EXHIBIT 10.19
BROADBAND AUCTION SERVICES AGREEMENT
This Broadband Auction Services Agreement ("Agreement") is entered into on
December 28, 2000 but effective as of May 1, 2000 ("Effective Date"), by and
between At Home Corporation, a Delaware corporation ("Excite@Home"), located at
000 Xxxxxxxx, Xxxxxxx Xxxx, XX 00000, and FairMarket, Inc., a Delaware
corporation ("FairMarket"), located at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, XX 00000.
RECITALS
A. FairMarket and Excite@Home, as successor-in-interest to Excite, Inc., are
parties to an Auction Services Agreement dated as of August 26, 1999 (the
"Original Agreement).
B. FairMarket has developed and hosts and maintains on behalf of
Excite@Home a broadband community auction site at the URL designated for this
purpose by Excite@Home, currently xxxx://xxxx-xxxxxxxx.xxxxxx.xxx (the
"Broadband Auction Site") and the parties desire to set forth the terms and
conditions with respect thereto.
1. SERVICE
a) FairMarket has developed the Broadband Auction Site utilizing the
functional specifications of the AuctionPlace Service described in the
Community MarketPlace Product Features and Services Description
Features, the current version of which is attached as EXHIBIT D hereto
(the "Specifications"). FairMarket will host and maintain the Broadband
Auction Site substantially in accordance with the provisions of the
Specifications applicable to the AuctionPlace Service and in accordance
with this Section 1 and EXHIBIT A hereto. FairMarket will be
responsible for all system operation software costs, hardware costs and
operation costs incurred in connection with the development, hosting
and maintenance of the Broadband Auction Site.
b) Excite@Home will display links to the Broadband Auction Site in a
variety of locations across the Excite Network. "Excite Network" shall
mean the following web sites owned and/or operated by Excite:
xxxx.xxxxxx.xxx, but shall not include Excite's business portal located
at xxx.xxxx.xxx (including any versions, upgrades, successors or
replacements thereof). Excite@Home will have sole discretion and
control over the placement, content, look and feel, and positioning of
such links.
c) In addition to the services set forth above in this Section 1,
FairMarket shall perform the operating services set forth in EXHIBIT B
hereto.
d) The parties acknowledge there shall be no obligation of exclusivity on
either party regarding the Broadband Auction Site.
2. ADVERTISING ON THE BROADBAND AUCTION SITE
a) Excite@Home will sell and serve all advertising, including, but not
limited to banner and sponsorship advertising, on all pages within the
Broadband Auction Site.
b) Excite@Home shall retain all revenue collected from or generated by
Excite through such advertising, including but not limited to
commissions or referral fees on product sales.
3. IMPLEMENTATION AND SERVICE FEES, TRANSACTION REVENUE
a) Excite@Home shall pay FairMarket a one-time Implementation Fee of
$10,000 for the FairMarket implementation services described in Section
1.a) hereof. Such implementation fee is due and payable upon
Excite@Home execution of this Agreement.
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b) Excite@Home shall pay FairMarket a monthly Service Fee for the
FairMarket services provided for in Section 1.c) above, Section 4 of
EXHIBIT A and EXHIBIT C, beginning June 1, 2000, at the rate of
$10,000 per month, provided that if the number of
Broadband Auction Site page views during any calendar month exceeds
2,000,000, then the amount of the monthly Service Fee will
automatically be increased to $15,000 per month beginning with such
month. Service Fees will be invoiced monthly in advance. The aggregate
Service Fees for the period from June 1, 2000 through December 31, 2000
are payable upon execution of this Agreement. The parties acknowledge
there shall be no liability nor payment from Excite@Home for any such
services supplied during the period beginning January and ending May
31, 2000.
c) Any work performed by FairMarket, which is beyond the scope of the
services set forth in Sections 3.a) and 3.b) hereof will be regarded as
Professional Services, and Excite@Home shall pay FairMarket a fee for
such services at a rate of $200.00 per hour, plus reasonable expenses,
excluding travel time. No Professional Services will be provided by
FairMarket without the prior written agreement of Excite@Home as to the
scope, deliverables, timing, anticipated expense and work effort of
such Services.
d) All invoices for the fees provided for under Sections 3.b) and 3.c) are
payable within thirty (30) days of the invoice date.
e) Listing and Transaction Fees
i) Definitions
A. "Seller(s)" shall mean a user who lists product(s) or
service(s) for sale on a site in the FairMarket Network.
B. "Transaction Fees" shall mean any fee charged to Sellers
that become payable upon the consummation of a sale of a
product or service on a site in the FairMarket Network.
C. "Listing Fees" shall mean any fee charged to Sellers for
placing any listing of products or services on the Broadband
Auction Site.
ii) FairMarket shall determine the amount, if any, of Transaction
Fees and Listing Fees for the Broadband Auction Site. FairMarket
will take into consideration current industry pricing and the
competitive environment when setting pricing, and will establish
pricing comparable to that charged by leading independent
auction sites and other leading portals. Unless expressly
requested or authorized by Excite@Home, under no circumstances
will the Transaction Fees or Listing Fees on the Broadband
Auction Site be higher in aggregate than those on any of
FairMarket's other similar co-branded auction services. Unless
expressly requested and authorized by Excite@Home, under no
circumstances after the initial launch period (not to exceed
three (3) months following the Effective Date) will the
Transaction Fees or Listing Fees on the Broadband Auction Site
be zero.
iii) Listing Fees. FairMarket will remit to Excite 100% of all
Listing Fees billed and collected by FairMarket, net of actual
payment processing costs (which payment processing costs shall
not exceed 2.5% of all Listing Fees).
iv) Transaction Fees. FairMarket will remit to Excite (A) 100% of
all Transaction Fees billed and collected by FairMarket (net of
actual payment processing costs (which shall not exceed 2.5% of
all Transaction Fees), actual chargebacks and actual returns)
arising from the sale on the Broadband Auction Site of a listing
placed on the Broadband Auction Site and (B) 66-2/3% of all
Transaction Fees billed and collected by FairMarket (net of
actual payment processing costs (which shall not exceed 2.5% of
all Transaction Fees),
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actual chargebacks and actual returns) arising from the sale on
another site in the FairMarket Network of a listing placed on
the Broadband Auction Site, with FairMarket to retain 33-1/3% of
such Transaction Fees. FairMarket will pay Excite 33-1/3% of all
Transaction Fees billed and collected by FairMarket (net of
actual payment processing costs (which shall not exceed 2.5% of
all Transaction Fees), actual chargebacks and actual returns s)
arising from the sale on the Broadband Auction Site of a listing
placed another site in the FairMarket Network.
v) FairMarket will be responsible for the online billing of
Transaction Fees and Listing Fees, exclusive of applicable
taxes, if any, that are to be charged to a Broadband Auction
Site registered Seller's credit card through the automated
features of the AuctionPlace Service. FairMarket will use
commercially reasonable efforts to collect such fees on-line,
provided that (A) FairMarket is not obligated to xxxx a specific
Seller for any such fees until the aggregate amount of unpaid
fees with respect to such Seller equals or exceeds twenty-five
and no/100 dollars ($25.00), provided that FairMarket shall xxxx
each Seller any unbilled fees at least once per month, and (B)
FairMarket will not be required to perform any billing or
collection services other than on-line, it being understood and
agreed that all Sellers will be required to enter a credit card
to register on the Broadband Auction Site. vi) FairMarket will
pay Excite@Home, on a quarterly basis, the portion of all
Listing Fees and Transaction Fees that are payable to
Excite@Home under this Section 3.e) within thirty (30) days
following the end of each calendar quarter, each such payment to
be accompanied by a statement showing in reasonable detail for
each month in such calendar quarter the Broadband Auction Site
Listing Fees and Transaction Fees billed and collected by
FairMarket.
vii) Excite@Home shall have the right, upon reasonable notice to
FairMarket, exercised no more than once per year during the term
hereof, to audit any or all of the statements (including the
underlying books or records) delivered by FairMarket to
Excite@Home pursuant to this Section 3.e), for the sole purpose
of verifying the completeness and accuracy of such statements
and the amounts due to Excite@Home. Such audits may be conducted
by Excite@Home's employees or by an independent public
accountant reasonably satisfactory to FairMarket, provided that
such employees or independent public accountants shall first
execute a confidentiality agreement in a form reasonably
specified by FairMarket. All costs of each audit shall be borne
by Excite@Home, provided, however, that if any audit reveals an
underpayment by FairMarket of ten percent (10%) or more of the
amount due to Excite@Home during the period under audit,
FairMarket shall promptly pay Excite@Home such difference and
reimburse Excite@Home in full for the cost of such audit.
4. TERM
a) The initial term of this Agreement shall commence on the Effective Date
and will end on April 30, 2001 (the "Initial Term").
b) Following the Initial Term, the Agreement will automatically renew for
twelve (12) month terms until cancelled in writing by either party at
least xxxxx (30) days prior to the end of the then-current term. All
financial arrangements will carry forward unless the parties agree
otherwise prior to any renewal.
5. TERMINATION
a) Either party may terminate this Agreement if the other party breaches
any material obligation hereunder and such breach remains uncured for
thirty (30) days following the receipt of written notice to the
breaching party of the breach and the notifying party's intention to
terminate.
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b) Either party may terminate this Agreement for convenience upon ninety
(90) days prior written notice to the other party.
c) Notwithstanding the provisions set forth in 5.a) and 5.b) above, in the
event of three (3) or more unplanned outages (each for a period of
fifteen (15) minutes or longer and each in a separate 24-hour period)
of the Broadband Auction Site in any thirty (30) day period, or in the
event of one or more major unplanned outage (for a period of five (5)
hours or longer) of the Broadband Auction Site in any thirty (30) day
period, Excite@Home may immediately terminate the Agreement without
notice and without a cure period.
d) Upon termination of this Agreement, Excite@Home shall immediately
discontinue all use of the Broadband Auction Site and return to
FairMarket, or destroy, all intellectual property belonging solely to
FairMarket.
e) All payments that have accrued prior to the termination or expiration
of this Agreement will be payable in full within thirty (30) days of
such termination or expiration.
f) The provisions of Section 9 (Confidentiality), Section 10 (Warranty and
Indemnity), Section 11 (Limitation of Liability) and Section 12
(Dispute Resolution) shall survive any termination or expiration of the
Agreement.
6. USAGE REPORTS AND USER DATA
a) In addition to the usage reports made available to Excite@Home via the
Administrative Module (as defined in EXHIBIT A), FairMarket will
provide weekly and monthly usage reports as detailed in EXHIBIT C
("Usage Reports").
b) For the purpose of this Agreement, "User Data" shall mean all
information submitted by a user of the Broadband Auction Site ("User")
to either party to this Agreement. "Individually Identifiable User
Data" shall mean data which can be reasonably used to identify a
specific individual such as their name, address, phone number, etc.
c) Both parties acknowledge that any individual user of the Internet could
be a customer of At Home Corporation and/or FairMarket through
activities unrelated to this Agreement. Both parties further
acknowledge that any User Data gathered independent of this Agreement,
even for Users that utilize both party's services, shall not be covered
by this Agreement.
d) Excite@Home shall retain all rights to any User Data obtained through
this Agreement. Excite@Home will have full access to all User Data via
the Administrative Module (as defined in EXHIBIT A). Upon expiration or
termination of the Agreement, FairMarket will provide to Excite@Home
any User Data not available to Excite@Home at the time of such
termination or expiration; such User Data will be provided in an
electronic format to be agreed upon by the parties and will be provided
to Excite@Home within thirty (30) days following such termination or
expiration.
e) During the term of this Agreement, Excite@Home hereby grants FairMarket
a limited license to aggregate and use the User Data only as follows.
In the case of User submitted listings, Excite@Home grants FairMarket
the right to aggregate and distribute such listings across the
FairMarket Network. Excite@Home agrees that FairMarket shall be able to
utilize aggregate information for the purposes of improving the
Broadband Auction Site. FairMarket may utilize, at its sole discretion,
aggregated data from the Broadband Auction Site only when aggregated
with data from FairMarket's other customers in such a way as to render
impossible the identification of individualized information; the
provisions of this sentence shall survive the termination or expiration
of this Agreement.
f) Both parties agree that they will not sell, disclose, transfer, or rent
the Individually Identifiable User Data (IIUD) to any third party, nor
will either party use said Individually Identifiable User Data on
behalf of any third party, without the express permission of the User
and Excite@Home. In such cases where User permission for dissemination
of Individually Identifiable User Data has been obtained, FairMarket
shall use all reasonable efforts to
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include and enforce within such dissemination contracts or agreements a
requirement for the inclusion of an unsubscribe feature in all email
communications generated by, or on behalf of, third party users of said
Individually Identifiable User Data.
g) All licenses to use any User Data, including IIUD, shall terminate upon
termination of this Agreement, subject to the provisions in the last
sentence of section 6.e above.
7. SERVICE OWNERSHIP AND LICENSE
a) FairMarket will retain all right, title and interest in and to its
service worldwide (including, but not limited to, ownership of all
copyrights and other intellectual property rights therein). During the
term of this Agreement, and subject to the terms and conditions of this
Agreement, FairMarket hereby grants to Excite@Home a royalty-free,
non-exclusive, license to use, distribute, transmit and publicly
display the Broadband Auction Site in accordance with this Agreement.
b) Notwithstanding Section 5 d, Excite@Home will retain all right, title
and interest in and to its service worldwide (including, but not
limited to, ownership of all copyrights and other intellectual property
rights therein).
8. TRADEMARK OWNERSHIP AND LICENSE
a) FairMarket will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Excite@Home hereunder.
b) Excite@Home will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to FairMarket hereunder.
c) Each party ("Licensor") hereby grants to the other a non-exclusive,
limited license to use Licensor's trademarks, service marks or trade
names only as specifically described in this Agreement. All such use
shall be in accordance with Licensor's reasonable policies regarding
advertising and trademark usage, as shall be established or changed
from time to time, in each party's sole discretion.
d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
i. As the parties may agree in writing; or
ii. To the extent permitted by applicable law.
9. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
or activities that is proprietary and confidential, which shall include
all business, financial, technical and other information of a party
marked or designated by such party as "confidential" or "proprietary";
or information which, by the nature of the circumstances surrounding
the disclosure, ought in good faith to be treated as confidential.
b) Confidential Information will not include information that (i) is in or
enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
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c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except as
expressly permitted in this Agreement and (ii) that it will take all
reasonable measures to maintain the confidentiality of all Confidential
Information of the other party in its possession or control, which will
in no event be less than the measures it uses to maintain the
confidentiality of its own information of similar importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) Notwithstanding the foregoing, Excite@Home acknowledges that FairMarket
believes it will be required to file this Agreement as an exhibit to a
report filed by it under the Securities Exchange Act of 1934, as
amended, in accordance with the rules and regulations under such Act
(or, if applicable, pursuant to the Securities Act of 1933, as amended,
and the rules and regulations thereunder or the rules of the NASDAQ).
Excite hereby consents to such public filing/announcement provided that
FairMarket notifies Excite at least 24 hours in advance of such
filing/announcement and provides Excite with a reasonable opportunity
to review the text of such filing/announcement.
WARRANTY AND INDEMNITY
a) Each of FairMarket and Excite@Home warrants that it owns, or has
obtained all necessary rights to distribute and make available as
specified in this Agreement, any and all information, service or
content provided to the other party or made available to third parties
in connection with this Agreement, including without limitation in the
case of FairMarket, the FairMarket Auction Service(s).
b) FairMarket warrants that the Broadband Auction Site will comply with
the description and technical specifications as contemplated by this
Agreement and all Exhibits. FairMarket represents and warrants that the
Broadband Auction Site, the FairMarket Auction Services and or any
other software or content supplied by FairMarket hereunder is designed
to be used prior to, during and after the calendar year 2000 A.D., and
that the software will operate during each such time period without
error relating to date data.
c) Each of FairMarket and Excite@Home will indemnify, defend and hold
harmless the other party, its affiliates, officers, directors,
employees, consultants and agents from any and all third party claims,
liability, damages and/or costs (including, but not limited to,
reasonable attorneys fees) arising from:
i) The breach of any warranty, representation or covenant by
FairMarket or Excite@Home, as applicable, in this Agreement; or
ii) Any claim that the Broadband Auction Site or any all
information, service or content provided to Excite@Home or
FairMarket, as applicable or made available to third parties by
FairMarket or Excite@Home, as applicable, in connection with
this Agreement infringes or violates any third party's
copyright, patent, trade secret, trademark, right of publicity
or right of privacy or contains any defamatory content.
A party seeking indemnification hereunder will promptly notify the
other party of any and all such claims and will reasonably cooperate
with such other party in the defense and/or settlement thereof;
provided that, if any settlement requires an affirmative obligation of,
results in any ongoing liability to or prejudices or detrimentally
impacts the indemnified party in any way and such obligation,
liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require the indemnified party's
written consent (not to be unreasonably withheld or delayed) and the
indemnified party may, at
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its sole cost and expense, have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
d) EXCEPT AS SPECIFIED IN THIS AGREEMENT, INCLUDING ALL EXHIBITS, NEITHER
PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
10. LIMITATION OF LIABILITYEXCEPT UNDER SECTION 9.c). and 10 c), IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF A PARTY FOR DAMAGES OR ALLEGED
DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS
LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY THE OTHER
PARTY TO SUCH PARTY HEREUNDER.
11. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties' obligations
regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is
no adequate remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding trademarks,
service marks or trade names or confidentiality, the aggrieved party
will be entitled to seek equitable relief in addition to its other
available legal remedies in a court of competent jurisdiction. For the
purposes of this section only, the parties consent to venue in either
the state courts of the county in which Excite@Home has its principal
place of business or the United States District Court for the Northern
District of California.
b) In the event of disputes between the parties arising from or concerning
in any manner the subject matter of this Agreement, other than disputes
arising from or concerning trademarks, service marks or trade names
and/or confidentiality, the parties will first attempt to resolve the
dispute(s) through good faith negotiation. In the event that the
dispute(s) cannot be resolved through good faith negotiation, the
parties will refer the dispute(s) to a mutually acceptable mediator for
hearing in the county in which Excite@Home has its principal place of
business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation and mediation, the parties will refer the dispute(s)
to the American Arbitration Association for resolution through binding
arbitration by a single arbitrator pursuant to the American Arbitration
Association's rules applicable to commercial disputes. The arbitration
will be held in the county in which Excite@Home has its principal place
of business.
12. GENERAL
a) ASSIGNMENT. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required in
connection with a merger, reorganization or sale of all, or
substantially all, of such party's capital stock or assets. Any attempt
to assign this Agreement other than as permitted above will be null and
void.
b) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of
FairMarket.
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c) NOTICE. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed given upon personal delivery, one (1) day
after deposit with express courier, upon confirmation of receipt of
facsimile or email or five (5) days after deposit in the mail. Notices
will be sent to a party at its address set forth below or such other
address as that party may specify in writing pursuant to this Section.
d) NO AGENCY. The parties are independent contractors and will have no
power or authority to assume or create any obligation or responsibility
on behalf of each other. This Agreement will not be construed to create
or imply any partnership, agency or joint venture.
e) FORCE MAJEURE. Any delay in or failure of performance by either party
under this Agreement caused by any occurrence beyond the reasonable
control of such party including, but not limited to, acts of God, power
outages and governmental restrictions will not be considered a breach
of this Agreement and such performance will be excused for the number
of days such occurrence reasonably prevents performance, but in no case
will such excuse extend beyond six (6) months.
f) SEVERABILITY. In the event that any of the provisions of this Agreement
are held by to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
g) ENTIRE AGREEMENT. This Agreement, including Exhibits A, B, C, and D,
which are incorporated by this reference, is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. Notwithstanding the
foregoing sentence, the parties acknowledge that the "Narrowband Outlet
Store Agreement" signed on or about December 2000, and the
"Termination, Settlement and Mutual Release Agreement" signed on or
about December 2000, are not superceded by this Broadband Auction
Services Agreement. This Broadband Auction Services Agreement may only
be modified, or any rights under it waived, by a written document
executed by both parties.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the Effective Date.
At Home Corporation FairMarket, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------------- -----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
----------------------------------- -----------------------------
Title: EVP, Consumer Broadband Svcs & Cmc Title: CEO
---------------------------------- ------
Date: 12/28/00 Date: 12/28/00
----------------------------------- ----------------------------
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