNING THIS ORDER FORM, LICENSEE AGREES TO ALL THE TERMS AND CONDITIONS ATTACHED (COLLECTIVELY THE "AGREEMENT"). As used in this Agreement if Licensee's principal place of business above is located in Europe, the Middle East or Africa, "Netscape" shall mean Netscape Communications Ireland Limited; if Licensee's principal place of business above is located in Japan, "Netscape" shall mean Netscape Communications (Japan), Ltd.; otherwise, "Netscape" shall mean Netscape Communications Corporation. Any third party software that is provided with the Products with such third party's license agreement (in either electronic or printed form) is included for use at Licensee's or End User's option. If Licensee or End User chooses to use such software, then such use shall be governed by such third party's license and not by this Agreement.


NETSCAPE LICENSEE By: _________________________________ By: /s/ Didier Moretti
Signature Signature


Name:________________________________ Name: Didier MORETTI
Print or Type Print or Type


Title: ______________________________ Title: President & CEO


Date of Acceptance: _________________ Date: May 19, 1998
("Effective Date")


Address: 501 East Middlefield Road
Mountain View, CA 94043 AGREEMENT CONSISTS OF:
1. OEM Software Order Form _____________________________________ 2. Attachment A - Products and Pricing
3. Attachment B - Terms and Conditions
4. Attachment C - Support Terms and Conditions


1


[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


ATTACHMENT A
PRODUCTS AND PRICING


1. Products: Netscape shall provide Licensee the executable version (but not
-------- the source code version) of the Netscape product(s) listed below ("Product(s)"), including any Upgrades (as defined in Attachment B) thereto.


DESCRIPTION OF PRODUCTS, PLATFORMS, LICENSE FEE PER COPY INITIAL QUANTITY SUBSCRIPTION PER COPY LANGUAGES ORDERED 1) Netscape Application Server - See Section 4, Royalty N/A N/A Version 2.1; NT, UNIX; All available Schedule, below for languages generally commercially applicable Royalty due available from Netscape as of the to Netscape Effective Date;


2) Netscape Application Server [*] N/A Development Starter Package (for Licensee's internal use only) square Netscape Application Server, 1 copy
NT square Netscape Application Server, 1 copy
UNIX square Netscape Application Server 1 copy (5 Users)
Component Builder square Netscape Application Server 1 copy (5 Users)
Extension Builder square Enrollment in Developer
Relations DevEdge Program square 1 week of Netscape Training
for 4 Licensee employees


2. Payment for Netscape Application Server Development Starter Package.
------------------------------------------------------------------- Licensee shall pay Netscape a nonrefundable payment of [*]
---


3. Payment Terms: Except for the Payment for Netscape Application Server
------------- Development Starter Package set forth in Section 2 above, which shall be due within 30 days of the Effective Date of this Agreement, all amounts payable to Netscape are nonrefundable must be paid in a single payment to Netscape within 45 days of the end of each quarter, and must accompany Licensee's quarterly reports pursuant to Section 5 ("Reports; Audit"). All payments shall be made by wire transfer or remittance in accordance with Netscape's instructions on such invoice. Past due amounts shall bear interest at the lower of 1-1/2% per month or the maximum rate allowed by law until paid in full. Licensee shall be responsible for any costs resulting from collection by Netscape of any such past due amounts, including without limitation, reasonable attorneys fees and court costs. Licensee shall pay Netscape a royalty for each Product subject to the Royalty Schedule as set forth in Section 4 below.


4. Royalty Schedule (shall not include Licensee's non-production use, e.g.
----------------------------------------------------------------------- use for demonstration purposes). Licensee shall pay to Netscape a royalty fee ------------------------------ equal to [*] of the revenue derived from the sale of Licensee Product, but in no event shall the royalty fee due to Netscape be less than [*] for each sale of Licensee Products. On a quarterly basis, Licensee's royalty rate due to Netscape may change subject to the conditions set forth in this Section 4. In the event that Licensee's royalty rate changes pursuant to this Section 4, such new royalty rate shall apply only to future sales of Licensee Products, and shall not be retroactive.


(a) Minimum Royalty Commitment At the end of each quarter, Licensee may choose to set a minimum commitment to Netscape for total royalties due for the following [*] (see (i) below), or [*] (see (ii) below). In the event that Licensee chooses to make such a minimum royalty commitment, Licensee shall pay [*] of such commitment to Netscape, within 45 days, as a nonrefundable prepayment against future owed royalties ("Prepayment"). If Licensee chooses to make a minimum royalty commitment to Netscape, and during [*] such commitment is not reached, Licensee shall pay to Netscape the difference between the minimum annual commitment given and the total amount of royalties actually reached.


(i) If Licensee commits to a minimum royalty commitment of [*] over the following 4 quarters, Licensee shall pay a royalty fee equal to [*] of the revenue derived from the sale of Licensee Product. However, in no event shall the royalty fee due to Netscape be less than [*] for each sale of Licensee Products.


[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


2


(ii) If Licensee commits to a minimum royalty commitment of [*],
Licensee shall pay a royalty fee equal to [*] of the revenue derived
from the sale of Licensee Product with no minimum royalty fee due to
Netscape for each sale of Licensee Products.


(b) Licensee's Total Revenue from sale of Licensee Product during [*].
-----------------------------------------------------------------
At the end of each quarter, if Licensee's total revenue derived from the
sale of Licensee Products during [*], as reported in the Licensee's
quarterly report to Netscape under to Section 5 ("Reports; Audit"), is
between [*], Licensee shall pay to Netscape a royalty fee equal to [*] of
the revenue derived from the sale of Licensee Product. However, in no event
shall the royalty fee due to Netscape be less than [*] for each sale of
Licensee Products.


If Licensee's total revenue derived from the sale of Licensee Products
during [*], as reported in the Licensee's quarterly report to Netscape
under to Section 5 ("Reports; Audit"), is greater than [*]. Licensee shall
pay to Netscape a royalty fee equal to [*] of the revenue derived from the
sale of Licensee Products with [*] due to Netscape for each sale of
Licensee Products.


5. Developer Support for The Netscape Application Server Development Starter
-------------------------------------------------------------------------
Package. The Netscape Application Server Development Starter Package
-------
includes enrollment in the Developer Relations DevEdge Program for the term
of the Agreement.


6. Technical Support for Licensee Products. For the term of this Agreement,
---------------------------------------
and subject to Section 6 of Attachment B ("OEM Terms and Conditions"),
Netscape shall provide back-end Technical Support to Licensee subject to
the terms and conditions set forth in Attachment C ("Support Terms and
Conditions"), and Licensee shall pay to Netscape a fee equal to 10% of the
royalty fee due to Netscape pursuant to Section 3 ("Payment Terms") above.
Payment for such Technical Support for Licensee Products shall accompany
Licensee's quarterly reports pursuant to Section 5 ("Reports; Audit").


Licensee's Primary Technical Contact:
_______________________________________________


Phone: ________________________________________


Fax: __________________________ e-mail:__________________


Alternate Technical Contact: ___________________________


Phone: _________________________________________________


Fax: _______________________________ e-mail: __________________


7. Deliverables. 1 master reproduction copy of each Product and 1 copy of the
-------------
applicable standard user and reference manuals and installation guides
which Netscape makes generally available to its licensees of the Products
("Documentation") in any format generally available from Netscape.
All deliveries shall be F.C.A. Netscape origin (INCOTERMS 1990).


8. Point of Sales Reports. Contact Name: Didier Moretti
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Telephone: (650) 404-9801
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Fax: (650) 404-9807
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Email: dmoretti@annuncio.com
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9. Ship To Address for Deliverables Bill To Address for Invoice
-------------------------------- ---------------------------
(not P.O. address)


Annuncio Software, Inc.
--------------------------------


5150 El Camino Real, Suite B31 same
-------------------------------- ---- _______________________________
Los Altos, CA 94022
--------------------------------


Attention: Didier Moretti Attention: __________________________
----------------------


Telephone: (650) 404-9801 Telephone: __________________________
--------------
Fax: ________________________________
________________________________


Sales Tax Resale / Exemption Certificate No.:
__________________________________________
(ORIGINAL CERTIFICATE MUST BE ATTACHED)


VAT Registration No. (if Europe,) ________________________________________


Netscape Sales Rep: Deepak Puri Telephone Number: (650) 937-2668
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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


Annuncio OEM 3 CONFIDENTIAL


ATTACHMENT B
OEM TERMS AND CONDITIONS


1. DEFINITIONS. "LICENSEE PRODUCTS" means Licensee's computers and computer- related products with which the Netscape Products are bundled for distribution hereunder. "UPGRADES" means both major and minor upgrades to the Product, if any, provided that Upgrades shall exclude any software release that is reasonably designated by Netscape as a separate product. Major upgrades are designated by a change in the number to the left of the decimal point of the number appearing after the product name while minor upgrades are designated by a change in such number to the right of the decimal point. Netscape is the sole determiner of the availability and designation of a software release as a major or minor upgrade. "END USER" means any party licensed by Licensee or Licensee's distributor to use, but not to further distribute, the Products. If such party is an entity, then, for fee accrual purposes, "End User" means each individual within such entity licensed to use but not to further distribute the Product. Licensee shall be deemed an End User if Licensee uses any Product for Licensee's internal business purpose.


2. TERM. Unless sooner terminated, this Agreement shall remain in effect for 3 years from the Effective Date ("INITIAL TERM"). Thereafter, the Agreement may be renewed by mutual agreement in writing for an additional 1 year period ("SUBSEQUENT TERM").


3. LICENSES. (a) Netscape grants to Licensee, subject to these terms and conditions, a nonexclusive and nontransferable right in the Territory to (i) reproduce, without change, the Products in executable form and (ii) distribute by sublicense such Product copies to End Users in the Territory, directly or through distributors, only when bundled with a Licensee Product, for use solely in conjunction with Licensee Products. Licensee may grant distributors the right to grant further sublicenses to distribute copies of the Products to other distributors regardless of tier; however, Licensee shall not grant to any distributor the right to reproduce all or any portion of the Products. If Licensee wishes to electronically distribute the Netscape Products, then Licensee must adhere to the requirements set forth in Section 3(e) below. Netscape also grants Licensee a nonexclusive and nontransferable (subject to the terms and conditions of this Agreement) license (with no right to sublicense) to use the Products in the Territory for Licensee's internal business purposes in accordance with the applicable provisions of Netscape's end user license agreements provided with the Products. If Netscape releases a patch to any Product for general commercial distribution by permitting customers to download such patch from Netscape's internet home page, then Licensee shall have the right to distribute such patch (but not the entire Product) electronically to its distributors and End Users in the Territory. Netscape also grants Licensee a nonexclusive and nontransferable license to use and reproduce without change the Documentation, and to distribute the Documentation by sublicense to End Users in the Territory, directly or through distributors, solely in conjunction with the Product. Reproduction of Products and Documentation shall occur only at Licensee's principal office unless an alternate location is specified in writing to Netscape.


(b) Except as expressly permitted herein or by applicable law, Licensee shall
not, and shall not permit any distributor or other person to, copy, modify,
translate, decompile, reverse engineer, disassemble, or otherwise determine
or attempt to determine source code from the Products or to create any
derivativeworks based upon the Products or Documentation. Neither Licensee
nor any distributor shall market or distribute any Product copy (i) which
is not bundled with a Licensee Product or (ii) outside the Territory. If
Licensee or any distributor fails to comply with this Section 3(b),
Netscape may immediately (in addition to all other remedies it may have and
except for End User licenses) revoke all licenses granted hereunder.


(c) Netscape grants Licensee a sublicense to use as permitted in Section 3(a)
any third party software which is functionally integrated with the
Products. Netscape reserves the right to substitute any third party
software in the Products so long as the new third party software does not
materially affect the functionality of the Products.


(d) Licensee shall use, and is granted during the term hereof a
nontransferable, nonexclusive and restricted license (with a right to
sublicense to distributors the Marks for use only on Licensee Products
which include the Product) to use in the Territory the mark "Netscape
Navigator Included" and those Netscape trademarks and trade names relating
to the Products (collectively, the "MARKS") in all advertising, marketing,
technical, packaging and other materials related to the Products. Use of
the Marks shall comply with Netscape's then-current trademark usage
guidelines. Licensee need not use the Marks in any country in which their
connotation is offensive and will consult with Netscape as to the foreign
translation of the Marks so that Netscape can ensure uniformity of use.
Licensee shall clearly indicate Netscape's ownership of the Marks. All use
of the Marks shall inure to Netscape's benefit. Neither Licensee nor its
distributors shall register any Netscape trademarks, or trademarks, trade
names or domain names confusingly similar to Netscape trademarks, trade
names or domain names without Netscape's express prior written consent.
Upon Netscape's request from time to time, Licensee shall provide Netscape
with copies of Licensee Products bearing the Marks, and Licensee and
distributors shall suspend use of the Marks if Netscape reasonably deems
the quality of the Products to be inferior or that the Marks are used
improperly until Licensee and any such distributor have taken such steps as
Netscape may reasonably require to correct the deficiencies. Licensee
further agrees not to use any Marks on or in connection with any products
or services that are or could be deemed by Netscape, in its reasonable
judgment, to be obscene, pornographic, disparaging of Netscape or of its
products, or otherwise in poor taste, or that are themselves unlawful or
whose purpose is to encourage unlawful activities by others. Licensee
agrees not to obtain or attempt to obtain by any manner whatsoever any
right, title or interest in or to any of the Marks, domain name or any
confusingly similar mark. Licensee acknowledges that Netscape shall be the
exclusive owner of any domain containing the Marks. Any use of the Marks
beyond the scope of this Section shall constitute infringement and material
breach. Licensee expressly agrees that any breach or threatened breach of
this Section shall cause Netscape irreparable injury for which there may be
no adequate remedy at law, and that in addition to any other remedies
available, Netscape shall therefore be entitled to obtain injunctive relief
without the necessity of proving actual damages.


(e) Electronic Distribution. Subject to the terms and conditions of this
Agreement, Netscape hereby grants, and Licensee hereby accepts, a
nonexclusive and nontransferable right and license (with no right to
sublicense) to distribute electronically those


Annuncio OEM CONFIDENTIAL


7


Netscape Products which have been approved in this Agreement for electronic distribution, from no more than one file transfer protocol site operated by Licensee and approved in advance in writing by Netscape ("FTP Site") provided that such electronic distribution occurs only under the following conditions: (a) only exportable/international versions of the Netscape Product shall be available for download from the FTP Site; (b) all downloads shall be for fulfillment purpose only under this Agreement; (c) all downloads shall be protected with access control mechanisms allowing Licensee to identify the End User downloading the Netscape Product as an End User of the Licensee Product, and a description of the Licensee Product with which the Netscape Product is bundled for use; (d) except as set forth in (c), no other entity or person can access the FTP Site to download the Netscape Product; (e) Licensee shall include in its report under Section 5 each copy of Netscape Product so downloaded together with the information required thereunder; (f) any key locking mechanism must be preapproved by Netscape and if used by Licensee, shall be used only for fulfillment under this Agreement; and (g) no electronic distribution of any Netscape Product (i) which contains an Oracle database; (ii) for use on a standalone basis; (iii) for no fee; or (iv) for beta or trial/evaluation purpose. Licensee may increase or decrease the number of FTP Sites only with the prior written approval of Netscape. Licensee shall be r ...