Sale & License Agreement

SALE AND LICENSE AGREEMENT





THIS SALE AND LICENSE AGREEMENT (the "Agreement") is made as of March 20, 2000 (the "Effective Date") by and between NoWonder, Inc., a Delaware corporation with its principal place of business at 1309 S. Mary Avenue, Sunnyvale, CA 94087 ("Company"), and Support.com, Inc., a Delaware corporation with its principal place of business at 575 Broadway, Redwood City, CA 94063 and its affiliates ("Support.com").





WHEREAS, Company owns certain client and server support software known as Talkback;



WHEREAS, Support.com wishes to receive a license to the source code to the Talkback software pursuant to the terms of this Agreement and Company wishes to provide such license; and



WHEREAS, Company wishes to provide Support.com certain rights if Support.com exercises the option granted by Company pursuant to this Agreement and Support.com wishes to provide certain rights back to Company in such event.



NOW THEREFORE, in consideration of the mutual promises set forth below, the sufficiency of which is hereby acknowledged, the parties agree as follows:





1. Definitions.

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1.1 "Delivery Date" means the date Company delivers the Trio Source Code to Support.com.



1.2 "Employee" means an employee or independent contractor performing services for or on behalf of Support.com, or Company, as applicable.



1.3 "Intellectual Property Rights" means, to the extent owned or controlled by the grant ing or transferring party in any country, all relevant (i) copyright rights (including copyright applications), (ii) mask work rights, (iii) rights to exploit trade secrets and other non-public or confidential information, (iv) patent rights (including pa t ent applications, disclosures, renewals, divisions, continuations, extensions or continuations in part, and patentable inventions), (v) moral rights, (vi) trademarks, (vii) know-how and (viii) any other similar rights or intangible assets recognized under any laws or international conventions, in any country or jurisdiction in the world, including but not limited to those patent, copyright and trademark registrations and pending applications listed on Exhibit D.



1.4 "Licensed Object Code" shall have the meaning stated in Section 3.3.2.



1.5 "Licensed Source Code" shall have the meaning stated in Section 3.3.1.

1.6 "Limited Functionality Version of Trio" means the Licensed Object Code with functionality limited to capabilities described in Exhibit E.



1.7 "New Version" means a new release of Trio which contains new features and/or additional functionality that Company makes generally available to its customers or which Company uses on the Company Support Website, and which is identified by a change in the version number to the left of the decimal point. New Versions do not include Company Integrated Products.



1.8 "Non-Web-Based" shall have the meaning stated in Section 3.4.



1.9 "Company I ntegrated Products" means computer code independently developed by Company without use of or reference to Confidential Information (other than the Trio Code) which integrates with the Trio Code but does not incorporate Trio Code or proprietary portions th ereof.



1.10 "Company Support Website" means the website operated by Company identified by the Company domain name or any successor web site, including all sub-sites containing the same branding, look, feel, and functionality, for providing a mar ketplace for support technicians to offer and provide computer users with technical support services, all affiliated sites, and all co-branded sites.



1.11 "Object Code" means software in machine readable format.



1.12 "Option Period" shall have the meaning stated in Section 3.1.



1.13 "Option to Purchase" shall have the meaning stated in Section 3.1.



1.14 "Source Code" means software in human-readable format and accompanying documentation.



1.15 "Trio " means the complete Talkback client and server software, in source code form, including any related technical specification documentation provided by Company, and any necessary build scripts and internal development tools required to create derivative wo rks including those components as more particularly described on Exhibit B ("Trio Components"). For the avoidance of

--------- doubt, Trio shall also include all previous versions of what is currently known as Talkback. Trio Code does not include any software belonging to Chartworks.



1.16 "Trio Code" shall mean all Source Code, Object Code, Technology and Intellectual Property Rights for Trio including: (i) as currently released, (ii) all previously released versions pri or to the date that Support.com exercises the Option to Purchase, (iii) Trio in the form in which it is integrated with the Microsoft PC Health client software as of the date that Support.com exercises the Option to Purchase, and (iv) all New Versions and Upgrades.



1.17 "Technology" shall mean inventions (whether or not patentable), ideas, processes, formulas, and know-how related to Trio and controlled by Company and either (a)





used by Company as of the date of this Agreement, or (b) used by Company in development or implementation of New Versions or Upgrades.



1.18 "Upgrade" means a new release of Trio which contains corrections or bug fixes that Company makes generally available to its customers who have a current maintenance agre ement for Trio or which Company uses on the Company Support Website, and which is identified by a change in the version number to the right of the decimal point. An Upgrade does not include New Versions.



2. Trio Source Code License Grant to Support.com.

---------------------------------------------



2.1 Source Code License. Subject to the terms and conditions of

------------------- this Agreement, Company hereby grants to Support.com, and Support.com hereby acc epts, a nonexclusive, nontransferable (subject to Section 12.2 ("Assignment")), fee-bearing, limited license to use, modify and create derivative works of the Source Code version of Trio subject to the following limitations: (i) Support.com may use, modif y or create derivative works of the Source Code only for Support.com's internal development efforts in connection with integrating the Source Code of Trio with Support.com's software, (ii) only Employees of Support.com may have access to, use, modify or cr e ate derivative works of the Source Code of Trio, (iii) Support.com will only make copies of the Source Code of Trio as necessary to utilize the rights stated in this Section 2.1, and (v) Support.com shall take all security precautions to maintain the conf i dentiality of and prevent accidental or other loss or disclosure of the Source Code of Trio as it uses to protect its own source code, but in no event less than commercially reasonable security precaution. If Support.com does not exercise the Option to Pu r chase, then the license for the Trio Source Code stated in this Section 2.1 shall terminate upon the expiration of the Option Period. If Support.com exercises such Option to Purchase, then, subject to the terms of this Agreement, all rights in and to the Trio Source Code shall be transferred and assigned to Support.com, in accordance with Section 3.



2.1.1 Limitations; Ownership. Except in the event Support.com

---------------------- exercises the Option to Purchase and except for the rights stated in Section 2, (i) Support.com is granted no rights in Trio, and Company expressly reserves to itself all rights not granted to Support.com, and (ii) Company retains exclusive ownership of Trio as well as any modifications a nd derivative works of Trio created by Support.com which do not incorporate Support.com code or proprietary portions thereof. In the event Support.com elects not to exercise the Option to Purchase, Support.com shall immediately provide Company with all mo d ifications and derivative works of Trio created by Support.com, unless such modifications and derivative works incorporate Support.com software code or proprietary portions thereof. After Support.com exercises the Option to Purchase, it shall own any modi f ications and derivative works of Trio that it creates during the Option Period. Support.com will not alter or remove any proprietary rights notice in the Source Code of Trio or the documentation therefore unless Support.com exercises the Option to Purchas e.



2.2 Fees For Trio Source Code License. Support.com shall pay to

--------------------------------- Company the sum of two hundred twenty-five thousand dollars (US $225,000) as a one-time, fully-paid license fee in consideration of the license granted to Support.com in Section 2.1. This license fee





shall be paid to Company within thirty (30) days of the Delivery Date. The license fee shall become non-refundable and non-recoupable upon receipt by Company.



2.3 Training Regarding Trio Source Code. Company shall provide

----------------------------------- training to Support.com engineers during a sixty-day period (the "Training Period") to be specified by Support.com, but in no event shall the Training P eriod extend beyond three (3) months after the expiration of the Option Period. The training shall consist of up to four (4) eight (8) hour days and four (4) four (4) hour days of training to be provided on dates during the Training Period to be mutually a greed by the parties; such agreement shall not be unreasonably withheld. Support.com shall pay to Company the sum of ninety thousand dollars (US $90,000) for this training. Training shall be provided on- site at Support.com's facilities and there shall be no limit to the number of Employees entitled to participate in such training. Such payment shall be made within twenty (20) days after commencement of the Training Period but in any event no later than the end of the Option Period. The training fee shall b ecome non-refundable and non-recoupable upon receipt by Company, and the training shall be deemed complete three (3) months after expiration of the Option Period or, in the event Support.com elects not to exercise the Option to Purchase, the expiration of the Option Period.



2.4 Integration Assistance From Company. For sixty (60) days after

----------------------------------- the Delivery Date, Company shall provide Support.com with access to two (2) Company designated technical E mployees who are sufficiently knowledgeable regarding the Source Code of Trio to provide integration assistance to Support.com. The Company designated Employees shall advise Support.com how to best integrate the Source Code of Trio with the Support.com so f tware, but such advice shall not require creation of software code or documentation. If Support.com deems necessary, such assistance shall be on-site at Support.com facilities. Support.com shall pay Company a technical assistance fee of ninety thousand do l lars (US $90,000) in consideration of such support provided by Company. The technical assistance fee shall be payable to Company within thirty (30) days of the Delivery Date. This payment shall be deemed non-refundable and non-recoupable upon receipt by C ompany, and integration assistance shall be deemed complete upon the earlier of three (3) months after the expiration of the Option Period or, in the event Support.com elects not to exercise the Option to Purchase, expiration of the Option Period.



2.5 Maintenance of Trio Source Code. For a period of ninety (90)

------------------------------- days after the Delivery Date, Company shall provide maintenance and support for the Trio Source Code as originally provided to Support.com, and for Upgrades or New Versions, if any, created by Company during such 90-day period. The support and maintenance shall be provided during Company's regular business hours, Monday through Friday, 8 am to 5 pm Pacific time, except Company holidays. Suppo r t.com shall contact Company for maintenance and support at customerservice@nowonder.com . In addition, Company shall provide Backline maintenance and support for the Trio Source and Object Code, as originally provided and previous releases, and for Upgrad e s or New Versions, if any, to assist Support.com in the transition of support obligations; such Backline maintenance obligation shall expire upon the earlier to occur of one (1) year after Support.com elects to exercise the Option to Purchase or expiratio n of maintenance and support obligations assigned to Support.com pursuant to Section 3.4. "Backline" maintenance shall mean assistance only after Support.com has made reasonable attempts to resolve an error in the Trio Source Code or Object Code. In consid eration of the maintenance and support provided, Support.com shall pay Company forty five thousand dollars (US $45,000).





The payment for support and maintenance shall be due and payable within thirty (30) days after the Delivery Date.



2.6 Engineering Services. Beginning on the Effective Date and ending

-------------------- on the earlier of (i) Support.com's exercise of the Option to Purchase, or (ii) ninety (90) days after the Delivery Date, Company shall provide engineering se rvices to Support.com with respect to Trio. Notwithstanding the foregoing, the engineering services from Company shall be provided for a minimum of sixty (60) days after the Effective Date. In consideration of such services, Support.com shall pay to Comp a ny one hundred thousand dollars ($100,000) for each month during which Company provides engineering services. The payment for engineering services shall be due and payable for each month in advance three (3) days after the Delivery Date and the 23rd day of April and May, 2000. For purposes of this Section 2.6, the $100,000 monthly Engineering Services fee is earned by Company after the first day of such services in each month during the 90 days following the Effective Date. This payment shall be deeme d non-refundable and non-recoupable upon receipt by Company.



2.7 Upgrades and New Versions. Company agrees to provide the Source

------------------------- Code for Upgrades and/or New Versions of Trio, if and when available. Notw ithstanding anything to the contrary in Section 2.5, Company's obligation to provide such Upgrades expires only in the event Support.com elects not to exercise the Option to Purchase. Upgrades, New Versions, and modifications to the Source Code for Trio ( whether or not made generally commercially available) shall be provided to Support.com for the term of this Agreement, without additional charge, after Support.com elects to exercise the Option to Purchase.



3. Option for Source Code Transfer.

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3.1 Option Period. During the period of ninety (90) days after the

------------- Effective Date (the "Option Period"), Support.com shall have an exclusive option to exercise its right to purch ase and obtain all of the Trio Code (the "Option to Purchase"). Support.com shall exercise this option by providing notice to Company as specified in Section 12.10 ("Notices"). If Support.com does not exercise the option stated in this Section 3 before th e end of the Option Period, then the option shall expire and be of no further effect. During the Option Period, Company shall not assign, transfer, pledge or otherwise encumber any Trio Code or agree to do so. Notwithstanding the foregoing and except with respect to Section 3.3.3 or Netscape exercising its source code escrow option under the existing agreement between Netscape and Company, Company shall not license the Trio Code to any third party during the Option Period.



3.2 Source Code Transfer. Subject to the terms and conditions of

-------------------- this Agreement and upon exercise of the Option to Purchase:



3.2.1 Company hereby transfers and assigns to Support.com, and Support.com hereby accepts, all right , title and interest in and to the Trio Code. Company will, within sixty (60) days of the Effective Date, provide to Support.com all documentation and information regarding all questions or challenges or potential bases therefore known to Company as of th e Effective Date with respect to the patentability or validity of any claims of any existing patents or patent applications relating to the Trio Code.





3.2.2 Company agrees that all Trio Code shall be the sole property of Support.com and it s assigns, and Support.com and its successors and assigns shall be the sole owner of all patents, trademarks and copyrights and all other Intellectual Property Rights relevant thereto.



3.2.3 Company and each of its employees, as necessary (hereinafter collectively referred to as "Company") assign to Support.com any rights Company may have or acquire in all Trio Code (subject to those rights expressly licensed herein.) Company further agrees as to such Trio Code to assist Support.com in eve r y reasonable way (but at Support.com's expense) to obtain and from time to time enforce patents, trademarks, copyrights and other Intellectual Property Rights in the Trio Code in any and all countries, and to that end Company will execute all documents fo r use in applying for and obtaining such rights and enforcing the same, as Support.com may desire, together with any assignments thereof to Support.com or persons designated by it. Company's obligation to assist Support.com in any and all countries shall c o ntinue beyond the termination of this Agreement. In the event that Support.com is unable for any reason whatsoever to secure Company's signature to any lawful and necessary document required to secure, protect or assert its Intellectual Property Rights wi t h respect to Trio Code (including renewals, extensions, continuations, divisions or continuations-in-part of any patents), Company hereby irrevocably designates and appoints Support.com and its duly authorized officers and agents, as Company's agents and a ttorneys-in-fact to act for and in Company's behalf and instead of Company, to execute and file any such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, the registration of copyrights and tradema rks, or the securing of any other Intellectual Property Rights thereon with the same legal force and effect as if executed by Company.



3.2.4 Company agrees that this Section 3.2 includes all rights of paternity, integrity, disclosure and wi thdrawal and any other rights that maybe known as or referred to as "moral rights," "artist's rights," "droit moral," or the like. To the fullest extent any of the foregoing is ineffective under applicable law, Company hereby provides any and all waivers and consents necessary to accomplish the purposes of the foregoing to the extent applicable.



3.3 Source Code License to Company. Subject to Company's compliance

------------------------------ with this Agreement and in the event Support.com exercises the Option to Purchase, Support.com hereby grants to Company the following:



3.3.1 Source Code License. Subject to the terms and conditions

------------------- of this Agreement, Support.com here by grants to Company, and Company hereby accepts, a nonexclusive, nontransferable (subject to Section 12.2 ("Assignment")), limited license to use, modify and create derivative works or Company Integrated Products of the Source Code of Trio in the form in which it is being used by Company on the day Support.com exercised the Option to Purchase, and related documentation and any derivative works thereof (collectively, "Licensed Source Code"), subject to the following limitations: (i) Company may use, modify or create derivative works of the Licensed Source Code or Company Integrated Products only (a) for the purpose set forth in, and subject to, Section 3.3.3, and (b) for the purpose of maintaining the Company Support Website, subject to Section 3.3.4; (ii) only Employees of Company may have access to use, modify or create derivative works of the Licensed Source Code; (iii) Company will





only make copies of the Licensed Source Code as necessary to utilize the rights stated in this Section 3.3 of the Agreement ; and (iv) Company shall take all security precautions to maintain the confidentiality of and prevent accidental or other loss or disclosure of the Licensed Source Code as it uses to protect its own source code, but in no event less than commercially reas onable security precautions.



3.3.2 Deployment License. Subject to the terms and conditions

------------------ of this Agreement and upon exercise of the option, Support.com grants to Company, and Company hereby accept s, a world-wide, nontransferable (subject to Section 12.2 ("Assignment")), non-exclusive, license to (i) use, copy, modify, and compile into Object Code the Licensed Source Code ("Licensed Object Code") and related documentation, and (ii) use, copy, and d istribute the Licensed Object Code and related documentation solely (a) to Microsoft Corporation, in accordance with Section 3.3.3, below, and (b) directly and indirectly in connection with the Company Support Website, subject to Section 3.3.4.



3.3.3 Microsoft Corporation Relationship. In 1999, Microsoft and

---------------------------------- Company entered into a contract regarding the Trio software. For a period of one (1) year from the Effective Date, Microsoft and Company may amend such contract or enter into additional contracts regarding Trio (collectively, "Microsoft Contract"). Company shall have the right to fulfill its contractual obligations to Microsoft Corporation including but not limited to (i) depositin g the Licensed Source Code in an escrow account pursuant to its obligations to Microsoft Corporation; (ii) providing support and maintenance services to Microsoft Corporation with respect to the Licensed Source Code (but only in the event both parties agre e , in writing, that Company may distribute such Licensed Source Code) and Licensed Object Code, and (iii) provide a defense and indemnity to Microsoft Corporation with respect to the Licensed Source Code (but only in the event both parties agree, in writin g , that Company may distribute such Licensed Source Code) and Licensed Object Code with respect to intellectual property rights claims as required by the agreement with Microsoft, and Support.com agrees to provide reasonable assistance, at Company's expens e , with such defense. All such rights are expressly conditioned upon (i) Company using best efforts to fulfill the obligations in order to prevent the release from escrow of source code pursuant to the Microsoft Contract, (ii) providing Microsoft with onl y Licensed Object Code (unless both parties agree, in writing, that Company may distribute such Licensed Source Code), (iii) providing to Support.com on a monthly basis, all copies of all modifications and derivative works of Licensed Source Code and the L i censed Object Code (excluding Company Integrated Product) which Company created in the prior month, (iv) not allowing Microsoft to transfer, distribute, or resell the server component of Trio, and (v) Microsoft's agreement to (x) be subject to a license a g reement at least as restrictive as the contract between Microsoft and Company dated in 1999, and (y) distribute the client-side component of Trio pursuant only to a license agreement at least as restrictive as the End User License Agreement attached as Ex hibit G.



3.3.4 Company Support Website Conditions. The rights set forth

---------------------------------- in Section 3.3.2(b) are expressly conditioned upon (i) providing third parties only the Limited Functionality Version, (ii) providing to Support.com on a monthly basis, all copies of all modifications and derivative works of Licensed Source Code and the Licensed Object Code (excluding Company Integrated Product) which Company created in the prior month, (iii) pro viding third parties only the License Object Code of the Limited Functionality Version, and





(iv) distributing the Limited Functionality Version only pursuant to a license agreement at least as restrictive as the End User License Agreement attached as Exhibit G.



3.3.5 Restrictions. Company shall have only the rights in the

------------ Licensed Source Code and the Licensed Object Code as stated in this Section 3. All rights not expressly granted to Company are reserve d to Support.com. Company shall not resell, sublicense, or redistribute the Licensed Source Code or the Licensed Object Code to any third party, except as permitted herein. Notwithstanding anything else, Support.com retains all title to, and, except as ex p ressly licensed herein, all rights to Trio, all copies and derivative works thereof (excluding Company Integrated Products) (by whomever produced) and all related documentation and materials regarding Trio provided by Support.com to Company pursuant to th is Section 3.



3.3.6 Disclaimer of Warranties. SUPPORT.COM MAKES NO

------------------------- REPRESENTATIONS OR WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO T HE LICENSED OBJECT CODE, LICENSED SOURCE CODE, MODIFICATIONS TO TRIO CODE, OR OTHER MATERIAL PROVIDED BY SUPPORT.COM. SUPPORT.COM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.



3.3.7 Option Price. In consideration of the transfer and

------------ assignment in Section 3.2 ("Source Code Transfer") and in the event that Support.com exercises its Option to Purchase, Support.com shall pay to Company th e sum of four million three hundred fifty thousand dollars ($4,350,000). This sum shall be paid to Company on or before August 10, 2000.



3.4 Existing Customer Transition. If Support.com exercises the

---------------------------- - option stated herein, then the parties shall use commercially reasonable efforts to transition Company's Non-Web-Based customers for Trio, except Microsoft Corporation, to Support.com. As used in this Agreement, "Non-Web-Based" means those Company custo m ers who have rights to use Trio through means other than the Company Support WebSite. Company agrees to assign to Support.com those Non-Web- Based customer contracts under which Company grants use of Trio that Company may assign. Company agrees to use com m ercially reasonable efforts to obtain consent to assign contracts for use of Trio which may not be assigned without consent. Once the transition is complete, Support.com shall be fully responsible for providing all support and maintenance, including Upgra d es and New Versions, to such customers, and Support.com shall be entitled to receive all sums that become due and owing from customers, or have been paid by the customers for period of support and maintenance not already provided by Company. Company shall remain liable for any and all liabilities which accrued prior to the assignment of customer contract.



3.5 Prospective Customer Transition. During the six (6) months after

------------------------------- Support.com exercises the option stated herein, the parties shall use commercially reasonable efforts to transition leads regarding prospective customers from the Company marketing team to the ...