EXHIBIT 10.16
STRATEGIC ALLIANCE AND SERVICES AGREEMENT
This Strategic Alliance and Services Agreement (this "Agreement") is
entered into as of February 14, 2000 (the "Effective Date") by and between
XxxxxxxXxxx.xxx, Inc., a Delaware corporation ("CollegeClub"), and Ericsson
Inc., a Delaware corporation ("Ericsson").
RECITALS
A. CollegeClub is a leading developer of Internet communities based
on its proprietary set of integrated web communication tools and CollegeClub
operates the largest online college community.
B. Ericsson is a preeminent global supplier of wireless
telecommunications products and services.
C. CollegeClub seeks to establish itself as the premier mobile
internet "virtual college community" and to explore new business and application
opportunities within the mobile internet space.
D. CollegeClub and Ericsson desire to pursue various strategic
initiatives for the mutual benefit of each party, as more particularly described
in this Agreement.
E. From time to time it may be desirable for one party to provide
"services" to the other party and the parties agree to negotiate the terms
pursuant to which services are provided and to provide those services in
accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
and covenants set forth in this Agreement, the parties agree as follows:
AGREEMENT
1. DEFINITIONS.
1.1 "Business Development Initiatives" means any initiative
whereby CollegeClub and Ericsson agree in writing to implement business
opportunities designed to (i) promote the business of each party and to (ii)
implement new mobile e-commerce solutions. Subject to the mutual agreement of
the parties in a Strategic Project Addendum, Business Development Initiatives
might include, without limitation, (a) *** (b) ***
***
***
1.2 "CollegeClub Background Technology" means any technology
and Intellectual Property Rights owned by or licensed to CollegeClub which are
(i) in existence prior to the Effective Date and (ii) developed after the
Effective Date outside the scope of a Statement
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
of Work. CollegeClub Background Technology includes any Improvements to or upon
(i) or (ii) above whether developed by CollegeClub, Ericsson or jointly by the
parties, other than Improvements to (i) or (ii) above made by Ericsson and which
are owned by Ericsson as provided in Section 5.2 ("Ownership of Improvements").
1.3 "Deliverables" means any item developed pursuant to a
Statement of Work or Strategic Project Addendum which is identified as a
deliverable in the Statement of Work or Strategic Project Addendum, including,
but not limited to, products, software, applications, documentation, data,
reports, specifications, or other Intellectual Property. Deliverables shall not
include any materials, software, documentation or other items in existence at
the time the Statement of Work is executed by the parties.
1.4 "Development Tools" means a software product developed
pursuant to a Statement of Work or in connection with a Statement of Work which
is used to develop a Deliverable.
1.5 "Education Initiatives" means any initiative whereby
CollegeClub and Ericsson agree in writing to develop and test mobile, Internet
enabled, distance learning programs to provide untethered educational services
to college students or other students. Subject to the mutual agreement of the
parties in a Strategic Project Addendum, Education Initiatives might include,
without limitation, ***
***
***
1.6 "Ericsson Background Technology" means any technology and
Intellectual Property Rights owned by or licensed to Ericsson which are (i) in
existence prior to the Effective Date and (ii) developed after the Effective
Date outside the scope of a Statement of Work. Ericsson Background Technology
includes any Improvements to or upon (i) or (ii) above whether developed by
CollegeClub, Ericsson or jointly by the parties, other than Improvements to (i)
or (ii) above made by CollegeClub and which are owned by CollegeClub as provided
in Section 5.2 ("Ownership of Improvements").
1.7 "Improvement" means any and all enhancements,
modifications, derivative works, improvements or changes to the CollegeClub
Background Technology or to the Ericsson Background Technology, as the case may
be, including without limitation derivative works of any copyrighted material.
For purposes of this definition, an enhancement, modification, derivative work,
improvement or change conceived, reduced to practice or developed independent
of, and without benefit of, any of the CollegeClub Background Technology or the
Ericsson Background Technology, and which enhancement, modification, derivative
work, improvement or change can be practiced without using or infringing upon
any CollegeClub Background Technology or Ericsson Background Technology shall
not be considered an "Improvement" hereunder.
1.8 "Initiatives" means all Business Development Initiatives,
Education Initiatives and Marketing Initiatives.
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*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
1.9 "Intellectual Property Rights" means copyright rights
(including, without limitation, the exclusive right to use, reproduce, modify,
distribute, publicly display and publicly perform the copyrighted work),
trademark rights (including, without limitation trade names, trademarks, service
marks and trade dress), patent rights (including, without limitation, the
exclusive right to make, use and sell), trade secrets, moral rights, right of
publicity, authors' rights, contract and licensing rights, goodwill and all
other intellectual property rights as may exist now and/or hereafter come into
existence and all renewals and extensions thereof, regardless of whether such
rights arise under the laws of the United States, or any other state, country or
jurisdiction.
1.10 "Marketing Initiatives" means any initiative whereby
CollegeClub and Ericsson agree in writing to create and implement marketing
programs which promote the products and services of each party and the strategic
plans or initiatives of each party. Subject to the mutual agreement of the
parties in a Strategic Project Addendum, Marketing Initiatives might include,
without limitation, (i) *** and (ii) ***
1.11 "Merchant Agreement" means CollegeClub's then-current
merchant agreement whereby Ericsson will become an official CollegeClub website
merchant.
1.12 "Statement of Work" means a written agreement in
substantially the same form as EXHIBIT A pursuant to which one party will
perform services for the other.
1.13 "Strategic Project Addendum" means a written agreement in
substantially the same form as EXHIBIT B, pursuant to which CollegeClub and
Ericsson agree to implement strategic Initiatives.
2. SERVICES.
2.1 REQUEST FOR SERVICES. Either party (the "Requesting
Party") may, during the term of this Agreement, submit a request to the other
party (the "Developing Party") requesting the Developing Party to perform
services for the Requesting Party. Each such request shall include an overview
of the nature of the services requested and the Deliverables to be delivered.
Subject to the availability of resources, each party agrees to work together in
good faith with the other party to further define the services and Deliverables
and negotiate the terms of a Statement of Work applicable to the requested
services. Absent the execution of a Statement of Work, neither party shall be
required to provide technical or consulting services to the other party. Unless
agreed otherwise in writing, this Agreement shall govern the performance of
services by one party for the other party. At such time as the parties agree on
the terms of the provision of services and the delivery of Deliverables the
parties shall execute a Statement of Work. It is the intent of the parties to
discuss the following services during the two (2) month period following the
Effective Date: (i) *** and (ii) ***
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*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
2.2 CONTENT OF THE STATEMENTS OF WORK. The parties agree that
each Statement of Work will include and address each of the items in EXHIBIT A.
2.3 PERFORMANCE OF SERVICES AND DELIVERY OF DELIVERABLES. Each
party agrees to use commercially reasonable efforts to perform those obligations
assigned to it in each Statement of Work and to deliver the Deliverables
assigned to it in each Statement of Work, all in accordance with the milestone
schedule set forth in the Statement of Work. Each party acknowledges and agrees
that the other party may subcontract the performance of services under a
Statement of Work, provided that such party will remain responsible for the
performance of the subcontractor. If a party knows, at the time a Statement of
Work is executed, that one or more subcontractors will perform the services
described in that Statement of Work, then such party shall include the names of
such subcontractors in the Statement of Work.
2.4 ACCEPTANCE OF DELIVERABLES AND SERVICES. Unless otherwise
agreed in a Statement of Work, during the thirty (30) day period following the
delivery of a Deliverable (the "Evaluation Period"), the party to whom the
Deliverable is delivered (the "Receiving Party") shall have the right to
evaluate and test the Deliverable in order to determine if it conforms with the
functional and technical specifications and other acceptance criteria set forth
in the Statement of Work for such Deliverable. In the event that the
Deliverable does not conform to such specifications, the Receiving Party will
provide written notice to the other party (the "Developing Party") describing
the non-conformity(ies) in sufficient detail to allow the Developing Party to
replicate the non-conformity(ies). The Developing Party agrees to use
commercially reasonable efforts to correct all such non-conformities and
redeliver the corrected Deliverable to the Receiving Party for re-evaluation and
re-testing as provided in this Section. If the Receiving Party does not report
a non-conformity during the Evaluation Period, the Receiving Party will be
deemed to have accepted the Deliverable or the corrected version of the
Deliverable, if applicable. If the Developing Party is not able to correct a
non-conformity within a reasonable time, then the Receiving Party may, in its
discretion (i) modify the specifications so that the Deliverable conforms, (ii)
accept such non-conformity, or (iii) terminate the Statement of Work and receive
a refund of amounts paid to the Developing Party, if any. In the event of such
termination all licenses granted in the Statement of Work, if any, shall
terminate.
2.5 MARKET INTELLIGENCE. The parties agree to work together
in good faith to identify, design and conduct periodic market intelligence,
including without limitation (i) *** and (ii)***. In addition, the parties
shall work together in good faith to identify, develop and implement third
party research programs, including but not limited to ***. If the parties
agree to conduct specific market intelligence, the parties' agreement shall
be set forth in a writing substantially similar to a Statement of Work,
including the applicable components of a Statement of Work as set forth in
Section 2.2 ("Content of the Statements of Work").
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*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
2.6 COSTS. The parties agree that each party will pay for its
own costs and expenses incurred in its performance of its obligations under any
Statement of Work, except as otherwise provided in a Statement of Work.
3. STRATEGIC INITIATIVES.
3.1 MONTHLY MEETINGS. The parties agree to meet at least one
time per calendar month to (i) identify potential Initiatives to be developed
and pursued by the parties, (ii) actually develop and document such Initiatives
and (iii) discuss the implementation of Initiatives which the parties have
agreed to pursue (the "Monthly Meeting"). The Monthly Meeting may be conducted
telephonically, via videoconference or in person and will generally take place
on or about the fifteenth day of each month. At least one Monthly Meeting each
calendar quarter will take place in person, at a mutually agreed upon location,
with representatives from each party being present. Either party (the
"Requesting Party") may, during the term of this Agreement, submit to the other
party (the "Other Party") a request to pursue a specific Initiative. Each such
request shall include an overview of the nature of the proposed Initiative.
Subject to the availability of resources, each party agrees to work together in
good faith with the other party to further define the proposed Initiative and
negotiate the terms of a Strategic Project Addendum applicable to the proposed
Initiative. Absent the execution of a Strategic Project Addendum, neither party
shall be required to participate in a proposed Initiative. Unless agreed
otherwise in writing, this Agreement shall govern all proposed Initiatives. At
such time as the parties agree on the terms of a proposed Initiative the parties
shall execute a Strategic Project Addendum.
3.2 CONTENT OF THE STRATEGIC PROJECT ADDENDA. The parties
agree that each Strategic Project Addendum will include and address each of the
items in EXHIBIT B.
3.3 IMPLEMENTATION OF INITIATIVES. Each party agrees to use
commercially reasonable efforts to perform its obligations under each Strategic
Project Addendum in a professional manner and in accordance with the schedule
set forth in the Strategic Project Addendum. The parties agree that the
acceptance and evaluation process more particularly described in Section 2.4
("Acceptance of Deliverables and Services") shall apply to any Deliverables
delivered under a Strategic Project Addendum.
3.4 COSTS. The parties agree that each party will pay for its
own costs incurred in its performance of its obligations under any Strategic
Project Addendum, except as otherwise provided in the Strategic Project
Addendum.
4. MERCHANT AGREEMENT. At such time as the parties may agree that
Ericsson shall be an official merchant on the CollegeClub Website, then the
parties shall execute a Merchant Agreement.
5. PROPRIETARY RIGHTS.
5.1 OWNERSHIP OF BACKGROUND TECHNOLOGY. CollegeClub shall
be the sole and exclusive owner of all right, title and interest in and to
the CollegeClub Background Technology. Ericsson shall be the sole and
exclusive owner of all right, title and interest in and to
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the Ericsson Background Technology. Except as otherwise provided in Section 5.7
("License to Background Technology") or as agreed in any Statement of Work or
Strategic Project Addendum no licenses or other rights with respect to such
Background Technology are granted to the other party.
5.2 OWNERSHIP OF IMPROVEMENTS. Notwithstanding anything to the
contrary in this Agreement, nothing in this Agreement shall preclude either
party from making Improvements to the Background Technology of the other party
which is in the public domain (by reason of the publication of a patent or
otherwise) provided that any such activity (i) does not breach any provision of
this Agreement, (ii) infringe such other party's Intellectual Property Rights,
or (iii) does not result in the use of any Confidential Information of the other
party. Subject to the ownership provisions of Section 5.3 ("Ownership of
Deliverables"), the party making such Improvements to the public domain
Background Technology of the other party shall be the owner of such Improvements
and any Intellectual Property Rights therein. The party owning any such
Improvement to public domain Background Technology of the other party as
provided in this Section, hereby grants to such other party a non-exclusive,
worldwide, assignable, royalty-free, irrevocable, perpetual license (with the
right to sublicense through multiple tiers of distribution) to use, make, have
made, offer for sale, sell, have sold, and import products which incorporate any
such Improvement.
5.3 OWNERSHIP OF DELIVERABLES. Except as otherwise expressly
provided in a Statement of Work or a Strategic Project Addendum, CollegeClub
shall be, upon payment of amounts due under the applicable Statement or Work or
Strategic Project Addendum, the sole and exclusive owner of all right, title and
interest in and to (i) the Deliverables (excluding any Ericsson Background
Technology included therein), (ii) any Improvements to public domain CollegeClub
Background Technology made by Ericsson which are included in a Deliverable or
which are required to use, make or sell the Deliverable, and (iii) all
Intellectual Property Rights in the Deliverables and such Improvements. If a
Statement of Work or a Strategic Project Addendum provides that Ericsson will be
the exclusive owner of one or more of the Deliverables, then Ericsson shall be
the owner of all right, title and interest in and to (i) such Deliverables
(excluding any CollegeClub Background Technology included therein), (ii)
Improvements to public domain Ericsson Background Technology made by CollegeClub
which are included in a Deliverable or which are required to use, make or sell
the Deliverable, and (iii) all Intellectual Property Rights in such Deliverables
and such Improvements.
5.4 OWNERSHIP OF DEVELOPMENT TOOLS. In the event that a
Development Tool is developed pursuant to a Statement of Work or in connection
with a Statement of Work or a Strategic Project Addendum, the terms of this
Section shall govern the ownership of and rights in such Development Tool. The
party that paid for the development of the Development Tool shall be the Owning
Party (as defined below). If the non-Owning Party prepared the functional
specifications (i.e., the requirements document which specifies in general terms
the functionality or performance of the development tool), the Owning Party
hereby grants and agrees to grant to the other party a non-exclusive,
royalty-free, worldwide license, with rights to grant sublicenses, to use,
reproduce, modify, distribute, publicly display, make, have made, sell, offer to
sell and import such Development Tool or any product of such other party
requiring or incorporating such Development Tool. If the parties jointly fund
the development of a
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Development Tool, then the party that prepared the functional specification for
the Development Tool shall be the Owning Party. In such event, the Owning Party
hereby grants and agrees to grant to the other party a non-exclusive,
royalty-free, worldwide license, with rights to grant sublicenses, to use,
reproduce, modify, distribute, publicly display, make, have made, sell, offer to
sell and import such Development Tool or any product of such other party
requiring or incorporating such Development Tool. If the parties jointly fund
the development of a Development Tool and jointly develop the functional
specification for the Development Tool, Ericsson shall be the Owning Party. In
such event, Ericsson hereby grants and agrees to grant to CollegeClub a
non-exclusive, royalty-free, worldwide license, with rights to grant
sublicenses, to use, reproduce, modify, distribute, publicly display, make, have
made, sell, offer to sell and import such Development Tool or any product of
CollegeClub requiring or incorporating such Development Tool.
5.5 DELIVERY OF DEVELOPMENT TOOLS. If a Development Tool is
owned by or licensed to the party who did not develop the Development Tool, then
the party developing the Development Tool agrees to deliver a copy of the
Development Tool and all related documentation to the non-developing party to
enable such non-developing party to exploit such ownership and/or license
rights.
5.6 ASSIGNMENT. For purposes of this Agreement, the "Owning
Party" shall mean the owner of a Deliverable, Development Tool or an Improvement
and the "Assigning Party" shall mean the other party. The Assigning Party
hereby assigns and agrees to assign to the Owning Party all of the Assigning
Party's entire worldwide right, title and interest in and to any Deliverables,
Improvements and Development Tools which the Owning Party owns as provided in
this Agreement (excluding any of the Assigning Party's Background Technology
included therein) and all Intellectual Property Rights in any of the foregoing.
The foregoing assignment does not include an assignment of any of the Assigning
Party's Background Technology. The Assigning Party agrees to execute upon the
Owning Party's request a signed transfer of such Deliverables, Development
Tools, Improvements and their associated Intellectual Property Rights to the
Owning Party. The Assigning Party agrees to assist the Owning Party in any
reasonable manner to obtain, perfect and enforce, for the Owning Party's
benefit, the Owning Party's rights, title and interest in any and all countries,
in and to all patents, copyrights, moral rights, mask works, trade secrets, and
other property rights in each such Deliverables, Development Tools and
Improvements. If called upon to render assistance under this Section, the
Assigning Party shall be entitled to reimbursement of all reasonable expenses
incurred at the prior written request of the Owning Party.
5.7 LICENSE TO BACKGROUND TECHNOLOGY. In the event that the
Assigning Party's Background Technology (i) is included within or embodied in a
Deliverable or Development Tool owned by the Owning Party or (ii) is necessary
to exploit a Deliverable owned by the Owning Party, then the Assigning Party
hereby grants to the Owning Party a non-exclusive, worldwide, non-assignable
(except as provided in Section 12.2 ("No Assignment")), royalty-free, perpetual
license (with the right to sublicense through multiple tiers of distribution) to
use, reproduce, modify, distribute, publicly display, make, have made, sell,
have sold, offer for sale such Background Technology solely as incorporated into
or embodied in the Deliverable. All rights not granted above in the Assigning
Party's Background Technology, shall be retained
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by the Assigning Party. Such license shall be irrevocable; provided however,
that such license shall be revocable if: (i) the licensee is in material breach
of the scope of the license granted in this Section, and (ii) such breach
remains uncured for a period of ten (10) business days after receipt of written
notice. Except as otherwise provided in a Statement of Work or Strategic Project
Addendum, no rights are granted to CollegeClub in any Ericsson Background
Technology for the purpose of (i) making or having made any product which
competes with an Ericsson product or (ii) offering a service which competes with
an Ericsson service.
5.8 RESTRICTIONS. Notwithstanding anything to the contrary in
this Agreement, Ericsson agrees that it shall not have the right to sublicense,
transfer, sell, assign or otherwise distribute a (i) Development Tool owned by
CollegeClub, (ii) Deliverables owned by Ericsson or (iii) CollegeClub Background
Technology which is licensed to Ericsson pursuant to this Agreement, to any
third party which competes with CollegeClub. Such restrictions shall be
commence on the date such Development Tool, Deliverable, or product
incorporating the CollegeClub Background Technology is first commercialized by
Ericsson and shall end two (2) years after such date. Nothing in this Section
shall be construed to expand any license granted to Ericsson in this Agreement.
A third party will be deemed to compete with CollegeClub if such third party
offers products or services directed primarily to a demographic consisting of
high school students or college or post graduate students. Further,
notwithstanding anything to the contrary in this Agreement, no license is
granted under any Ericsson Background patents except the right for CollegeClub
and CollegeClub customers to use Deliverables and Development Tools.
6. WARRANTIES.
6.1 MUTUAL REPRESENTATIONS. Each party represents and warrants
to the other party that, during the term of this Agreement, it possesses and
will possess the full power and authority to enter into this Agreement and any
subsequent Statement of Work, Strategic Project Addendum, or Merchant Agreement
Each party further represents and warrants that it has full power and authority
to fulfill its obligations hereunder and under any subsequent Statement of Work,
Strategic Project Addendum, or Merchant Agreement, and the performance according
to the terms of this Agreement or any subsequent Statement of Work, Strategic
Project Addendum, or Merchant Agreement shall not breach any separate agreement
by which such party is bound.
6.2 WARRANTIES REGARDING PERFORMANCE OF DELIVERABLES. Except
as otherwise set forth in a Statement of Work or Strategic Project Addendum,
each party as the developer of a Deliverable (the "Developing Party"), warrants
to the other party (the "Other Party") that, for a period of twelve (12) months
after the acceptance of the Deliverable, the Deliverable will perform
substantially in accordance with the applicable specifications and/or acceptance
testing criteria. In the event of a breach of the foregoing warranty, the
Developing Party shall, at its cost and expense, repair or replace the
Deliverable so that it conforms to the foregoing warranty. In the event that
such repair or replacement is not commercially reasonable, then the parties will
negotiate in good faith a refund of all or a portion of the fees paid by the
Other Party for such Deliverable, or if no such payment was made for the
Deliverable, then a fair and equitable amount. The foregoing shall be the Other
Party's sole and exclusive remedy in the event of a breach of warranty.
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6.3 WARRANTY DISCLAIMERS. EXCEPT FOR THE FOREGOING LIMITED
WARRANTIES, NO OTHER WARRANTIES OF ANY NATURE, EXPRESS, IMPLIED OR STATUTORY, AS
TO THE DELIVERABLES OR A PARTY'S PERFORMANCE UNDER THIS AGREEMENT, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT ARE MADE BY EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT AND
BOTH PARTIES DISCLAIM ALL SUCH IMPLIED WARRANTIES.
7. INDEMNIFICATION.
7.1 INDEMNIFICATION BY COLLEGECLUB. CollegeClub agrees to
defend, indemnify and hold harmless Ericsson from and against any third party
claims, actions or demands (a "Claim") alleging that (i) the CollegeClub
Background Technology or (ii) Deliverables or Development Tools developed by
CollegeClub (except for Development Tools for which Ericsson provided the
functional specification and the infringement is the result of such
specification) infringe any copyrights, patents, trade secrets, mask works or
other proprietary rights of any third-parties arising under United States law.
CollegeClub further agrees to indemnify and hold harmless Ericsson from and
against any final award of damages or final settlement amount with respect to
any such Claim.
7.2 INDEMNIFICATION BY ERICSSON. Ericsson agrees to defend,
indemnify and hold harmless CollegeClub from and against any third party claims,
actions or demands (a "Claim") alleging that (i) the Ericsson Background
Technology or (ii) Deliverables or Development Tools developed by Ericsson
(except for Development Tools for which CollegeClub provided the functional
specification and the infringement is the result of such specification) infringe
any copyrights, patents, trade secrets, mask works or other proprietary rights
of any third-parties arising under United States law. Ericsson further agrees
to indemnify and hold harmless CollegeClub from and against any final award of
damages or final settlement amount with respect to any such Claim.
7.3 LIMITATIONS. The obligations of a party to indemnify (the
"Indemnifying Party") the other (the "Indemnified Party") is contingent upon (i)
the Indemnified Party giving prompt written notice to the Indemnifying Party of
any such claim, action or demand, (ii) the Indemnified Party allowing the
Indemnifying Party to control the defense and related settlement negotiations,
and (iii) the Indemnified Party cooperating in the defense. The Indemnifying
Party will have no obligation under this Agreement for any such claims, actions
or demands to the extent that such claims, demands or actions result from (i)
the use of its proprietary rights in a combination with materials or products
not supplied by the Indemnifying Party; (ii) the modification or attempted
modification of Deliverables, Intellectual Property Rights, materials or
processes by third parties; or (iii) the use or distribution of such modified
Deliverables, Intellectual Property Rights, materials or processes. In the event
that any such claim, action or demand is made, the Indemnifying Party will
promptly furnish the Indemnified Party with copies of any and all documents
(inclusive of all correspondence and pleadings other than related
attorney-client communications). The Indemnifying Party will also keep the
Indemnified Party
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continuously and fully informed in a timely manner as to the status of the same
and will provide the Indemnified Party with copies of any additional documents.
7.4 OTHERS ACTIONS. In the event of a Claim, the indemnifying
party may, at its option, (i) replace or modify the infringing product or
intellectual property with non-infringing ones which are functionally
equivalent, or (ii) obtain a license for the indemnified party to continue to
exercise the licenses granted in this Agreement. If neither (i) nor (ii) are
commercially reasonable, the parties agree to negotiate in good faith how to
resolve the indemnified party's inability to continue to exercise its rights
under this Agreement.
7.5 SOLE AND EXCLUSIVE REMEDY. THIS SECTION STATES
COLLEGECLUB'S AND ERICSSON'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF
INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8. LIMITATIONS ON DAMAGES.
8.1 LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING
UNDER SECTION 7 ("INDEMNIFICATION") OR SECTION 9 ("CONFIDENTIALITY"), IN NO
EVENT SHALL EITHER PARTY'S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OF WORK OR STRATEGIC
PROJECT ADDENDUM EXCEED THE AMOUNTS PAID BY COLLEGECLUB TO ERICSSON OR ERICSSON
TO COLLEGECLUB, AS THE CASE MAY BE, UNDER THIS AGREEMENT. THIS LIMITATION SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF PURPOSE OF ANY LIMITED REMEDY SET FORTH IN
THIS AGREEMENT.
8.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR LIABILITY ARISING
UNDER SECTION 7 ("INDEMNIFICATION") OR SECTION 9 ("CONFIDENTIALITY"), IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR
ENTITY FOR THE COST OF SUBSTITUTE GOODS, ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF
CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING,
WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS, DATA OR BUSINESS
OPPORTUNITY), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
9. CONFIDENTIALITY.
9.1 DEFINITION OF CONFIDENTIAL INFORMATION. "Confidential
Information" as used in this Agreement shall mean any and all technical and
non-technical information including patent, copyright, trade secret, and
proprietary information, techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future and
proposed products
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and services of each of the parties, and includes, without limitation, each
party's respective information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing, customer
lists, business forecasts, sales and merchandising, and marketing plans and
information. "Confidential Information" also includes proprietary or
confidential information of any third party who may disclose such information to
either party in the course of the other party's business. The terms of this
Agreement and the terms of any Statement of Work or Strategic Project Addendum
shall be deemed Confidential Information.
9.2 NONDISCLOSURE AND NONUSE OBLIGATION. Each party (the
"Receiving Party") agrees that it will not use, disseminate, or in any way
disclose any Confidential Information of the other party (the "Disclosing
Party"), to any person, firm or business, except that the Receiving Party may
use the Disclosing Party's Confidential Information to the extent necessary to
perform its obligations under this Agreement. Furthermore, the existence of any
business negotiations, discussions, consultations or agreements in progress
between the parties shall not be released to any form of public media without
written approval of both parties. The Receiving Party agrees that it shall
treat all Confidential Information of the Disclosing Party with the same degree
of care as the Receiving Party accords to its own Confidential Information, but
in no case less than reasonable care. The Receiving Party agrees that it shall
disclose Confidential Information of the other party, only to those of its
employees and contractors who need to know such information, and the Receiving
Party certifies that such employees and contractors have previously agreed,
either as a condition to employment or in order to obtain the Confidential
Information of the Disclosing Party, to be bound by terms and conditions
substantially similar to those terms and conditions applicable to the Receiving
Party under this Agreement. The Receiving Party shall immediately give notice
to the Disclosing Party of any unauthorized use or disclosure of Disclosing
Party's Confidential Information. The Receiving Party agrees to assist the
Disclosing Party in remedying any such unauthorized use or disclosure of
Disclosing Party's Confidential Information.
9.3 EXCLUSIONS FROM NONDISCLOSURE AND NONUSE OBLIGATIONS. The
obligations under Section 9.2 ("Nondisclosure and Nonuse Obligations") of the
Receiving Party, with respect to any portion of the Confidential Information of
the Disclosing Party, shall not apply to such portion that such Recipient can
document: (i) was in the public domain at or subsequent to the time such
portion was communicated to the Receiving Party by the Disclosing Party through
no fault of the Receiving Party, (ii) was rightfully in the Receiving Party's
possession free of any obligation of confidence at or subsequent to the time
such portion was communicated to the Receiving Party by the Disclosing Party,
(iii) was developed by employees or agents of such Receiving Party independently
of and without reference to any information communicated to the Receiving Party
by the Disclosing Party, or (iv) was communicated by the Disclosing Party to an
unaffiliated third party free of any obligation of confidence. A disclosure by
the Receiving Party of Confidential Information of the Disclosing Party, either
(i) in response to a valid order by a court or other governmental body, (ii)
otherwise required by law, or (iii) necessary to establish the rights of either
party under this Agreement, shall not be considered to be a breach of this
Agreement by the Receiving Party or a waiver of confidentiality for other
purposes; provided, however, the Receiving Party shall provide prompt prior
written notice
11
thereof to the Disclosing Party to enable the Disclosing Party to seek a
protective order or otherwise prevent such disclosure.
9.4 OWNERSHIP AND RETURN OF CONFIDENTIAL INFORMATION AND OTHER
MATERIALS. All Confidential Information of the Disclosing Party, and any
Derivatives thereof whether created by the Disclosing Party or the Receiving
Party, shall remain the property of the Disclosing Party, and no license or
other rights to the Disclosing Party's Confidential Information or Derivatives
is granted or implied hereby, except as expressly set forth in this Agreement.
For purposes of this Agreement, "Derivatives" shall mean: (i) for copyrightable
or copyrighted material, any translation, abridgment, revision or other form in
which an existing work may be recast, transformed or adapted; (ii) for
patentable or patented material, any improvement thereon until a patent for such
material is issued, making such information publicly available; and (iii) for
material which is protected by trade secret, any new material derived from such
existing trade secret material, including new material which may be protected
under copyright, patent and/or trade secret laws. All materials (including,
without limitation, documents, drawings, models, apparatus, sketches, designs,
lists and all other tangible media of expression) furnished by the Disclosing
Party to the Receiving Party shall remain the property of the Disclosing Party.
At the Disclosing Party's request and no later than five (5) business days after
such request, the Receiving Party shall promptly destroy or deliver to the
Disclosing Party, at the Disclosing Party's option, (i) all materials furnished
to the Receiving Party, (ii) all tangible media of expression in such Receiving
Party's possession or control to the extent that such tangible media incorporate
any of the Disclosing Party's Confidential Information, and (iii) written
certification of the Receiving Party's compliance with such obligations under
this sentence.
9.5 INDEPENDENT DEVELOPMENT. Each of the parties, as a
Disclosing Party, understands that the other party, as a Receiving Party, may
currently or in the future be developing information internally, or receiving
information from other parties that may be similar to the Disclosing Party's
Confidential Information. Accordingly, nothing in this Agreement will be
construed as a representation or inference that such Receiving Party will not
develop products or services, or have products or services developed for it,
that, without violation of this Agreement, compete with the products or systems
contemplated by the Disclosing Party's Confidential Information.
9.6 DISCLOSURE OF THIRD PARTY INFORMATION. Neither party shall
communicate any information to the other in violation of the proprietary rights
of any third party.
10. PUBLICITY. The parties intend to publicly announce the existence
of the strategic alliance created by this Agreement on or before February 29,
2000. The parties shall, prior to such public announcement, mutually agree in
writing as to the nature, content and scope of such announcement. Except as to
the foregoing public announcement, announcements regarding the relationship of
the parties under this Agreement or the existence of this Agreement shall not be
made by either party absent the written consent of the other party. If a party
desires to make a public announcement regarding the subject matter of this
Agreement or any Statement of Work or Strategic Project Addendum, it shall
provide a copy of the proposed announcement to the other party for review and
approval. The receiving party agrees to accept or reject the
12
announcement within five (5) business days after receipt of the proposed
announcement. If it rejects the announcement the rejection notice shall include
a description of the changes necessary to make the announcement acceptable (all
such changes shall be reasonable). If the receiving party fails to reject the
announcement as provided in this Section within such five (5) business day
period, the other party may issue such announcement.
11. TERM AND TERMINATION.
11.1 TERM OF AGREEMENT. Unless earlier terminated as provided
in this Agreement, this Agreement shall commence on the Effective Date and shall
terminate two (2) years after the Effective Date.
11.2 TERM OF STATEMENTS OF WORK AND STRATEGIC PROJECT ADDENDA.
Each Statement of Work and Strategic Project Addendum shall be effective on the
date of execution and shall continue until the later of (i) the date the last to
be delivered Deliverable is accepted as provided in this Agreement or (ii) the
date on which the last task or obligation of a party under the Statement of Work
or Strategic Project Addendum has been performed in full.
11.3 TERMINATION FOR CAUSE.
11.3.1 THE AGREEMENT. If either party is in
material breach of the terms of this Agreement, the non-breaching party may give
written notice of such breach to the breaching party and an opportunity to cure
the breach within thirty (30) days. If such breach is not cured within such
thirty (30) day period, the non-breaching party may immediately terminate this
Agreement by subsequent written notice to the party in breach.
11.3.2 STATEMENTS OF WORK AND STRATEGIC PROJECT
ADDENDUM. If either party is in material breach of the terms of a Statement of
Work or a Strategic Project Addendum, the non-breaching party may give written
notice of such breach to the breaching party and an opportunity to cure the
breach within thirty (30) days. If such breach is not cured within such thirty
(30) day period, the non-breaching party may immediately terminate the
applicable Statement of Work or a Strategic Project Addendum by subsequent
written notice to the party in breach. The termination of an individual
Statement of Work or Strategic Project Addendum pursuant to this Section shall
not result in the termination of this Agreement or any other Statement of Work
or a Strategic Project Addendum.
11.3.3 REMEDIES IN THE EVENT OF TERMINATION FOR
CAUSE. In the event a party terminates this Agreement or a Statement of Work or
Strategic Project Addendum pursuant to this Section 11.3 ("Termination for
Cause"), then such party shall, subject to the terms of this Agreement, be
entitled to seek available remedies at law or in equity, including without
limitation damages for unperformed services in a Statement of Work or Strategic
Project Addendum, if any.
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11.4 EFFECT OF TERMINATION.
11.4.1 ENTIRE AGREEMENT. Upon termination or
expiration of this Agreement for any reason (i) except as otherwise provided in
this Agreement, all licenses granted in this Agreement shall terminate, (ii) all
unperformed Statements of Work or a Strategic Project Addenda shall terminate,
(iii) all partially or fully completed Deliverables associated with any
terminated Statement of Work or Strategic Project Addendum which a party will
own as provided in this Agreement shall be delivered to such party and (iv) all
amounts due one party from the other party under this Agreement or any Statement
of Work or Strategic Project Addendum shall be immediately due and payable.
11.4.2 STATEMENT OF WORK OR STRATEGIC PROJECT
ADDENDUM. Upon termination or expiration of a Statement of Work or a Strategic
Project Addendum (i) all licenses granted in such Statement of Work or a
Strategic Project Addendum shall terminate, unless otherwise provided in the
Statement of Work or the Strategic Project Addendum, (ii) all partially or fully
completed Deliverables associated with the terminated Statement of Work or
Strategic Project Addendum which a party will own as provided in this Agreement
shall be delivered to such party and (iv) all amounts due one party from the
other party under the Statement of Work or a Strategic Project Addendum shall be
immediately due and payable.
11.5 SURVIVAL. The provisions of the following sections shall
survive any termination of this Agreement: Section 5 ("Proprietary Rights"),
Section 6 ("Warranties"), Section 7 ("Indemnification"), Section 8 ("Limitations
on Damages"), Section 9 ("Confidentiality"), Section 11 ("Term and Termination")
and Section 12 ("General Provisions").
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW. This Agreement is governed in all respects
by the laws of the United States of America and the State of California as such
laws are applied to agreements entered into and to be performed entirely within
California between California residents. The parties agree that service of a
complaint may be provided to a party in accordance with the terms of Section
12.4 ("Notices") for any dispute, litigation or other action arising under this
Agreement or to interpret or enforce this Agreement. The prevailing party in
any litigation or dispute arising under this Agreement or any Statement of Work
or Strategic Project Addendum shall be entitled to recover from the other party
its costs and fees, including attorneys' fees, associated with such litigation
or dispute.
12.2 NO ASSIGNMENT. Neither party shall assign or transfer this
Agreement or any rights or obligations under this Agreement without the prior
written consent of the other party, provided however, that either party may
assign this Agreement without such consent in connection with a merger,
reorganization or sale of all or substantially all of a party's assets or voting
securities.
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12.3 INDEPENDENT CONTRACTOR. The relationship between the
parties is that of independent contractors, and nothing in this agreement is
intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship.
12.4 NOTICES. All notices or reports permitted or required
under this Agreement shall be in writing and shall be by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and deemed given upon personal
delivery, five (5) days after deposit in the mail, or upon acknowledgment of
receipt of electronic transmission. Notices shall be sent to the addresses set
forth below or such other address as either party may specify in writing.
If to CollegeClub:
XxxxxxxXxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Vice President, Legal
If to Ericsson:
Ericsson Inc.
EWIS
0000 Xxxxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Vice President and General Manager
With a Copy to: Legal Counsel
12.5 SEVERABILITY. If any provision of this Agreement is
unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall not render this
Agreement unenforceable or invalid as a whole. In such event, such provision
shall be changed and interpreted so as to best accomplish the objectives of such
unenforceable or invalid provision within the limits of applicable law or court
decisions.
12.6 WAIVER. The failure of either party to require performance
by the other party of any provision hereof shall not affect the full right to
require such performance at any time thereafter; nor shall the waiver by either
party of a breach of any provision hereof be taken or held to be a waiver of the
provision itself.
12.7 FORCE MAJEURE. Neither party shall be liable hereunder by
reason of any failure or delay in the performance of its obligations hereunder
(except for the payment of money) on account of strikes, shortages, riots,
insurrection, fires, flood, storm, explosions, acts of God, war, governmental
action, labor conditions, earthquakes, material shortages, or any other cause
beyond the reasonable control of such party.
15
12.8 ENTIRE AGREEMENT. This Agreement and the Exhibits hereto
and all Statements of Work and Strategic Project Addenda completely and
exclusively state the agreement of the parties regarding their subject matter.
Their terms supersede and govern, all prior proposals, agreements, or other
communications between the parties, oral or written, regarding such subject
matter. This Agreement shall not be modified except by a subsequently dated
written amendment signed on behalf of CollegeClub and Ericsson by their duly
authorized representatives.
12.9 COUNTERPARTS. This Agreement may be executed in
counterparts, all of which taken together shall constitute one single agreement
between the parties. The parties may sign and exchange facsimile copies of this
Agreement. Each party agrees to provide to the other a signed original at the
request of such other party.
12.10 FACSIMILE SIGNATURES. Any signature page delivered by a
fax machine or telecopy machine shall be binding to the same extent as an
original signature page, with regard to any agreement subject to the terms
hereof or any amendment thereto. Any party who delivers such a signature page
agrees to later deliver an original counterpart to any party which requests it.
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IN WITNESS THEREOF, the parties have executed this agreement as of the
Effective Date written above.
XxxxxxxXxxx.xxx, Inc. Ericsson, Inc.
By: /s/ Xxxxx XxXxxxx By: /s/ Xxxx Xxxxxxxxx
--------------------------------- ----------------------------
Xxxxx XxXxxxx Xxxx Xxxxxxxxx
President and Chief Operating Officer Vice President and General Manager
Ericsson Wireless Internet Solution
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EXHIBIT A
STATEMENT OF WORK
SECTION 1: GENERAL SCOPE AND NATURE OF THIS STATEMENT OF WORK:
SECTION 2: THE PARTIES' SPECIFIC RESPONSIBILITIES AND TASKS:
COLLEGECLUB'S RESPONSIBILITIES:
ERICSSON'S RESPONSIBILITIES:
SECTION 3: DELIVERABLES
SECTION 4 FUNCTIONAL AND TECHNICAL SPECIFICATIONS
SECTION 5: ACCEPTANCE TESTING AND ACCEPTANCE CRITERIA
SECTION 6: PERFORMANCE WARRANTY FOR DELIVERABLES
SECTION 7: PAYMENT AMOUNT AND PAYMENT TERMS
SECTION 8: SCHEDULE OF PERFORMANCE:
SERVICE OR DELIVERABLE DATE TO BE PROVIDED
SECTION 9: OWNERSHIP OF IP RIGHTS (IF DIFFERENT THAN AS PROVIDED FOR IN THE
AGREEMENT):
SECTION 10: LICENSES GRANTED, AND LICENSES GRANTED BACK, IF ANY:
SECTION 11: COMPETING PRODUCTS AND/OR SERVICES. Except as otherwise set forth
below, products and services which are developed, or which are the
result of the Services performed, under this Statement of Work are
not competitive with Ericsson products and services for purposes
of Section 5.7 ("License to Background Technology") of the
Agreement.
SECTION 12: DEVELOPMENT TOOLS TO BE DEVELOPED, IF ANY, AND OWNERSHIP THEREOF
(IF DIFFERENT THAN AS PROVIDED FOR IN THE AGREEMENT
SECTION 13: TRADEMARK LICENSE
SECTION 14: PROJECT MANAGERS
NOTE: This Statement of Work is governed by the terms of that certain Strategic
Alliance and Services Agreement in effect between CollegeClub and Ericsson. Any
item in this Statement of Work that is inconsistent with the Agreement is
invalid.
IN WITNESS WHEREOF, the parties have executed this Statement of Work as of the
date last written below.
COLLEGECLUB ERICSSON
By: By:
----------------------------- ---------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
Date: Date:
--------------------------- -------------------------------
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EXHIBIT B
STRATEGIC PROJECT ADDENDUM
SECTION 1: GENERAL SCOPE AND NATURE OF THIS STRATEGIC PROJECT ADDENDUM:
SECTION 2: THE PARTIES' SPECIFIC RESPONSIBILITIES (INCLUDING THE FUNCTIONAL
AND TECHNICAL SPECIFICATIONS OF DELIVERABLES, AND PAYMENT TERMS):
COLLEGECLUB'S RESPONSIBILITY:
ERICSSON'S RESPONSIBILITY:
SECTION 3: SCHEDULE OF PERFORMANCE:
SERVICE OR DELIVERABLE DATE TO BE PROVIDED
SECTION 4: OWNERSHIP OF IP RIGHTS (IF DIFFERENT THAN AS PROVIDED FOR IN THE
AGREEMENT):
SECTION 5: LICENSES GRANTED, AND LICENSES GRANTED BACK:
SECTION 6: TRADEMARK LICENSE
SECTION 7: COMPETING PRODUCTS AND/OR SERVICES. Except as otherwise set forth
below, products and services which are developed pursuant to this
Strategic Project Addendum are not competitive with Ericsson
products and services for purposes of Section 5.7 ("License to
Background Technology") of the Agreement.
NOTE: This Strategic Project Addendum is governed by the terms of that certain
Strategic Alliance and Services Agreement in effect between CollegeClub and
Ericsson. Any item in this Strategic Project Addendum and that is inconsistent
with the Agreement is invalid.
IN WITNESS WHEREOF, the parties have executed this Strategic Project
Addendum of the date last written below.
COLLEGECLUB ERICSSON
By: By:
----------------------------- ---------------------------------
Name: Name:
---------------------------- ---------------------------------
Title: Title:
-------------------------- --------------------------------
Date: Date:
--------------------------- ---------------------------------
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