Exhibit 10.16
Cyberian Outpost, Inc. has omitted from this Exhibit 10.16 portions of the
Agreement for which Cyberian Outpost, Inc. has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment has been requested are marked with X's in brackets
and such confidential portions have been filed separately with the Securities
and Exchange Commission.
MARKETING AGREEMENT
THIS MARKETING AGREEMENT (the "Agreement") is made as of May 21st, 1998
(the "Effective Date") between XXXXXXXX.XXX, INC., with its principal place of
business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("theglobe"), and CYBERIAN
OUTPOST, INC., with its principal place of business at 00 Xxxxx Xxxx Xxxxxx,
X.X. Xxx 000, Xxxx, XX 00000 ("Provider").
A. The Standard Terms and Conditions are incorporated herein by reference.
B. The following business terms apply:
(1) IMPRESSIONS. the globe shall deliver at least: (I) [XXXXX] page
impressions of Provider Content each month on theglobe's home page, and (II)
[XXXXX] page impressions of Provider Content each month in contextually
relevant places on xxxxxxxx.xxx as determined by theglobe in is sole discretion.
If theglobe does not meet the foregoing delivery requirements, theglobe's sole
and exclusive obligation shall be to continue to display the Provider Content in
the applicable location(s) until the minimum number of page impressions has been
reached.
(2) EXCLUSIVE POSITIONING. During the turn of this Agreement, Provider
shall be the only entity listed in the retailer listing space under the
"Computer" heading in theglobe's Marketplace. theglobe will promptly eliminate
the "Hardware and Software" heading. However, Provider understands that
existing affiliates under the "Software and Hardware" heading will be in the
"Computer" heading until the legal termination of theglobe's relationship with
such companies has occurred; theglobe shall initiate such legal termination
immediately upon signing of this Agreement.
(3) EMAILS. theglobe shall incorporate Provider branding in at least one
email per month sent to all registered xxxxxxxx.xxx users.
(4) PAYMENT. Provider shall pay [XXXXX] per month, payable monthly in
advance. Payment shall be overdue on the monthly anniversary of the Effective
Date.
THEGLOBE: PROVIDER:
By: /s/ Xxxxxxx X. X'Xxxx By: /s/ Xxxxxx Xxxx
----------------------- ------------------------
Title: Associate Director, Business Title: President & CEO
Development
STANDARD TERMS AND CONDITIONS
1. DEFINITIONS.
1.1. "PROVIDER CONTENT" means all materials delivered by Provider to
theglobe for display on xxxxxxxx.xxx.
1.2. "PROVIDER PAGES" means xxxx://xxx.xxxxxxx.xxx and all pages linked
directly or indirectly from this page.
1.3. "PROVIDER'S MARKS" means the Provider's domain name and the Provider
logos and trademarks provided by Provider to theglobe under this
Agreement.
1.4. "REFERRAL" means a user who links from theglobe to the Provider Pages
(either from the Marketplace or some other link resident on
xxxxxxxx.xxx). A Referral shall remain a Referral as they browse the
Provider Pages.
2. PAYMENT.
2.1. REPORTING. Within 30 days following the end of each month, theglobe
shall report to Provider the number of page impressions for the
Provider Content delivered that month and such other information as
theglobe generally provides to its advertisers.
2.2. TAXES. All fees and payments stated herein exclude, and the Provider
shall pay, any sales, use, property, license, value added,
withholding, excise or similar tax, federal, state or local, related
to the parties' performance of its obligations or exercise of its
rights under this Agreement and any related duties, tariffs, imposts
and similar charges, exclusive of taxes based on the paying party's
net income.
2.3. PAYMENT TERMS. Overdue payments shall accrue interest, at the lesser
of 1 1/2% per month or the maximum allowable interest under
applicable law, from due date until paid, and Provider shall pay
theglobe's costs of collection (including reasonable attorneys'
fees).
3. MARKETING.
3.1. FRAMING. theglobe in its sole discretion may frame the Provider
Pages, and any consideration theglobe derives from such frames shall
be solely theglobe's.
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3.2. DELIVERY OF PROVIDER CONTENT. Provider shall develop and deliver to
theglobe, at Provider's expense, the Provider Content. theglobe may in
its sole discretion refuse to display any Provider Content. In the
event that Provider Content does not conform to theglobe's then-
current technical specifications for such content, theglobe may in its
discretion refuse such Provider Content.
4. LICENSES AND STANDARDS.
4.1. COPYRIGHT GRANT. Provider hereby grains to theglobe a non-exclusive,
royalty-free, worldwide license to use, reproduce, distribute, create
derivative works of, publicly perform, publicly display and digitally
perform the Provider Content on or in conjunction with xxxxxxxx.xxx.
4.2. TRADEMARKS. Provider hereby grains to theglobe a non-exclusive,
royalty-free, worldwide license to use the Provider's Marks in links
to and advertisements and promotions for the Provider Pages.
4.3. RESTRICTIONS. Title to and ownership of Provider's Marks shall remain
with Provider. theglobe shall not form any combination marks with
Provider's Marks. theglobe shall not take any action inconsistent
with the owner's ownership of Provider's Marks and any benefits
accruing from use of such trademarks shall automatically vest in
Provider.
4.4. QUALITY STANDARDS. Provider shall not provide any information from
the Provider Pages that is inconsistent with the labeling,
categorization, advertising and (if applicable) rating of the
Provider Pages. Provider shall provide the goods and services offered
on or through the Provider Pages, and any related customer and
technical support, on a quality level substantially equivalent to the
quality offered by Provider's online competitors. Provider shall
clearly state, and shall follow the stated, warranty and refund
policies. Furthermore, Provider shall treat Referrals on a non-
discriminatory basis.
4.5. PROVIDER CONTEXT STANDARDS. As between theglobe and Provider,
Provider is solely responsible for any legal liability arising of or
relating to Provider Content or the Provider Pages. The Provider
Content and the Provider Pages: (a) shall not infringe any third
party's copyright, patent, trademark, trade secret or other
proprietary rights or rights of publicity or privacy; (b) shall not
violate any law, statute, ordinance or regulation (including without
limitation the laws and regulations governing export control, unfair
competition, antidiscrimination or false advertising); (c) shall not
be defamatory, trade libelous, unlawfully threatening or unlawfully
harassing; (d) shall not be obscene, pornographic or indecent or
contain child pornography; and (e) shall not contain any viruses,
trojan horses, worms, time bombs, cancelbots or other computer
programming
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routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information.
5. INFORMATION ABOUT REFERRALS. Provider shall not disclose to any third
parties any information or data collected from or about Referrals (including
both voluntarily-disclosed information and any information Provider gleans
about Referrals from their access or use of the Provider Pages), nor may
Provider use such information for any purpose other than as necessary to
deliver purchased goods or services to Referrals. Provider shall use at
least industry-standard methods to protect the security of such Referral-
related information.
6. DISCLAIMER OF WARRANTIES. EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO
THE OTHER PARTY "AS IS." EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Each party acknowledges that it has not entered into this Agreement
in reliance upon any warranty or representation except those specifically
set forth herein.
7. TERM AND TERMINATION. The initial term of this Agreement is 6 months
following the Effective Date. Thereafter, the Agreement shall continue until
terminated by either party by providing 60 days prior written notice.
Notwithstanding the foregoing, commencing on the 3 month anniversary
of this Agreement, the parties shall negotiate in good faith for a possible
additional revenue share to theglobe based on theglobe's performance. If,
by the 4 month anniversary of this Agreement, the parties have not reached
a conclusion to these negotiations and theglobe, reasonably and in good
faith, believes that it deserves an additional revenue share that has not
been agreed to by Provider, theglobe may terminate this Agreement.
This Agreement also may be terminated early: (a) if a material breach
is not cured within 30 days of notice, or (b) as described in Section 10.3.
Sections 5, 6, 7, 8, 9 and 10 shall survive termination. In addition, the
provisions of Section 4 shall continue so long as theglobe is required to
perform under Section B(1).
8. LIMITATION ON LIABILITY. EXCEPT IN THE EVENT OF A BREACH OF SECTION 5,
NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT.
EXCEPT IN THE EVENT OF A CLAIM UNDER SECTION 9 OR A BREACH OF SECTION
5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
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OTHER PARTY IN AN AMOUNT GREATER THAN THE AMOUNTS ACTUALLY PAID BY PROVIDER
TO THEGLOBE HEREUNDER.
9. INDEMNITY. Each party (the "Indemnifying Party") shall indemnify the other
party (the "Indemnified Party") against any and all claims, losses, damages
costs and expenses, including reasonable attorneys' fees, which the
Indemnified Party may incur as a result of claims in any form by third
parties arising from: (a) the Indemnifying Party's acts, omissions or
misrepresentations to the extent that the Indemnified Party is deemed a
principal of the Indemnifying Party, or (b) the violation of any third
party proprietary right by the Indemnifying Party's domain name, software
or any content provided by the Indemnifying Party for use on the
indemnified Party's servers. In addition, Provider shall indemnify theglobe
against any and all claims, losses, damages, costs and expenses, including
reasonable attorneys' fees which theglobe may incur as a result of claims
in any form by third parties arising from (x) the Provider Content or the
content on the Provider Pages, (y) Provider's breach of Section 10.5, or
(z) the goods or services offered or sold by Provider. The foregoing
obligations are conditioned on the Indemnified Party: (i) giving the
Indemnifying Party notice of the relevant claim, (ii) cooperating with the
Indemnifying Party, at the Indemnifying Party's expense in the defense of
such claim, and (iii) giving the Indemnifying Party the right to control
the defense and settlement of any such claim, except that the Indemnifying
Party shall not enter into any settlement that affects the Indemnified
Party's rights or interest without the Indemnified Party's prior written
approval. The Indemnified Party shall have the right to participate in the
defense at its expense.
10. GENERAL PROVISIONS.
10.1. GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of New York without giving
effect to conflict of laws principles. Both parties submit to
jurisdiction in New York and further agree that any cause of action
arising under this Agreement shall be brought in a court in New
York, New York.
10.2. SEVERABILITY; HEADINGS. If any provision herein is held to be
invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated in
any way. Headings are for reference purposes only and in no way
define, limit, construe or describe the scope or extent of such
section.
10.3. FORCE MAJEURE. If performance hereunder is prevented, restricted or
interfered with by any act or condition whatsoever beyond the
reasonable control of a party, the party so affected, upon giving
prompt notice to the other party, shall be excused from such
performance to the extent of such prevention, restriction or
interference. Each party acknowledges that the operation of the
other party's website and services may be interfered with by
numerous factors outside of a party's control, and theglobe does not
guarantee continuous or uninterrupted
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display of Provider Content. However, if for any reason (including a
force majeure) the Provider Pages are not available for more than 4
hours in any one 24 hour period or 97% in any one month, theglobe
may terminate this Agreement.
10.4. INDEPENDENT CONTRACTORS. The parties are independent contractors,
and no agency, partnership, joint venture, employee-employer or
franchisor-franchisee relationship is intended or created by this
Agreement. Neither party shall make any warranties or
representations on behalf of the other party.
10.5. COMPLIANCE WITH LAWS. At its own expense, Provider shall comply
with all applicable laws, regulations, rules, ordinances and orders
regarding the operation of the Provider Pages, the offering of goods
and services from the Provider Pages, and its other activities
related to this Agreement.
10.6. NOTICE. Any notices hereunder shall be given to the appropriate
party at the address specified above or at such other address as the
party shall specify in writing. Notice shall be deemed given: upon
personal delivery; if sent by fax, upon confirmation of receipt; or
if sent by certified or registered mail, postage prepaid, 5 days
after the date of mailing.
10.7. ENTIRE AGREEMENT; WAIVER. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and
all oral or written agreements or understandings between the
parties, as to the subject matter of this Agreement. It may be
changed only by a writing signed by both parties. The waiver of a
breach of any provision of this Agreement will not operate or be
interpreted as a waiver of any other or subsequent breach.
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