EXHIBIT 10.11.3
CONFIDENTIAL TREATMENT REQUESTED
Second Amendment to
Software Development and License and Services Agreement
This Second Amendment to Software Development and License and Services Agreement, as amended (the "Second Amendment") is made and entered into by and between Microsoft Corporation ("Microsoft") and Brightmail Incorporated ("Brightmail") as of November 21, 2003 ("Amendment Effective Date").
Recitals
The parties entered into that certain Software Development and License and Services Agreement bearing an Effective Date of June 20, 2002, as amended as of July 14, 2003 ("Agreement").
Microsoft desires to submit Missed Spam Messages (as defined below) to Brightmail to enable Brightmail to create Rules and Rules Updates which will be made part of the Software.
The parties now desire to amend the Agreement on the terms and conditions provided herein.
Capitalized terms not defined herein shall have the respective meanings assigned to them in the Agreement.
The parties hereby agree:
Amendment
1. Definitions .
"Additional Capacity Services Effective Date" shall have the meaning as set forth in Section 3 of this Second Amendment.
"Day" shall mean any continuous 24-hour period.
"Missed Spam Message" shall mean a Spam message sent to the users of Microsoft Email Services that was not filtered b y the Filtering Functionality of the Software as of the date and time such Spam message was received by Microsoft.
"Missed Spam Services" shall mean the services offered under Sections 2 through 4 of this Second Amendment by Brightmail.
"Service Effective Date" shall mean the effective date of the Missed Spam Services for the Original Capacity, or Amendment Effective Date.
2. Missed Spam Submissions . Microsoft may submit to Brightmail up to * (*) Missed Spam Messages per Day ("Original Capacity") at a subscription price of * dollars ($*) per year ("Original Capacity Subscription Fee").
3. Additional Capacity . Microsoft shall have the option to purchase one block of add-on capacity of up to an additional * (*) Missed Spam Messages per Day ("Additional Capacity") at a subscription price of * dollars ($*) per year ("Additional Capacity Subscription Fee"), provided that (1) Microsoft shall notify Brightmail in writing at least * (*) days prior to the first day Microsoft intends to submit such Additional Capacity (the first day after the expiration of such * (*) day period or such other longer period as set forth in Microsoft's notice, the "Additional Capacity Service Effective Date"), and (2) the Original Capacity and any Additional Capacity in the aggregate shall not at any time exceed * (*) Missed Spam Messages per Day ("Maximum Capacity"). In the event Microsoft desires to submit Missed Spam Messages in excess of the Maximum Capacity, the subscription price and the effective date of such excess capacity shall be mutually agreed upon by the parties in good faith.
CONFIDENTIAL TREATMENT REQUESTED
4. Duties .
a. Microsoft shall be solely responsible for the development and creation of a user interface to enable users of the Microsoft Email Services to submit Missed Spam Messages to Microsoft so Microsoft can group, sort and/or filter for relevance and quality of such messages prior to its submission to Brightmail.
b. Brightma ...
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