Exhibit 10.9
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is made and entered into
on and as of August 30, 1999 (the "Effective Date"), by and between CYBER
DIALOGUE INC., a Delaware corporation, ("Dialogue"); and AMFM INTERACTIVE INC..
a Delaware corporation ("AMFMi") (individually, a "Party" and collectively, the
"Parties").
RECITALS
WHEREAS the Parties desire to set forth herein the terms and
conditions pursuant to which AMFMi will retain Dialogue to plan, develop,
manage, service, and/or maintain the Customer Management Initiative (as defined
below);
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS.
In addition to the other terms defined in this Agreement, the
following terms shall have the meanings prescribed as follows:
1.1 "Affiliate" shall mean, with respect to a party, any Person that,
directly or indirectly, Controls, or is Controlled by, or is under
common Control with, such party.
1.2 "AMFMi Intellectual Property" shall mean the Customer Data, Customer
Database, and the AMFMi APIs.
1.3 "AMFMi APIs" shall mean the application programming interfaces
developed or licensed by AMFMi in order to allow Dialogue to access
and gather Customer Data from Websites.
1.4 "Associated Entities" shall mean, with respect to an entity, any
Person that, directly or indirectly. Controls, or is Controlled by,
or is under common Control with, such entity.
1.5 "Claim" shall mean any claim, action, suit, proceeding, or
litigation and any loss, deficiency, damages, liabilities, costs and
expenses, including without limitation, reasonable attorneys' fees
and all related costs and expenses, to be paid to a third party or
otherwise incurred in connection with the defense of any claim,
action, suit, proceeding, or litigation.
1.6 "Confidential Information" shall mean written or oral information
about the disclosing Party's business or activities that if written
is marked or designated by such Party as "Confidential Information,"
"Proprietary," or other words of similar import, or, whether written
or oral, is by the circumstances in which it was dis-
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
closed understood to be Confidential information. Confidential
Information shall include, but not be limited to, the terms of this
Agreement, the Dialogue Intellectual Property, the AMFMi
Intellectual Property, and all business (including marketing and
business plans), financial and technical information of a Party.
Information shall not be considered Confidential Information of a
Party if it can be shown that such information: (i) is known to the
recipient on the date of disclosure directly or indirectly from a
source other than the providing Party or other than a source having
an obligation of confidentiality to the providing Party; (ii)
thereafter becomes known (independently of disclosure by the
providing Party) to the recipient directly or indirectly from a
source other than one having an obligation of confidentiality to the
providing Party; (iii) becomes publicly known or otherwise ceases to
be secret or confidential, except through a breach of this Agreement
by the recipient; or (iv) was independently developed by the
recipient without use of or reference to the providing Party's
Confidential Information, as shown by evidence in the recipient's
possession.
1.7 "Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether by contract or through the ownership
of voting securities, including, without limitation, the ownership
of more than fifty percent (50%) of the equity, partnership or
similar interest in such Person.
1.8 "Customer Data" shall mean raw data or other information regarding
Web Site Visitors that is collected either through Web Site Visitor
input or through tracking Web Site Visitor activity or otherwise; as
well as data derived from the raw data or other information.
1.9 "Customer Database" shall mean a database containing Customer Data,
as well as the Data Model and infrastructure for the database.
1.10 "Customer Management Initiative" shall mean the methods, services,
marketing-programs and Customized Applications, whether existing now
or developed in the future, for (i) gathering, storing and managing
Customer Data; and (ii) using the Customer Database to conduct
market research and data analysis, and to create marketing programs
for Web Site Visitors, including loyalty and/or rewards programs.
For purposes of clarity, the foregoing activities shall not include
in-bound e-mail management or any call center management activities.
1.11 "Customized Applications" shall mean the methods, programs and
technologies, created by Dialogue for AMFMi pursuant to this
Agreement, expressly excluding ICARUS.
1.12 "Data Model" shall mean a graphical representation of the
architecture of the database of Customer Data, together with the
file field definitions and related file associations.
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The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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1.13 "Dialogue Technology" shall mean the Dialogue technology known as
ICARUS, including without limitation all new versions, releases, and
updates thereto, that is owned by Dialogue, and that is used for the
Customer Management Initiative.
1.14 "Dialogue Intellectual Property" shall mean all Intellectual
Property (i) owned by Dialogue as of the date hereof; or (ii)
developed by or on behalf of Dialogue for use in connection with the
Customer Management Initiative, including without limitation the
Dialogue Technology, but excluding AMFMi Intellectual Property.
1.15 "Intellectual Property" shall mean all trademarks, service marks,
trade names, Internet domain names, designs, logos, slogans and
general intangibles of like nature, together with goodwill,
registrations and applications relating to the foregoing; registered
and unregistered patents; copyrights (including registrations and
applications); computer programs, including any and all software
implementation of algorithms, applications, tools, models and
methodologies whether in source code or object code, databases and
computations, including any and all data and collections of data,
all documentation, including user manuals and training materials,
relating to any of the foregoing; and Confidential Information,
technology, know-how, inventions, processes, formulae, algorithms,
models, trade secrets and methodologies.
1.16 "Mirror site" means an Internet site that (i) contains the exact
form and content of a site, (ii) is located at a geographic location
distinct from a site and (iii) is created for the purpose of
improving the performance of and accessibility to a site.
1.17 "Owned Entities" shall mean, with respect to an entity, any Person
in which such entity directly or indirectly possesses an ownership
interest of 10% or more of the total ownership interest.
1.18 "Person" shall mean any individual, sole proprietorship,
partnership. joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation,
entity or government (whether federal, state, county, city,
municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
1.19 "Web Sites" shall mean those Internet sites owned or managed by
AMFMi, and any Mirror Sites.
1.20 "Web Site Visitors" shall mean individuals that access or visit the
Web Sites.
2. TECHNOLOGY DEVELOPMENT.
2.1 Technology Plan. Dialogue shall design, develop and test the
Customer Database and any modifications, enhancements or
improvements to the Dialogue Technology necessary to implement the
Customer Management Initiative. AMFMi and Dialogue shall cooperate
to establish requirements, a project plan and interim
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The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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milestones. AMFMi and Dialogue shall also cooperate to ensure that
the Customer Management Initiative is structured and operated in a
manner consistent with federal statutes and regulation related to
privacy.
3. RESPONSIBILITIES OF THE PARTIES
3.1 Overview of Responsibilities - Dialogue. Dialogue shall be
responsible for (a) creating the Customer Database and for
integrating the Customer Data into that Customer Database, and (b)
implementing the Customer Management Initiative, including procuring
all necessary equipment, software and connectivity and performing
all aspects of the Initiative not explicitly designated for AMFMi.
Dialogue shall have no obligation or exclusive right to provide
AMFMi with Customer Management Initiative to the extent it is to be
used to benefit a party that is not an Affiliate of AMFMi.
3.2 Overview of Responsibilities - AMFMi. AMFMi shall be responsible for
(a) providing Dialogue with the AMFMi APIs to allow Dialogue to
integrate the Dialogue Technology and other aspect of the Customer
Management Initiative with AMFMi data and technology, and (b) making
the Customer Data and AMFMi intellectual Property available to
Dialogue.
3.3 Marketing Campaigns. Dialogue shall be responsible for helping to
develop strategic plans for all marketing campaigns developed as
part of the Customer Management Initiative ("Marketing Campaigns"),
and for the execution, management and measurement of such Marketing
Campaigns. Notwithstanding the foregoing, AMFMi shall be responsible
for all creative aspects of the Marketing Campaigns, including all
production and design elements. The parties shall provide each other
with reasonable assistance as requested in connection with the
Marketing Campaigns. AMFMi shall have final authority and control of
Marketing Campaigns.
3.4 Maintenance and Back-up. Dialogue shall develop and implement (i) a
monitoring plan; (ii) a disaster recovery plan (including off-site
and on-site storage and hot-swap back-up); and (iii) upgrade plans
for all aspects of the Customer Management Initiative (including for
equipment, software. connectivity, and content).
3.5 Support. Dialogue shall provide AMFMi with customer support to
address questions regarding the Customer Management Initiative. Such
support shall be provided during reasonable business hours and in a
manner to be determined by the parties. Dialogue shall have no
obligation to provide any direct support for AMFMi customers or Web
Site Visitors.
3.6 Third Parties. Dialogue may retain third parties to assist in any or
all of its activities performed in connection with this Agreement,
provided that Dialogue shall be responsible for the activities of
such third parties, and provided further that such
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Securities and Exchange Commission.
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third parties must agree in writing to abide by the confidentiality
provisions contained in Section 11 of this Agreement.
4. EXCLUSIVITY
4.1 Exclusive Contract. During the Term, Dialogue shall be the exclusive
service provider to AMFMi for using the Customer Database to conduct
market research and data analysis, and executing and managing
marketing programs for Web Site Visitors, including loyalty and/or
rewards programs.
4.2 Covenant Not to Compete. During the term of the services provided
by Dialogue hereunder and for a period of one year following the
termination of such services, (the "Noncompete Term"), neither
Dialogue, nor any of its subsidiaries, nor any entities in which
Dialogue has an ownership interest equal to or greater than 20% of
the total ownership, (collectively the "Dialogue Entities"), shall
directly or indirectly, perform strategic planning services, interim
management services, and data analysis services, or creation of
marketing programs for Web Site Visitors, including loyalty and/or
rewards programs, (collectively the "Excluded Services") for the
following named competitors and their Associated Entities: *****.
Additionally, during the Noncompete Term, the Dialogue Entities
shall not perform Excluded Services for the following named
competitors and their Owned Entities: *****. Notwithstanding
anything in this Section 4.2, Dialogue Entities may (i) perform
Excluded Services during the Noncompete Term for the entities listed
in Schedule 4, (ii) continue to provide marketing data to *****
provided that such data is similar in type and scope to that which
Dialogue is currently providing *****, and (iii) perform Excluded
Services for the ***** and its Associated Entities (collectively the
"***** Entities"), except that Dialogue may not provide Excluded
Services during the Noncompete Term for any of the ***** Entities
that engages in any Internet strategy, inclusive of radio, directed
at a local or a regional market rather than a national market.
5. LICENSE GRANT
5.1 AMFMi License. Pursuant to the terms and conditions of this
Agreement, Dialogue grants to AMFMi the non-exclusive right, during
the Term, to use the Dialogue Intellectual Property solely to the
extent required by AMFMi to meet its Customer Management Initiative
responsibilities. AMFMi may not sublicense or transfer any of its
license rights. This license grant extends to all territories in
which Dialogue holds the applicable Intellectual Property Right.
5.2 Dialogue License. Pursuant to the terms and conditions of this
Agreement, AMFMi grants to Dialogue a non-exclusive, royalty-free
right, during the Term, to
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Securities and Exchange Commission.
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use AMFMi intellectual Property solely to the extent required by
Dialogue to meet its Customer Management Initiative responsibilities
pursuant to Section 3.1. Dialogue may not sublicense or transfer any
of its license rights. This license grant extends to all territories
in which AMFMi holds the applicable Intellectual Property Rights.
5.3 Source Code Escrow. Dialogue shall deposit with a third party source
code escrow vendor to be mutually selected by the parties: (a) one
copy of the source code for the Dialogue Technology; and (b)
existing documentation regarding the use of the Dialogue Technology
(collectively, the "Source Code Deposit"). Dialogue shall update the
Source Code Deposit during the Term such that the Source Code
Deposit will always contain the then current version of the Dialogue
Technology.
5.3.1 The parties and the escrow vendor shall enter into an escrow
agreement regarding the Source Code deposit, which shall
provide, among other things, (a) that the Source Code Deposit
may be released to AMFMi only upon (i) the bankruptcy of
Dialogue pursuant to Section 9.3 hereof, or (ii) the
termination of the Agreement due to material breach by
Dialogue; (b) that Dialogue may challenge the release of the
Source Code Deposit if it believes that the condition for
release has not been met; and (c) that AMFM1 shall bear all
escrow costs.
5.3.2 In the event that the Source Code Deposit is released, AMFMi
acknowledges that its right to the Source Code Deposit shall
be a limited license to use the Source Code Deposit solely as
required for it to enjoy the benefits of the license granted
hereunder. AMFMi shall have no right to sublicense or transfer
the Source Code Deposit, and shall have no ownership rights
therein.
5.3.2 Bankruptcy Provisions. The Parties intend that AMFMi shall
have all rights afforded to licensees under Section 365(n) of
the U.S. Bankruptcy Code (and any successor thereto) in
connection with any bankruptcy of Dialogue.
6. DIALOGUE ATTRIBUTION
6.1 Use of Dialogue Name. AMFMi shall display the phrase "CyberDialogue
Enabled" on all Web Site pages where Customer Data is input by the
Web Site Visitor. Such phrase shall be in a font no smaller than
eight points.
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Securities and Exchange Commission.
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7. INTELLECTUAL PROPERTY.
7.1 Ownership.
7.1.1 AMFMi Intellecutal Property. As between Dialogue and AMFMi,
Dialogue acknowledges and agrees that all AMFMi Intellectual
Property shall be the sole property of AMFMi, and that
Dialogue shall not gain any right, title, or interest in such
AMFMi Intellectual Property except as expressly provided under
this Agreement.
7.1.2 Dialogue Intellectual Property. As between Dialogue and AMFMi,
AMFMi acknowledges and agrees that all Dialogue Intellectual
Property shall be the sole property of Dialogue, and that
AMFMi shall not gain any right, title, or interest in such
Dialogue Intellectual Property except as expressly provided
under this Agreement. Notwithstanding the foregoing, Dialogue
acknowledges that Customized Applications, both in source code
and object code format, shall be the sole property of AMFMi,
provided that Dialogue retains any know-how it develops while
creating the Customized Applications and may in its discretion
develop code which performs the same or similar functionality
so long as it does not copy or refer to the Customized
Applications during such development. Breach of this provision
by Dialogue shall be considered a material breach of this
Agreement.
7.1.3 Cooperation. Each Party agrees that it shall take all actions
reasonably requested by the other Party to fully vest or
perfect in the other Party all right, title, and interest in
and to their respective Intellectual Property. Each Party
shall promptly enter into appropriate agreements with its
employees, contractors, and agents having access to the other
Party's property pursuant to which: (i) each such person
effectively releases and relinquishes any and all right,
title, and interest which he/she/it may have in the other
Party's property or any portion thereof; and (ii) each such
person agrees to cooperate with the other Party in the
protection of any of such Party's rights.
8. FEES.
8.1 Fees. In consideration of the services performed by Dialogue
pursuant to this Agreement, AMFMi shall pay Dialogue the applicable
fees as set forth in Schedule 1. Dialogue shall provide AMFMi with
an invoice for such fees, which shall be payable within 30 days of
receipt.
8.2 Audit Right. AMFMi shall have the right to verify, upon not less
than thirty (30) days prior written notice to Dialogue all fees and
charges made by Dialogue pursuant to this Agreement, through
inspection of Dialogue's pertinent books and records. AMFMi may, if
it chooses, retain a third party auditor, approved by Dia-
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The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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xxxxx (such approval not to be unreasonably withheld) to conduct
such audit ("Auditor"), provided that such Auditor must agree to
sign the standard form of non-disclosure agreement for requiring
that Dialogue's books and records shall be held in strict
confidence, except as may be necessary to report to AMFMi concerning
the accuracy of the payment amount. Dialogue shall keep its records
and books relating to the payment amount for a period of five (5)
years. AMFMi shall bear the cost and expense of any such audit;
provided, however, that if such audit reveals an overpayment by
AMFMi of three percent (3%) or more, Dialogue shall bear the cost of
such audit and shall pay interest at the rate of ten percent (10%)
per annum (or, if less, the highest lawful rate) on the amount of
such overpayment.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall commence upon the Effective Date and
continue for sixteen (16) months (the "Initial Term"), unless
earlier terminated in accordance with the provisions hereof. AMFMi
shall provide four (4) months notice prior to the end of the Initial
Term as to whether it desires to extend the Agreement for another
three (3) years and eight (8) months (the "Extended Term" and
together with the Initial Term, the "Term"). If AMFMi does not
desire to extend the Agreement, the Agreement shall terminate at the
end of the Initial Term. If AMFMi notifies Dialogue that it desires
to extend the Agreement for the Extended Term, the parties shall
meet and negotiate in good faith the terms and conditions under
which the Agreement will be extended, and will use their best
efforts to reach agreement.
9.2 Termination for Breach. Upon the material breach of this Agreement
by a Party, the non-breaching Party may terminate this Agreement
upon thirty (30) days prior written notice of the breach, provided
that the breaching Party was unable to cure the breach during such
thirty (30) day period.
9.3 Termination for AMFMi. This Agreement may be terminated by AMFMi, in
its sole discretion, upon thirty (30) days prior written notice to
Dialogue. If AMFMi terminates this Agreement without cause pursuant
to this Section 9.3 within the first sixteen (16) months of the
Initial Term, AMFMi shall pay Dialogue the sum of $***** per month
for every remaining full month, pro-rated for every remaining
partial month, after the date of termination in the initial Term
(the "Termination Fee"). The Parties agree that the duty to pay a
Termination Fee applies solely to termination by AMFMi pursuant to
this Section 9.3, and does not apply to termination of the Agreement
pursuant to Sections 9.1, 9.2, 9.4 and 14.1. The Termination Fee
shall be AMFMi's sole obligation upon termination pursuant to this
Section 9.3, and upon payment of the Termination Fee, AMFMi shall
have no further liability for any damages or injury to Dialogue due
to the termination of this Agreement. If AMFMi terminates this
Agreement without cause pursuant to this Section 9.2, the parties
agree that the Noncompete Term defined in Section
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Securities and Exchange Commission.
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4.2 shall be limited to six months, or the remainder of the Initial
Term, whichever is more.
9.4 Automatic Termination. This Agreement will terminate automatically
upon (i) the commencement of any voluntary bankruptcy or other
insolvency proceeding of either Party; or (ii) the commencement of
any involuntary bankruptcy or other insolvency proceeding with
respect to either Party that is not dismissed within ninety (90)
days. No termination of this Agreement will relieve any party of
liability for its prior breach of this Agreement.
9.5 Return of Materials. Upon termination of this Agreement for any
reason, each Party shall return to the other any Confidential
Information of such other Party, other than Confidential Information
governed by Section 9.6 of this Agreement, in that Party's
possession, custody or control.
9.6 Transition Assistance. Upon the termination of this Agreement, the
Parties shall work to develop a transition plan pursuant to which
Dialogue shall reasonably assist AMFMi to transition the Customer
Marketing Initiative to AMFMi or to an entity or entities retained
by AMFMi. AMFMi shall pay Dialogue for its transition services on a
time and materials basis at Dialogue's then prevailing market rates,
provided however that AMFMi shall not pay a rate higher than that
paid by any other similar customer of Dialogue.
9.7 License Rights Upon Termination. Upon termination of this Agreement
for any reason, AMFMi shall have a perpetual license to use the
version of the Dialogue Technology being used by AMFMi. Under such
license, AMFMi shall have the limited right to use the Dialogue
Technology for its own internal purposes only, without any right to
transfer or sublicense the Dialogue Technology and without any right
to use the Dialogue Technology for the benefit of any entity that is
not an Affiliate of AMFMi. Dialogue shall have no obligation after
termination of this Agreement to support the Dialogue Technology or
to provide AMFMi with any updates or new versions or releases of the
Dialogue Technology. Any agreement by Dialogue to do so shall be
subject to an arms length agreement between AMFMi and Dialogue which
Dialogue may enter into in its sole discretion.
10. STATUS MEETINGS.
10.1 Project Managers. AMFMi shall each designate project managers who
shall be the primary contact point for any issue related to the
Customer Management Initiative. The initial project manager for
AMFMi shall be Xxx Xxxxxxx. The initial project manager for Dialogue
shall be Marc Esiri.
10.2 Progress Meetings. Dialogue and AMFMi project managers shall meet no
less than twice per month during the Initial Term to discuss the
progress of, and plan future activities regarding technology
development and the Customer Management Initiative.
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Securities and Exchange Commission.
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11. CONFIDENTIALITY.
11.1 Protection of Confidential Information. The Parties acknowledge and
agree that, in connection with the performance of this Agreement,
each of them may disclose to the other its Confidential Information.
Except as provided in Section 11.2, the Party receiving any
Confidential Information agrees to maintain the confidential status
of such Confidential Information and not to use any such
Confidential Information for any purpose other than the purpose for
which it was disclosed to the receiving Party, and not to disclose
any of such Confidential Information to any third party.
11.2 Permitted Disclosure. Notwithstanding Section 11.1, the Parties
acknowledge and agree that each may disclose Confidential
Information: (i) as required by law, regulation, or court order
subject to the terms and conditions of this Section 11.2; (ii) to
their respective directors, officers, employees, attorneys,
accountants, and other advisors, who are under an obligation of
confidentiality of scope similar to those set forth hereunder and
only on a "need-to-know" basis; (iii) to investors or joint venture
partners, who are under an obligation of confidentiality of scope
similar to those set forth hereunder and only on a "need-to-know"
basis, provided that such disclosure shall be limited to the terms
of this Agreement; or (iv) in connection with disputes or litigation
between the Parties involving such Confidential Information, in
which case each Party shall endeavor to limit disclosure to such
purpose. If a Party is required by law, regulation, or court order
to disclose any Confidential Information of the other Party (the
"Owner"), such Party shall promptly notify Owner in writing prior to
any such disclosure to enable Owner to seek a protective order or
other appropriate remedy from the proper authority. The disclosing
Party agrees to cooperate with Owner in seeking such order or other
remedy. The disclosing Party further agrees that if Owner is not
successful in precluding the requesting legal body from requiring
the disclosure of the Confidential Information, it will furnish only
that portion of the Confidential Information which is legally
required and will exercise all reasonable efforts to obtain reliable
assurances that confidential treatment will be accorded the
Confidential Information.
11.3 Press Releases. Each Party may use the other Party's name in
marketing materials unless the other Party objects to such use. The
Parties agree to refrain from any use of another Party's name to
which that Party has objected.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
12.1 AMFMi. AMFMi represents, warrants, and covenants for the sole
benefit of Dialogue that it has the authority to grant Dialogue the
rights granted hereunder.
12.2 Dialogue. Dialogue represents, warrants, and covenants for the sole
benefit of AMFMi that: (i) the personnel performing the Customer
Management Initiative
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under this Agreement shall have the skill and expertise necessary to
perform such services; and (ii) Dialogue has the authority to grant
AMFMi the rights granted hereunder.
12.3 Services Warranty. Dialogue will perform the services required under
this Agreement in a high-quality, professional, and competent
manner.
12.4 Warranties of Title. Dialogue has good and marketable title, and the
right to license, all of the Dialogue Intellectual Property provided
by Dialogue pursuant to this Agreement free and clear of all liens,
security interests, and encumbrances.
12.5 No Conflicting Obligations or Agreements Warranty. Dialogue has no
outstanding assignments, grants, licenses, encumbrances,
obligations, or agreements which relate to the Dialogue Intellectual
Property (whether written, oral, or implied) and are inconsistent
with this Agreement or the rights, duties, and obligations stated
in this Agreement.
12.6 Data Integrity. Dialogue warrants Dialogue will take all reasonable
steps to prevent the loss or corruption of data in the Customer
Database and any datamarts containing Customer Data.
12.7 Year 2000 Warranty. The Dialogue Technology will create, store and
generate output data relating to or including Millennial Dates and
leap year dates without errors or omissions, and the occurrence in
or use by such software, hardware, equipment and microprocessors of
Millennial Dates and leap year dates will not adversely affect the
performance of such software, hardware, equipment and
microprocessors with respect to date dependent data, compilations,
output or other functions (including, without limitation,
calculating, computing, sequencing and storing instructions and
data). As used in this Agreement, "Millennial Dates" means dates (in
any form, including two or four digits) on or after September 9,
1999.
12.8 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION, THE
DIALOGUE TECHNOLOGY. THE DATABASE, SERVICES, SOFTWARE, AMFMi
INTELLECTUAL PROPERTY AND EQUIPMENT PROVIDED HEREUNDER ARE PROVIDED,
AND ACCEPTED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXPRESS OR.
IMPLIED, INCLUDING WITHOUT LIMITATION AS TO CONDITION, DESIGN,
PERFORMANCE, ACCURACY, COMPLETENESS, OR OPERATION, OR REGARDING THE
ACCURACY OR COMPLETENESS OF ANY DATA OR RESULTS PRODUCED THEREFROM.
EACH PARTY EXPRESSLY DISCLAIMS AND EACH PARTY EXPRESSLY WAIVES ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
ERROR-FREE OR UNINTERRUPTED OPERATION, AND NONINFRINGEMENT.
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Securities and Exchange Commission.
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13. LIMITATION OF LIABILITY.
13.1 No Liability for Certain Damages. EXCEPT TO THE EXTENT OF THE
PARTIES' INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 14, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT
(INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF
THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES.
13.2 LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS OF INDEMNIFICATION
PURSUANT TO SECTION 14, EACH PARTY'S TOTAL LIABILITY FOR ANY CAUSE
WHATSOEVER UNDER THIS AGREEMENT OR FOR ACTIVITIES ARISING OUT OF OR
RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT WILL BE LIMITED TO
THE FEES PAID BY AMFMi TO DIALOGUE DURING THE TWELVE MONTHS PRIOR TO
THE DATE OF RECEIPT OF NOTICE OF A CLAIM FOR SUCH DAMAGES.
13.3 Notification. Neither Party shall be liable for any Claim arising
out of this Agreement for which it has not received written notice
from the other within six months from the date the Party asserting
such claim reasonably should have been aware of the Claim.
14. INDEMNIFICATION.
14.1 Dialogue's Indemnification. Dialogue shall indemnify and hold AMFMi,
its respective officers, directors, employees, contractors, agents,
its successors and assigns harmless from and against any and all
Claims that the Dialogue Intellectual Property infringes any
existing (i) United States patent; (ii) copyright in any country
that is a signatory to the Berne Convention; (iii) trademark in any
country that is a signatory to the Paris Convention: or (iv)
world-wide trade secret. AMFMi shall give Dialogue prompt written
notice of the assertion of a Claim. Dialogue shall assume defense of
such Claim at its own expense, with counsel of its own choosing and
shall have complete control over the Claim including for its
compromise a settlement. AMFMi shall be entitled to participate in
any such defense at its own expense with counsel of its own
choosing. AMFMi shall, at Dialogue's expense, cooperate with
Dialogue in the defense of the Claim. In addition to Dialogue's
indemnity obligations, should the Dialogue Intellectual Property, or
any portion thereof, become, or in Dialogue's reasonable opinion be
likely to become, the subject of a claim of infringement, Dialogue
shall have the right, at Dialogue's option and expense, (i) to
procure for AMFMi the right to continue using such Dialogue
Intellectual Property; or (ii) to replace or modify
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
12
such Dialogue Intellectual Property with a non-infringing version of
substantially equivalent function and performance. If options (i)
and (ii) above cannot be accomplished despite Dialogue's best
efforts, the Dialogue shall have the right to require AMFMi to to
stop using Dialogue Intellectual Property by notifying AMFMi in
writing (the "Cease Use Notification"). If Dialogue sends a Cease
Use Notification, Dialogue shall refund to AMFMi the fees paid by
AMFMi to Dialogue pursuant to this Agreement for the twelve months
prior to the Cease Use Notification. Additionally, if Dialogue
exercises the Cease Use Notification, AMFMi shall have the right to
terminate this Agreement by providing written notice of termination
to Dialogue, such termination to be effective immediately upon
receipt of written notice of termination by Dialogue.
14.2 AMFMi's Indemnification, AMFMi shall indemnify and hold Dialogue,
its respective officers, directors, employees, contractors, agents,
its successors and assigns harmless from and against any and all
Claims that the AMFMi APIs or Customer Data infringes any existing
(i) copyright in any country that is a signatory to the Berne
Convention; (ii) trademark in any country that is a signatory to the
Paris Convention; or (iii) world-wide trade secret. Dialogue shall
give AMFMi prompt written notice of the assertion of a Claim. AMFMi
shall assume defense of such Claim at its own expense, with counsel
of its own choosing and shall have complete control over the Claim
including for its compromise a settlement. Dialogue shall be
entitled to participate in any such defense at its own expense with
counsel of its own choosing. Dialogue shall, at AMFMi's expense,
cooperate with AMFMi in the defense of the Claim. In addition to
AMFMi's indemnity obligations, should the AMFMi APIs or Customer
Data, or any portion thereof, become, or in AMFMi's reasonable
opinion be likely to become, the subject of a claim of infringement,
AMFMi shall have the right, at AMFMi's option and expense, (i) to
procure for Dialogue the right to continue using such AMFMi APIs or
Customer Data; or (ii) to replace or modify such AMFMi APIs or
Customer Data with a non-infringing version of substantially
equivalent function and performance (iii) to require Dialogue to
stop using such AMFMi APIs or Customer Data.
14.3 Limitations on Indemnification by Dialogue. Dialogue shall have no
liability for any claim brought by a third party against Dialogue or
AMFMi, including a claim for infringement in accordance with this
Section 14, to the extent it is based on AMFMi's: (a) use of a
release or version of any software or other materials provided by
Dialogue no longer supported by Dialogue, including but not limited
to versions or releases which Dialogue has determined that AMFMi
must replace with a new version or release in order to avoid
infringement or other liability; or (b) combination of the any
software or other materials provided by Dialogue with third party
hardware or software not provided by Dialogue hereunder, with which
it could not reasonably be expected to be used, if such claim arose
from the use of any software or other materials provided by Dialogue
in such combination. Dialogue will provide reasonable advance notice
if it will no longer support a version or release.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
13
14.4 Limitations on Indemnification by AMFMi. AMFMi shall have no
liability for any claim brought by a third party against Dialogue or
AMFMi, including a claim for infringement in accordance with this
Section l4, to the extent it is based on Dialogue's: (a) use of a
release or version of any software or other materials provided by
AMFMi no longer supported by AMFMi, including but not limited to
versions or releases which AMFMi has determined that Dialogue must
replace with a new version or release in order to avoid infringement
or other liability; or (b) combination of the any software or other
materials provided by AMFMi with, third party hardware or software
not provided by AMFMi hereunder, with which it could not reasonably
be expected to be used, if such claim arose from the use of any
software or other materials provided by AMFMi in such combination.
AMFMi will provide reasonable advance notice if it will no longer
support a version or release.
14.5 Limited Obligation. The provisions of this Section 14 are in lieu of
all other obligations, including without limitation the implied
warranty of non-infringement, and state the sole, exclusive and
entire liability of each Party and the sole, exclusive and entire
remedy of each Party with respect to any claim that materials
licensed under this Agreement or any portion thereof infringes on a
patent, copyright, trade secret or other intellectual property right
of any third party.
15. MISCELLANEOUS.
15.1 Assignment. Neither Party may assign this Agreement without the
prior written consent of the other Party; provided, however, that
(i) either party may assign this Agreement to any parent,
subsidiary, affiliate, or any successor in interest to all or the
majority of the business of such party to which this Agreement
relates. Any attempted or purported assignment without such required
consent shall be void and a material breach of this Agreement.
Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the successors and permitted assigns of the
Parties hereto,
15.2 Survival. The respective rights and obligations of Dialogue and
AMFMi wider the provisions of Sections 1, 4.2, 5.3.2, 7, 8, 9.3
(last sentence only), 9.4, 9.5, 9.6, 11.1. 11.2, 11.3, 13, 14 and 15
shall survive termination of this Agreement indefinitely.
15.3 Force Majeure. Neither Party hereto shall be responsible for any
failure to perform its obligations under this Agreement (other than
obligations to pay money) caused by an event reasonably beyond its
control, including wars, riots, labor strikes, industry shortages,
power outages, natural disasters, or any law, regulation, ordinance,
or other act or order of any court, government, or governmental
agency. Obligations hereunder, however, shall in no event be excused
but shall be suspended only until the cessation of any cause of such
failure. In the event
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
14
that such force majeure should obstruct performance of this
Agreement for more than three (3) months, the Parties hereto shall
consult with each other to determine whether this Agreement should
be modified. The Party facing an event of force majeure shall use
its best endeavors in order to remedy that situation as well as to
minimize its effects. A Party experiencing an event of force majeure
shall notify the other Party as soon as possible after its
occurrence.
15.4 No Joint Venture. The sole relationship between the Parties shall be
that of independent contractors. Nothing herein shall be construed
to constitute the Parties as partners, joint venturers, or agents of
each other in any way whatsoever. Neither Party shall make any
warranties or representations, or assume or create any obligations,
on the other Party's behalf. Each Party shall be solely responsible
for the actions of its respective employees, agents, and
representatives.
15.5 Rules of Construction. As used in this Agreement, all terms used in
the singular shall be deemed to include the plural, and vice versa,
as context requires. The words hereof, herein, and hereunder refer
to this Agreement as a whole, including any exhibits hereto, as the
same may from time to time be amended or supplemented and not to any
subdivision contained in this Agreement. When used herein, including
shall mean including, without limitation and discretion shall mean
sole discretion. Descriptive headings are inserted for convenience
only, and shall not be utilized in interpreting this Agreement. This
Agreement has been negotiated by the Parties and their respective
counsel and shall be fairly interpreted in accordance with its terms
and without any strict construction in favor of or against either
Party.
15.6 Amendment; Waiver. This Agreement may not be modified, nor shall any
provision hereof be waived or amended, except in a writing duly
signed by authorized representatives of the Parties. A waiver with
respect to one event shall not be construed as continuing, or as a
bar to or waiver of any right or remedy as to subsequent events.
15.7 Severability. If any provision hereof is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision
shall be reformed without further action by the Parties to the
extent necessary to make such provision valid and enforceable, and
no other provisions hereof shall be affected or impaired thereby.
15.8 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York applicable to contracts entered
into and wholly to be performed therein, without regard to that body
of law relating to conflict of laws.
15.9 No Third Party Beneficiaries. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer,
upon any person other than the Parties and the respective successors
or assigns of the Parties, any rights, remedies, obligations, or
liabilities whatsoever.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
15
15.10 Recovery of Costs and Expenses. If either Party brings an action
against the other Party to enforce its rights under this Agreement,
the prevailing Party shall be entitled to recover its reasonable
costs and expenses incurred in connection with such action and all
appeals of such action, including without limitation reasonable
attorneys' fees and costs.
15.11 Notices. Any notices to be given hereunder to a Party shall be made
via U.S. Mail or express courier to such Party's address given
below, and/or (other than for the delivery of fees) via facsimile to
the facsimile telephone numbers listed on the signature page of this
Agreement.
If to Dialogue, to
Cyber Dialogue Inc.
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention; Xxxx Esiri
Fax: *****
with a copy to;
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: *****
If to AMFMi, to
AMFM Interactive Inc.
c/o AMFM Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President of Chancellor Media Services
Fax: *****
with copies to;
AMFM Inc.
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Fax: *****
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
16
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: *****
Each party named above may change its address and that of its
representative for notice by the giving of notice thereof in the
manner hereinabove provided.
15.12 Counterparts; Facsimiles. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original.
Facsimile copies hereof shall be deemed to be originals.
15.13 Entire Agreement. This Agreement constitutes the complete agreement
between the Parties with respect to the subject matter hereof, and
supersedes and replaces all prior or contemporaneous understandings,
communications, and agreements, written or oral, regarding such
subject matter.
15.14 Solicitation. For the term of this Agreement and for twelve (12)
calendar months after its termination or expiration, neither party
will solicit for employment any person who (i) at the time, is an
employee of the other Party; or (ii) at any time within the prior
six (6) months was an employee of the other Party, without the
express written permission of the other. For purposes of this
Section 15.14 only, "Party" shall mean the signatories hereto and
also include AMFM Inc. and its subsidiaries. Notwithstanding the
foregoing, AMFMi may offer employment to the following Dialogue
employees: *****.
15.15 Warrant. On execution of this Agreement, Dialogue will grant to
AMFMi a warrant for five percent (5%) of the fully diluted shares of
Dialogue as set forth in Schedule 3.
15.16 No Recourse Against Others. No past or present or future director,
officer, employee, stockholder or incorporator, as such, of a Party
or any of its affiliates shall have any liability for any
obligations of the Party under this Agreement or for any claim based
on, in respect of or by reason of such obligations or their
creation.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
17
IN WITNESS WHEREOF, the Parties to this Agreement by their duly
authorized representatives have executed this Agreement as of the date first
above written.
AMFM INTERACTIVE INC. CYBER DIALOGUE INC.
By: /s/ Xxxxx X. Xxxxxx By:
--------------------------- -------------------------------------
Title: Chief Financial Officer Title:
------------------------ ----------------------------------
Name: Xxxxx X. Xxxxxx Name:
------------------------- -----------------------------------
_______________________________ _________________________________________
_______________________________ _________________________________________
Attn:__________________________ Attn:____________________________________
Fax:___________________________ Fax:_____________________________________
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The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
18
IN WITNESS WHEREOF, the Parties to this Agreement by their duly
authorized representatives have executed this Agreement as of the date first
above written.
AMFM INTERACTIVE INC. CYBER DIALOGUE INC.
By: By: /s/ Xxxx Esiri
--------------------------- -------------------------------------
Title: Title: CHIEF EXECUTIVE OFFICER
------------------------ ----------------------------------
Name: Name: Xxxx Esiri
------------------------- -----------------------------------
_______________________________ _________________________________________
_______________________________ _________________________________________
Attn:__________________________ Attn:____________________________________
Fax:___________________________ Fax:_____________________________________
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
18
SCHEDULES
Schedule 1 Fees
Schedule 2 Budgets
Schedule 3 Warrants
Schedule 4 Dialogue Clients
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
SCHEDULE I
FEES
AMFMi shall pay Dialogue the following fees:
For the first three months of the Initial Term, AMFMi shall pay Dialogue's
actually incurred reasonable direct out-of-pocket costs, plus *****.
For the second three months of the Initial Term, AMFMi shall pay
Dialogue's actually incurred reasonable direct out-of-pocket costs, plus *****.
For the third three months of the Initial Term, AMFMi shall pay Dialogue's
actually incurred reasonable direct out-of-pocket costs, plus *****.
For the remaining months of the Initial Term, AMFMi shall pay Dialogue's
actually incurred reasonable direct out-of-pocket costs, plus *****.
If the Agreement is extended beyond the Initial Term, the parties shall
mutually agree in good faith on the fees to be paid during the Extended Term.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
SCHEDULE 2
BUDGETS
AMFMi Customer Management Hardware and Software Budget
All hardware and software purchased or licensed for use as part of the Customer
Management Initiative will be at the sole cost of, and the property of, AMFMi.
The following hardware and software will be acquired at market prices negotiated
by Dialgoue, or licensed on standard terms [where Dialogue provides existing
software code.] All equipment orders will be placed in AMFMi's name and paid
directly by AMFMi, except to the extent that receipt of discounts requires
purchase by Dialogue, in which case Dialogue shall xxxx AMFMi for the full cost
of such equipment plus a ***** handling fee, with payments for such equipment
due net thirty from the date of billing. Usage fees are summarized below at
Schedule C.
----------------------------------------------------------------------------------------------------------
Component Hardware Software Budget
Estimate
----------------------------------------------------------------------------------------------------------
Operational
Customer
Database
----------------------------------------------------------------------------------------------------------
*****
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
Schedule 2 - 2
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
Design and Development Budget
Designing, programming and maintaining the architecture for the various elements
of AMFMi's Customer Management Platform. The following budget is an estimate of
a one-time fee, based on Dialogue's engineering rates of ***** per man-day (7
hours). Dialogue's engineering rates represent a blended average of the
fully-loaded (to include salaries, bonuses, benefits and overhead allocation)
costs of professionals primarily dedicated the AMFMi. Third party vendors or
contractors will be charged on a "time and materials basis" with bills submitted
monthly, with a detailed break-down of man-days worked, project status and
materials expended. Total, including contingency, is a "cost not to exceed"
commitment for specified deliverables.
---------------------------------------------------------------------------------------------------------------
Component Development Maintenance Budget
Estimate
---------------------------------------------------------------------------------------------------------------
Operational Customer
Database
---------------------------------------------------------------------------------------------------------------
*****
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
SCHEDULE 3
WARRANTS
--------------------------------------------------------------------------------
Grant 5,000, representing at least five percent (5%) of the
fully diluted shares of the company on the Effective
Date
--------------------------------------------------------------------------------
Vesting Schedule 333 vest on signing; 333 vest on the first day of the
sixth month of the Initial Term assuming contract not
terminated; 334 vest on the twelfth month of the initial
Term assuming contract not terminated; 2,000 vest on
first day of the Extended Term assuming contract not
terminated, 1,000 vest on the 2nd anniversary of the
first day of the Extended Term assuming contract not
terminated, and 1,000 vest on renewal of the contract
past the Extended Term.
--------------------------------------------------------------------------------
Strike Price $310 per share
--------------------------------------------------------------------------------
Term 6 years
--------------------------------------------------------------------------------
Rights Not applicable
--------------------------------------------------------------------------------
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
Schedule 4 - Cyber Dialogue Clients
Strictly Confidential
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
Xxxxx.xxx
------------------------------------------------------------------------------------------
GTE Xxxxxxx.xxx
------------------------------------------------------------------------------------------
Thomson
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
IBM-Global Sm. Bus. Time Warner
------------------------------------------------------------------------------------------
IBM-PSG
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
IMP
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
America Online (AOL)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Lending Tree
------------------------------------------------------------------------------------------
Vertical Net
------------------------------------------------------------------------------------------
AOL (Canada)
------------------------------------------------------------------------------------------
AOL (Health Channel) Lycos Warner Brothers
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Bank One
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Xxxxx.xxx
------------------------------------------------------------------------------------------
Y&R
------------------------------------------------------------------------------------------
Modern Media
------------------------------------------------------------------------------------------
Modern Media Yankelovich
------------------------------------------------------------------------------------------
Monsanto
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
Capital One Multimedia Resources
------------------------------------------------------------------------------------------
Cartoon Network NASDAQ
------------------------------------------------------------------------------------------
Cdnow
------------------------------------------------------------------------------------------
Netscape
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
CNN
------------------------------------------------------------------------------------------
Compaq Organic
------------------------------------------------------------------------------------------
Organic
------------------------------------------------------------------------------------------
Organic - SF
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DeloitteConsulting
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Discovery
------------------------------------------------------------------------------------------
Real Media
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
FirstUSA
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
Garfield Group
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
GE Financial Assurance
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Global Sports
------------------------------------------------------------------------------------------
*****
------------------------------------------------------------------------------------------
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
