ALTAVISTA CONTENT LICENSE AGREEMENT
EXHIBIT 10.30
This AltaVista Content License Agreement is entered into as of the Effective
Date in the signature block below, by and between the company set forth in the
signature block below ("Company") and AltaVista Company, a Delaware corporation
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with its principal address at 000 Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
(collectively with any company controlled by, controlling or under common
control with AltaVista Company, "AV"). For good and valuable consideration, the
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receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
WHEREAS, Company is in the business of providing certain Web-based information
and/or services, as defined with greater particularity in Exhibit A ("Content"),
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on Company's Web site at the URL set forth in Exhibit A ("Company Site"); and
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WHEREAS, AV maintains and/or displays certain Web pages that are accessible to
users worldwide via Internet or wireless technologies (whether now known or
hereafter developed), which pages incorporate content and services developed by
AV and/or supplied to AV by third parties, and may be generic or customized;
such Web pages may contain an Internet index, a search tool, advertising,
shopping services or any other feature now existing or hereafter developed that
might be desirable, or any subset of the foregoing; such collections of the Web
pages include but are not limited to those located in the following domains:
XxxxXxxxx.xxx, MyAltaVista, XX.xxx, Xxxxxxx.xxx, the AV channels and
Xxxxxxxx.xxx (collectively, the "AV Platform"); such AV Platform may be branded
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by AV, a third party, or co-branded by AV and any such third party; and
WHEREAS, AV desires to license the Content from Company for display on the AV
Platform and Company agrees to grant AV such a license, all on the terms and
conditions set forth below.
1. GRANT OF LICENSE
a. Content License. Subject to the terms and conditions of this Agreement,
Company hereby grants to AV a non-exclusive, worldwide, royalty-free (subject to
Section 3 below) right and license under Company's intellectual property rights
to (i) publicly perform, publicly display and distribute the Content on the AV
Platform on the "Help Desk Sub-Channel" located as a tab on the "Technology
Channel" of the AV Platform, and in other areas of the AV Platform as determined
by AV, (ii) copy the Content as necessary for such performance, display and
distribution, (iii) modify the Content as necessary to conform to the AV
standards for Content as set forth in Section 2b., (iv) create summaries of the
Content for display throughout the AV Platform to encourage users of the AV
Platform ("Users") to access and display the Content, (v) combine the Content
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with other AV and third party content on the AV Platform ("AV Content") as AV
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determines in its sole discretion, (vi) co-brand the Web pages on the AV
Platform that contain both the Content supplied by Company and also AV Content
("Co-Branded Pages") with the Company Marks, as discussed in Section 1b. below,
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and (vii) archive/store the Content on the AV Platform.
x. Xxxxx License. Subject to the terms of this Agreement, Company hereby
grants to AV a non-exclusive, worldwide, royalty-free (subject to Section 3
below) right and license to use any of Company's trademarks, trade names,
service marks, logos or other identifying or distinctive marks ("Company
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Marks"), provided that AV complies at all times with any trademark usage
guidelines provided by Company to AV in relation thereto. In the event that
Company reasonably believes that AV's use of the Company Marks is not in
compliance with Company's then-current standards, the parties agree to work
together in good faith to remedy any such non-conforming use on a timely basis.
All use by AV of the Company Marks, including any goodwill generated thereby,
will inure to the benefit of and be on behalf of Company.
c. Linking. Subject to the terms of this Agreement, Company grants to AV the
right to link the AV Platform and/or the Co-Branded Pages to the Company Site,
and AV grants to Company the right to link from the Company Site to the AV
Platform, in accordance with the terms of Exhibit A. Company will not restrict
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or disable a User's ability to return to the AV Platform or the Co-Branded Pages
utilizing the web browser's normal "back" navigation functionality.
d. Users. The parties acknowledge that Users will be subject to the terms of
use as set forth at the URL: xxxx://xxx.xxxxxxxxx.xxx/xxxxx/xxxxxxxxxx.xxxxx in
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relation to the Content. AV agrees to notify Company in writing of any known or
suspected violation by a User of such terms of use in relation to the Content,
and assist Company in its efforts to minimize the adverse effects of any such
violation.
e. Restrictions. The parties acknowledge that the licenses granted herein are
non-exclusive, and do not prevent (i) Company from licensing the Content to any
third party, or (ii) AV from licensing content similar to the Content from any
third party for use on the AV Platform. Except for the licenses set forth
herein, Company reserves all other rights in and to the Content and the Company
Site, and AV reserves all right in and to the AV Content and the AV Platform.
2. CONTENT
a. Subject Matter. Company represents to AV that the Content delivered
hereunder is of high quality in the Internet industry, and that the subject
matter and focus of the Content as of the Effective Date will remain materially
consistent throughout the term of this Agreement.
b. Transmission by Company. Company will deliver the Content to AV as set
forth in Exhibit A, on the schedule set forth therein, for the fees set forth in
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Section 3 below. Content received by AV that is not in the then-current AV-
specified format or that does not comply with the terms of Section 5b. below may
be rejected by providing written notice to Company (including by means of an
electronic mail to Company). Company will, during the term of this Agreement,
ensure that the Content, as well as its delivery and maintenance, conforms to
the services level standards set forth in Schedule 1 to this Agreement, as such
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standards may be amended from time to time during the term of this Agreement.
3. FEES
a. Fees. The fees for obligations to be performed by either party to or for
the other party hereunder, if any, are as set forth in Exhibit B. Except as set
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forth in Exhibit B, all revenue of any nature generated by the AV Platform or
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the Co-Branded Pages, including without limitation all advertising, sponsorship
or other impressions-based revenue, will accrue to and belong solely to AV.
b. Payment. Payment terms are specified in Exhibit B to this Agreement.
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c. Taxes; Costs. All charges and fees provided for in this Agreement include
any applicable taxes, fees or duties. Each party will be responsible for all
costs associated with the setup, maintenance and other performance obligations
assigned to such party under this Agreement, and will have no right to obtain
reimbursement or other payment from the other therefor, except as may be
provided in Exhibit B.
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d. Record Keeping; Audits. Each party will keep accurate books and records
showing all financial transactions and traffic information that are the subject
of this Agreement. To the extent one party is hosting the Content, the other
party will have the right no more than once per twelve (12) month period, at all
reasonable times and upon advance reasonable written notice, to inspect the
relevant books and records (wherever located) and create summaries related to
any financial transactions that are the subject of this Agreement. All such
audits will be performed by a nationally-recognized auditor reasonably
acceptable to the party being audited, which auditor has agreed in writing to
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maintain the strict confidentiality of the books and records audited. Such
books and records, and any results of an audit, will be deemed to be the
Confidential Information (as defined below) of the party audited. If both
parties are hosting the Content, either party will have the right to audit the
other party's books and records in the manner set forth above. Neither party's
receipt of any statement or payment from the other in connection therewith will
preclude it from challenging the correctness of that statement or payment. If
any inspection reveals an error in the calculation of amounts owing to either
party, the other party will promptly pay the difference. If any error is ten
percent (10%) or more of the amount owed to either party, the other party will
pay the inspecting party's reasonable out-of-pocket costs with respect to that
examination and the next subsequent re-examination.
4. TERM; TERMINATION
a. Initial Term and Renewals. The initial term of this Agreement will commence
on the Effective Date and will continue for a period of two (2) years after the
date that the Content is first displayed on the AV Platform or the Co-Branded
Pages, unless earlier terminated as set forth below. The parties may negotiate a
renewal term of one year in a signed addendum to this Agreement; provided such
renewal term is mutually agreed upon no later than sixty (60) days prior to the
expiration date, and, in the event that the parties are unable to reach mutual
written agreement on any renewal to the Term by such date, this Agreement will
terminate as of the Agreement expiration date.
b. Default. If either party defaults in the performance of or compliance with
any provision contained in this Agreement, and such default is not cured within
thirty (30) days after receipt of written notice of such breach, then the non-
defaulting party may elect immediately to terminate this Agreement upon written
notice. In such event, the non-defaulting party giving notice of termination
will do so without liability to the defaulting party, except for any accrued
obligations. For the purposes of this section, the term "default" will include
the other party's insolvency, general assignment for the benefit of creditors,
filing of a voluntary petition of bankruptcy, suffering or permitting the
appointment of a receiver for its business or assets, or becoming subject to any
proceedings under any bankruptcy or insolvency law, whether domestic or foreign,
or liquidating, whether voluntarily or otherwise.
c. Change of Control. Company will provide written notice of any Change of
Control (as defined below) of Company to AV within ten (10) days of such change.
Within thirty (30) days of receipt of a notice of Change of Control, AV may
terminate this Agreement by providing written notice of termination to Company.
A "Change of Control" will be deemed to have occurred if: (i) any person or
entity becomes the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, of securities
representing fifty percent (50%) or more of the combined voting power of
Company's outstanding securities; or (ii) a merger or consolidation of Company
with any other entity is approved, unless the voting securities of the party
outstanding immediately prior thereto continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than fifty percent (50%) of the combined voting power of the
outstanding securities of the surviving entity immediately after such merger or
consolidation.
d. Termination for Convenience. During the thirty (30) day period following the
end of the fifth month of the first year of this Agreement, AV may elect to
terminate this Agreement for its convenience by giving Company thirty (30)
days' prior written notice. Thereafter, AV will have no right to terminate
this Agreement for its convenience until the beginning of the second year of
the Agreement, at which time AV may terminate this Agreement for its
convenience at any time by providing thirty (30) days' prior written notice
to Company.
During the sixty (60) day period following the end of the eleventh month of
the first year of this Agreement, Company may elect to terminate this
Agreement for its convenience upon ninety (90) days prior written notice to
AV.
e. Effects of Termination. Upon termination of this Agreement, the licenses
granted hereunder will terminate immediately, except that AV may continue to use
previously-delivered Content for internal purposes only, including but not
limited to archival purposes, and AV and Company will work to ensure that Users
who may attempt to access previously delivered or produced Content are properly
referred to a non-expired Web page for such content. All outstanding payment
obligations not disputed in good faith will become immediately due and payable,
and no new payment obligations will accrue. The terms of Sections 3, 4e., 5, 6,
7, 8 and 10 will survive any termination of this Agreement.
5. REPRESENTATIONS AND WARRANTIES
a. Warranties. Each party represents and warrants to the other party that it
has the power and authority to enter into this Agreement, to grant the licenses
contained herein, and to otherwise perform its obligations hereunder.
b. Company Warranties. In connection with the delivery of the Content
hereunder, Company warrants to AV that: (i) it has sufficient rights in and to
all copyrights, patents and other proprietary rights associated with the Content
and its exploitation worldwide in particular, and the Company Site in general,
to grant the licenses granted to AV hereunder and deliver the Content as
specified herein; (ii) the Content and the Company Site (and their use and
contemplated herein) will not violate any governmental export control regimes,
and will contain no material or information constituting libel, slander or
defamation, or that otherwise invades the rights of any third party, (iii) the
services and Content provided by Company in connection with this Agreement will
be rendered by qualified personnel and consistent with commercial practices
standard in the industry; (iv) the Content being delivered by Company hereunder
and the general content on the Company Site are at all times true, accurate,
updated and timely; and (v) the Content and the Company Site will be free of any
viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs,
cancelbots or other computer programming routines that are intended to damage,
interfere with, intercept, or expropriate any system data or personal
information.
c. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES, AND EACH PARTY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
6. LIMITATION OF LIABILITY
a. Limitation. WITH THE EXCEPTION OF LIABILITY ARISING UNDER SECTIONS 7 OR 8
BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, lost profits, lost use
of equipment, loss of stored memory, cost of substitute equipment or other
downtime costs (regardless of THE FORM OF ACTION, whether such liability is
based on breach of contract, tort, strict liability, breach of warranties,
failure of essential purpose or otherwise), EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
b. Liability Cap. AV'S ENTIRE LIABILITY AND Company's SOLE AND EXCLUSIVE REMEDY
from any cause OF ACTION whatsoever (regardless of the form of action, WHETHER
IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY) WILL NOT EXCEED THE AGGREGATE
AMOUNTS PAID UNDER THIS AGREEMENT IN
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THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO
DAMAGES.
7. INDEMNITY
Each party ("Indemnifying Party") agrees to defend, indemnify and hold the other
party ("Indemnified Party") and its directors, officers, shareholders, employees
and agents harmless from and against any and all penalties, damages, costs,
judgments and any other expenses including, but not limited to, reasonable
attorneys' fees (including but not limited to in-house counsel costs and
appellate fees) incurred in connection with any breach by Indemnifying Party of
the representations and/or warranties expressly set forth in this Agreement,
provided that the Indemnified Party: (i) provides the Indemnifying Party with
prompt written notice of any claim for which indemnification is sought; (ii)
cooperates fully with the Indemnifying Party (at the Indemnifying Party's
expense); and (iii) allows the Indemnifying Party to control the defense and
settlement of such claim. Nothing herein will prevent the Indemnified Party
from procuring separate counsel for its defense, and the Indemnifying Party
agrees to work with any Indemnified Party-retained counsel in good faith and
cooperation.
8. CONFIDENTIALITY
a. General. The parties acknowledge that, in the course of their dealings
hereunder, each may acquire information about the other, its business activities
and operations, its technical information and its trade secrets, all of which
are proprietary and confidential (the "Confidential Information"). Each party
agrees that the terms of this Agreement will be deemed the Confidential
Information of each party. For a period of two (2) years after the termination
of this Agreement, each party hereby agrees that: (i) it will maintain, and will
use prudent methods to cause its employees and its agents to maintain, the
confidentiality and secrecy of the Confidential Information; (ii) it will use
prudent methods to ensure that its employees and agents do not copy, publish,
disclose to others or use (other than pursuant to the terms hereof) the
Confidential Information.
b. Exclusions. Confidential Information will not include any information to
the extent that it: (a) is or becomes a part of the public domain through no act
or omission on the part of the receiving party; (b) is disclosed to third
parties by the disclosing party without similar restriction on such third
parties; (c) is in the receiving party's possession without the receiving
party's actual or constructive knowledge of an obligation of confidentiality
with respect thereto, at or prior to the time of disclosure under this
Agreement; (d) is disclosed to the receiving party by a third party having no
obligation of confidentiality with respect thereto; (e) is independently
developed by the receiving party without reference to the disclosing party's
Confidential Information; or (f) is released from confidential treatment by
written consent of the disclosing party.
c. Public Disclosures. The parties acknowledge and agree that neither party
may, at any time, issue any press release or make any other disclosure about
this Agreement, its term or its existence, including but not limited to any
disclosure to its shareholders or otherwise, without the prior written approval
of the other party. If, however, a party determines, upon the opinion of
counsel, that disclosure regarding the other party, this Agreement and/or the
relationship created hereby is required by law, then disclosure will be
permitted, but only after the other party is given the opportunity to review and
reasonably revise all such written disclosure. Under such circumstances, a copy
of any such written documentation will be provided to the other party at least
three (3) business days prior to its expected disclosure.
9. REPORTING REQUIREMENTS
Company agrees to provide traffic reports for the Co-Branded Pages to AV within
two (2) weeks following the end of each month. A description of the contents of
each such report is set forth in Exhibit A.
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10. GENERAL PROVISIONS
a. Notices. All notices, requests and other communications hereunder will be
in writing and will be delivered in person, or sent by certified mail, return
receipt requested, overnight courier service, or by facsimile to the address or
facsimile number of the parties set forth below, or to such other addresses or
numbers as may be stipulated in writing by the parties pursuant hereto. Unless
otherwise provided, notice will be effective on the date it is officially
recorded as delivered by return receipt or equivalent or by facsimile
confirmation date.
AV
Attn: General Counsel
000 Xxxxxx Xxxxxx, Xxxx Xxxx, XX 00000
Fax: 000.000.0000
With a copy to:
Attn: Director of Strategic Alliances
Phone: 000.000.0000
Fax: 000.000.0000
E-Mail: xxxx.xxxxxxx@xx.xxx
Company
Attn: Chief Financial Officer
Phone: 000.000.0000
Fax: 000.000.0000
E-Mail: xxxxx.xxxxx@xxxxxxxxx.xxx
b. Assignment. Neither party may assign this Agreement, or sublicense, assign
or delegate any right or duty hereunder, without the prior written consent of
the other, which consent will not be unreasonably withheld; except that AV may
assign its rights and obligations under this Agreement to any third party in
connection with any merger, sale of assets or other reorganization or
consolidation transaction involving AV.
c. Force Majeure. In no event shall either party be liable to the other for
any delay or failure to perform hereunder, which delay or failure to perform is
due to causes beyond the control of said party including, but not limited to,
government restrictions, exchange or market rulings, labor strike, war, act of
civil or military authority, sabotage, epidemic, flood, earthquake, fire, other
natural disaster, or any other event, condition or occurrence beyond the
reasonable control of such party. In the event that any such force majeure
event continues unabated for a period of ninety (90) days, the unaffected party
may terminate this Agreement on written notice to the affected party.
d. Free Access; Search. During the term of this Agreement, if Company elects to
provide a Web search technology to users of its Company Site, Company agrees to
provide AV with a thirty (30) day right of first refusal to supply the AV search
technology on competitive terms and pricingas Company's default and/or premiere
search source within the Company Site,. In the event AV is unable to make the AV
search technology available to Company on standards, terms and conditions
reasonably acceptable to Company commencing on or before the end of the thirty
(30) day period, Company may obtain such Web search technology from a third
party, and thereafter (i) AV will have no further right to provide the AV search
technology requested during the notice period, and (ii) Company will have no
further obligation to AV with respect to such requested search technology. In
any event, Company will and permit AV agents to index the Web pages of Company's
Site for display of AV Platform search results pages In addition, Company and AV
will discuss the possibility of Company's distribution of AV's nationwide free
dial up Internet service ("Free Access"). In the event that, at any time during
the Term, Company proposes to market, bundle, or proposes to enter into an
agreement with, or solicit, a third party with respect to the marketing of a
U.S.-based Internet service provider (including both narrow and broadband
providers) through CD-ROM distribution, software download, or otherwise, then
Company shall notify AV and offer AV the right of first
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negotiation for Company to market Free Access, upon terms to be mutually agreed
to by the parties after good faith negotiations. In the event that AV fails to
accept the offer to exercise such right of first negotiation within thirty (30)
days after Company makes such offer, then Company may offer such rights to a
third party on the written terms described in the preceding sentence.
e. Waiver. The failure of either party at any time to require performance by
the other party of any provision hereof shall in no way 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 any
succeeding breach of such provision or as a waiver of the provision itself.
f. Severability. If any provision of this Agreement or the application thereof
to any person or circumstances shall to any extent be held to be invalid or
unenforceable, the remainder of this Agreement, or the application of such
provisions to persons or circumstances as to which it is not held to be invalid
or unenforceable, shall not be affected thereby, and each provision shall be
valid and be enforced to the fullest extent permitted by law.
g. Parties' Relationship. This Agreement does not and shall not be deemed to
constitute a partnership or joint venture between the parties and neither party
nor any of their respective directors, officers, employees or agents shall, by
virtue of the performance of their obligations under this Agreement, be deemed
to be an agent or employee of the other.
h. Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of California without regard to its
conflict of laws principles.
i. Entire Agreement. This Agreement, together with any attachments hereto,
sets forth the entire understanding between the parties, and supersedes any and
all prior or contemporaneous agreements or understandings between the parties,
whether oral or written, as to the subject matter of this Agreement. This
Agreement may be modified only in a document signed by both parties. In the
event of a conflict between any of the terms contained in this Agreement and
those contained in any attachments made part of this Agreement, the order of
precedence shall be as follows: (i) the schedules, (ii) the exhibits, (iii) the
Agreement.
IN WITNESS WHEREOF, authorized representatives of the parties have executed this
Agreement as of the Effective Date set forth above.
AV: AltaVista Company Company: PC Xxxxxxx.Xxx
Signature /s/ Xxxxx Xxxxxxxxx Signature /s/ Xxxxx X. Xxxxx
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Name Xxxxx Xxxxxxxxx Name Xxxxx X. Xxxxx
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Title VP Sales Title Chief Financial Officer
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Effective Date Address #200 - 0000 Xxxxxxxx Xxxxxx
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Xxxxxxx, XX X0X 0X0
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EXHIBIT A
CONTENT
Description of Content:
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Company will provide to AV the following computer support services that Company
offers its users on the Company Site, and any other services that the parties
may mutually agree to incorporate into the Co-Branded Pages. In the event that
Company changes its service offering by discontinuing any of the services
described below, or offers additional services that AV may desire to include on
the Co-Branded Pages or the AV Platform, the parties will use good faith efforts
to negotiate an amendment to this Agreement to modify the provision of services
provided hereunder by Company on mutually acceptable terms and conditions;
provided that, Company will continue to provide services to existing users of
the Basic Services or Premium Services (as defined below) until such time as the
parties can implement an exit strategy for such users.
A. Company will provide the following free services to Users of the Co-Branded
Pages ("Basic Services"). Except as otherwise set forth below, Company will also
provide Users the ability to upgrade such Basic Services, at the Users election
in accordance with Section 2.5.2 below, and may charge a fee to Users for such
upgrade ("Premium Services"), pursuant to the terms of Section B of Exhibit B:
. Initial system scan services (Premium Services upgrade not available for
this service)
. System maintenance (Premium Services upgrade not available for this
service)
. "Fix My PC" services
. "Live Assist" service
. "Email Assist" service
. "Self Assist" service
B. The following services will be made available by Company to Users of the Co-
Branded Pages for the fees described in Section B of Exhibit B. These services
will not be available from Company free of charge as Basic Services and are
considered "Premium Services."
. "Phone Assist" services
. "Onsite Assist" service
The Basic Services and Premium Services together will be considered the
"Content." In the event that Company provides more comprehensive services to any
of its direct customers, Company agrees to provide equivalent services to Users
on identical terms.
Company Site URL:
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xxxx://xxx.xxxxxxxxx.xxx
Traffic Attribution: The parties agree that all User traffic from the AV
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Platform to the Company Site will be designed (or masked) so as to guarantee
that AV receive all credit for such traffic.
1. General Obligations
1.1. Company.
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1.1.1. Company shall provide, deliver or produce the Content to AV
for its use in the development, production and utilization of
the AV Platform. Company will provide AV with a File Transfer
Protocol ("FTP") account allowing AV access to a secure
database containing all Content listed above. Company shall
perform, at its expense, all technical development and support
work as described in the service level standards set forth in
Schedule 1 hereto, as necessary to meet its obligation to
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create the Content and FTP Directories for AV as required
hereunder.
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1.1.2. Company will provide Content that is timely, reliable and
scalable to AV's needs. Company warrants that all Content it
delivers, serves or produces to or for AV on the AV Platform
and/or Co-Branded Pages will be the most current version made
available by Company to any of its customers. AV may regularly
evaluate the quality of Content delivered, served or produced
by Company, to ensure that the Company meets or exceeds AV's
general acceptability levels. The Company shall provide, at no
expense to AV, a satisfactory level of back-up support twenty-
four (24) hours per day, three hundred and sixty-five (365)
days per year for questions regarding the Content and the
services provided by Company hereunder. Said support shall
include, but not be limited to, providing a technically
capable person from Company specifically designated to respond
to AV inquiries, and who shall be identified to AV in writing.
1.1.3. Company will provide traffic reports to AV in accordance with
Section 9 of this Agreement. Basic traffic reports must
include, minimally, the following information: (i) page views
per day and per week, (ii) unique visitors per day and per
week, (iii) time spent per unique visitor per day, and (iv)
page views per page title or description. Company shall also
supply to AV log files via FTP.The address of the FTP site
shall be mutually agreed upon by the parties, which agreement
will not be unreasonably withheld or delayed. The log files
must be provided in AV's then-current standard log format,
shall be provided at least as often and frequently as Company
provides the log files to any other third party, and must
include the following information: (v) timestamp, (w) unique
site identifier per AV affiliate (if and when applicable), (x)
page identification number or description, (y) user
identification (passed to Company from AV), and (z) traffic
source (passed to Company from AV). Company agrees to log each
page separately for these log files and to work with AV's
technical staff to enable the integration of the log file data
into AV's Web-based interactive reporting platform.
1.2. AV.
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1.2.1 AV will identify which of the Content specified above it
wishes to use, format and post on its site as part of the Help
Desk Sub Channel on the AV Platform. On a quarterly basis, the
parties will meet to discuss the quality, performance, support
response times and competitiveness of the Company Content and
services as well as the components of the advertising provided
by AV hereunder. The parties will work together to resolve any
issues or problems identified during such quarterly meeting
within thirty (30) days of any quarterly meeting.
1.2.2 AV will consult and work with Company with regard to Content
on the AV Platform and/or the Co-Branded Pages; provided,
however AV will retain final approval of theplacement, design
and implementation of the Content on the AV Platform and the
Co-Branded Pages.
1.2.3 [***Confidential Treatment Requested***]
1.2.4 AV will provide banner and search tile advertising to Company
under the terms of an advertising insertion order to be signed
by the parties no later than the Effective Date (the
"Insertion Order"). Consideration for such advertising is set
forth in Section D of Exhibit B hereto.
1.25 AV shall work with Company in producing a press release
announcing the relationship between the parties, the details,
contents and timing of which shall be determined by mutual
written agreement.
2. Deliverables
2.1 Co-branding. During the term of this Agreement, the parties
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will jointly design the visual appearance of the Co-Branded
Pages; provided, however, that the design of the Co-Branded
Pages is subject to final approval by AV. All Co-Branded Pages
will include the AV "look and feel," which will include the
distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface,
navigation, trade dress and stylistic convention (including
the digital implementations thereof) within the AV Platform
and the total appearance and impression substantially formed
by the combination, coordination and interaction of these
elements, and includes the AV Marks and other components as
required by AV. AV will host and serve the first page of the
Co-Branded Pages and the first page of the Company services,
and will pay all costs associated with doing so. Company will
host and serve all other pages of the Co-Branded Pages, and
pay all costs associated with doing so. The parties may
mutually agree at a later date that AV will host and serve the
other pages of the Co-Branded Pages, in which case the parties
will negotiate a mutually acceptable amendment to this
Agreement, which will set forth the additional terms for AV's
hosting of the Co-Branded Pages.
2.2 Traffic and Reach. In the event that Company hosts the Content
-----------------
and the Co-Branded Pages, Company will create IP masking to
ensure that AV receives traffic attribution for all traffic to
the Co-Branded Pages.
6
2.3 Launch Schedule. AV and Company will commence work on the
---------------
development of co-branded pages to be completed within sixty
(60) days after the Effective Date.
2.4 Support Responsibilities. Company will have sole
------------------------
responsibility for customer service (including, without
limitation, order processing, billing, shipping, etc.) and AV
will have no responsibility with respect thereto. Company will
comply with all applicable requirements of any federal, state
or local consumer protection or disclosure law.
2.5 Registration.
------------
[***Confidential Treatment Requested***]
7
EXHIBIT B
FEES
[***Confidential Treatment Requested***]
8
EXHIBIT C
AV Competitors
[***Confidential Treatment Requested***]
9
SCHEDULE 1
SERVICE LEVELS AGREEMENT
[***Confidential Treatment Requested***]
10
