CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT, AND NON-PUBLIC INFORMATION HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
[***] indicates confidential treatment for omitted text has been requested.
EXHIBIT 10.13
CONFIDENTIAL
This agreement ("Agreement") is entered into as of the 17th day of September,
1998 ("Effective Date"), by and between Excite, Inc., a Delaware corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and
Online Specialty Retailing Inc. dba Great Food Online, a Washington
corporation, located 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("Client").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx
(the "Excite Site") and owns, manages or is authorized to place
advertising on affiliated sites on the Internet worldwide
(collectively, the "Excite Network") which, among other things,
allows its users to search for and access content and other sites
on the Internet. For purposes of this Agreement, the parties hereby
acknowledge that the Excite Network does not include the site on
the Internet located at xxxx://xxxx.xxxxxxxx.xxx and/or other URLs
or locations designated by Netscape Communications Corporation.
B. Within the Excite Site, Excite currently organizes certain content
into topical channels (the "Channels") and provides Internet search
service ("Excite Search").
C. Client is engaged in the business of specialty food retailing and
distribution at its site on the Internet located at xxxxxxxxx.xxx
(the "Client Site").
D. Client wishes to promote its business to users of the Excite
Network through promotions and advertising in various portions of
the Excite Network.
Therefore, the parties agree as follows:
1. SPONSORSHIP OF THE EXCITE SHOPPING AND LIFESTYLE CHANNELS
(a) Commencing on the Launch Date (as defined below), Client will be
promoted in the Excite Shopping Channel as follows:
(i) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Daily
Deals promotion, or its equivalent in the case of a change in
format, on the home page of the Excite Shopping Channel in
[***]
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CONFIDENTIAL
during the term of the Agreement, [***].
(ii) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Top
Merchants promotion, or its equivalent in the case of a change
in format, on the home page of the Excite Shopping Channel in
[***]during the term of the Agreement, [***]. Excite shall not
display the link described in this Section l(a)(ii) in the
same [***] in which it displays the link described in Section
l(a)(i) above.
(iii) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Hot
Deals promotion, or its equivalent in the case of a change in
format, on the first page of the Gourmet & Groceries
department on the Excite Shopping Channel in [***] the term of
the Agreement, [***].
(iv) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Hit
the Stores promotion, or its equivalent in the case of a
change in format, on the first page of the Gourmet & Groceries
department on the Excite Shopping Channel [***] the term of
the Agreement.
(v) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Hot
Deals promotion, or its equivalent in the case of a change in
format, on the first page of the Flowers & Gifts department on
the Excite Shopping Channel in [***] the term of the
Agreement, [***].
(vi) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Hit
the Stores promotion, or its equivalent in the case of a
change in format, on the first page of the Flowers & Gifts
department on the Excite Shopping Channel [***] the term of
the Agreement.
(b) Commencing on the Launch Date (as defined below), Client will be
promoted in the Excite Lifestyle Channel as follows:
A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Exciting
Stuff
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CONFIDENTIAL
promotion, or its equivalent in the case of a change in
format, on the first page of the Food & Drink department on
the Excite Lifestyle Channel [***] the term of the Agreement.
(c) Excite estimates, but does not guarantee, delivery of [***]
impressions of the Client promotional placements described in this
Section 1 during the term of this Agreement.
2. HOLIDAY GIFT GUIDE
During the term of the Agreement, Client will be included in Excite's
Holiday Gift guide promotion for the December holiday.
3. ADVERTISING ON THE EXCITE NETWORK
(a) During the term of the Agreement, Excite will display Client's
banner advertising on Excite Search results pages in response to
the keywords identified in Exhibit A, subject to availability.
During the term of the Agreement, Excite will also display Client's
banner advertising in the targeted channel/department inventory
identified in Exhibit B, subject to availability. Excite will use
commercially reasonable efforts to allocate the display of such
banner advertisements in accordance with the relative priority set
forth in Exhibits A and B. Excite estimates, but does not
guarantee, delivery of a total of [***]impressions of the
advertising banners described in this Section 3(a).
(b) During the term of the Agreement, Excite will display Client's
banner advertising in general rotation on the Excite Site. Excite
estimates, but does not guarantee, delivery of a total of [***]
impressions of the advertising banners described in this Section
3(b) during the term of this Agreement.
4. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING
(a) Client and Excite will use reasonable efforts to implement the
display of the promotional placements and advertising described in
the Agreement by September 30, 1998 (the "Scheduled Launch Date").
The parties recognize that the Scheduled Launch Date can be met
only if Client provides final versions of all graphics, text,
keywords, banner advertising, promotional placements, other
promotional media and valid URL links necessary to implement the
promotional placements and advertising described in the
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CONFIDENTIAL
Agreement (collectively, "Impression Material") to Excite fourteen
(14) days prior to Scheduled Launch Date.
(b) In the event that Client fails to provide the Impression Material
to Excite fourteen (14) days in advance of the Scheduled Launch
Date, Excite may, at its sole discretion (i) reschedule the
Scheduled Launch Date at the earliest practicable date according to
the availability of Excite's engineering resources after delivery
of the complete Impression Material or (ii) commence delivery of
Impressions based on Impression Material in Excite's possession at
the time and/or reasonable placeholders created by Excite.
(c) Client and Excite agree that the day the promotional placements and
advertising described in this Agreement are first displayed on the
Excite Network will be the "Launch Date" for purposes of this
Agreement.
(d) Excite will have sole responsibility for providing, hosting and
maintaining, at its expense, the Excite Network. Excite will have
sole control over the "look and feel" of the Excite Network
including, but not limited to, the display, appearance and
placement of the parties' respective names and/or brands and the
promotional links.
(e) The banner advertisements described in this Agreement will be
served, tracked and reported by Excite's subsidiary, MatchLogic,
Inc. ("MatchLogic"). MatchLogic will also provide Client with
feedback as to comparisons of the performance the different
creative messages supplied by Client for the advertising banners
displayed on the Excite Network as set forth in this Agreement. As
part of the process of serving such banner advertisements,
MatchLogic will use frequency control to manage the number of times
a user on the Excite Network sees a particular creative message.
Client and MatchLogic will work together to determine the optimal
numbers of creative message display necessary for creative
frequency control of Client's banner advertisements on the Excite
Network. Through the implementation of MatchLogic's TruEffect
transaction reporting system on the Client Site, MatchLogic will
also report on correlations of user activity between the Client
Site and the Excite Network. Promotional placements, including text
links, will be served, tracked and reported by Excite. These
promotional placements will be tracked and reported by MatchLogic
when this implementation becomes available. Excite will provide
Client with monthly reports substantiating the number of
impressions of Client's
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CONFIDENTIAL
advertising banners and promotional placements displayed on the
Excite Network in accordance with the terms of this Agreement.
Excite will assign a partner services account manager to support
Client's participation in the sponsorship, advertising and
promotional programs set forth in this Agreement. At least monthly
during the term of the Agreement, Excite and Client will hold
reviews of the parties' performance and tactics under this
Agreement by telephone in accordance with a mutually agreeable
schedule. Excite and Client may conduct such monthly meetings in
person upon the mutual agreement of the parties.
5. SPONSORSHIP, ADVERTISING AND GIFT GUIDE FEES; REVENUE SHARE
(a) Client will pay Excite sponsorship and advertising fees of [***].
These fees will be paid in equal monthly installments of [***]. The
first monthly payment will be due upon the Launch Date. Subsequent
installments will be due on a monthly basis thereafter.
(b) Separate and apart from the sponsorship and advertising fees,
Client will pay Excite gift guide fee of [***]. The first
installment of [***] of this fee will be due on December 1, 1998.
The second payment of [***] will be due on January 1, 1999.
(c) Separate and apart from the sponsorship and advertising fees,
Client will pay Excite [***] of all net revenue recognized by
Client on all transactions conducted by users referred to the
Client Site from (i) the Excite Network during the term of the
Agreement or (ii) DeliverE communications sent by MatchLogic. For
purposes of this Agreement, "net revenue" means gross revenue minus
Client's actual costs of goods sold and taxes. Client will pay
Excite these transaction fees within thirty (30) days after the
close of the financial quarter in which Client recognizes the
revenue derived from these transactions.
(d) The sponsorship, advertising and gift guide fees, net revenue and
payments are net of any agency commissions to be paid by Client.
(e) Client will maintain accurate records with respect to the
calculation of all transaction payments due under this Agreement.
Once per year, the parties will review these records to verify the
accuracy and appropriate accounting of all payments made pursuant
to the Agreement. In addition, Excite may,
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CONFIDENTIAL
upon no less than thirty (30) days prior written notice to Client,
cause an independent Certified Public Accountant to inspect the
records of Client reasonably related to the calculation of such
payments during Client's normal business hours. The fees charged by
such Certified Public Accountant in connection with the inspection
will be paid by Excite unless the payments made to Excite are
determined to have been less than ninety-five percent (95%) of the
payments actually owed to Excite, in which case Client will be
responsible for the payment of the reasonable fees for such
inspection.
6. PUBLICITY; TRANSACTION INTEGRATION
(a) Unless required by law, neither party will make any public
statement, press release or other announcement relating to the
terms of or existence of this Agreement without the prior written
approval of the other, such approval not to be unreasonably
withheld. Notwithstanding the foregoing, either party may issue an
initial press release regarding the relationship between Excite and
Client, the timing and wording of which will be mutually agreed
upon.
(b) Client's online merchandise will be integrated with Excite's
one-click ordering and service registration systems. Within ten
(10) days of execution of this Agreement, Excite and Client will
use reasonable efforts to cooperatively produce an integration
timeline with the goal of completing the integration within sixty
(60) days of Excite's completion of these systems. Excite and
Client will cooperate in good faith to define a complete technical
specification for the integration as soon as reasonably practical
after the execution of this Agreement. Excite and Client will agree
in writing regarding how the costs of this integration will be
borne by the parties before work is commenced.
(c) Client will work with Excite to supply Excite with current online
merchandise data sufficient to enable presentation and one-click
ordering of Client's online merchandise. Merchandise data will
include price, product description and other mutually agreed
product attributes. Excite will only use this merchandise data for
the purposes of marketing and merchandising Client's online
merchandise and will not share Client's merchandise data with any
third parties without prior approval from Client.
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CONFIDENTIAL
7. TERM AND TERMINATION
(a) Unless terminated earlier in accordance with the specific terms of
this Agreement, the term of this Agreement will begin on the Launch
Date and will not end until Excite displays a total of [***]
impressions of the Client advertising banners and promotional
placements on the Excite Network as described in this Agreement.
(b) If Client has not realized a minimum of [***] transactions
consisting of Client's product sales conducted by users referred to
the Client Site from the Excite Network or the MatchLogic DeliverE
campaigns after the first six (6) months following the Launch Date
("Transaction Goal'), Client may suspend (but not eliminate) its
payments of the sponsorship and advertising fees specified in
Section 5 for a maximum of [***] during which Excite will deliver
make-good impressions (the "Make-Good Period"). If Client does not
achieve its Transaction Goal by the end of the Make-Good Period,
Client may then terminate this Agreement upon written notice within
ten (10) days of the end of the Make-Good Period. If Client
achieves its Transaction Goal at any time during the Make-Good
Period or if Client does not issue a written notice of termination
in accordance with this Section 7(b), the term of the Agreement
shall continue and Client shall immediately resume payment of all
sponsorship and advertising fees.
(c) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following the notice to the
breaching party of the breach.
(d) All undisputed payments that have accrued prior to the termination
or expiration of this Agreement will be payable in full within
thirty (30) days thereof.
(e) The provisions of Section 10 (Confidentiality and User Data),
Section 11 (Indemnity), Section 12 (Limitation of Liability) and
Section 13 (Dispute Resolution) will survive any termination or
expiration of this Agreement.
8. TRADEMARK OWNERSHIP AND LICENSE
(a) Client will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Excite hereunder.
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CONFIDENTIAL
(b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Client hereunder.
(c) Each party hereby grants to the other a non-exclusive, limited
license to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding
advertising and trademark usage as established from time to time.
(d) Upon the expiration or termination of this Agreement, each party
will cease using the trademarks, service marks and/or trade names
of the other except:
(i) As the parties may agree in writing; or
(ii) To the extent permitted by applicable law.
9. CONTENT OWNERSHIP
(a) Client will retain all right, title and interest in and to the
Client Site worldwide including, but not limited to, ownership of
all copyrights and other intellectual property rights therein.
(b) Excite will retain all right, title, and interest in and to the
Excite Network worldwide including, but not limited to, ownership
of all copyrights, look and feel and other intellectual property
rights therein.
10. CONFIDENTIALITY AND USER DATA
(a) For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's (or its suppliers')
business or activities that is proprietary and confidential, which
shall include all business, financial, technical and other
information of a party marked or designated by such party as
"confidential or "proprietary" or information which, by the nature
of the circumstances surrounding the disclosure, ought in good
faith to be treated as confidential.
(b) Confidential Information will not include information that (i) is
in or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party
without restriction on disclosure and without breach of a
nondisclosure obligation, (iii) the receiving party knew prior to
receiving such information from the disclosing party or (iv) the
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CONFIDENTIAL
receiving party develops independent of any information originating
from the disclosing party.
(c) Each party agrees (i) that it will not disclose to any third party
or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it
will take all reasonable measures to maintain the confidentiality
of all Confidential Information of the other party in its
possession or control, which will in no event be less than the
measures it uses to maintain the confidentiality of its own
information of similar importance.
(d) The usage reports provided by Excite to Client hereunder will be
deemed to be the Confidential Information of Excite and thus
subject to all the restrictions set forth in this Agreement,
including the prohibitions against disclosure to third parties
contained in this Section 10. The usage reports provided by Client
to Excite hereunder will be deemed to be the Confidential
Information of Client and thus subject to all the restrictions set
forth in this Agreement, including the prohibitions against
disclosure to third parties contained in this Section 10.
(e) The terms and conditions of this Agreement will be deemed to be
Confidential Information and will not be disclosed without the
written consent of the other party.
(f) For the purposes of this Agreement, "User Data" means the aggregate
number of purchase requests requested by such users, the aggregate
number of purchase requests completed, the aggregate number of
purchases completed and the aggregate dollar value of completed
purchases. The parties hereby agree that "User Data" for purposes
of this Agreement shall not include any information submitted by
users referred to the Client Site from the Excite Network that
could be reasonably used to identify a specific named individual
("Individual Data"). The parties acknowledge that any individual
user of the Internet could be a user of Excite and/or Client
through activities unrelated to this Agreement and that user data
gathered independent of this Agreement, even from individuals who
are users of both parties' services, will not be deemed to be "User
Data" for the purposes of this Agreement.
(g) User Data, strictly as defined in Section 10(f) above, will be deemed
to be the joint property of the parties and, subject to the
limitations contained herein, both parties will retain all rights to
make use of such User Data . In addition, the parties hereby agree
that Individual Data, as defined in Section
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10(f) above to mean any information submitted users referred to the
Client Site from the Excite Network that could be reasonably used
to identify a specific named individual, will be deemed to be the
sole property of Client and, subject to the limitations contained
herein, Client will retain all rights to make use of such
Individual Data.
(h) In order to facilitate optimization of Client's sponsorship program
and achievement of Client's Transaction Goals, Client will make
good faith efforts to develop tracking and reporting capabilities
on the Client Site to correlate information regarding transaction
activity by users referred to the Client Site from the Excite
Network to the various promotional placements and advertising
banners displayed on the Excite Network. Client will provide to
Excite all User Data and user transaction reports collected by
Client within thirty (30) days following the end of each calendar
month during the term of this Agreement in a mutually-determined
electronic format.
(i) Client will not use User Data or Individual Data to specifically
target any Excite users, as distinct from all users of the Client
Site, for solicitations (except as specifically provided in this
Agreement), either individually or in the aggregate, during the
term of this Agreement and for a period of twelve (12) months
following the expiration or termination of this Agreement.
(j) Neither party will sell, disclose, transfer or rent any User Data
which could reasonably be used to identify a specific named
individual ("Individual Data") to any third party nor will either
party use Individual Data on behalf of any third party without the
express permission of the individual user. Where user permission
for dissemination of Individual Data to third parties has been
obtained, each party will use commercially reasonable efforts to
require the third party recipients of Individual Data to provide an
"unsubscribe" feature in any email communications generated by, or
on behalf of, the third party recipients of Individual Data.
(k) Notwithstanding the foregoing, each party may disclose Confidential
Information or User Data (i) to the extent required by a court of
competent jurisdiction or other governmental authority or otherwise
as required by law or (ii) on a "need-to-know" basis under an
obligation of confidentiality to its legal counsel, accountants,
banks and other financing sources and their advisors.
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CONFIDENTIAL
2. INDEMNITY
(a) Client will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or
costs (including, but not limited to, attorneys fees) arising from:
(i) Its breach of any representation or covenant in this
Agreement; or
(ii) Any claim that Client's advertising banners infringe or
violate any third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or contain
any defamatory content; or
(iii) Any claim arising from the Client Site.
Excite will promptly notify Client of any and all such claims and will
reasonably cooperate with Client with the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts Excite in any way and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require Excite's written consent (not to be
unreasonably withheld or delayed) and Excite may have its own counsel in
attendance at all proceedings and substantive negotiations relating to
such claim.
(b) Excite will indemnify, defend and hold harmless Client, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or
costs (including, but not limited to, attorneys fees) arising from:
(i) Its breach of any representation or covenant in this
Agreement; or
(ii) Any claim arising from the Excite Network other than content
or services provided by Client.
Client will promptly notify Excite of any and all such claims and will
reasonably cooperate with Excite with the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts Client in any way and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require Client's written consent (not to be
unreasonably withheld or delayed) and Client may have its own counsel in
attendance at all proceedings and substantive negotiations relating to
such claim.
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(c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT
AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE REGARDING SUCH SUBJECT MATTER.
12. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 11(a) AND 11(b), IN NO EVENT WILL EITHER PARTY
BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE. EXCEPT UNDER SECTIONS 11(a) AND 11(b),
THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND
WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.
13. DISPUTE RESOLUTION
(a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names,
confidentiality and/or User Data would result in irreparable injury
for which there is no adequate remedy at law. Therefore, in the
event of any breach or threatened breach of a party's obligations
regarding trademarks, service marks or trade names or
confidentiality, the aggrieved party will be entitled to seek
equitable relief in addition to its other available legal remedies
in a court of competent jurisdiction.
(b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names, confidentiality and/or User Data, the parties
will first attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot be resolved
through good faith negotiation, the parties will refer the
dispute(s) to a mutually acceptable mediator.
(c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names,
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confidentiality and/or User Data, cannot be resolved through good
faith negotiation and mediation, the parties will refer the
dispute(s) to the American Arbitration Association for resolution
through binding arbitration by a single arbitrator pursuant to the
American Arbitration Association's rules applicable to commercial
disputes.
14. GENERAL
(a) ASSIGNMENT. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be
required in connection with (i) a merger, reorganization or sale of
all, or substantially all, of such party's assets or (ii) either
party's assignment and/or delegation of its rights and
responsibilities hereunder to a wholly-owned subsidiary or joint
venture in which the assigning party holds an interest. Any attempt
to assign this Agreement other than as permitted above will be null
and void.
(b) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California,
notwithstanding the actual state or country of residence or
incorporation of Excite or Client.
(c) NOTICE. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail, return
receipt requested, and will be deemed given upon personal delivery,
one (1) day after deposit with express courier, upon confirmation
of receipt of facsimile or email or five (5) days after deposit in
the mail. Notices will be sent to a party at its address set forth
in this Agreement or such other address as that party may specify
in writing pursuant to this Section.
(d) NO AGENCY. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint
venture.
(e) FORCE MAJEURE. Any delay in or failure of performance by either
party under this Agreement will not be considered a breach of this
Agreement and will be excused to the extent caused by any
occurrence beyond the reasonable control of such party including,
but not limited to, acts of God, power outages and governmental
restrictions.
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(f) SEVERABILITY. In the event that any of the provisions of this
Agreement are held to be unenforceable by a court or arbitrator,
the remaining portions of the Agreement will remain in full force
and effect.
(g) ENTIRE AGREEMENT. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (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.
(h) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will serve to evidence the parties' binding agreement.
ONLINE SPECIALTY RETAILING INC. EXCITE, INC.
DBA GREAT FOOD ONLINE
By: /s/ XXXXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXX
--------------------------- -----------------------
Name: XXXXXXXX X. XXXXXX Name: XXXXXX X. XXXX
---------------------- --------------
Title: CHAIRMAN Title: EVP-CFO
---------------------- -------
Date: SEPTEMBER 17, 1998 Date: SEPTEMBER 21, 1998
---------------------- ------------------
0000 Xxxxx Xxx., 0xx Xxxxx 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
650.568.6000 (voice)
000.000.0000 (fax)
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EXHIBIT A
KEYWORDS
This is the "A" list. These are the words that are the highest on Client's
priority list. The "A" list includes:
[***]
This is the "B" list. These are the words that are next on Client's priority
list. They would then be included along with the "A" list. The "B" list
includes:
[***]
This is the "C" list. These are the words that are not a top priority for
Client at this time, although they are of some interest. The "C" list
includes:
[***]
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EXHIBIT B
TARGETED INVENTORY
This is the "A" list. These are the departments that Client considers to be
its highest priority. The "A" list for the departments include:
[***]
This is the "B" list. These are the departments that Client considers to be
next in priority. They would then be included along with the "A" list. The
"B" list for the departments include:
[***]
This is the "C" list. These are the departments that are not a top priority
for Client at this time, although somewhat interested in them. The "C" list
for the departments include:
[***]
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