CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED AS *. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY...
CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED
HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST. OMISSIONS
ARE DESIGNATED AS *. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
API
AGREEMENT
This
Agreement dated May 5, 2005 is made by and between GuruNet Corporation, a
Delaware corporation, with offices at 000 Xxxx 00xx
Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000 (“Partner”) and Xxxxxxxx.xxx, Inc., a Delaware
corporation, with offices at 0000 Xxxxxx Xxxx., 0xx xxxxx, Xxxxxxxx, XX 00000
(“Xxxxxxxx.xxx”).
RECITALS
WHEREAS,
Partner maintains or supplies content to one or more sites on the world wide
web
through which it provides information and services (the “Partner Service”);
and
WHEREAS,
Xxxxxxxx.xxx maintains a database of information relating to shopping on the
internet, including price, product and merchant data (the “Xxxxxxxx.xxx
Service”); and
WHEREAS,
Partner desires to obtain information from the Xxxxxxxx.xxx database in order
to
make available some or all of such information to Users;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
| 1. |
DEFINITIONS
|
As
used
in this Agreement, the following definitions shall apply:
| 1.1 |
"Affiliate,"
as to either party, means a second entity or person that directly
or
indirectly Controls, is Controlled by, or is under common Control
with,
the party.
|
| 1.2 |
“Control”
means
owning, directly or indirectly, stock or other interest in an entity
representing more than fifty percent (50%) of the aggregate stock
or other
interest entitled to vote on the election of
directors.
|
| 1.3 |
“Intellectual
Property Rights” means, with respect to any data, device, or other asset
of any kind, all copyright, patent, trade secret, database, moral,
termination, authorship and other proprietary rights relating to
any such
data, device, object code, source code or other asset including,
without
limitation, all rights necessary for the worldwide development,
manufacture, modification, enhancement, sale, licensing, use,
reproduction, publishing and display of such data, device, object
code,
source code or other asset.
|
| 1.4 |
“Marks”
shall mean any Xxxxxxxx.xxx Marks or Partner
Marks.
|
|
1.5
|
“Partner
Marks” means any and all trademarks, trade names, service marks or logos
owned or licensed by Partner (other than any Xxxxxxxx.xxx Marks licensed
hereunder).
|
|
1.6
|
“Promotional
Materials”
shall mean all marketing, advertising, and promotional materials
in all
media, created or developed by or on behalf of one of the parties
relating
to or associated with this
Agreement.
|
|
1.7
|
“Referral
Revenue” shall mean the gross amount received by Xxxxxxxx.xxx directly or
indirectly, arising from each click by a User on a link to a paying
merchant or other party which appears in the Xxxxxxxx.xxx Data. Referral
Revenue is tracked by Xxxxxxxx.xxx’s standard merchant program within a
session initiated by a click on a URL within the Xxxxxxxx.xxx Data,
as
measured using Xxxxxxxx.xxx’s standard tracking methods.
|
|
1.8
|
“Xxxxxxxx.xxx
Marks” means any and all trademarks, trade names, service marks or logos
owned or licensed by Xxxxxxxx.xxx (other than any Partner Marks licensed
hereunder).
|
|
1.9
|
“User”
shall mean each person who uses the Partner Service, or at a future
point,
the Co-Branded Partner website.
|
| 2. |
LINKS
TO XXXXXXXX.XXX SERVICE
|
| 2.1. |
Partner
may provide or link Users to the Xxxxxxxx.xxx Service via links provided
by Xxxxxxxx.xxx in accordance with the terms and conditions of this
Agreement. Specifically, Xxxxxxxx.xxx will provide keywords to Partner
for
shopping-related search queries, and Partner will use commercially
reasonable efforts to ensure that shopping-related search queries
made by
Users shall be directed to the Xxxxxxxx.xxx Service, and Xxxxxxxx.xxx
shall return a response consisting of XML data and links (the
“Xxxxxxxx.xxx Data”) which Partner shall display on the Partner Service.
Further queries and refinements of search queries from Users shall
be
likewise directed to the Xxxxxxxx.xxx Service. Xxxxxxxx.xxx shall
not
include banner advertisements in the Xxxxxxxx.xxx Data, Xxxxxxxx.xxx
Service or otherwise to Partner, unless agreed in writing by
Partner.
|
| 2.2. |
Xxxxxxxx.xxx
shall provide to Partner its Xxxxxxxx.xxx Application Programmer
Interface
(“API”) XML content integration services in accordance with the
Xxxxxxxx.xxx API XML Integration Technical White Paper (the “White Paper”)
which is available for review in Exhibit B.
|
| 2.3. |
Exhibit
B provides API guidelines Partner must adhere to; any violations
of
Exhibit B shall be considered a material breach of its obligations
under
this Agreement and must be remedied immediately. If Partner does
not
remedy such material breach within thirty (30) days of receipt of
written
notice of such breach, Xxxxxxxx.xxx may terminate on written notice.
If
Xxxxxxxx.xxx alters the White Paper materially, and Partner is not
able
to, or chooses not to, comply with the change(s), either party may
terminate the Agreement upon thirty (30) days’ written notice.
|
| 2.4. |
Each
element of Xxxxxxxx.xxx Data shall have a corresponding URL link
provided
by Xxxxxxxx.xxx.
|
| 2.5. |
Xxxxxxxx.xxx
reserves the right to change the contents (including but not limited
to
excluding categories from such Data) of the Xxxxxxxx.xxx Data from
time to
time in its sole discretion, provided that Xxxxxxxx.xxx provides
written
notice to Partner of any material changes at least thirty (30) days
in
advance of such changes.
|
| 2.6. |
Partner
must attribute any Xxxxxxxx.xxx Data displayed on the Partner Service
to
Xxxxxxxx.xxx with such attribution being the text ”Data Provided by
Xxxxxxxx.xxx” and a Xxxxxxxx.xxx logo.
|
| 3. |
SERVICE
RESPONSIBILITY
|
| 3.1. |
Each
party will be solely responsible for the development, operation and
maintenance of, in the case of Partner, the Partner Service and that
its
use of the Xxxxxxxx.xxx Data does not exceed authorized usage, and
in the
case of Xxxxxxxx.xxx, the Xxxxxxxx.xxx Service and the Xxxxxxxx.xxx
Data,
and for all materials that appear on such locations, other than materials
provided by the other party; Xxxxxxxx.xxx will adhere to the service
specifications listed in Exhibit
A.
Such responsibilities include, but are not limited
to:
|
| 3.1.1. |
the
technical operation of such service(s) and all related
equipment;
|
| 3.1.2. |
the
accuracy and appropriateness of materials posted on such
service(s);
|
| 3.1.3. |
ensuring
that materials posted on such service(s) do not violate any law,
rule or
regulation or infringe upon the rights of any third party, including,
but
not limited to, copyright, trademarks, privacy or other personal
or
proprietary rights; and
|
| 3.1.4. |
ensuring
that materials posted on such service(s) are not obscene, libelous
or
otherwise illegal.
|
| 3.2. |
Partner
shall promptly forward to Xxxxxxxx.xxx any customer service inquiries
received from Users that relate to the Xxxxxxxx.xxx
Data.
|
| 3.3. |
Each
party disclaims all liability for all such matters with respect to
the
other party’s services(s).
|
| 3.4. |
The
parties agree to use commercially reasonable efforts to maintain
high
quality technical performance standards. The parties agree that they
will
use best efforts to avoid any virus, worm, Trojan Horse or other
contaminating or destructive feature in its or the other party’s content
or services.
|
| 3.5. |
Once
Partner exceeds [
* ]
in
Referral Revenue in any given month, Xxxxxxxx.xxx agrees to build
a
Co-Branded Website (at the following URL: xxxxxxx.xxxxxxxx.xxx) within
six
(6) weeks from such month Partner reaches the revenue plateau (the
“Co-Branded Website”).
If
Xxxxxxxx.xxx builds Partner a Co-Branded Website, following the
Co-Branded
Website launch, Partner will only be allowed one change request
per
calendar year.
|
| 4. |
CONSIDERATION,
PAYMENTS, REPORTS AND AUDIT
RIGHTS
|
| 4.1. |
Xxxxxxxx.xxx
will pay to Partner a tiered share of all Referral Revenue earned
by
Xxxxxxxx.xxx in each month of the Term of this Agreement. The tiered
payment is as follows:
|
| · |
If
Partner generates Referral Revenue in a month of [
* ]
or
less, the share to the Partner for the month is [
* ]
of
that month’s Referral Revenue.
|
| · |
If
Partner generates Referral Revenue in a month in excess of [
* ],
the share to the Partner for the month is [
* ]
of
that month’s Referral Revenue.
|
| 4.2. |
Xxxxxxxx.xxx
will keep and maintain records of Referral Revenue during the Term
and for
one year thereafter. Within ten (10) days following the end of each
calendar month during the Term, Xxxxxxxx.xxx will submit to Partner
a
report of the amount of Referral Revenue for such month. Additionally,
subject to a final accounting to be completed within ten (10) days
following the end of each calendar month during the Term, Xxxxxxxx.xxx
shall make online reports with daily Referral Revenue numbers available
to
Partner. Xxxxxxxx.xxx will pay Partner within thirty (30) days after
the
end of each calendar month all fees due under this Agreement.
|
| 4.3. |
Once
every six (6) months during the Term of this Agreement, and for twelve
(12) months following the then current 12-month Initial Term or Renewal
Term, as the case may be, Partner may cause an independent auditor
to
inspect Xxxxxxxx.xxx’s relevant books and records at Xxxxxxxx.xxx’s
offices to verify the accuracy of Xxxxxxxx.xxx’s calculation of Referral
Revenue; provided that reasonable advance notice is given and the
inspection does not unreasonably interfere with Xxxxxxxx.xxx’s business
activities, and further provided that the auditor signs Xxxxxxxx.xxx’s
standard confidentiality agreement before conducting the audit.
Xxxxxxxx.xxx shall promptly make any underpayments revealed by said
audit,
plus interest at the rate of 1% (one percent) per quarter from the
time
that payment was to be made. Such audit shall be at Partner’s expense;
however, if the audit reveals underpayments in excess of five (5%)
of the
fees owed for the period covered by the applicable audit, Xxxxxxxx.xxx
shall pay the cost of such audit plus interest at the rate of 1%
(one
percent) per quarter on the sums owed to
Partner.
|
| 4.4. |
Except
as otherwise specifically provided in this Agreement, each party
shall be
responsible for all costs and expenses relating to the performance
of its
obligations hereunder.
|
| 5. |
TERM,
RENEWAL AND TERMINATION
|
| 5.1. |
This
Agreement shall become effective upon its execution by both parties
(“Effective Date”) and, subject to termination as provided below, shall
continue for 12 months from the Launch Date (the “Initial Term”). The
Launch Date shall be determined by the date upon which the Xxxxxxxx.xxx
Data is first made available to Users on the Partner application,
service
or site.
|
| 5.2. |
This
Agreement shall automatically renew for successive 12-month terms
(each, a
“Renewal Term”), unless either party provides written notice of
termination thirty (30) days prior to the expiration of the Initial
Term
or any Renewal Term. The Initial Term and any Renewal Terms are
collectively referred to as the “Term.”
|
| 5.3. |
Either
party hereto may, at its option, upon five (5) days written notice,
terminate this Agreement should the other party hereto (i) admit
in
writing its inability to pay its debts generally as they become due;
(ii)
make a general assignment for the benefit of creditors; (iii) institute
proceedings to be adjudicated a voluntary bankrupt, or consent to
the
filing of a petition of bankruptcy against it; (iv) be adjudicated
by a
court of competent jurisdiction as being bankrupt or insolvent; (v)
seek
reorganization under any bankruptcy act, or consent to the filing
of a
petition seeking such reorganization, or (vi) have a decree entered
against it by a court of competent jurisdiction appointing a receiver,
liquidator, trustee or assignee in bankruptcy or in insolvency covering
all or substantially all of such party’s property or providing for the
liquidation of such party’s property or business
affairs.
|
|
5.4
|
In
the event that either party commits a material breach of its obligations
hereunder, the other party may, at its option, terminate this Agreement
by
written notice of termination; provided, however, that if such default
is
subject to cure, then such notice shall be subject to a twenty (20)
day
cure period from the date thereof, and if the defaulting party cures
such
default prior to expiration of such period, termination shall not
take
place.
|
|
5.5
|
The
obligations of the parties under this Agreement that by their nature
would
continue beyond expiration, termination or cancellation of this Agreement
(including, without limitation, the warranties, indemnification
obligations, confidentiality requirements, audit and ownership and
property rights) shall survive any such expiration, termination or
cancellation.
|
| 6. |
REPRESENTATIONS
AND WARRANTIES; INDEMNITY
|
| 6.1. |
Each
party represents and warrants to the other that: (i) it has the full
power
and authority to enter into this Agreement and to grant the rights
granted
herein; (ii) it is the sole owner or is a valid licensee of its respective
service(s) and all content contained therein and has secured all
necessary
licenses, consents and authorizations with respect to use of such
content
and all elements thereof to the full extent contemplated herein,
and that
such content does not infringe the Intellectual Property Rights of
third
parties; (iii) its Intellectual Property Rights provided to the other
party hereunder will not infringe on any copyright, trademark, U.S.
patent
or other Intellectual Property Rights of any third party; (iv) it
will
comply with all applicable laws, rules and regulations in performing
its
obligations hereunder; and (v) to the extent that it provides the
other
party with any data regarding end users including but not limited
to
names, emailing and mailing addresses, the receiving party will hold
such
data confidential and will not use it for any purpose other than
as
specifically provided herein. Notwithstanding the above, neither
party
makes any representation or warranty and has no liability or obligation
to
indemnify the other in connection with open source or publicly available
content, including but not limited to that provided by
Wikipedia.
|
| 6.2. |
Each
party shall indemnify, defend and hold harmless the other party and
its
Affiliates and their respective directors, officers, employees and
agents
against all third party claims or actions, and any liabilities, losses,
expenses, damages and costs (including, but not limited to, reasonable
attorneys’ fees) related thereto, to the extent same arise out of any
alleged breach of such party’s representations or warranties contained in
Section 6 of this Agreement, or an alleged material breach of such
party’s
obligations under Section 8.
|
| 7. |
PROPRIETARY
RIGHTS; GRANT OF LICENSE
|
| 7.1. |
As
between the parties, each party shall own and retain all right, title
and
interest, including without limitation, all Intellectual Property
Rights
owned by such party, in and to such party’s intellectual property,
content, Marks and Promotional Materials and to the user and other
data
collected on such party’s services. Neither party shall make any claim to
the contrary. Each party agrees to reasonably assist the other party,
at
the other party’s expense, in the prosecution of any infringement action
or other litigation pertaining to the rights to the other party’s
materials or intellectual property.
|
| 7.2. |
The
parties shall not remove, obscure or alter the other party’s copyright
notice or the Marks from materials provided to each party.
|
| 7.3 |
Partner
does not demur from Xxxxxxxx.xxx’s claim that Xxxxxxxx.xxx owns or
otherwise has the exclusive right to use and license the Xxxxxxxx.xxx
Marks. Nothing contained in this Agreement shall be construed to
vest in
Partner any right, title or interest in or to the Xxxxxxxx.xxx Marks
or in
the goodwill now or hereafter associated therewith. Any and all goodwill
associated with or identified by the Xxxxxxxx.xxx Marks shall inure
directly and exclusively to the benefit of Xxxxxxxx.xxx. Partner
shall not
take any action that could be detrimental to the goodwill associated
with
the Xxxxxxxx.xxx Marks. Partner shall not modify any aspect of the
Xxxxxxxx.xxx Marks as provided by Xxxxxxxx.xxx to Partner without
Xxxxxxxx.xxx's prior approval. All rights not expressly granted herein
are
reserved.
|
| 7.4 |
Xxxxxxxx.xxx
does not demur from Partner’s claim that Partner owns or otherwise has the
exclusive right to use and license the Partner Marks. Nothing contained
in
this Agreement shall be construed to vest in Xxxxxxxx.xxx any right,
title
or interest in or to the Partner Marks or in the goodwill now or
hereafter
associated therewith. Any and all goodwill associated with or identified
by the Partner Marks shall inure directly and exclusively to the
benefit
of Partner. Xxxxxxxx.xxx shall not take any action that could be
detrimental to the goodwill associated with the Partner Marks.
Xxxxxxxx.xxx shall not modify any aspect of the Partner Marks as
provided
by Partner to Xxxxxxxx.xxx without Partner's prior approval. All
rights
not expressly granted herein are
reserved.
|
| 7.5 |
Each
party acknowledges and agrees that: (i) the other party’s Marks shall
remain the sole property of the other party; (ii) nothing in this
Agreement shall confer in the party any right of ownership in the
other
party’s Marks; and (iii) the party shall at no time contest the
validity of the other party’s Marks. Except as specifically provided in
this Agreement, neither party shall have the right to use any Xxxx
of the
other party, or to refer to the other party directly or indirectly,
in
connection with any product, promotion or publication without the
prior
written approval of such other party. Each party hereto agrees that
upon
termination of this Agreement all rights granted to the other party
in
relation to the other party’s Marks shall immediately terminate and revert
to the respective owning or licensor
party.
|
| 8. |
CONFIDENTIALITY;
PUBLICITY
|
| 8.1 . |
Each
party acknowledges that by reason of its relationship to the other
party
under this Agreement it may have access to certain information and
materials concerning the other party’s business, plans, customers, code
and products that are confidential and of substantial value to such
party
(referred to in this Section as “Confidential Information”), which value
would be impaired if such Confidential Information were disclosed
to third
parties. The terms of this Agreement shall be deemed to be Confidential
Information. Each party agrees to maintain all Confidential Information
received from the other, both orally and in writing, in confidence
and
agrees not to disclose or otherwise make available such Confidential
Information to any third party without the prior written consent
of the
disclosing party. Each party further agrees to use the Confidential
Information only for the purpose of performing this Agreement. No
Confidential Information shall be deemed confidential unless so marked
if
given in writing, or, if given orally, identified as confidential
orally
prior to disclosure, or information which by its nature or the nature
of
the circumstances surrounding disclosure should reasonably be understood
to be confidential.
|
| 8.2 |
The
parties’ obligations under Section 8.1
above
shall not apply to Confidential Information which: (i) is or becomes
a
matter of public knowledge through no fault of or action by the receiving
party; (ii) was rightfully in the receiving party’s possession prior to
disclosure by the disclosing party; or (iii) is rightfully obtained
by the
receiving party from a third party who is lawfully in possession
of such
Confidential Information without restriction. Whenever requested
by a
disclosing party, a receiving party shall immediately return to the
disclosing party all manifestations of the Confidential Information
or, at
the disclosing party’s option, shall destroy all such Confidential
Information as the disclosing party may designate (excluding this
Agreement). The receiving party’s obligation of confidentiality shall
survive this Agreement for a period of three years from the date
of its
termination and thereafter shall terminate and be of no further force
or
effect. Nothing herein shall prohibit a party from complying with
a lawful
and binding order of any court, administrative agency or other
governmental entity relating to Confidential Information, provided
that
the receiving party provides prior written notice of such disclosure
to
the disclosing party and takes reasonable and lawful actions to avoid
and/or minimize the extent of such disclosure and reasonably cooperates
with any disclosing party’s effort in obtaining confidential treatment or
an order protecting the Confidential Information from public
disclosure.
|
|
8.3
|
The
parties’ may jointly prepare and issue a press release regarding the
relationship; provided, that the parties mutually agree to the content
and
timing of such release. Subject to the provisions below, neither
party
shall make any other public statements or disclosures concerning
the terms
of this Agreement in any medium except with the prior written approval
of
the other party, or as required by law or the rules of any applicable
stock exchange. Neither party is required to issue a press release.
If a
party does choose to issue a press release, it shall obtain the approval
of the other party, which approval shall not be unreasonably withheld
or
delayed. Failure of a party’s Press Release Contact to object within five
(5) business days of receipt of the proposed press release by the
other
party’s Press Release Contact shall be deemed to be approval. Each party
agrees that it currently has no reason to object to a press release
explaining the establishment of the relationship between the parties,
provided that only a broad and general description of the relationship
is
included. Partner’s Press Release Contact is: Xxx Xxxxxx at xxxx@xxxxxxx.xxx;
Xxxxxxxx.xxx’s Press Release Contact is: Xxxxxxxxx Xxxxx at xxxxxx@xxxxxxxx.xxx
.
|
| 9. |
LIMITATION
OF LIABILITY AND
DISCLAIMER
|
| 9.1. |
IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER
PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES (OR ANY LOSS
OF
REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF
CONTRACT,
NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR
NOT AND
WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH
DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. BOTH PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY
ARE
AGREED ALLOCATIONS OF RISK AND ARE RE-FLEC-XXX IN THE FEES AGREED
UPON BY
THE PARTIES. FURTHER, NEITHER PARTY’S AGGREGATE LIABILITY ARISING WITH
RESPECT TO THIS AGREEMENT (EXCEPT FOR AMOUNTS PAYABLE HERE-UN-DER
OR
PURSUANT TO THE INDEMNIFICATION OBLIGATION IN SECTION 6.2) SHALL
EXCEED
THE TOTAL AMOUNTS PAYABLE TO PARTNER UNDER THIS AGREEMENT IN THE
TWELVE
(12) MONTHS PRIOR TO THE DATE SUCH ALLEGED CLAIM AROSE. NOTWITHSTANDING
ANY-THING TO THE CONTRARY HEREIN, THIS SECTION 9
SHALL NOT AP-PLY TO ANY AMOUNTS PAYABLE BY ANY PARTY THAT BREACHES
THE
CONFIDENTIALITY PROVISIONS OF THIS
AGREEMENT.
|
| 9.2. |
EXCEPT
AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER XXXX-XXXX.XXX NOR
PARTNER
MAKES ANY REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS
OR
IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A
PARTICULAR PURPOSE, REGARDING THE XXXXXXXX.XXX SERVICE, PARTNER SERVICE,
PARTNER TOOLBAR, DATA OR ANY OTHER MAT-TER PERTAINING TO THIS AGREEMENT
INCLUDING THE AMOUNT OF TRAFFIC PARTNER SHALL PROVIDE OR DIRECT TOWARDS
XXXX-XXXX.XXX, IF AT ALL.
|
| 10. |
GENERAL
PROVISIONS
|
| 10.1. |
Neither
party shall be liable for, or be considered in breach of or default
under
this Agreement due to any failure to perform its obligations under
this
Agreement (other than its payment obligations) as a result of a cause
beyond its control, including any act of God, public enemy or terrorist,
act of any military, civil or regulatory authority, change in any
law or
regulation, fire, flood, earthquake, storm or other like event, disruption
or outage of communications (including the Internet or other networked
environment), power or other utility, labor problem, unavailability
of
supplies, extraordinary market conditions or any other cause, whether
similar or dissimilar to any of the foregoing, which could not have
been
prevented by the non-performing Party with reasonable care; provided,
however, that either party may terminate this Agreement upon written
notice to the other party in the event such failure to perform continues
unremedied for a period of thirty (30)
days.
|
| 10.2. |
The
parties to this Agreement are independent contractors. Neither party
is an
agent, representative, or partner of the other party. Neither party
shall
have any right, power or authority to enter into any agreement for
or on
behalf of, or incur any obligation or liability of, or to otherwise
bind,
the other party.
|
| 10.3. |
Any
notice, approval, request, authorization, direction or other communication
under this Agreement shall be given in writing and shall be deemed
to have
been delivered and given for all purposes (i) on the delivery date
if
delivered personally; (ii) one (1) business day after deposit with
a
commercial overnight carrier, with written verification of receipt,
or
(iii) five (5) business days after the mailing date, whether or not
actually received, if sent by U.S. certified mail, return receipt
requested, postage prepaid, or any other means of rapid mail delivery
for
which a receipt is available, to the address of the party to whom
the same
is directed as first set forth
above.
|
| 10.4. |
The
failure of either party to require or enforce strict performance
by the
other party of any provision of this Agreement or to exercise any
right
under this Agreement shall not be construed as a waiver or relinquishment
to any extent of such party’s right to assert or rely upon any such
provision or right in that or any other
instance.
|
| 10.5. |
This
Agreement sets forth the entire agreement, and supersedes any and
all
prior agreements of the parties with respect to the subject matter
hereof.
No change, amendment or modification of any provision of this Agreement
shall be valid unless set forth in a written instrument signed by
the duly
authorized representatives of both parties. This Agreement may be
executed
in counterparts, each of which shall be deemed an original and all
of
which together shall constitute one and the same
document.
|
| 10.6. |
Neither
party shall assign this Agreement or any right, interest or benefit
under
this Agreement without the prior written consent of the other party
which
shall not be unreasonably withheld. Notwithstanding the foregoing,
either
party may assign this Agreement without the other party’s consent to a
parent or commonly controlled entity or to any person or entity,
which
acquires or succeeds to all or substantially all of such party’s business
assets. Notwithstanding the foregoing, if either party is acquired
by a
direct competitor of the other party, such other party shall have
the
right to terminate this Agreement at any time within 30 days of receipt
of
written notice of such acquisition. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and
be
enforceable by the parties hereto and their respective successors
and
assigns.
|
| 10.7. |
In
the event that any provision of this Agreement is held invalid by
a court
with jurisdiction over the parties to this Agreement, such provision
shall
be deemed to be restated to reflect as nearly as possible the original
intentions of the parties in accordance with applicable law, and
the
remainder of this Agreement shall remain in full force and
effect.
|
| 10.8. |
This
Agreement and all matters related to this Agreement shall be governed
by
the laws of the State of California without regard to its choice
of law
rules.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
latter date written below.
| XXXXXXXX.XXX, INC. | GURUNET CORPORATION | |||
| By: | /s/ Xxxx Xxxxxx | By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
|
Name: Xxxx Xxxxxx |
Name: Xxxxxx X. Xxxxxxxxxxx |
|||
| Title: Director of Business Development | Title: CEO | |||
