THE COMPANY HAS REQUESTED
CONFIDENTIAL TREATMENT
WITH RESPECT TO CERTAIN
PORTIONS OF THIS
AGREEMENT ACCORDINGLY,
CERTAIN PORTIONS HAVE
BEEN REDACTED
Exhibit 10.1
This agreement ("Agreement") is entered into as of the 31st day of March, 1998
("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and
CyberShop, a Delaware corporation, located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Client").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Excite Site"), a site at xxxx://xxx.xxxxxxxxxx.xxx (the "WebCrawler
Site") and owns, manages or is authorized to place advertising on
affiliated Web sites worldwide (collectively, the "Excite Network") which,
among other things, allow its users to search for and access content and
other sites on the Internet.
B. Within the Excite Site and the WebCrawler Site, Excite currently organizes
certain content into topical channels, including "shopping" channels (the
"Shopping Channels").
C. Client operates an on-line department store at its Web site located at
http:// xxxxxxxxx.xxx (the "Client Site").
D. Client wishes to promote its business to Excite's users through promotions
and advertising in various portions of the Excite Network.
Therefore, the parties agree as follows:
1. SPONSORSHIP OF THE SHOPPING CHANNELS
a) Commencing on the Launch Date (as defined below), Client will be
promoted in the Excite Shopping Channel and the WebCrawler Shopping
Channel:
i) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the Excite Shopping Channel home page "Such
a Deal" promotional rotation in two (2) separate
one-week rotations during each year of the term of the
Agreement, once every six (6) months.
ii) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the Excite Shopping Channel home page "Shop
Here First" promotional rotation in four (4) separate
one-week rotations during each year of the term of the
Agreement, once every quarter.
CONFIDENTIAL
iii) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed on the Excite Shopping Channel home page under
the department listings, subject to the following
conditions:
A) Client is allocated eight (8) separate
one-week link displays in each year of the
term of the Agreement. Only one (1) link to
the Client Site may be displayed on the
Excite Shopping Channel home page under the
department listings at any one time. Links
to the Client Site may not appear under the
Auctions, Books or Gourmet & Groceries
department listings and may not appear in
more than four (4) different department
listings during each year of the term of the
Agreement.
B) The display of all links on the Excite
Shopping Channel home page under the
department listings is subject to
availability at the time.
iv) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed on the front pages of the following
departments of the Excite Shopping Channel subject to
the following conditions:
A) A link to the Client Site will be displayed
on the front page of the Department Stores &
Malls department of the Excite Shopping
Channel for the term of the Agreement.
B) A link to the Client Site will be displayed
on the front page of one other department of
the Excite Shopping Channel of Client's
choice for the term of the Agreement, other
than the Auctions, Books or Gourmet &
Groceries departments of the Excite Shopping
Channel.
C) Client is allocated twelve (12) months of
link display in three (3) separate
four-month blocks on the front page of
departments of the Excite Shopping Channel
other than the Auctions, Books, Department
Stores & Malls or Gourmet & Groceries
departments of the Excite Shopping Channel
in each year of the term of the Agreement.
This allocation of links may not be used in
more than one (1) department at any one
time.
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CONFIDENTIAL
v) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the "Shop Here First" promotional rotation
on the front pages of the following departments of the
Excite Shopping Channel subject to the following
conditions:
A) Client is allocated four (4) separate
four-week link displays in the "Shop Here
First" promotional rotation on the front
page of departments of the Excite Shopping
Channel other than the Auctions, Books or
Gourmet & Groceries departments of the
Excite Shopping Channel in each year of the
term of the Agreement. This allocation of
links may not be used in more than one (1)
department at any one time.
vi) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the WebCrawler Shopping Channel home page
"Special Web Price!" promotional rotation in two
separate one-week rotations during each year of the term
of the Agreement, once every six (6) months.
vii) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the WebCrawler Shopping Channel home page
"Featured Merchants" promotional rotation in four
separate one-week rotations during each year of the term
of the Agreement, once every quarter.
viii) A link or links to the Client Site (consistent with the
format used on similar links on the same page) will be
displayed on the WebCrawler Shopping Channel home page
under the department listings, subject to the following
conditions:
A) Client is allocated eight (8) separate
one-week link displays in each year of the
term of the Agreement. Only one (1) link to
the Client Site may be displayed on the
WebCrawler Shopping Channel home page under
the department listings at any one time.
Links to the Client Site may not appear in
more than four (4) different department
listings during each year of the term of the
Agreement.
B) Links to the Client Site may not appear
under the Auctions, Books or Home &
Groceries department listings.
C) The display of all links on the WebCrawler
Shopping Channel home page under the
department listings is subject to the
availability at the time.
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CONFIDENTIAL
ix) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed on the front pages of the following
departments of the WebCrawler Shopping Channel subject
to the following conditions:
A) A link to the Client Site will be displayed
on the front page of four (4) departments of
the WebCrawler Shopping Channel of Client's
choice for the term of the Agreement, other
than the Auctions, Books or Home & Groceries
departments of the WebCrawler Shopping
Channel.
x) A link to the Client Site (consistent with the format
used on similar links on the same page) will be
displayed in the "Featured Merchants" promotional
rotation on the front pages of the following departments
of the WebCrawler Shopping Channel subject to the
following conditions:
A) Client is allocated four (4) separate
four-week link displays in the "Featured
Merchants" promotional rotation on the front
page of departments of the WebCrawler
Shopping Channel other than the Auctions,
Books or Home & Groceries departments of the
Excite Shopping Channel in each year of the
term of the Agreement. This allocation of
links may not be used in more than one (1)
department at any one time.
xi) Excite will deliver XXXXXXXXX impressions of the Client
promotional placements described in this Section 1
during the first year of the term of this Agreement.
Sixty (60) days prior to the end of the first year after
the Launch Date, Excite and Client will negotiate in
good faith to establish allocated number of impressions,
advertising banners and promotional placements described
in this Section 1 for the second year of the term of the
Agreement. If the parties fail to reach agreement
concerning performance details for the second year of
the term, Client may cancel, effective on the later of
the first anniversary of this Agreement or such time as
Excite has delivered XXXXXXX clickthroughs, provided
this latter date is not more than 16 months after the
Launch Date.
2. SPONSORSHIP OF EXCITE LIFESTYLE CHANNEL
a) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Excite
Lifestyle Channel home page "Exciting Stuff" promotional rotation in
one (1) one-week rotation each month during the term of the
Agreement. Excite will make reasonable commercial
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CONFIDENTIAL
efforts to display this link during mutually-determined holiday
weeks, subject to availability.
b) A link to the Client Site (consistent with the format used on
similar links on the same page) will be programmed in the default
configuration of the "Favorite Links" listing of Web sites on the
Home & Garden department home page of the Excite Lifestyle Channel
during the term of the Agreement. Due to the user's control over the
Web sites displayed in the "Favorite Links" listing, the parties
acknowledge that Excite cannot guarantee or estimate the number of
times Client's link in the "Favorite Links" listing will be
displayed.
c) Excite will deliver XXXXXXXXXXXXXXXX impressions of the Client
promotional placements described in this Section 2 during the first
year of the term of this Agreement. Sixty (60) days prior to the end
of the first year after the Launch Date, Excite and Client will
negotiate in good faith to establish allocated number of
impressions, advertising banners and promotional placements
described in this Section 2 for the second year of the term of the
Agreement. If the parties fail to reach agreement concerning
performance details for the second year of the term, Client may
cancel, effective on the later of the first anniversary of this
Agreement or such time as Excite has delivered XXXXXXX
clickthroughs, provided this latter date is not more than 16 months
after the Launch Date.
3. SPONSORSHIP OF EXCITE ENTERTAINMENT CHANNEL
a) 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" promotional rotation on Client's choice or either the home
page of the Music or Movies department of the Excite Entertainment
Channel in one (1) one-week rotation each month during the term of
the Agreement, subject to availability. Excite will make reasonable
commercial efforts to display this link during mutually-determined
holiday weeks, subject to availability.
b) Excite will deliver XXXXXXXXXXXX impressions of the Client
promotional placements described in this Section 3 during the first
year of the term of this Agreement. Sixty (60) days prior to the end
of the first year after the Launch Date, Excite and Client will
negotiate in good faith to establish allocated number of
impressions, advertising banners and promotional placements
described in this Section 3 for the second year of the term of the
Agreement. If the parties fail to reach agreement concerning
performance details for the second year of the term, Client may
cancel, effective on the later of the first anniversary of this
Agreement or such time as Excite has delivered XXXXXXX
clickthroughs, provided this latter date is not more than 16 months
after the Launch Date.
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CONFIDENTIAL
4. SPONSORSHIP OF WEBCRAWLER HOME & FAMILY CHANNEL
a) A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the "Services"
(or equivalent) promotional rotation on the home page of the
WebCrawler Home & Family Channel in two (2) separate one-week
rotations each year during the term of the Agreement, once every six
(6) months.
b) Excite will deliver XXXXXXXXXXXX impressions of the Client
promotional placements described in this Section 4 during the first
year of the term of this Agreement. Sixty (60) days prior to the end
of the first year after the Launch Date, Excite and Client will
negotiate in good faith to establish allocated number of
impressions, advertising banners and promotional placements
described in this Section 4 for the second year of the term of the
Agreement. If the parties fail to reach agreement concerning
performance details for the second year of the term, Client may
cancel, effective on the later of the first anniversary of this
Agreement or such time as Excite has delivered XXXXXXXX
clickthroughs, provided this latter date is not more than 16 months
after the Launch Date.
5. ADVERTISING ON THE EXCITE SITE
a) Excite will display Client's banner advertising on Excite Search
results pages in response to mutually determined keywords, subject
to availability.
b) Excite will display Client's banner advertising in rotation on
mutually determined Excite Channels, subject to availability.
c) Excite guarantees the display of XXXXXX such banners during the
first year of the term of the Agreement. Sixty (60) days prior to
the end of the first year after the Launch Date, Excite and Client
will negotiate in good faith to establish allocated number of
impressions, advertising banners and promotional placements
described in this Section 5 for the second year of the term of the
Agreement. If the parties fail to reach agreement concerning
performance details for the second year of the term, Client may
cancel, effective on the later of the first anniversary of this
Agreement or such time as Excite has delivered XXXXXXX
clickthroughs, provided this latter date is not more than 16 months
after the Launch Date.
d) Excite will provide forty-eight (48) hour turnaround on replacing
GIF banners supplied by Client. HTML advertising banners must be
submitted by Client to Excite for review at least five (5) business
days in advance of Excite
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CONFIDENTIAL
beginning implementation. After completing its review, Excite will
implement approved HTML banners in no more than two (2) business
days.
e) Client may have up to twenty (20) different advertising banners in
rotation for display during any one week. Excite will link Client's
advertising banners to a maximum of twenty (20) different URLs
submitted by Client.
6. 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 April 15, 1998 (the "Launch Date").
b) Excite will have sole responsibility for providing, hosting and
maintaining, at its expense, the Excite Network. Excite will have
sole control over of 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.
c) Excite will in "good faith" ensure Client that the above mentioned
banners and promotional placements will be more prominently
presented than any other "competitive retailer's" banners or
promotional placements for the term of the Agreement. For the
purposes of this Agreement, a "competitive retailer" means an
on-line department store comparable to Bloomingdale's, Macy's,
Burdine's, Xxxxxxxx.xxx, Chef's Catalog or iQVC.
d) Excite will provide Client with monthly reports substantiating the
number of impressions of Client's advertising banners and
promotional placements displayed on the Excite Network and the
resulting number of clickthroughs to the Client's site. At the time
that Excite makes audited impression reports available to its
advertisers, Client will receive audited impression reports.
7. SPONSORSHIP, ADVERTISING AND VARIABLE REVENUE SHARE FEES
a) In exchange for XXXXXXXXXXXXXXXXXXXXXXXX the Client will pay Excite
sponsorship and advertising fees of XXXXXXXXXXX for the first year
of the term of the Agreement. These fees will be paid in equal
monthly installments
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CONFIDENTIAL
of XXXXXXXXXXXXXXXXX. The first monthly payment will be due upon the
display of the first of the promotional placements and advertising
described in the Agreement. Subsequent installments will be due on a
monthly basis thereafter. XXXXXXXXXXXXXXXXXXXXXX.
b) In exchange for XXXXXXXXXXXXX the Client will pay Excite sponsorship
and advertising fees of XXXXXXXXXXXXXXXXX for the second year of the
term of the Agreement. These fees will be paid in equal monthly
installments of XXXXXXXXXXXXXXXXXXXXXXX. The first monthly payment
will be due upon the first anniversary of the display of the first
of the promotional placements and advertising described in the
Agreement. Subsequent installments will be due on a monthly basis
thereafter. XXXXXXXXXXXXXXX.
c) Excite will maintain accurate records of the XXXXXXXXXXX delivered
under this Agreement as described in Sections 7(a) and 7(b). Should
these results differ to those provided by Client's server by more
than 10%, Client may, once per quarter during Excite's regular
business hours and at Client's sole expense, review these records to
verify the accuracy and appropriate accounting of XXXXXXXXX
delivered pursuant to the Agreement. Should Client's review
determine that Excite's XXXXXXXX results are inaccurate by 5% or
more, then Excite shall pay for all reasonable costs incurred by
Client for the review of Excite's records.
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CONFIDENTIAL
d) Separate and apart from the sponsorship and advertising fees paid
for the XXXXXXXXXXXXXXXXXXXXXXXXXX detailed above in Sections 7(a)
and 7(b), Client will pay Excite a variable revenue share to be
calculated based on sales, excluding any and all amounts collected
for sales tax, shipping and handling charges, and credits for
returned goods and/or services, Client derives from visits to the
Client Site via links from the promotional placements and
advertising on the Excite Site described in Sections 1 - 5. Payments
will be made according to the following schedule:
i) For the year between the Launch Date and the first
anniversary of the Launch Date:
o For revenues between XXXXXXXXXXXXXXXX of
sales, excluding any and all amounts
collected for sales tax, shipping and
handling charges, and credits for returned
goods and/or services.
o For revenues in excess of
XXXXXXXXXXXXXXXXXXX of all sales, excluding
any and all amounts collected for sales tax,
shipping and handling charges, and credits
for returned goods and/or services.
ii) For the year between the first anniversary of the Launch
Date and the second anniversary of the Launch Date:
o For revenues between XXXXXXXXXXXXXX of
sales, excluding any and all amounts
collected for sales tax, shipping and
handling charges, and credits for returned
goods and/or services.
o For revenues in excess of XXXXXXXXXXXXX of
all sales, excluding any and all amounts
collected for sales tax, shipping and
handling charges, and credits for returned
goods and/or services.
o For revenues in excess of
XXXXXXXXXXXXXXXXXXXXXX of all sales,
excluding any and all amounts collected for
sales tax, shipping and handling charges,
and credits for returned goods and/or
services.
o For revenues in excess of XXXXXXX of all
sales, excluding any and all amounts
collected for sales tax, shipping and
handling charges, and credits for returned
goods and/or services.
e) Client will pay Excite its variable revenue share payments within
thirty (30) days after the close of each month.
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CONFIDENTIAL
f) The sponsorship and advertising fees and variable revenue share
payments are net of any agency commissions to be paid by Client.
g) Client will maintain accurate records with respect to the
calculation of all variable revenue share 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, 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.
8. PUBLICITY
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 will not be unreasonably withheld.
Notwithstanding the foregoing, the parties agree to issue an initial
press release regarding the relationship between Excite and Client,
the timing and wording of which will be mutually agreed upon.
9. TERM AND TERMINATION
a) The term of this Agreement will begin on the Launch Date and will
not end until Excite displays of a total of XXXXXXXXXXXXX
impressions of Client's advertising banners and promotional
placements on the Excite Site and Excite has made reasonable
commercial efforts to deliver, at minimum, a goal of XXXXXXXX
clickthroughs to the Client Site. Regardless of Excite's actual
delivery of impressions and clickthroughs, the term of this
Agreement will not be shorter than two (2) years after the display
of the first of Client's advertising banners and promotional
placements, subject to the termination rights set forth below.
b) Sixty (60) days prior to the end of the first year after the Launch
Date, Excite and Client will negotiate in good faith to establish
allocated number of impressions, advertising banners and promotional
placements for the second year of the term of the Agreement.
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CONFIDENTIAL
c) Excite's goal is to deliver XXXXXXXXXXXXXXXXXXXXXXXX clickthroughs
to the Client Site during the fourth through sixth months
(inclusive) after the Launch Date, XXXXXXXXXXXXXXXX clickthroughs to
the Client Site during the seventh through ninth months (inclusive)
after the Launch Date, and XXXXXXXXXXXXXXXXXXXX clickthroughs to the
Client Site during the ninth through twelfth months (inclusive)
after the Launch Date.
d) In the event that Excite has not delivered XXXXXXXXXXXXXXXX
clickthroughs to the Client Site by the end of twelve (12) months
after the Launch Date, the first year of the term of the Agreement
will be extended without additional sponsorship and advertising fees
for up to an additional four (4) months. In the event that Excite
has not delivered XXXXXXXXXXXXXXXXXXXXX clickthroughs to the Client
Site by end of the additional four-month period, Client may
terminate this Agreement immediately upon delivery of written notice
to Excite.
e) 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.
f) 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.
g) The provisions of Section 12 (Confidentiality and User Data),
Section 13 (Indemnity), Section 14 (Limitation of Liability) and
Section 15 (Dispute Resolution) will survive any termination or
expiration of this Agreement.
10. 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.
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.
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CONFIDENTIAL
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.
11. 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.
12. 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 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.
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CONFIDENTIAL
d) The usage reports provided by Excite to Client hereunder will be
deemed to be the Confidential Information of Excite.
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 all
information pertaining to users referred to the Client Site from the
Excite Network during the term of the Agreement that is not
submitted by or collected from Users in connection with their
purchases or other interactive activities while signed on to the
Client Site. 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 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 any User Data obtained through this
Agreement.
h) Client will provide to Excite all User Data 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 to directly or indirectly solicit any
Excite users 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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13. 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) The 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 content displayed on 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) The 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.
14. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 13(a) AND 13(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. 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.
15. 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, 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
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CONFIDENTIAL
pursuant to the American Arbitration Association's rules applicable
to commercial disputes.
16. 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 New York, 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.
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
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CONFIDENTIAL
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.
CyberShop Excite, Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxx
--------------------------- -----------------------------------
Name: Xxxx Xxxxxx Name: Xxxxxx X. Xxxx
------------------------ --------------------------------
Title: V.P. Store Development Title: Exec. VP-Chief Financial Officer
------------------------ --------------------------------
Date: March 31, 1998 Date: March 31, 1998
------------------------- ---------------------------------
000 Xxxxxxx Xxxxxx 000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
212.532.3553 (voice) 650.568.6000 (voice)
000.000.0000 (fax) 000.000.0000 (fax)
17
