Software Outsourcing Agreement

SOFTWARE OUTSOURCING AGREEMENT
------------------------------


This Software Outsourcing Agreement (this "Agreement") is entered into as
--------- of the 30th day of November, 1999 (the "Agreement Effective Date") by and
------------------------ between Annuncio Software, Inc., a California corporation with an office at 2440 W El Camino Real, Suite 300 Mountain View, CA 94040 ("Annuncio"), and eBay Inc., a Delaware corporation having an office at 2125 Hamilton Ave., San Jose, California 95125 ("Customer").
---------


RECITALS


WHEREAS, Annuncio has developed certain Internet marketing automation software known as Annuncio Live TM; and


WHEREAS, Customer wishes to contract with Annuncio to obtain the services described in the various Statements of Work ("SOW") in order to automate its Internet and integrated marketing campaigns.


IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:


1. DEFINITIONS:


1.1 "Annuncio Servers" means the computer hardware servers controlled by
-------------- Annuncio.


1.2 "Materials" means Customer's advertising and marketing information stored
--------- and organized by Annuncio's Software.


1.3 "Outsourcing Services" means those software outsourcing and/or hosting
-------------------- services provided by Annuncio pursuant to the terms of Schedule A-1 attached hereto


1.4 "Software" means Annuncio's proprietary software in object code form and
-------- any updates or upgrades thereto provided by Annuncio hereunder.


1.5 "User Data" shall mean the Customer registered users that Customer will
--------- provide to Annuncio under this Agreement from time to time. The User Data shall be comprised of the Customer UserID and email address.


2. AGREEMENT.


2.1 Structure. The Agreement consists of the Agreement and the following
--------- Schedules, which are incorporated herein in their entirety:


Schedule A-1: Initial Statement of Work
Schedule B: Online Conduct Policies.


The parties hereby agree that the previous Software License and Services Agreement between the parties, executed on September 16, 1999, is terminated in its entirety upon the Agreement Effective Date.


2.2 Scope of Engagement. Annuncio will provide Customer with access to the
------------------- Annuncio Servers, through which Customer may, using Annuncio's Software pursuant to the limited license granted herein, organize and store Customer's advertising and marketing Materials.


3. TERM AND RENEWAL OF TERMS.


3.1 This Agreement is for a two (2) year term, beginning on the Agreement Effective Date.


3.2 This Agreement shall renew automatically for additional twelve (12) month terms, unless either party notifies the other with thirty (30) days notice to terminate the Agreement, before the end of the applicable term.


4. LIMITED SOFTWARE LICENSE.


4.1 License. Subject to the terms and conditions of this Agreement, Annuncio
------- grants Customer a nonperpetual, nonexclusive, nontransferable, license to install the client version of the Software and use or permit use of the Software solely as follows: (i) as hosted by Annuncio hereunder, and (ii) for purposes of defining, executing, and analyzing Internet marketing campaigns, and transferring and storing customer data used in such marketing campaigns. Customer may make a reasonable number of copies of the client version


[*]=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.


of the Software solely for backup purposes. The license granted hereunder is subject to the "Marketing Transactions" and server limits set forth in Schedule A-1.


4.2 Restrictions. Customer shall not: (i) disassemble, reverse engineer,
------------ decompile, or otherwise attempt to derive source code from the Software, modify, adapt, create derivative works based upon, or translate the Software; (ii) install the server version of the Software on any of its computer systems, servers, or networks; (iii) sublicense, transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Software in any form to any other party, including commercial time-sharing, rental, or service bureau use; or (iv) copy the Software except as permitted by Section 4.1.


4.3 Ownership. This license is not a sale and does not convey any rights of
--------- ownership in or to the Software. Annuncio retains all right, title, and interest in the Software (including any updates, upgrades or modifications thereof) and reserves all rights not explicitly granted. Customer retains all right, title, and interest in the Materials.


5. SERVICES.


5.1 Services. Annuncio will provide those Outsourcing Services set forth in
-------- Schedule A-1. In addition, as Customer and Annuncio may agree from time to time during the Term, Annuncio will provide the consulting and/or advisory services described in each separate Schedule A attached hereto (each, a "STATEMENT OF WORK" or "SOW") at the price set forth therein. Each Schedule A hereto shall be sequentially numbered (i.e. Exhibit(s) A-1, A-2, etc.) and shall not be binding until it has been signed by both of the parties


5.2 Ownership. All right, title and interest in and to any enhancements,
--------- modifications or updates to the Software developed by Annuncio and furnished to Customer hereunder or developed by Customer shall be and remain with Annuncio. Customer shall treat all enhancements, modifications and updates, whether developed by


ANNUNCIO SOFTWARE, INC. PAGE 1 CONFIDENTIAL


Annuncio or Customer, in accordance with the restrictions and limitations set forth in the this Agreement.


5.3 User Data Ownership. Customer shall own the User Data and does not in any
------------------- way assign, transfer, or convey title of the user list to Annuncio. Annuncio acknowledges and agrees that the user list and all right, title and interest, is and shall remain the exclusive property of Customer, and except as expressly described in section 13 of this Agreement, Annuncio shall have no rights to copy, use, reproduce, display, perform, modify or transfer the user list and any derivative works thereof. Annuncio acknowledges and agrees that Annuncio shall not use the User Data for any other use other than described herein or requested by Customer and shall not permit any facilitator to use the User Data for any other use than otherwise described herein or requested by Customer, without the prior written approval of Customer and that any unlicensed use of such user list may constitute irreparable harm to Customer.


6. CONFIDENTIAL INFORMATION.


6.1 Definition. Confidential Information means any information disclosed by
---------- either party ("Disclosing Party") to the other party ("Receiving Part"), either directly or indirectly, in writing, orally, electronically, visually, or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation or should be reasonably understood to be confidential or proprietary. Confidential Information includes, without limitation, all information relating to the source code of any Annuncio Software, the operation of the Software, the Documentation, or the terms and conditions of this Agreement to be Confidential Information. Customer's User Data and information concerning marketing and advertising services, all site and business development plans, and specific events and features planned for or by Customer are deemed confidential information. Confidential information also includes, but is not limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, customer lists, employee information, financial information, confidential information concerning either party's business or organization, as either party has conducted it or as either party may conduct it in the future, information concerning any of either party's past, current or possible future products or methods, including information about either party's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing and/or software (including third party software).


6.2 Definition Exclusion. Confidential Information shall exclude information
-------------------- that: (a) was independently developed by the Receiving Party without any use of the Disclosing Party's Confidential Information or by the Receiving Party's employees or other agents (or independent contractors hired by the Receiving Party) who have not been exposed to the Disclosing Party's Confidential Information; (b) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement and that had a right to disclose it; (c) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of the Receiving Party; or (d) was rightfully known to the Receiving Party, without restriction, at the time of disclosure. These Exclusion shall not apply to the Confidential Information contained in the User Data.


6.3 Non-use and Non-disclosure. Each party agrees not to use any Confidential
-------------------------- Information of the other party for any purpose except to perform its obligations or exercise its rights under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, except to those employees of the receiving party who are required to have the information in order to perform such party's obligations under this Agreement. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Each party agrees that it shall take commercially reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Each party shall reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.


6.4 Compelled Disclosure. If a Receiving Party is, or believes that it will be,
-------------------- compelled by a court or other authority to disclose Confidential Information of the Disclosing Party, it shall give the Disclosing Party prompt notice so that the Disclosing


Party may take steps to oppose such disclosure.


6.5 User Data Confidentiality. Annuncio agrees that it shall take commercially
------------------------- reasonable steps to protect the confidential information of Customer, using methods at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than a commercially reasonable standard, during the term of this Agreement and for a period of three (3) years following the expiration or termination of this Agreement. Annuncio shall prevent the duplication or disclosure of confidential information, other than by or to its employees who must have access to the confidential information to perform such party's obligations, provided that Annuncio shall make sure that such employees are aware of the restrictions of this section 6. Annuncio agrees that the User Data received from Customer and all lists created or derived from such User Data (whether licensed or not) shall be treated and maintained as confidential information under this section 6.


7. PAYMENT OBLIGATIONS.


7.1 Payment. For the Outsourcing Services provided hereunder, Annuncio will
------- invoice Customer as specifically set forth in Schedule A-1 on a monthly basis. For any additional consulting or advisory services provided pursuant to a separate Schedule, Customer shall pay Annuncio for performing the additional services as shown in the applicable Schedule. All fees are due and payable to Annuncio within 30 days after the receipt of an Annuncio invoice. Fees not paid when due will, after notice to Customer, accrue late charges at a rate of 1.5 % per month, or the maximum rate allowed under law, whichever is lower, from the due date until the date paid. All fees quoted and payments made hereunder are in U.S. Dollars.


7.2 Taxes. Customer shall be responsible for all sales taxes, use taxes and any
----- other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding only U.S., state, local and foreign taxes based solely upon Annuncio's income. When Annuncio has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Annuncio with a valid tax exemption certificate authorized by the appropriate taxing authority.


ANNUNCIO SOFTWARE, INC. PAGE 2 CONFIDENTIAL


7.3 Expenses. Customer will reimburse Annuncio for all reasonable and necessary
-------- travel and other related expenses incurred by Annuncio in the performance of those Outsourcing Services or other consulting and/or advisory services at locations other than Annuncio facilities, subject to Customer's receipt of an invoice and supporting documentation.


8. INDEMNITY.


8.1 Materials. Except for unapproved changes to Customer's Materials by
--------- ------------------------- Annuncio. Customer is solely responsible for the content of the Materials (as defined in Section 1.3). For any and all Materials, Customer shall obtain any and all licenses to, and releases of intellectual or proprietary rights subsisting in such Materials before delivery to Annuncio or placement within the Service. If Customer is made aware of Materials that Customer reasonably deems to be in violation of law, then Customer shall remove such Materials. If there is any damage or loss of any Materials, however caused, then Customer's sole and exclusive remedy, and Annuncio's sole and exclusive liability for such damage or loss is for Annuncio to use all commercially reasonable efforts to provide to Customer the version of the Materials from Annuncio's most recent regularly scheduled backup. Customer shall, at its expense, defend and hold Annuncio, its parent and subsidiary companies and its directors, officers and employees harmless from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) incurred by Annuncio arising out of or relating to any third party claim, suit or proceeding alleging that the Materials: (i) are factually inaccurate, misleading or deceptive; (ii) infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right of any third party; or (iii) are libelous, defamatory, obscene or pornographic or violates other civil or criminal laws, including those regulating the use and distribution of content on the Internet and protection of personal privacy; provided that Annuncio promptly notifies Customer in writing of any such claim and promptly tenders full control of the defense and settlement of any such claim to Customer at Customer's expense and with Customer's choice of counsel. Annuncio shall cooperate with Customer, at Customer's expense, in defending or settling such claims. Notwithstanding the provisions of section 8.1 above, Customer assumes no liability for infringement claims arising out of or by Annuncio's modification of the Materials, unless such modification was approved or consented to by Customer.


8.2 Intellectual Property Indemnification. Annuncio shall, at Annuncio's option
------------------------------------- and expense, indemnify and hold harmless Customer, from all cost (including reasonable attorneys' fees), damage, loss or expense arising out of or relating to any claim, suit or proce ...