EXHIBIT 10.15
Cyberian Outpost, Inc. has omitted from this Exhibit 10.15 portions of the
Agreement for which Cyberian Outpost, Inc. has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment has been requested are marked with X's in brackets
and such confidential portions have been filed separately with the Securities
and Exchange Commission.
This agreement ("Agreement" is entered into as of December 4, 1997
("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Cyberian
Outpost, Inc., a Connecticut corporation, located at 00 Xxxxx Xxxx Xxxxxx, Xxxx,
Xxxxxxxxxxx 00000 ("Cyberian").
RECITALS
A. Excite maintains sites on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Excite Site") and xxxx://xxxxxxxxxx.xxx (the "Webcrawler Site") and
owns and/or manages related 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 Network, Excite currently organizes certain content
into topical channels including Shopping Channels located at the
Excite Site and the WebCrawler Site.
C. Cyberian is engaged in the business of the retail sale of computers
equipment and software at its Web site located at
xxxx://xxx.xxxxxx.xxx (the "Cyberian Site").
D. Cyberian wishes to promote use of the Cyberian Site by Excite's users
by sponsoring the Shopping Channels of the Excite Site and the
WebCrawler Site and purchasing banner advertising on the Excite
Network.
1. SPONSORSHIP
a) Cyberian will be a "Network Tenant" of the Shopping Channels of
the Excite Site and the WebCrawler Site.
b) Cyberian will be promoted in the Excite Shopping Channel:
i) Cyberian will receive a link on the Excite Shopping Channel
main page for the term of the Agreement.
ii) Cyberian will be featured in the Excite Shopping Channel
"Such a Deal" promotional rotation in two separate one-week
rotations during the term of the Agreement, once every six
months.
iii) Cyberian will be featured in the Excite Shopping Channel
"Shop Here First" promotional rotation in four separate
one-week rotations during the term of the Agreement, once
every quarter.
iv) Cyberian will receive a link on the front page of the
Computers & Software department of the Excite Shopping
Channel for the term of the Agreement.
v) Cyberian will be featured in the Computers & Software
department of the Excite Shopping Channel "Shop Here First"
promotional rotation in twenty-four separate one-week
rotations during the term of the Agreement, six weeks every
quarter.
c) Cyberian will be featured in the WebCrawler Shopping Channel:
i) Cyberian will receive a link on the WebCrawler Shopping
Channel main page for the term of the Agreement.
ii) Cyberian, will be featured in the WebCrawler Shopping
Channel "Special Web Price!" promotional rotation in two
separate one-week rotations during the term of the
Agreement, once every six months.
iii) Cyberian will be featured in the WebCrawler Shopping
Channel "Featured Merchants" promotional rotation in four
separate one-week rotations during the term of the
Agreement, once every quarter.
iv) Cyberian will receive a link on the front page of the
Computers & Software department of the WebCrawler Shopping
Channel for the term of the Agreement.
v) Cyberian will be featured in the Computers & Software
department of the WebCrawler Shopping Channel "Featured
Merchants" promotional rotation in twenty-four separate
one-week rotations during the term of the Agreement, six
weeks every quarter.
d) Cyberian will be featured in promotional rotations in the Excite
Site and the Web Crawler Site:
i) Cyberian will be featured in the "Other Destinations"
promotional rotation in fifty-two separate one-week
rotations during the term of the Agreement in various
channels in the Excite Site to be determined by Excite.
ii) Cyberian will be featured in the "Exciting Stuff"
promotional rotation in twelve one-week rotations during
the term of Agreement in various Channels in the Excite
Site to be determined by Excite, three weeks every quarter.
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iii) Cyberian will be featured in the "Shopping" promotional
rotation in fifty-two separate one-week rotations during
the term of the Agreement in various Channels in the
WebCrawler Site to be determined by Excite.
iv) Cyberian will be featured in "Try These First" links during
the term of the Agreement in search results pages in the
Excite Site, subject to availability.
v) Cyberian will be featured in "Shortcuts" links during the
term of the Agreement in search results pages in the
WebCrawler Site, subject to availability.
e) Excite will display Cyberian's banners on the Excite Site and the
WebCrawler Site in mutually agreed-upon Channels and in response
to mutually agreed-upon keywords, subject to availability.
Excite will also display Cyberian's banners on the Excite Site
and the WebCrawler Site in general rotation.
f) Cyberian will be included in Excite's Holiday Gift Guide
promotion, in upcoming promotions of merchants with comparable
sponsorship commitments in the "Excite Shopping Service powered
by Jango" shopping service and in two Web-based "Shopping"
promotional campaigns to be conducted by Excite.
g) Excite will deliver [XXXXX] impressions of Cyberian promotional
placements and advertising banners during the term of this
Agreement.
h) Excite will make available to Cyberian monthly reports on
delivered impressions and clickthroughs on Cyberian's banner
advertisements and non-banner promotional placements.
i) For the duration of this Agreement, Excite will not display
promotional placements or advertising banners from the Cyberian
competitors listed in Exhibit A in the Computers & Software
department of the Excite Shopping Channel or the Computers &
Software department of the WebCrawler Shopping Channel.
Notwithstanding the foregoing, Excite may incorporate the
Cyberian competitors listed in Exhibit A into the "Excite
Shopping Service powered by Jango" shopping service wherever
displayed on the Excite Site or the WebCrawler Site.
2. LAUNCH DATE
a) The "Launch Date" is the date of the first display of the
promotional placements and advertising banners described in
Section 1.
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b) Cyberian and Excite will use reasonable efforts to achieve a
Launch Date no later than fourteen (14) days after Cyberian
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 banners described in Section 1 (collectively,
"Impression Material") to Excite.
c) In the event that Cybarian 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 Launch 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.
3. SPONSORSHIP FEES AND REVENUE SHARING
a) A one-time sponsorship initiation fee of [XXXXXX] is due to
Excite upon execution of this Agreement as compensation for costs
of initiating access to the Excite Network, setup costs and other
expenses associated with Excites initiation of the links,
placements, advertisements and promotions contemplated by this
Agreement. The sponsorship initiation fee will be paid no later
than thirty (30) days after the Effective Date.
b) Separate and apart from the one-time sponsorship initiation fee,
Cyberian, will pay Excite sponsorship and advertising fees in the
total amount of [XXXXXX] in equal monthly installments of
[XXXXXX], commencing on the Launch Date.
c) Separate and apart from the one-time sponsorship initiation fee
and sponsorship and advertising fees, Cyberian will pay Excite
[XXXX] of gross revenues attributable to transactions
conducted by users referred to Cyberian's Web site from the
Excite Network during the term of the Agreement. Cyberian will
pay Excite its share of revenues within thirty (30) days after
the close of the financial quarter in which Cyberian recognizes
the revenue derived from these transactions.
d) The one-time sponsorship initiation fee, sponsorship and
advertising fees and transaction-related payments are net of any
agency commissions to be paid by Cyberian.
e) Cyberian will maintain accurate records with respect to the
calculation of all payments due under this Agreement. Excite
may, upon no less than thirty (30) days prior written notice to
Cyberian, cause an independent
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Certified Public Accountant to inspect the records of Cyberian
reasonably related to the calculation of such payments during
Cyberian'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 Cyberian will
be responsible for the payment of the reasonable fees for such
inspection.
4. CUSTOMER INFORMATION
Cyberian will retain all rights to customers acquired pursuant to this
Agreement
5. PUBLICITY
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. Notwithstanding the
foregoing, the parties agree to issue an initial press release regarding
the relationship between Excite and Cyberian, the timing and wording of
which will be mutually agreed upon.
6. TERM AND TERMINATION
a) The term of this Agreement will begin on the Effective Date and
will end one year after the Launch Date.
b) 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.
c) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within
thirty (30) days thereof.
d) The provisions of Section 8 (Confidentiality), Section 9
(Warranty and Indemnity), Section 10 (Limitation of Liability)
and Section 11 (Dispute Resolution) will survive any termination
or expiration of this Agreement.
7. TRADEMARK OWNERSHIP AND LICENSE
a) Cyberian will retain the right, title and interest in and to its
trademarks, copyrights, 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, copyrights, service marks and trade names worldwide,
subject to the limited license granted to Cyberian hereunder.
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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) Nothing in this Agreement grants either party any right to use
the name, trademark or service xxxx of, the other in any
advertisement, sales promotion or press release without the
others prior written approval.
8. CONFIDENTIALITY
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 or (iii) the receiving party knew prior
to receiving such information from the disclosing party or
develops independently.
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) Notwithstanding the foregoing, each party may disclose
Confidential Information (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.
e) The terms and conditions of this Agreement will be deemed to be
the Confidential Information of each party and will not be
disclosed without the written consent of the other party.
9. WARRANTY AND INDEMNITY
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a) Cyberian 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 warranty, representation or covenant in
this Agreement;
ii) Any claim that Cyberian'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;
iii) Any claim arising from any product or service offered
through the Cyberian Site; or
iv) Any claim arising from content displayed on the Cyberian
Site.
Excite will promptly notify Cyberian of any and all such claims and will
reasonably cooperate with Cyberian 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 Excites 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 Cyberian, 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 warranty, representation or covenant in
this Agreement; or
ii) Any claim arising from content displayed on the Excite
Network.
Cyberian 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 Cyberian in any way and such
obligation, liability, prejudice or impact can reasonably be expected
to be material, then such settlement shall require Cyberian'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.
c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT
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MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPUED
WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT
MATTER.
1O. LIMITATION OP LIABILITY
EXCEPT UNDER SECTIONS 9(a) and 9(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 EXCITE FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER.
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED
TO, AND WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY CYBERIAN TO
EXCITE HEREUNDER.
11. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality 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. For the purposes
of this section only, the parties consent to venue in either the
state courts of the county in which Excite has its principal
place of business or the United States District Court for the
Northern District of California.
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 and/or confidentiality, 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 for hearing in the
county in which Excite has its principal place of business.
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 and/or confidentiality, cannot be
resolved through good faith negotiation
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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. The arbitration will be held in the county in which
Excite has its principal place of business.
12. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or
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in part, without the other patty'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)
Excite's assignment and/or delegation of its rights and
responsibilities hereunder to a wholly-owned subsidiary or joint
venture in which Excite 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 Cyberian.
c) Notice. Any notice under this Agreement will be in writing and
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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 below 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
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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
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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 by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will remain
in full force and effect.
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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.
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Cyberian Systems, Inc. Excite, Inc.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
-------------------------- ------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxx
------------------------- ----------------------
Title: VP Marketing/Bus. Dev Title: EVP - CFO
------------------------ ---------------------
Date: 12/4/97 Date: 12/04/97
------------------------- ----------------------
00 Xxxxx Xxxx Xxxxxx 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
000-000-0000 (voice) 000-000-0000 (voice)
000-000-0000 (fax) 000-000-0000 (fax)
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EXHIBIT A
CYBERIAN COMPETITORS
MicroWarehouse
Insight
NECX
CDW
MacMall
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