EXHIBIT 10.18
ADVERTISING AND CONTENT AGREEMENT
THIS AGREEMENT is made effective this 30/th/ day of November, 1999 (the
"Effective Date"), by and between The XxxXxx.xxx, Inc., a Florida corporation
(the "Company"), and The BigBallot, Inc., a Delaware corporation (the
"BigBallot"), with reference to the following facts:
WHEREAS, the Company owns and operates a web site on the Internet at
xxx.xxxxxxxxx.xxx which, among other things, is an advanced portal and contains
a megasearch engine and specialty search engines;
WHEREAS, the Company has developed certain proprietary technology
("Technology"), which enables the Company, among other things, to conduct
surveys, balloting and polling and to collect, tabulate, sort and process data
on the Internet in an efficient and effective manner;
WHEREAS, the BigBallot is an affiliate within the Company's network of
"Big" affiliates which has a worldwide, nonexclusive, perpetual, fully paid,
royalty free license to use the Technology in connection with an Internet web
site to be operated by BigBallot where users can voice their opinions and vote
on a wide range of topics;
WHEREAS, BigBallot's Internet web site ("BigBallot web site") contains news
and discussions on a variety of topics, including business, finance, sports,
entertainment, and politics, and conducts opinion polls which allow users to
vote and express their opinions on various issues relating to such topics
(collectively, the "Content");
WHEREAS, the Company desires to (i) have a direct-link advertising banner
site on the BigBallot web site and such other forms of advertising upon which
the parties may agree, and (ii) with respect to the Company's own web site,
display Content from the BigBallot web site including, without limitation,
conducting its own polling and balloting relating to the Content on its web
site, upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the covenants, agreements and
considerations herein contained, the Company and BigBallot agree as follows:
1. Advertising and License.
(a) The BigBallot hereby agrees, during the Term hereof, to provide
strategic placement of advertising and marketing for the Company on the
BigBallot's web site, which shall include permanent, perpetual and continuous
advertising on the BigBallot's web site and continuous banners on and links from
its web site to the Company's web site. All advertising and banners shall be
pre-approved by the Company.
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(b) The BigBallot hereby grants to Company, during the Term hereof,
the non-exclusive, non-transferable right to exhibit, display, transmit,
reproduce or reformat all or any part of the Content on the Company's web site,
including, without limitation, the right of Company to concurrently conduct
polling and balloting relating to the Content on the Company's web site.
(c) BigBallot shall deliver the Content including all updates
thereof, at such times as the parties may agree, but no less frequently than
monthly.
(d) Company shall exhibit, display, transmit, reproduce and otherwise
deliver the Content in its entirety (without any alteration or deletion other
than reformatting as reasonably permitted by BigBallot), including all credits
and copyright notices included in the Content as provided to Company. Company
acknowledges that the Content will consist solely of balloting and polling
related information and that BigBallot may change the style, form or content of
and eliminate or discontinue segments of the Content from time to time and at
any time in BigBallot's sole discretion. Use of the Content shall be confined
to the exercise of the rights and licenses granted herein, and Company shall
exhibit, display, transmit, reproduce and otherwise deliver the Content without
interruption and shall not edit, alter, modify or prepare any derivative works
of the Content or any portion thereof except as necessary to reformat the
Content as reasonably permitted by BigBallot. Further, in no event shall
Company imply, directly or indirectly, including, without limitation, by
juxtaposing the Content with content provided by Company or others, that
BigBallot provides, endorses, sponsors, certifies or approves of any other
content included within the Company's web sites or any products or services
advertised in or near the Content.
(e) The parties agree that they shall share equally the $10,500 per
month fee payable to Associated Press for the newswire feed pursuant to the
terms of the agreement with Associated Press attached hereto as Exhibit 1(e),
and shall equally any other reasonably incurred charges pursuant to such
agreement.
2. Fees.
(a) In consideration for the advertising on the BigBallot web site
pursuant to Section 1(a) above, Company agrees that, during the Term, it shall
pay to the BigBallot a monthly fee of fifteen thousand dollars ($15,000.00).
(b) In consideration for the Content license from the BigBallot
pursuant to Section 1(b) including, without limitation, the right to
concurrently conduct polling and balloting on its web site, Company agrees that,
during the Term, it shall pay to the BigBallot a monthly fee of seventeen
thousand dollars ($17,000.00).
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(c) The monthly fees shall be due and payable in advance on the first
business day of each month.
3. Ownership.
(a) Company hereby acknowledges and agrees that, as between BigBallot
and Company, BigBallot is the sole owner of all right, title and interest in and
to the Content.
4. Indemnification.
(a) Company shall defend, indemnify and hold harmless BigBallot and
its affiliates from and against any loss, cost or damage arising out of any
claim by third parties relating to any materials provided by BigBallot to the
BigBallot for use in connection with the advertisements posted by the Company on
its web site.
(b) Company shall defend and hold harmless BigBallot and its
affiliates against any loss, cost or damage arising out of any claim by third
parties relating to the Company's web site or its misuse of the Content;
provided, however, that Company shall not be obligated under the foregoing to
the extent the claim is covered by clause (c) below.
(c) BigBallot shall defend, indemnify and hold harmless Company and
its affiliates from and against any loss, cost or damage arising out of any
claim by third parties that the Content infringes any U.S. copyright or
trademark of, or results in the misappropriation of trade secrets of, another
party, unless such claim rises out of (i) the specific requirement of Company,
(ii) any modification of the Content by Company, or (iii) a combination of the
Content with other data, products, materials, programming, or information not
provided by BigBallot.
(d) The obligation of each party ("Indemnitor") under this Section 4
to indemnify, defend and hold harmless the other party ("Indemnitee") shall be
subject to the Indemnitee providing prompt notice of the claim giving rise to
such obligation, and Indemnitee's right to select legal counsel to represent
both parties, provided there is no conflict between such counsel's
representation of both Indemnitor and Indemnitee.
5. No Warranty. ALL BALLOTING AND POLLING INCLUDED WITHIN THE CONTENT
ARE PROVIDED "AS IS". BIGBALLOT MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTENT,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR
A COURSE OF PERFORMANCE, AND BIGBALLOT HEREBY EXPRESSLY DISCLAIMS THE SAME.
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6. Limitation of Liability. In no event shall either party be liable to
the other in contract or in tort, or under any other legal theory (including
strict liability), for any indirect, special, incidental, consequential or
similar damages, including lost profits or revenues, arising out of or in
connection with the performance or nonperformance of this Agreement, or for any
claim made against such party by any other entity, even if such party has been
advised of the possibility of such claim.
7. Representations and Warranties. Each party to this Agreement
represents and warrants to the other party that:
(a) such party has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder;
(b) the execution of this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and
will not violate such party's charter documents or any agreement to which such
party is a party or by which it is otherwise bound; and
(c) when executed and delivered by such party, this Agreement will
constitute the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
8. Term and Termination.
(a) The term of this Agreement shall commence on the Effective Date,
and shall, unless sooner terminated as provided below or as otherwise agreed,
remain effective for an initial term of one (1) year (the "Initial Term").
After the Initial Term, this Agreement shall automatically be extended for
successive additional one-year periods (each an "Extension Term"), unless
otherwise terminated by either party by giving written notice to the other party
of its intent not to extend not less than sixty (60) days prior to the end of
the Initial Term or any Extension Term then in effect. As used herein, the
"Term" shall mean the Initial Term and any Extension Term(s). The compensation
to be paid to the Company for each Extension Term shall be at the current rate,
unless prior to the commencement of each Extension Term, the parties negotiate
new compensation hereunder.
(b) Notwithstanding the foregoing, this Agreement may be terminated
at any time by either party, effective immediately upon notice, if the other
party: (i) becomes insolvent; (ii) files a petition in bankruptcy; (iii) makes
an assignment for the benefit of its creditors; or (iv) breaches its obligations
of confidentiality set forth in Section 9 below. Either party may terminate this
Agreement, effective upon thirty (30) days notice, in the event that the other
party
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breaches any of its representations, warranties, covenants or agreements
contained herein which breach is not remedied within thirty (30) days following
written notice to such party.
(c) Any termination pursuant to this Section 8 shall be without any
liability or obligation of the terminating party, other than with respect to any
breach of obligations under this Agreement prior to termination. The provisions
in Sections 3, 4, 5, 6, 9, and 10 shall survive any termination or expiration of
this Agreement.
(d) This Agreement may be terminated immediately by either party,
without liability to the other, upon written notice, if said party terminates or
cancels it web site on the Internet.
Upon any termination of this Agreement, each party shall promptly
deliver to the other party all Confidential Information (defined below) and
property belonging to the other party that is in its possession or under its
control, and neither party shall retain copies or reproductions of such
Confidential Information.
9. Confidentiality and Non-Circumvention.
(a) Each party acknowledges and agrees that it will have access to or
be provided with confidential information of the other party during the term of
this Agreement. As used herein, the term "Confidential Information" shall mean
any and all proprietary or confidential information of a party, including,
without limitation such party's business plan, business presentation or related
proprietary and financial information as well as other confidential or
proprietary information of such party regarding such party's business, plans,
financial results and statements, markets, projected activities, customers and
results of operations, requirements and sources, contracts, means, methods and
processes of providing services, copyrights, patents, trademarks, trade secrets,
and financial information.
(b) Each party agrees to keep the Confidential Information of the
other party in the strictest confidence, and agrees that it will not, directly
or indirectly, publish or disclose, or authorize the publication or disclosure
of, or assist any third party in publishing or disclosing, any Confidential
Information to anyone other than its employees or consultants, but only to the
extent necessary for the fulfillment of its obligations under this Agreement and
subject in each such case to the such party using its best efforts to ensure
that the persons to whom Confidential Information is disclosed keep such
information confidential and do not use such Confidential Information except for
the purposes for which the disclosure is made. Each party agrees to comply with
the other party's policies and regulations, as may be reasonably established
from time to time, for the protection of its Confidential Information.
(c) Each party's confidentiality obligations shall continue with
respect to each item of Confidential Information, including after the
termination of this Agreement, until
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such time as such party can show that any such item of Confidential Information
(i) has legally and properly entered the public domain through a source other
than its own and through no fault of its own, (ii) has legally and properly been
received from an unrelated third party through no breach of any agreement with
the other party and without an obligation to keep it confidential, or (iii) was
known to such party or was in such party's possession prior to the receipt of
such item of Confidential Information from the other party.
(d) Each party acknowledges that the other party's Confidential
Information is of a special, unique and extraordinary character and for that
reason the other party will be irreparably damaged in the event that the
confidentiality or non-circumvention obligations imposed upon it, as set forth
herein, are not specifically enforced. Accordingly, each party agrees that the
other party shall be entitled, at its election, to institute and prosecute
proceedings against it, as set forth herein, in any court of competent
jurisdiction, either at law or equity, to: (a) obtain damages for breach of the
obligations hereunder; (b) enforce specific performance of said obligations, or
both. Such remedies are cumulative and not exclusive and shall be in addition
to any and all other remedies which the other party may have, at law or in
equity, in the event the a party breaches any of its obligations hereunder. The
parties hereto confirm that the covenants in this Agreement are expressly deemed
to cover acts of negligence and any inadvertent disclosure or violation of the
terms herein.
10. Independent Contractor Relationship. This Agreement shall in no way
be construed to constitute either party as a partner, joint venturer, agent, or
employee of the other party, and neither party shall act or attempt to act or
represent itself, directly or by implication, as a partner, joint venturer,
agent or employee of the other party. Neither party nor any of its respective
employees shall have any authority to enter into contracts, make commitments or
otherwise bind the other party to any obligations without the other party's
prior written consent.
11. Force Majeure. Neither party shall be liable to the other for any
default or delay in the performance of any of its obligations under this
Agreement if such default or delay is caused, directly or indirectly, by fire,
flood, earthquake or other acts of God; labor disputes, strikes or lockouts;
wars, rebellions or revolutions, riots or civil disorders; accidents or
unavoidable casualties; interruptions in third party transportation or
communications facilities or delays in transit or communications; supply
shortages or the fault or any third party to perform any commitment to such
party; laws, treaties, agreements, actions, inaction's, rulings, regulations,
decisions or requirements of any government, tribunal or governmental agency;
litigation to which such party may become a party; or any other cause, whether
similar or dissimilar to those enumerated herein, beyond such party's reasonable
control.
12. Assignment. Neither party may assign this Agreement without the prior
written consent of the other, which consent shall not be unreasonably withheld;
provided, however, that no consent shall be necessary for a party to assign this
Agreement to one of its affiliates or an entity acquiring all or substantially
all of the stock or assets of such party.
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13. Miscellaneous.
(a) This Agreement contains the complete and exclusive agreement
between the parties with respect to the subject matter hereof, superseding and
replacing any and all prior agreements, communications, and understandings, both
written and oral, regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by both
parties.
(b) This Agreement will be governed by and construed in accordance
with the laws of the State of California, without reference to conflicts of laws
rules, and without regard to its location of execution or performance.
(c) If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
(d) All notices, requests and other communications called for by this
Agreement shall be deemed to have given upon receipt if made by mail, courier or
personal delivery, or immediately if made by telecopy or electronic (confirmed
by concurrent written notice sent first-class U.S. mail, postage prepaid):
The XxxXxx.xxx, Inc.: The BigBallot, Inc.:
2939 Xxxx Rock 0000 XxxXxxxxx Xxxx.
Xxxxx 000 Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000 Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxx Attn: Xxxx Xxxx, President
or to such other addresses as either party shall specify to the other. Notice
by any other means shall be deemed made when actually received by the party to
which notice is provided.
(e) Except for matters covered by Section 9 above, all disputes
arising out of or in connection with this Agreement shall be finally settled
under the Rules of American Arbitration Association ("AAA") by one or more
arbitrators appointed in accordance with said Rules. The place of arbitration
shall be Orange County, California. The parties hereby renounce any right of
recourse which they may have before the court of any jurisdiction except to
obtain preliminary or injunctive relief or enforce an award of the arbitrator.
If any award rendered by AAA in accordance with this arbitration
clause would not be capable of being executed in the jurisdiction of a party
against whom a claim for payment is made or where that party resides or carries
on business, neither the award nor the said
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arbitration clause shall bar a party hereto from taking action before the courts
that have jurisdiction over such other party.
(f) In the event that any party shall bring an action or arbitration
in connection with the performance, breach or interpretation hereof, then the
prevailing party in such action, as determined by the court or other body having
jurisdiction, shall be entitled to recover from the losing party in such action,
as determined by the court or other body having jurisdiction, all reasonable
costs and expenses of litigation or arbitration, including reasonable attorneys'
fees, court costs, costs of investigation and other costs reasonably related to
such proceeding, in such amounts as may be determined in the discretion of the
court or other body having jurisdiction.
(g) The various section headings are inserted for purposes of
convenience only and shall not affect the meaning or interpretation of this
Agreement or any section hereof.
(h) No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
(i) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
THE XXXXXX.XXX, INC. THE BIGBALLOT, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx Xxxx
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Name: Xxxxx X. Xxxxx Name: Xxxx Xxxx
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Title: CEO Title: President
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Exhibit 1(e)
Associated Press Agreement
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