Exhibit 10.11
[Logo]
INTERNET CONTENT (WORLD WIDE WEB SITE) DISTRIBUTION AGREEMENT
THIS AGREEMENT, dated as of November 24, 1999 (the "Effective Date"), is made by
and between XxxxXxxxx.xxx, Inc., a Delaware corporation, ("InfoSpace"), with
offices at 00000 XX 00xx Xxxxxx, Xxxxxxx, XX 00000, and Freei Networks Inc., a
Washington corporation ("Company"), with offices at 000 Xxxxx 000xx Xx. Xxxxx
000, Xxxxxxx Xxx, XX 00000.
RECITALS
This Agreement is entered into with reference to the following facts:
A. InfoSpace maintains on certain locations of its Web Sites (as defined below)
and makes available to Internet users certain content, resources, archives,
indices, software, catalogs and collections of information (collectively, such
materials are identified in Exhibit A and referred to herein as the "Content").
B. InfoSpace wishes to grant certain rights and licenses to Company with respect
to access to the Content and certain other matters, and Company wishes to grant
certain rights and licenses to InfoSpace with respect to the Company Web Sites
(as defined below) and certain other matters, as set forth in this Agreement.
AGREEMENT
The parties agree as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms have the following defined
meanings:
"BANNER ADVERTISEMENT" means a rotating banner advertisement of up to
approximately 468 x 60 pixels located at the top and/or bottom of a Web Page, or
other advertisements, sponsorships or other promotions on or related to a
Personal Desktop Portal Page, as may be designated by InfoSpace and Company.
"CO-BRANDED PAGES" means, collectively, Query Pages, Results Pages and Personal
Desktop Portal Pages.
"COMPANY MARKS" means those Trademarks of Company set forth on Exhibit B hereto
and such other Trademarks (if any) of Company which Company may own or use from
time to time.
"COMPANY WEB SITES" means, collectively, all Web Sites maintained by or on
behalf of Company and its affiliates.
"GRAPHICAL USER INTERFACE" means a graphical user interface, to be designed by
Company and InfoSpace and implemented by InfoSpace pursuant to the terms of this
Agreement, that contains or implements branding, graphics, navigation, content
or other characteristics or features such that a user reasonably would conclude
that such interface is part of the Company Web Sites.
"IMPRESSION" means a user's viewing of any discrete screen of a Co-branded Page
containing any Banner Advertisement.
[*] = Confidential Treatment Requested
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"INFOSPACE MARKS" means those Trademarks of InfoSpace set forth on Exhibit B
hereto and such other Trademarks (if any) as InfoSpace may from time to time
notify Company in writing to be "InfoSpace Marks" within the meaning of this
Agreement.
"INFOSPACE WEB SITES" means, collectively: (a) the Web Site the primary home
page of which is located at xxxx://xxx.xxxxxxxxx.xxx; and (b) other Web Sites
maintained by InfoSpace and its affiliates.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
"PERSON" means any natural person, corporation, partnership, limited liability
company or other entity.
"PERSONAL DESKTOP PORTAL APPLICATION" means a version (as designated by
InfoSpace) of a downloadable software application currently known as "The
InfoSpace Personal Desktop Portal" whereby end users are able to access and
display certain content, and any successors and/or revisions to such application
as InfoSpace may designate in its sole discretion.
"PERSONAL DESKTOP PORTAL PAGE" means any page hosted on the InfoSpace Web Sites,
and served to an end user who accessed such page through a version of the
Personal Desktop Portal Application that such end user downloaded from a Query
Page or Results Page, which may incorporate a Graphical User Interface and/or on
which users may input queries and searches relating to the Content.
"QUERY PAGE" means any page hosted on the InfoSpace Web Sites which may
incorporate the Graphical User Interface and/or on which users clicking directly
from the Company Web Sites may input queries and searches relating to the
Content or may include download of or access to Content.
"RESULTS PAGE" means any page hosted on the InfoSpace Web Sites which may
incorporate the Graphical User Interface and/or displays Content in response to
queries and searches made on a Query Page or Personal Desktop Portal Page.
"TRADEMARKS" means any trademarks, service marks, trade dress, trade names,
corporate names, proprietary logos or indicia and other source or business
identifiers.
"WEB SITE" means any point of presence maintained on the Internet or on any
other public data network. With respect to any Website maintained on the World
Wide Web, such Website includes all HTML pages (or similar unit of information
presented in any relevant data protocol) that either (a) are identified by the
same second-level domain (such as xxxxxxxxx.xxx) or by the same equivalent level
identifier in any relevant address scheme, or (b) contain branding, graphics,
navigation or other characteristics such that a user reasonably would conclude
that the pages are part of an integrated information or service offering.
2. CERTAIN RIGHTS GRANTED.
2.1 INFOSPACE GRANT. Subject to the terms and conditions of this
Agreement, InfoSpace hereby grants to Company the following rights:
(a) the right to include on the Company Web Sites hypertext
links (whether in graphical, text or other format) which enable "point and
click" access to locations of the InfoSpace Web Sites specified by InfoSpace
(and subject to change by InfoSpace from time to time); and
(b) the right to permit users to link to Results Pages via
Query Pages and/or to Personal Desktop Portal Pages hosted on the InfoSpace Web
Sites.
2.2 COMPANY GRANT. Subject to the terms and conditions of this
Agreement, Company hereby grants InfoSpace the following rights:
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(a) the right to include on the InfoSpace Web Sites hypertext
links (whether in graphical, text or other format) which enable "point and
click" access to locations of the Company Web Sites specified by Company (and
subject to change by Company from time to time);
(b) the right to sell and serve Banner Advertisements and
other promotions on the Co-branded Pages; and
(c) the right to track the number of Impressions.
2.3 LIMITATIONS. Company and its affiliates shall have no right to
reproduce or sub-license, re-sell or otherwise distribute all or any portion of
the Content to any Person including via the Internet (including the World Wide
Web) or any successor public or private data network. This Agreement and
delivery of the Content or any portion hereunder to Company shall not cause
InfoSpace to be in violation of any law of any jurisdiction or third party
agreement, and InfoSpace may at any time modify its grant of rights to the
extent necessary to ensure compliance. InfoSpace may from time to time issue
additional guidelines with respect to use or display of any of-the Content, to
which Company will adhere. Company shall implement and/or cooperate with
InfoSpace in its implementation of bug fixes, updates, and minimum build
requirements for any Content supplied by InfoSpace, promptly upon the request of
InfoSpace. Neither party shall have any right to: (a) edit or modify any Banner
Advertisements submitted for a Cobranded Page (but without limiting InfoSpace's
right to reject any Banner Advertisements pursuant to this Agreement); or (b)
remove, obscure or alter any notices of Intellectual Property Rights appearing
in or on any materials (including Banner Advertisements) provided by the other
party.
2.4 COMPANY MARKS LICENSE. Subject to Section 2.6, Company hereby
grants InfoSpace the right to use, reproduce, publish, perform and display the
Company Marks: (a) on the InfoSpace Web Sites in connection with the posting of
hyperlinks to the Company Web Sites; (b) in and in connection with the
development use, reproduction, modification, adaptation, publication, display
and performance of the Graphical User Interface, Results Pages and (if
applicable) the Personal Desktop Portal Pages; and (c) in promotional and
marketing materials, content directories and indexes, and electronic and printed
advertising, publicity, press releases, newsletters and mailings about
InfoSpace.
2.5 INFOSPACE MARKS LICENSE. Subject to Section 2.6, InfoSpace hereby
grants the right to use, reproduce, publish, perform and display the InfoSpace
Marks: (a) on the Company Web Sites in connection with the posting of hyperlinks
to the InfoSpace Web Sites; (b) in and in connection with the development, use,
reproduction in promotional and marketing materials, content directories and
indexes, and electronic and printed advertising, publicity, press releases,
newsletters and mailings about Company.
2.6 APPROVAL OF TRADEMARK USAGE. InfoSpace shall not use or exploit in
any manner any of the Company Marks, and Company shall not use or exploit in any
manner any of the InfoSpace Marks, except in such manner and media as the other
party may consent to in writing, which consent shall not be unreasonably
withheld or delayed. Either party may revoke or modify any such consent upon
written notice to the other party.
2.7 NONEXCLUSIVITY. Each party acknowledges and agrees that the rights
granted to the other party in this Agreement are non-exclusive, and that,
without limiting the generality of the foregoing, nothing in this Agreement
shall be deemed or construed to prohibit either party from participating in
similar business arrangements as those described herein including soliciting
third party advertisements or other materials, serving advertisements or other
materials to third parties' Web Sites, or hosting or permitting third parties to
place advertisements on such party's Web Site, whether or not, in each such
case, such advertisements are competitive with the products, services or
advertisements of the other party.
3. CERTAIN OBLIGATIONS OF THE PARTIES.
3.1 GRAPHICAL USER INTERFACE AND CO-BRANDED PAGES. To the extent
provided in this Agreement, Company and InfoSpace will cooperate to design the
user-perceptible elements of the Graphical User Interface, with the goals of:
(a) conforming the display output of the "look and feel"
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associated with the applicable Company Web Sites; and (b) maximizing the
commercial effectiveness thereof. Following agreement by the parties upon the
design specifications thereof, InfoSpace will use commercially reasonable
efforts to develop the Graphical User Interface and to implement the same on
Co-branded Pages. InfoSpace shall have no liability or obligation for failure to
develop or implement the Graphical User Interface or any Co-branded Pages as
contemplated by this Section 3. 1, or for any nonconformity with the design
specifications agreed upon by the parties, provided InfoSpace has used
commercially reasonable efforts to develop and implement the same as provided in
this Section 3.1. The URL for the Co-Branded Pages shall not include Company's
domain name.
3.2 COMPANY OBLIGATIONS. Unless otherwise designated by InfoSpace, the
InfoSpace logo and at least one other link pointing to pages of the InfoSpace
Web Sites specified by InfoSpace (and subject to change by InfoSpace from time
to time) will be present on all Co-branded Pages. Each link contemplated by this
Section 3.2 shall be: (a) prominent in relation to links to other Web Sites on
the applicable page (and in any event at least as prominent as any link to any
third party Web Site); and (b) above-the-fold (i.e., immediately visible to any
user accessing the applicable page without the necessity of scrolling downward
or horizontally).
3.3 ACCESSIBILITY OF WEB SITES. Each party will use commercially
reasonable efforts to maintain accessibility of its Web Sites.
3.4 IMPRESSION AND OTHER INFORMATION. InfoSpace shall track and
allow the Company on a monthly basis to remotely access in electronic form
information maintained by InfoSpace concerning as applicable 1)Number of
Impressions. 2) each click-through to Infospace applications 3) data
regarding Banner Inventory on co-branded pages; 4) gross revenues received by
Infospace from banner sales.
3.5 PUBLICITY. The parties may work together to issue publicity and
general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall have
any obligation to do so. In addition, neither party shall issue such publicity
and general marketing communications concerning their relationship without the
prior written consent of the other party (not to be unreasonably withheld).
Neither party shall disclose the terms of this Agreement to any third party
other than its outside counsel, auditors, and financial advisors, except as
required by law.
4. ADVERTISING AND REVENUE.
4.1 PLACEMENT OF BANNER ADVERTISEMENTS. In addition to the terms and
conditions otherwise set forth in this Agreement, Banner Advertisements sold on
the Co-branded Pages shall be governed by the terms and conditions set forth on
Exhibit C.
4.2 REMUNERATION; COLLECTION. The Company or Infospace will pay the
amounts as set forth on Exhibit C. Any amount not paid when due, or as
invoiced, will be subject to a finance charge equal to one and one-half
percent (1.5%) per month or the highest rate allowable by law, whichever is
less, determined and compounded daily from the date due until the date paid.
Payment of such finance charges will not excuse or cure any breach or default
for late payment. InfoSpace or Company may accept any check or payment
without prejudice to its rights to recover the balance due or to pursue any
other right or remedy. No endorsement or statement on any check or payment or
letter accompanying any check or payment or elsewhere will be construed as an
accord or satisfaction. Unless explicitly stated on Exhibit C, all amounts
payable under this Agreement are denominated in United States dollars and
Company will pay all amounts payable under this Agreement in lawful money of
the United States. Unless explicitly stated on Exhibit C, InfoSpace shall
have no obligation to share with, allow Company to sell, or account to
Company regarding, any sums received by InfoSpace or any of its affiliates
from any advertisements or promotions on any of the InfoSpace Web Sites. In
the event Company or Infospace fails to make timely payment, InfoSpace or
Company shall have the right, in addition to all other rights under this
Agreement, to immediately terminate all links, content, or services provided
to the other party under this Agreement. If Company or Infospace fails to
make timely payment, the defaulting party will be responsible for all
reasonable expenses (including attorney fees) incurred by the other party in
collecting such amounts.
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5. Warranties, Indemnification and Limitation of Direct Liability.
5.1 Warranties
The parties to this Agreement represent and warrant as follows:
a) Each party warrants that it has the full corporate right,
power and authority to enter into this Agreement and to
perform the acts required of it hereunder;
b) Each party warrants that its execution of this Agreement by
such party and performance of its obligations hereunder, do
not and will not violate any agreement to which it is a party
or by which it is bound; and in performance under and related
to this Agreement, the parties shall comply with all
applicable laws, rules and regulations (including, without
limitation, privacy, export control and obscenity laws); and
c) Each party warrants that when executed and delivered, this
Agreement will constitute the legal, valid and binding
obligation of such party, enforceable against it in accordance
with its terms.
d) Each party warrants that its Web Sites and the content
contained therein, and all Banner Advertisements served or
submitted to the Co-branded Pages, as the case may be, will
not contain any material that is obscene, pornographic,
profane, fraudulent, libelous or defamatory, or infringing of
any third party Intellectual Property Rights.
5.2 INDEMNIFICATION. Each party (the "Indemnifying Party") will defend,
indemnify and hold harmless the other party (the "Indemnified Party"), and the
respective directors, officers, employees and agent of the Indemnified Party,
from and against any and all claims, costs, losses, damages, judgments and
expenses (including reasonable attorneys' fees) arising out of or in connection
with any third-party claim alleging any breach of such party's representations
or warranties or covenants set forth in this Agreement. The Indemnified Party
agrees that the Indemnifying Party shall have sole and exclusive control over
the defense and settlement of any such third party claim. The Indemnified Party
shall promptly notify the Indemnifying Party of any such claim of which it
becomes aware and shall: (a) at the Indemnifying Party's expense, provide
reasonable cooperation to the Indemnifying Party in connection with the defense
or settlement of any such claim; and (b) at the Indemnified Party's expense, be
entitled to participate in the defense of any such claim. The Indemnifying Party
shall not acquiesce to any judgment or enter into any settlement that adversely
affects the Indemnified Party's rights or interests without prior written
consent of the Indemnified Party.
5.3 LIMITATION OF LIABILITY; DISCLAIMER.
(a) Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. INFOSPACE'S
LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING
ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR
STRICT LIABILITY OF INFOSPACE) UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF THE
PRODUCTS OR SERVICES RENDERED BY THE PARTIES UNDER THIS AGREEMENT (INCLUDING ANY
SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY THE
PARTIES OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE CO-BRANDED PAGES OR
PROVIDING CONTENT), THE PARTIES' WEB SITES AND ANY OTHER ITEMS OR SERVICES
FURNISHED UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTYS' AGGREGATE
LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE COMPENSATION PAID
THE OTHER PARTY UNDER THIS AGREEMENT.
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(b) No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.), AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN
EACH CASE, REGARDING THEIR WEB SITES, ANY PRODUCTS OR SERVICES DESCRIBED
THEREON, ANY BANNER ADVERTISEMENTS, ANY SOFTWARE, OR ANY OTHER ITEMS OR SERVICES
PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
BOTH PARTIES ACKNOWLEDGE THAT THE PARTIES' WEB SITES AND THE CONTENT (INCLUDING
ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY
THE PARTIES OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE WEB SITES OR THE
CONTENT OR PERFORMANCE OF ANY SERVICES HEREUNDER) ARE PROVIDED "AS IS" WITHOUT
ANY WARRANTIES OF ANY KIND. THE PARTIES MAKE NO WARRANTY THAT THEY WILL CONTINUE
TO OPERATE THEIR WEB SITES OR OFFER THE CONTENT IN THEIR CURRENT FORM, THAT
THEIR WEB SITES OR THE CONTENT WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE
SITES OR THE CONTENT WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF THE OTHER
PARTY, OR THAT THE CONTENT, SOFTWARE OR ANY OTHER ANY MATERIALS ON ITS WEB SITES
OR THE SERVERS AND SOFTWARE THAT MAKES ITS WEB SITES AVAILABLE ARE FREE FROM
ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS.
6. TERM AND TERMINATION.
THE TERM OF THIS AGREEMENT IS AS SET FORTH ON EXHIBIT C.
6.2 TERMINATION. Either party may terminate the Term upon not less than
thirty (30) days' prior written notice to the other party of any
material breach hereof by such other party, provided that such
other party has not cured such material breach within such thirty
(30) day period.
6.3 Either Party may terminate this agreement, without cause, by
providing a thirty (30) day prior written notice to the other
party.
6.4 EFFECT OF TERMINATION. Upon termination or expiration of the Term
for any reason, all rights and obligations of the parties under this Agreement
shall be extinguished, except that: (a) all accrued payment obligations
hereunder shall survive such termination or expiration; and (b) the rights and
obligations of the parties under Sections 4.2, 4.3, 5, 6, 7 and 8 shall survive
such termination or expiration.
7. INTELLECTUAL PROPERTY.
7.1 COMPANY. AS BETWEEN THE PARTIES, Company retains all right, title
and interest in and to the Company Web Sites (including, without limitation, any
and all content, data, URLs, domain names, technology, software, code, user
interfaces, "look and feel", Trademarks and other items posted thereon or used
in connection or associated therewith; but excluding any Content or other items
supplied by InfoSpace) and the Company Marks along with all Intellectual
Property Rights associated with any of the foregoing. All goodwill arising out
of InfoSpace's use of any of the Company Marks shall inure solely to the benefit
of Company.
7.2 INFOSPACE. As between the parties, InfoSpace retains all right,
title and interest in and to the Content and the InfoSpace Web Sites (including,
without limitation, any and all content, data, URLs, domain names, technology,
software (including, without limitation, the Personal Desktop Portal
Application), code, user interfaces, "look and feel", Trademarks and other items
posted thereon or used in connection or associated therewith; but excluding any
items supplied by Company), user data gathered
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from or through any InfoSpace tools or applications, and the InfoSpace Marks,
along with all Intellectual Property Rights associated with any of the
foregoing. All goodwill arising out of Company's use of any of the InfoSpace
Marks shall inure solely to the benefit of InfoSpace.
7.3 COPYRIGHT NOTICES. All Co-branded Pages will include the following
acknowledgment, along with the InfoSpace logo.
"Powered by InfoSpace" or "Powered by XxxxXxxxx.xxx"
InfoSpace and Company acknowledge that the Co-branded Pages may also contain
copyright and patent notices of copyrighted or copyrightable works, including
those of InfoSpace Content providers. InfoSpace will be given credit in
advertisements of Company which promote the Content services provided by
InfoSpace in a manner such as "brought to you by XxxxXxxxx.xxx" or similar text.
7.4 OTHER TRADEMARKS. InfoSpace shall not register or attempt to
register any of the Company Marks or any Trademarks which Company reasonably
deems to be confusingly similar to any of the Company Marks. Company shall not
register or attempt to register any of the InfoSpace Marks or any Trademarks
which InfoSpace reasonably deems to be confusingly similar to any of the
InfoSpace Marks.
7.5 FURTHER ASSURANCES. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 7.
8. GENERAL PROVISIONS.
8.1 CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that each
party may disclose the terms and conditions of this Agreement to its immediate
legal and financial consultants in the ordinary course of its business. Each
party agrees to use commercially reasonable efforts to protect Confidential
Information of the other party, and in any event, to take precautions at least
as great as those taken to protect its own confidential information of a similar
nature. Company acknowledges that the terms of this Agreement and user
information are Confidential Information of InfoSpace. The foregoing
restrictions shall not apply to any information that: (a) was known by the
Receiving Party prior to disclosure thereof by the other party; (b) was in or
entered the public domain through no fault of the Receiving Party; (c) is
disclosed to the Receiving Party by a third party legally entitled to make such
disclosure without violation of any obligation of confidentiality; (d) is
required to be disclosed by applicable laws or regulations (but in such event,
only to the extent required to be disclosed); or (e) is independently developed
by the Receiving Party without reference to any Confidential Information of the
other party. Upon request of the other party, or in any event upon any
termination or expiration of the Term, each party shall return to the other all
materials, in any medium, which contain, embody, reflect or reference all or any
part of any Confidential Information of the other party. Each party acknowledges
that breach of this provision by it would result in irreparable harm to the
other party, for which money damages would be an insufficient remedy, and
therefore that the other party shall be entitled to seek injunctive relief to
enforce the provisions of this Section 8.1.
8.2 INDEPENDENT CONTRACTORS. Company and InfoSpace are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Company and InfoSpace. Neither party has any authority to enter into agreements
of any kind on behalf of the other party.
8.3 ASSIGNMENT. Company may not assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of InfoSpace; except that either
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party may, without the other party's consent, assign this Agreement or any of
its rights or delegate any of its duties under this Agreement: (a) to any
affiliate of such party; or (b) to any purchaser of all or substantially all of
such party's assets or to any successor by way of merger, consolidation or
similar transaction. Subject to the foregoing, this Agreement will be binding
upon, enforceable by, and inure to the benefit of the parties and their
respective successors and assigns.
8.4 CHOICE OF LAW; FORUM SELECTION. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Washington
without reference to its choice of law rules. Company hereby irrevocably
consents to exclusive personal jurisdiction and venue in the state and federal
courts located, in King County, Washington with respect to any actions, claims
or proceedings arising out of or in connection with this Agreement, and agrees
not to commence or prosecute any such action, claim or proceeding other than in
the aforementioned courts.
8.5 NONWAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
8.6 FORCE MAJEURE. Neither party shall be deemed to be in default of or
to have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly or
indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, failure of equipment and/or software, other
catastrophes or any other occurrences which are beyond such party's reasonable
control.
8.7 NOTICES. Any notice or other communication required or permitted to
be given hereunder shall be given in writing and delivered in person, mailed via
confirmed facsimile or e-mail, or delivered by recognized courier service,
properly addressed and stamped with the required postage, to the individual
signing this Agreement on behalf of the applicable party at its address
specified in the opening paragraph of the agreement and shall be deemed
effective upon receipt. Either party may from time to time change the individual
to receive notices or its address by giving the other party notice of the chance
in accordance with this section. In addition, a copy of any notice sent to
InfoSpace shall also be sent to the following address:
XxxxXxxxx.xxx, Inc. Freei Networks, Inc.
00000 XX 00xx Xxxxxx 000 Xxxxx 000xx Xx. Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx Xxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attention: General Counsel Attention: Xxxxxx Xxxxx
8.8 SAVINGS. In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. If any provision of
this Agreement shall, for any reason, be determined by a court of competent
jurisdiction to be excessively broad or unreasonable as to scope or subject,
such provision shall be enforced to the extent necessary to be reasonable under
the circumstances and consistent with applicable law while reflecting as closely
as possible the intent of the parties as expressed herein.
8.8 INTEGRATION. This Agreement contains the entire understanding of
the parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements or negotiations between InfoSpace and
Company concerning the subject matter hereof, and cannot be amended except by a
writing signed by both parties. This Agreement does not constitute an offer by
InfoSpace and it shall not be effective until signed by both parties.
8.9 COUNTERPARTS; ELECTRONIC SIGNATURE. This Agreement may be executed
in counterparts, each of which will be deemed an original, and all of which
together constitute one and the same instrument. To expedite the process of
entering into this Agreement, the parties acknowledge that Transmitted Copies of
the Agreement will be equivalent to original documents until such time as
original documents are
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completely executed and delivered. "Transmitted Copies" will mean copies that
are reproduced or transmitted via photocopy, facsimile or other process of
complete and accurate reproduction and transmission.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
FREEI NETWORKS, INC. XXXXXXXXX.XXX, INC.
("Company) ("InfoSpace")
By: /s/ Xxx XxXxxxxxxx By /s/ Xxxxxxx Xxxxxx
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Name Xxxxxx (Xxx) XxXxxxxxxx Name: Xxxxxxx Xxxxxx
Title President/CEO Title: V.P. Bus. Dev.
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EXHIBIT A
CONTENT
The Content consists of, but is not limited to, the following indexes,
directories and other items and services (as the same may by updated, revised or
modified by InfoSpace in its sole discretion from time to time):
1. Yellow Pages
2. White Pages
3. Netsearch
4. Classifieds
5. City Guides
6. Finance
7. News
8. Sports news
9. Community
10. Government
11. E-Shopping
12. International Listings
13. Business Services
14. Entertainment
15. ActiveShopper
16. InfoSpace "Personal Desktop Xxxxxx"
00. Other items and services that may from time to time be added to the
InfoSpace Web Sites by InfoSpace (in its sole discretion)
18. MyFreei - personal section
The following items are not included as part of the Content:
1. Web Page Creator
2. Event Manager
3. Forums
4. Web-based email
5. Address Book
6. Chat
The actual name of these services may change. Company must obtain the
prior approval of InfoSpace if Company desires to change the name of
any of these services.
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EXHIBIT B
TRADEMARKS
COMPANY MARKS
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- XXXXX.XXX (STYLIZED)
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INFOSPACE MARKS
InfoSpace
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The Brand That's Building The Internet
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ActiveShopper
PageExpress
Search Engine For The Real World
The Stuff That Portals Are Made Of
Personal Desktop Portal
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EXHIBIT C
1. DEFINITIONS. As used in this Agreement, the following terms have the
following defined meanings:
CO-BRAND Fee" means a monthly nonrefundable sum in the amount of [*].
"IMPRESSION THRESHOLD DATE" means the first date on which the number of
Impressions meets or exceeds the Impression Threshold.
2. TERM. The term of this Agreement shall commence on the Effective Date and,
unless earlier terminated or extended as provided in this Agreement, shall end
upon the [*] anniversary of this Agreement ("Term").
3. CO-BRAND FEE. Infospace [*] the co-brand fee.
4. BANNER ADVERTISEMENTS. InfoSpace and/or Company shall have the right to serve
Banner Advertisements on the Co-branded Pages, to be determined from the choices
listed below. The appearance of the Banner Advertisements will be as reasonably
determined by InfoSpace; provided, that InfoSpace may reject any Banner
Advertisement if such Banner Advertisement would materially adversely affect the
download time or performance of such Co-branded page. Any available inventory of
Banner Advertisements sold by the Company for the Co-branded Pages shall be "run
of site" (e.g., not targeted to any specific type or area of the Co-branded
Pages). - The Company shall provide the content for any Banner Advertisements
sold by the Company to InfoSpace at the Company's sole expense and in a form and
format approved by InfoSpace. Neither party will submit for any Co-branded Page
any Banner Advertisement which contains any material that is libelous or
defamatory or that infringes any Intellectual Property Right or other right of
any third party.
FOUR OPTIONS FOR GENERATING REVENUE FROM CO-BRANDED PAGES:
The parties will agree in writing to one of the following four options
in connection with the sale of Banner Advertisements on the Co-branded
pages.
1. Infospace and COMPANY WILL divide banner inventory on
Co-branded Pages [*] and each party will be entitled
to retain all sums it receives from the sale of its
banner inventory.
2. Infospace may sell the Banner Advertisements exclusively.
Infospace will retain [*] of gross revenue as cost of sales
and will deliver to Company [*] of the remaining gross
revenue.
3. Company may sell the Banner Advertisements exclusively,
Company will retain [*] of gross revenues to cover cost of
sales and will deliver to InfoSpace [*] of the remaining
gross revenue.
4. Infospace shall have the exclusive right to sell banner
inventory and will pay to Company on a monthly basis [*]
for each click-through to Infospace applications.
5. RECORDS AND AUDIT; LATE PAYMENTS. During the Term, the parties shall maintain
accurate records of click-through revenues and fees payable to the other
party pursuant to this Exhibit C. Either party may, upon ten (10) days advance
notice to the other party, examine and audit such records of the other party in
order to verify the figures reported in any reports made to the other party and
any amounts owed to the other party under this Agreement. Any such audit shall
be conducted, to the extent possible, in a manner that does not interfere with
the ordinary business operations of the other party. In the event that any audit
shall reveal an underpayment of more than five percent (5%) of the amounts
due for any quarter, the other party will reimburse the other party for the
actual costs of such audit.
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[*] = Confidential Treatment Requested
