Exhibit 10.40
INTERNET SERVICES SUITE AGREEMENT
THIS INTERNET SERVICES SUITE AGREEMENT (this "Agreement") is entered into
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as of May 5,1999 (the "Effective Date") between WIRED DIGITAL, INC., a Delaware
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corporation ("Wired"), LYCOS, INC., a Delaware corporation ("Lycos"), and
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NETTAXI ONLINE COMMUNITIES, INC., a Delaware corporation. ("Nettaxi").
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2
Recitals
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A. Wired is the owner or licensee of certain Web-based services
(collectively, the"Wired Services"), which are accessible through the URL
xxx.xxxxxx.xxx (the "HotBot Site");
B. Lycos is the owner or licensee of certain Web-based personalized
start page services (the "Lycos Start Pages"), which are accessible through the
URL xxx.xxxxx.xxx (the"Lycos Site");
C. Nettaxi maintains a site on the Internet at xxxx://xxx.xxxxxxx.xxx
(the "Nettaxi Site"), and desires to make the Wired Services and co-branded
versions of the Lycos Start Pages available to users of the Nettaxi Site;
D. Wired and Lycos are willing to co-brand and/or operate certain of
their respective
Services on behalf of Nettaxi, pursuant to the terms hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Wired, Lycos and Nettaxi hereby
agree as follows:
Terms
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SECTION 1. DEFINITIONS.
1.1 "Advertising Rights" means all advertising or promotional rights,
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including without limitation banner advertisements, "pop-up" windows, surveys
and sponsorships.
1.2 "HotBot Personal Search Tool" means Wired's Web-based customizable
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search panel
incorporating the HotBot Search functionality, as the same may be updated or
modified from time to time in Wired's sole discretion.
1.3 "HotBot Search" means Wired's Web-based search engine service,
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currently commercially referred to as HotBot, as the same may be updated or
modified from time to time in Wired's sole discretion.
1.4 "Lycos Brand Features" means Lycos' name, logo and other
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trademarks, trade names and service names that Lycos uses from time to time with
respect to Lycos' services offered on Web Sites owned or operated by Lycos.
1.5 "Lycos Start Pages" means Lycos' Web-based personalized start page
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that incorporates certain of the Lycos Services, as the same may be updated or
modified from time to time in Lycos' sole discretion.
1.6 "Nettaxi Brand Features" means Nettaxi's name and logo and such
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other trademarks, trade names, service names and trade dress that Nettaxi uses
from time to time with respect to the Nettaxi Site.
1.7 "Referral" takes place when a user clicks on a hyperlink or uses an
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HTML tool to connect to the following Wired Services: Wired Content and HotBot
Search, at the redirect URLs designated by Wired and as measured by Wired's
server logs.
1.8 "Wired Brand Features" means Wired's name, logo and other
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trademarks, trade names and service names that Wired uses from time to time with
respect to Wired's services offered on Web Sites owned or operated by Wired.
1.9 "Wired Content" means Wired's Web-based news, information and
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entertainment services, as well as the e-mail newsletter versions of these
services, including Wired News (xxxx://xxx.xxxxx.xxx), Webmonkey
(xxxx://xxx.xxxxxxxxx.xxx), and Suck (xxxx://xxx.xxxx.xxx), as may
be update or modified from time to time in Wired's sole discretion.
SECTION 2. NETTAXI START PAGES DEVELOPMENT AND MAINTENANCE.
2.1 Development of Nettaxi Start Pages. Lycos shall use reasonable
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commercial efforts to develop, within thirty (30) days after the Effective Date,
the following service for use exclusively by users of the Nettaxi Site and
accessible from the Nettaxi Site: a co-branded version of Lycos Start Pages
("Nettaxi Start Pages") which shall contain a Nettaxi-branded links box, HotBot
Search or Lycos Search functionality, and other standard features of Lycos Start
Pages. Nettaxi's sole remedy for Lycos' breach of the first sentence of this
Section 2.1 shall be termination of this Agreement in accordance with Section
11.2(a), and Nettaxi shall not be entitled to any other legal or equitable
relief of any kind in connection therewith.
2.2 Branding and User Interface.
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(a) Branding. The Nettaxi Start Pages shall be branded in a
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manner substantially similar to the example(s) set forth in Exhibit B hereto.
All Nettaxi Start Pages shall display appropriate intellectual property legends,
including but not limited to copyright notice and trademark references. Subject
to the foregoing provisions of this Section 2.2(a), the parties shall agree upon
the prominence and location of all displays of the Nettaxi Brand Features,
theLycos Brand Features on the Nettaxi Start Pages; provided that the Lycos name
shall be above the fold and prominently displayed on all co-branded pages. Lycos
shall not be obligated to co-brand those pages containing content which Lycos
has branded with a third party, which Lycos is prohibited from co-branding
pursuant to another Lycos agreement, which Lycos is technically unable to
co-brand, and that are commercially unreasonable for Lycos to co-brand.
(b) User Interface. The user interface for Nettaxi Start Pages
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shall be substantially similar to the user interfaces of the Lycos Start Pages,
which Lycos may modify from time to time in its sole discretion.
2.3 Hosting/Traffic. Nettaxi Start Pages shall be hosted by Lycos.
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The Nettaxi Start Pages shall be served from Lycos sub-domains (e.g.,
xxx.xxxxx.xxx/xxxxxxxx/xxxxxxx). As between the parties, only Lycos shall
receive credit for all unique visitor traffic and page views generated by the
Nettaxi Start Pages. As such, the parties agree to assist each other in taking
any steps that may be required to obtain or perfect the rights of Lycos to
receive credit from Relevant Knowledge/Media Metrix (or any other organization
reasonably designated by Lycos that is reasonably deemed to be, recognized in
the Internet industry as a reliable authority for tracking unique visitors or
page views) for all unique visitor traffic and pages views generated by the
Nettaxi Start Pages.
2.4 Sale of Advertising Rights. Lycos shall have the sole right to
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sell Advertising Rights on the Nettaxi Start Pages.
2.5 Customer Service. Lycos shall include an email link on one or
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more of the Nettaxi Start Pages to Lycos' customer service staff. Lycos shall
use reasonable commercial efforts to respond to all customer service inquiries
promptly after receipt.
SECTION 3. MARKETING AND PROMOTIONS.
3.1 Marketing Activities. Throughout the Term of this Agreement,
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Nettaxi shall use reasonable commercial efforts to market HotBot Search and
Wired Content in order to maximize the nunber of Nettaxi Site users visiting
these sites, including without limitation, direct email campaigns, advertising
and promotions on the Nettaxi Site and targeted activities by Nettaxi.
Immediately upon Lycos' launch of the Nettaxi Start Pages, Nettaxi shall use
reasonable commercial efforts to market Nettaxi Start Pages in order to maximize
the number of users of the Nettaxi Start Pages, including without limitation,
direct email campaigns, advertising and promotions on the Nettaxi Site and
targeted activities by Nettaxi. The parties shall review Nettaxi's marketing
activities on a quarterly basis in order to assess performance and agree upon
additional activities, if necessary, in order to increase usage of Nettaxi Start
Pages.
3.2 Promotional Placements. During the Term of this Agreement,
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Nettaxi shall provide promotional placements for Wired and Lycos as set forth in
this Section 3.2. Wired and Lycos shall provide Nettaxi with electronic copies
of the artwork for the appropriate Wired and Lycos icons, logos, search boxes
and links to be displayed on the Nettaxi Site in connection with the promotional
placements described below. Nettaxi shall be responsible for programming and
integrating the search box, icons, logos and links into the Nettaxi Site:
(a) Nettaxi shall integrate links to Wired Content and to the
Nettaxi Start Pages, in a substantially similar manner to the specifications and
"look and feel" of the examples set forth on Exhibit B. The links to the Nettaxi
Start Pages shall be displayed on every page of the Nettaxi Site produced by
Nettaxi.
(b) Nettaxi shall prominently offer the HotBot Personal Search
Tool and the Nettaxi Start Pages to every visitor and to every new registered
member on the Nettaxi Site. Nettaxi shall integrate the HotBot Personal Search
Tool in "The Nettaxi Citizen Page Builder" process. For those users of the
Nettaxi Site building pages using Nettaxi FTP services, Nettaxi shall promote
the HotBot Personal Search Tool in the "Other Nettaxi Help" and "Resources"pages
of the Nettaxi Site. The HotBot Personal Search Tool shall be the only search
engine tool made available to Nettaxi home-page builders. Nettaxi shall redirect
all users of the Nettaxi Site who conduct searches through the HotBot Personal
Search Tool or who select the Wired and Lycos links to the URL of the
appropriate service.
(c) Nettaxi shall integrate the following links to Wired Content:
(i) Webmonkey in the "Homepage Utils/HTML Resources" section of the Nettaxi
Site, currently located at xxxx://xxx.xxxxxxx.xxx/xxxx/xxxxxxxxx.xxxx; (ii)
Wired News and Suck in all relevant topic sections of the Nettaxi Site, at
Nettaxi's discretion; (iii) Wired Content newsletter subscriptions in all
relevant sections of the Nettaxi Site, at Nettaxi's discretion.
3.3 Referral Guarantee. During the Term of this Agreement, Nettaxi
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guarantees that Nettaxi's promotional placements for the HotBot Personal Search
Tool and Wired Content shall result in not less than I 00,000 Referrals per
month. For purposes of determining whether Nettaxi has performed on its Referral
guarantee, the Referral tally shall begin at zero at the beginning of each
contract quarter.
(a) If Nettaxi fails to achieve the guaranteed level of 300,000
Referrals in a particular quarter, Wired's obligation to make such quarter's
Referral Payment (as described below in Section 5.3) shall be deferred until the
due date of the next quarterly payment.
(b) If Nettaxi fails to achieve the guaranteed level of 300,000
Referrals for two consecutive contract quarters, the payment per thousand
Referrals quoted in Section 5.1(a) shall be decreased to $5 CPM.
3.4 Additional Marketing Provisions. The additional marketing
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provisions set forth in Exhibit A are incorporated herein.
SECTION 4. OWNERSHIP AND LICENSE.
4.1 Ownership. Nettaxi acknowledges and agrees that, as between the
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parties, Lycos owns all title to, and all ownership rights in the Nettaxi Start
Pages, including without limitation the underlying software but excluding the
Nettaxi-brand element of the Xxxxx.xxx domain name for Nettaxi Start Pages and
the Nettaxi Brand Features, which are the sole property of Nettaxi. Under no
circumstances shall any part of Nettaxi Start Pages be physically transferred to
Nettaxi or shall Nettaxi be entitled to a license to the underlying software.
4.2 Nettaxi License Grant. Nettaxi hereby grants Lycos, during the
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Term (as defined below) of this Agreement, a worldwide, royalty-free,
nonexclusive license (with no right to sublicense) to use, reproduce and
distribute the Nettaxi Brand Features on the Nettaxi Start Pages in accordance
with this Agreement and Nettaxi's guidelines for use of the Nettaxi Brand
Features, which guidelines Nettaxi may change from time to time upon at least
thirty (30) days' prior written notice to Lycos.
4.3 Lycos License Grant. Lycos hereby grants Nettaxi a worldwide,
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royalty-free, nonexclusive license (with no right to sublicense) to use the
Lycos Brand Features in connection with the marketing and promotion of Lycos and
the Nettaxi Start Pages in accordance with this Agreement and Lycos' guidelines
for use of the Lycos Brand Features, which guidelines Lycos may change from time
to time, upon at least thirty (30) days' prior written notice to Nettaxi.
4.4 Wired License Grant. Wired hereby grants Nettaxi a worldwide,
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royalty-free, nonexclusive license (with no right to sublicense) to use the
Wired Brand Features in connection with the marketing and promotion of Wired,
the HotBot Search and the Wired Content in accordance with this Agreement and
Wired's guidelines for use of the Wired Brand Features, which guidelines Wired
may change from time to time upon at least thirty (30) days' prior written
notice to Nettaxi.
4.5 No Other Rights. Except as expressly provided above, the
parties retain all title to, and all rights in, their respective Brand Features.
SECTION 5. PAYMENT TERMS.
5.1 Wired Services Referral Payments. Nettaxi shall be entitled to
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payment for Referrals throughout the Term, as follows
a. For every Referral between 1 and 300,000 Referrals per contract
quarter during the Term, Wired shall pay Nettaxi REDACTED per
Referral REDACTED CPM), unless Nettaxi fails to achieve the
guaranteed level of REDACTED Referrals for two consecutive
contract quarters, in which case the payment per thousand
Referrals shall be decreased to REDACTRED, as described in
Section 3.3(b) above.
b. For every Referral between REDACTED and REDACTED Referrals per
contract quarter during the Term, Wired shall pay Nettaxi
REDACTED per Referral (REDACTED).
c. For every Referral over REDACTED per contract quarter during
the Term, Wired shall pay Nettaxi REDACTED per Referral
REDACTED.
5.2 Nettaxi Start Pages Advertising Revenue Share. Lycos shall pay
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Nettaxi the amounts set forth in Exhibit A with respect to Net Advertising
Revenue for the Nettaxi Start Pages received by Lycos during the relevant
period. For the purposes of this Agreement, "Net Advertising Revenue" means the
actual amounts received for the sale of Advertising Rights targeted to Nettaxi
Start Pages, less applicable sales or use taxes, direct costs of collection and
third party and internal sales commissions paid, which commissions shall be
deemed to be 20% of actual amounts received.
5.3 Payment Timing; Reporting. Except as provided in Section 3.3(a)
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above, within thirty (30) days following the conclusion of each contract quarter
during the Term (the "Payment Schedule"), Wired shall calculate and pay to
Nettaxi the amounts described in Section 5.1 and 5.2 for the preceding contract
quarter. Referral volumes shall be tracked by Wired and reported to Nettaxi with
each payment.
5.4 No Artificial Inflating of Referral Numbers. Nettaxi shall not,
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nor shall it permit or encourage others to, engage in behavior that would cause
Referrals other than by bona fide users who are not employees or contractors of
Nettaxi. Without limiting the foregoing, Nettaxi shall not: (i) use, or permit
to be used, robots that would cause Referrals, or (ii) compensate employees or
contractors for manually causing Referrals.
5.5 Other Revenue Opportunities. Lycos and Nettaxi shall work
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together to develop additional revenue opportunities related to Nettaxi
Services. Allocation of any such revenues shall be agreed on a case-by-case
basis.
5.6 Taxes. All fees and payments stated herein exclude, and Nettaxi
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shall pay, any sales, use, property, license, value added, withholding, excise
or similar tax, federal, state or local, related to the Parties' performance of
their obligations or exercise of their rights under this Agreement and any
related duties, tariffs, imposts and similar charges, exclusive of taxes based
on Wired's net income.
5.7 Inspection Rights. Each party shall maintain accurate records
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with respect to the calculation of all payments due under this Agreement. Each
party shall have the right, at its expense (except as provided below) to audit
the other party's books and records for the purpose of verifying such payments.
Such audits shall be made not more than twice per year, on not less than ten
(10) days written notice, during regular business hours, by auditors reasonably
acceptable to the party being audited. If the auditor's figures reflect records
higher than those-reported by the party being audited, then the party being
audited shall pay the difference. If the auditor's figures vary more than 10%
from the figures provided by the party being audited, then the party being
audited shall also pay the reasonable cost of the audit.
SECTION 6. EXCLUSIVITY.
During the Term, Wired and Lycos will be the exclusive providers of
Internet search, navigation, directory services, personal start pages, personal
home pages and email services on the Nettaxi Site (including any successor
sites); provided that Wired and Lyrcos are not obligated to provide any such
additional services not provided for in this Agreement unless it expressly
agrees to do so in writing. Nettaxi shall not display any reference to any
competitor of Wired or Lycos on the Nettaxi Site. The term "competitor" is
defined as: Yahoo, Northern Lights, Excite/AtHome, InfoSeek, Snap, Cnet, Planet
Direct, AltaVista, GeoCities, LookSmart, MetaCrawler, Mining Company, GoTo and
Go Network, or other competitor as Wired may designate once per contract
quarter.
SECTION 7. DISCLAIMER OF WARRANTIES.
HOTBOT SEARCH, WIRED CONTENT AND NETTAXI START PAGES, ALL UNDERLYING
SOFTWARE AND ALL DATA CONTAINED THEREIN ARE PROVIDED"AS IS."' WIRED AND LYCOS
DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,WITH RESPECT TO SUCH SERVICES,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY OR RELIABILITY OF DATA,
NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR ARISING FROM
THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE.
SECTION 8. CONFIDENTIAL INFORMATION.
8.1 Definition. "Confidential Information" means confidential and
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proprietary information which relates to the parties' business, products and
services, including but not limited to data, trade secrets, discoveries, ideas,
concepts, know-how, techniques, software, business activities and operations,
reports, studies and other technical and business information and, under the
circumstances of disclosure, would be deemed confidential or proprietary by a
reasonable business person. Notwithstanding the foregoing, Confidential
Information shall not include any information which is (a) information which has
become publicly available without breach hereunder by the receiving party or
another person, (b) information which was rightfully received by the receiving
party from a source not under obligation of confidentiality to the disclosing
party, (c) information in the possession of the receiving party, in written or
other recorded form, prior to disclosure by the disclosing party, (d)
information which is developed by the receiving party independent of any
information disclosed hereunder, and (e) information which the disclosing party
has approved in writing for release by the receiving party without restriction.
8.2 No Disclosure. Each party agrees that it will keep in
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confidence all Confidential Information of the other party and that it will not
directly or indirectly disclose to any third party or use for its own benefit,
or use for any purpose other than the performance of its obligations under this
Agreement, any Confidential Information it receives from the other party. Each
party agrees to use reasonable care to protect the other party's Confidential
Information, and in no event less than the same degree of care to protect the
other party's Confidential Information as it would employ with respect to its
own information of like importance which it does not desire to have published or
disseminated. Notwithstanding the foregoing, either party hereto may disclose
any Confidential Information hereunder to such party's attorneys and other
representatives, if required to do so under law or in a judicial or other
governmental investigation or proceeding, provided the other party has been
given prior notice and the disclosing party has sought all available safeguards
against widespread dissemination prior to such disclosure, or any court or other
tribunal of competent jurisdiction as reasonably required to resolve any dispute
between the parties hereto.
8.3 Remedies. The parties each agree that any breach of this
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Section 8 would cause irreparable harm or injury to the other party
significantly in excess of the value received by such other party pursuant to
this Agreement, and that such other party shall be entitled to declaratory,
injunctive or other equitable relief, in addition to any other legal or
equitable remedies it may have, for any such breach.
8.4 Return of Confidential Information. Each party shall return or
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destroy all Confidential Information promptly upon the request of the other
party or upon termination of this Agreement.
SECTION 9. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARYAND EXCEPT WITH
RESPECT TO OBLIGATIONS TO PAY MONEY UNDER SECTION 5 AND THE INDEMNITY
OBLIGATIONS UNDER SECTION 10, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR
EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR
ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES; OR (B) THE COST OF PROCUREMENT OF SUBSTITUTE
SERVICES,TECHNOLOGY, DATA OR CONTENT.
SECTION 10. INDEMNIFICATION.
10.1 By Wired. Wired, at its own expense, shall indemnify, defend
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and hold harmless Nettaxi, and its officers, directors, employees,
representatives and agents, and each of them, against any third party claim,
demand, suit, action, or other proceeding brought against such person, and all
damages, awards, settlements, liabilities, losses, costs and expenses related
thereto (including without limitation attorneys' fees) to the extent that such
claim, suit, action or other proceeding is based an or arises from any claim
that (a) the underlying source code or object code for the HotBot Personal
Search Tool infringes any copyright or U.S. patent or (b) any of the Wired Brand
Features infringes any valid copyright or trademark.
10.2 By Lycos. Lycos, at its own expense, shall indemnify, defend
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and hold harmless Nettaxi, and its officers, directors, employees,
representatives and agents, and each of them, against any third party claim,
demand, suit, action, or other proceeding brought against such person, and all
damages, awards, settlements, liabilities, losses, costs and expenses related
thereto (including without limitation attorneys' fees) to the extent that such
claim, suit, action or other proceeding is based on or arises from any claim
that (a) the underlying, source code or object code for Nettaxi Start Pages
infringes any copyright or U.S. patent (b) any of the Lycos Brand Features
infringes any valid copyright or trademark.
10.3 By Nettaxi. Nettaxi, at its own expense, shall indemnify,
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defend and hold harmless Lycos and Wired, and their respective officers,
directors, employees, representatives and agents, and each of them, against any
third party claim, suit, action, or other proceeding brought against such
person, and all damages, awards, settlements, liabilities, losses, costs and
expenses related thereto (including without limitation attorneys' fees) to the
extent that such claim, suit, action or other proceeding is based on or arises
from (a) any claim that any of the Nettaxi Brand Features infringe any valid
copyright or trademark or (b) operation of the Nettaxi Site.
10.4 Procedure. All indemnification obligations under this Section
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10 shall be subject to the following requirements: (a) the indemnified party
shall provide the indemnifying party with prompt written notice of any claim;
(b) the indemnified party shall permit the indemnifying party to assume and
control the defense of any action (unless, in the opinion of counsel of the
indemnified party, such assumption would result in a material conflict of
interest); and (c) the indemnified party shall not enter into any settlement or
compromise of any claim without the indemnifying party's prior written consent.
In addition, the indemnified party may, at its own expense, participate in its
defense of any claim.
SECTION 11. TERMINATION.
11.1 Term. This Agreement shall have an initial term of REDACTED
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from the Effective Date and shall automatically renew for successive one-year
terms unless (a) either party provides the other party written notice of
non-renewal at least thirty (30) days prior to the expiration of the then
current term or (b) terminated earlier in accordance with Section 11.2. The
initial term and all renewal terms are collectively referred to in this
Agreement as the "Term."
11.2 Early Termination.
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(a) Termination Conditions. This Agreement may be terminated
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(i) by any Party immediately upon written notice if the other party (A) becomes
insolvent; (B) files a petition in bankruptcy; or (C) makes an assignment for
the benefit of its creditors; (ii) by any Party at such time as Wired or Lycos
ceases offering any of the above-described services to third parties; or (iii)
by any Party for any reason or no reason upon ninety (90) days prior written
notice,
(b) Non-Exclusive Remedy. Except as explicitly set forth
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elsewhere in this Agreement, the foregoing rights of termination shall be in
addition to any other legal or equitable remedies that the terminating party
may have.
11.3 Survival of Certain Provisions. The provisions of Sections I
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(Definitions), 4.1 (Ownership), 4.3 (No Other Rights), 7 (Disclaimer of
Warranties), 8 (Confidential Information), 9 (Limitation of Liability), 10
(Indemnification), 12 (General Provisions) and this Section 11.3, as well as any
accrued payment obligations under Section 5, shall survive any termination of
this Agreement.
SECTION 12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement, including the Exhibit hereto,
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represents the entire agreement between the parties with respect to the subject
matter hereof and thereof and shall supersede all prior agreements and
communications of the parties, oral or written.
12.2 Amendment and Waiver. No amendment to any provision of this
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Agreement shall be effective unless in writing and signed by all parties. The
waiver by either party of a breach or a default of any provision of this
Agreement by the other party shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any delay or
omssion on the part of either party to exercise or avail itself of any right,
power or privilege that it has, or may have, hereunder, operate as a waiver of
any right, power or privilege by such party.
12.3 Choice of Law and Forum. This Agreement, its interpretation,
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performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, the laws of the State
of California applicable to contracts entered into and wholly to be performed
within said state. The parties hereby consent to the personal jurisdiction of
California, acknowledge that venue is proper in any state or Federal court in
the California, agrees that any action related to this Agreement must be brought
in a state or Federal court in the California, and waive any objection such
party has or may have in the future with respect to any of the foregoing.
12.4 Legal Fees. The prevailing party in any legal action brought
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by one party against the other and arising out of this Agreement shall be
entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses, including court and arbitration costs, as well
as reasonable attorneys' fees.
12.5 Successors and Assigns. Neither party shall assign its rights
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or obligations under this Agreement without the prior written consent of the
other party, provided that Wired and Lycos shall be permitted to assign its
rights and obligations to an acquiring or successor entity in connection with a
merger, a sale of Wired's or Lycos' business or a sale of all or substantially
all of Wired's or Lycos' assets. All terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted transferees, successors and assigns.
12.6 Notices. All notices, requests, consents and other
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communications which are required or permitted hereunder shall be in writing,
and shall be delivered by registered U.S. mail, postage prepaid (effective three
(3) days after mailing) or sent by facsimile or electronic mail, with a
confirmation copy simultaneously sent by U.S. mail, postage prepaid (effective
upon transmission), at the addresses set forth on the signature page hereto.
Notice of change of address shall be given in the same manner as other
communications.
12.7 Severability. If any provision of this Agreement is held to be
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invalid, illegal or unenforceable for any reason, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
12.8 Good Faith. The parties agree to act in good faith with
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respect to each provision of this Agreement and any dispute that may arise
related hereto.
12.9 Headings. The section headings contained in this Agreement are
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included for convenience only, and shall not limit or otherwise affect the terms
of this Agreement.
12.10 Counterparts. This Agreement may be executed in two
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counterparts, both of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by facsimile
transmission.
This Internet Services Suite Agreement has been executed by the parties
effective as of the Effective Date.
WIRED DIGITAL, INC. LYCOS, TNC.
By: /s/ Xxxxxxxxx Vandendike By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx Vandendike Name: Xxxxxx X. Xxxxxxxx
Title: President Title: VP Finance/Admin.
Address: Address:
Wired Digital, Inc. Lycos, Inc.
Attn.: General Counsel 000-0 Xxxxxx Xxxx Xxxx
000 Xxxxx Xxxxxx, 0x Xxxxx Xxxxxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000 Tel.: (000) 000-0000
Tel.: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000 Attn.: General Counsel
Reviewed By
WIRED DIGITAL LEGAL
Initial /s/ CP
NETTAXI
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
Address:
0000 X. Xxxxxx Xxx.
Xxxxxxxx, XX 00000
Attn.:
Tel.: (000) 000-0000
Fax: (000) 000-0000
Email: XXXX@XXXXXXX.XXX
EXHIBIT A
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1. ADDITIONAL MARKETING PROVISIONS
A. HOTBOT BANNER ADVERTISEMENTS:
i. Throughout the Term, Nettaxi shall serve REDACTED banner
impressions per month promoting Nettaxi Start Pages on a "run-of-site"
basis across the Nettaxi Site, which creative materials will be furnished
by Lycos and modified by Lycos from time to time at Lycos' sole
discretion.
ii. Throughout the Term, Nettaxi shall serve REDACTED banner
impressions per month promoting the HotBot Personal Search Tool on
a "run-of-site" basis across the Nettaxi Site, which creative materials
will be furnished by Wired and modified by Wired from time to time at
Wired's sole discretion.
B. 9-MAIL PROMOTIONS: At least REDACTED per contract quarter of the
Term, Nettaxi shall deliver a direct e-mail to each of Nettaxi's
registered users containing a marketing message written by Wired and/or
Lycos regarding new features in the Wired and Lycos services. Such
e-mails shall not contain any other promotional elements.
2. NET ADVERTISING REVENUE
Lycos shall pay Nettaxi according to the Payment Schedule an amount equal
to REDACTED of Net Advertising Revenue derived from Nettaxi Start Pages.
If Nettaxi fails to deliver the guaranteed level of Referrals during
two consecutive contract quarters during the Term, the percentage of Net
Advertising Revenue used in the Formula for computation of Nettaxi
quarterly payment shall decrease to REDACTED as described above in
Section 3.3(b).
