EXHIBIT 10.21
START PAGE AGREEMENT
This Agreement, dated as of April 20, 1999 (the "Effective Date"), is made
by and between LookSmart, Ltd., a Delaware corporation with a principal place of
business at487 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 ("LOOKSMART"), and
NetZero, Inc., a California corporation with a principal place of business at
00000 Xxxxxx Xxxx #000, Xxxxxxxx Xxxxxxx, XX 00000 ("NETZERO").
RECITALS
WHEREAS LookSmart is the owner or licensee of certain Web services,
including web guides, search engines, directories, community information
services, and e-mail (collectively, the "LOOKSMART SERVICES"), which are
accessible through the URL "XXX.XXXXXXXXX.XXX" (the "LOOKSMART SITE");
WHEREAS NetZero provides free dial up Internet access services (the
"NETZERO ISP SERVICE") and operates an Internet site with a URL
"XXX.XXXXXXX.XXX" (the "NETZERO SITE");
WHEREAS NetZero ISP subscribers log on to the Internet using NetZero's
proprietary software (the "NETZERO SOFTWARE") which provides dial-up access and
a window (the "ADVANTAGE WINDOW") which remains persistent during the
subscriber's connection; and
WHEREAS the parties would like to offer the LookSmart Services to
subscribers of the NetZero ISP Service through a site designed to appear to
NetZero ISP Service subscribers as an integrated co-branded part of the NetZero
ISP Services and through a co-branded start page.
NOW, THEREFORE, LookSmart and NetZero hereby agree as follows:
1. THE CO-BRANDED SITE AND SERVICES.
a. DEVELOPMENT OF THE CO-BRANDED SITE AND SERVICES. LookSmart and
NetZero shall jointly design and create a co-branded version of the LookSmart
Site (the "Co-branded Site") for NetZero's use in connection with the NetZero
ISP Service. The parties shall take all necessary action to ensure the
Co-branded Site is made available to NetZero's ISP subscribers on May 1, 1999.
The Co-branded Site shall be created pursuant to the following provisions:
i. LookSmart shall, [***], create, design and develop the
appropriate portions of the Co-branded Site so that they include or link
to appropriate branding material of both parties, including co-branded
versions of the LookSmart Services (the "CO-BRANDED SERVICES") and a
co-branded version of
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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the LookSmart start page (the "CO-BRANDED START PAGE") pursuant to
Section 1(b). NetZero acknowledges that certain pages within the Co-
Branded Site may not contain NetZero branding material. The parties shall
use their commercially reasonable best efforts to complete the Co-branded
Site within ten (10) business days of the execution of this Agreement.
ii. The Co-branded Site will have the look and feel similar to
the XxxXxxx.xxx Site.
iii. The parties shall cooperate with each other on creating,
designing and developing all aspects of the Co-branded Site, including logo
and link placements and the co-branded navigation bar to be displayed on
the Co-branded Site and the Co-branded Services.
b. The Co-branded Start Page shall be created, designed and
developed pursuant to the following provisions:
i. The Co-branded Start Page may include any of the following:
(A) LookSmart directory of sites and all updates to such directory, (B)
LookSmart key word search capabilities, (C) AltaVista search engine
capabilities, (D) links and graphics to other NetZero products, (E) one or
more of the following features offered by LookSmart: News, Sports, Weather,
Horoscopes, Personals and Specialized searches (newsgroups, businesses,
white pages), and (F) links to other LookSmart services and products.
ii. NetZero shall be entitled to offer content, buttons or other
editorial product of its own choosing on the Co-branded Start Page;
provided, however, that such content, buttons or editorial product (i)
shall not exceed fifteen percent (15%) of the "above the fold" real estate
of the Co-branded Start Page when displayed at full height on an 800x600
pixel resolution screen and (ii) shall not include any direct advertising
for any services that directly compete with the products and services
offered by LookSmart on the LookSmart Site, the BeSeen Site (located at
xxx.xxxxxx.xxx) or on the Co-branded Start Page. The foregoing shall not be
construed to limit or restrict advertising for, or promotion of, NetZero
ISP Services, or links to any NetZero hosted site or page.
iii. Subject to the foregoing, LookSmart shall have final
approval of the Co-branded Site design, including the Co-branded Start Page
design, which approval shall not be unreasonably withheld.
c. ADVERTISING. LookSmart will be responsible for all advertising
related activities on all of the pages on the Co-branded Site and for all
advertising related activities on the Co-branded Services. In no event shall
LookSmart display advertising on the Co-branded Site or Co-branded Services for
any internetaccess services (free or
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paid) which compete directly with NetZero ISP Service or for any company
whose primary business is to provide internet access services.
d. HOSTING. LookSmart shall maintain, operate, host and serve,
[***], all of the Co-branded Services and those portions of the Co-branded
Site for which LookSmart is responsible for selling advertising. NetZero
shall maintain, operate, host and serve those portions of the Co-branded Site
for which NetZero is responsible for selling advertising. In the event
NetZero and LookSmart are jointly responsible for selling advertising as to a
particular portion or page of the Co-branded Site, the parties shall mutually
agree as to which party shall be responsible for maintaining, hosting,
operating and serving such portion or page. The URL of the Co-branded Start
Page will be substantially similar to "XXX.XXXXXXX.XXXXXXXXX.XXX".
e. SEARCH PAGE. LookSmart shall, [***], develop a co-branded
search page (the "SEARCH PAGE") which will be linked to the LookSmart Site.
f. OBLIGATIONS OF NETZERO. Except as provided in Section 1(g) below
and elsewhere herein, NetZero shall perform the following obligations during the
Term:
i. NetZero shall configure all browser software (including
compact disks, diskettes, and downloaded software) distributed by or on
behalf of NetZero for the purpose of allowing NetZero's subscribers to
access the NetZero ISP Service so that (a) the Co-branded Start Page will
be the default and only start page for all NetZero ISP Service subscribers,
(b) a bookmark will be set to the Co-branded Start Page and (c) the default
search engine will be set to the Search Page.
ii. The Advantage Window will not contain (a) a search button
which [***] or (b) a start button which [***].
iii. NetZero shall provide a start button and search button on
the AdVantage Window which link to the Co-branded Start Page and Search
Page, respectively. The configuration of such buttons shall be
substantially similar to that set forth in the graphic attached as Exhibit
A hereto.
g. HARDWARE MANUFACTURERS. Notwithstanding anything to the contrary
in this Agreement, NetZero shall not be restricted from entering into agreements
with one or more computer hardware manufacturers and/or distributors or their
affiliates for start pages, search pages, services or sites in connection with
such manufacturers' or distributors' products. As such, the provisions of
Section 1(f) above shall not apply with respect to any such agreements or the
software distributed in connection with such agreements.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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h. NetZero acknowledges that LookSmart may modify the Co-branded
Site, including the Co-branded Start Page, from time to time without NetZero's
consent if such modification does not adversely impact NetZero or the rights
conferred on NetZero pursuant to this Agreement. As the Co-branded Start Page is
something which is jointly created by the parties pursuant to Section 1 and
changes to the Co-branded Start Page will impact NetZero's customers and will
therefor impact NetZero, LookSmart agrees to provide NetZero with at least five
(5) days prior written notice of any changes to the Co-branded Start Page which
are to be implemented without NetZero's consent.
i. Promptly following the payment referred to in Section 2(c)
below, NetZero shall create a hyperlink on NetZero's website to the
Co-branded Site and LookSmart shall add NetZero to, and prominently display
NetZero in, its ISP locator and shall take reasonable efforts to ensure that
NetZero is the ISP of choice in results of searches on the LookSmart search
engine in searches for ISPs.
j. As the Co-branded Site will not be operational until May 1, 1999,
the restrictions on NetZero set forth herein shall not apply until such date.
k. This Agreement shall only apply to a version of the Co-branded Site
designed primarily for an English speaking consumer and shall only apply to the
NetZero ISP service in the United States of America. As such, the provisions of
Section 1(f) above shall not apply with respect to agreements for sites, start
pages, search pages, services or sites that are not primarily in the English
language or the software distributed in connection with such agreements.
Non-English language versions of start sites, search pages, services or sites
shall not be covered by this Agreement in any respect. This Agreement shall not
be construed as providing any limitations on either party's activities outside
of the United States.
2. PAYMENTS.
a. Concurrent with the execution of this Agreement, LookSmart shall
pay to [***].
b. Within five (5) business days after the date that the Co-branded
Start Page is developed and accepted by both parties in writing (which
acceptance shall not be unreasonably withheld and which shall be deemed to have
occurred no later than the date Referrals commence), LookSmart shall pay to
NetZero [***].
c. Within two (2) business days after such time that NetZero has
delivered an aggregate of [***] Referrals (as defined below), LookSmart shall
pay to NetZero [***].
d. [***].
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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e. LookSmart shall pay to NetZero [***]; provided, [***] during
the Term, the [***] for [***]. Within twenty (20) days of the end of each
month, LookSmart shall provide NetZero with information (as described in
Section 3 below) regarding the [***] generated by NetZero during the
preceding month and the payment for such [***]. Delinquent payments shall
accrue interest at an annualized rate of [***]. For the purposes of this
Agreement, a [***] shall mean [***].
f. If NetZero fails [***] during the [***] following the date of
this Agreement for any reason other than a reason primarily attributable to
LookSmart including, without limitation, LookSmart's failure to develop and
operate the Co-branded Site as set forth herein.
g. [***].
h. For the purposes of this Agreement, [***] shall mean [***] for
advertising campaigns displayed on the Start Page and Search Page [***] will
be audited by LookSmart on a monthly basis. [***] will also be audited by
LookSmart for the same period(s). The reference to campaign shall mean the
same creatives for the same products displayed at the same times during the
day or the night with the same frequency to the ad recipient. LookSmart
agrees to deliver to NetZero in writing within fifteen (15) days of the end
of each month a detailed summary of the [***]. In the event that the [***]
falls to a level below [***] of the [***] during [***] based on a
statistically significant sampling, LookSmart and NetZero shall meet during
the five (5) day period following the delivery of such data to develop a
mutually acceptable strategy to [***]. This strategy may include specific
recommendations by NetZero as to how LookSmart [***]. Such strategy shall
include the use by LookSmart of the demographic data provided by NetZero
under this Agreement. During the [***] day period following the acceptance of
such strategy by both parties, LookSmart agrees to use commercially
reasonable efforts to implement the strategy. If the strategy fails to bring
the [***] within [***] of the [***] for [***] period, then [***].
[***].
3. REPORTING; AUDITING. LookSmart shall provide Netzero with
monthly reports regarding the Referrals delivered, along with a statement of
[***] relating to [***], and such periodic reports as may reasonably
requested by NetZero to confirm the [***]. NetZero shall have the right, at
its expense, to audit LookSmart's books and records for the sole purpose of
verifying the number [***] previously reported and the [***]. Such audits
will be made not more than twice per year, on not less than ten (10) days
written notice, during regular business hours, by auditors reasonably
acceptable to LookSmart; provided, the twice per year limitation shall not
apply to audits related to [***]. If the auditor's figures reflect a number
different than those reported by LookSmart, the party benefited by the error
shall immediately pay the other party the difference in [***] arising from
such error. Information revealed to the auditors shall be
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kept confidential by such auditors, and such auditors will sign customary
confidentiality agreements if requested by LookSmart.
4. CO-MARKETING EFFORTS. The parties shall meet from time to time to
mutually determine what co-marketing efforts should be made to further the
purpose of this Agreement.
5. DEMOGRAPHIC INFORMATION. Except as provided below and excluding
personal identifying information, NetZero agrees to provide LookSmart with the
demographic and consumer data which NetZero collects during registration and
compiles from its subscribers accessing the Co-branded Start Page for the sole
purpose of enabling LookSmart to better target content, e-commerce and
advertising opportunities to NetZero's subscribers. LookSmart agrees that such
data is proprietary to NetZero and in no event shall LookSmart disclose,
analyze, compile, sell or otherwise use such data for any other purpose.
Furthermore, NetZero's obligation to provide such data and LookSmart's use of
such data shall be subject in all respects to, and shall comply with, all
current and future applicable laws, rules, regulations and orders regarding the
collection, retention, use, dissemination and confidentiality of such data, and
to all current and future policies and procedures of NetZero regarding the same.
NetZero shall not use its policies and procedures to deny LookSmart access to
the data referred to above unless such policies and procedures are reasonably
designed to ensure NetZero's compliance with current and future applicable laws,
rules, regulations or orders.
6. OWNERSHIP. NetZero acknowledges and agrees that, as between
LookSmart and NetZero, LookSmart owns all title to, and all ownership rights
in, any LookSmart trademarks, the LookSmart Site and all aspects of the
Co-branded Site, the Search Page and the Co-branded Services which are solely
created and/or contributed by LookSmart, including without limitation the
underlying software but excluding any NetZero brand features which are the
sole property of NetZero. LookSmart acknowledges and agrees that, as between
LookSmart and NetZero, NetZero owns all title to, and all ownership rights
in, the NetZero ISP Service, the NetZero Software (including without
limitation the AdVantage Window), any NetZero trademarks and all aspects of
the Co-branded Site which are solely created and/or contributed by NetZero,
including without limitation the underlying software but excluding any
LookSmart brand features which are the sole property of LookSmart. Each of
NetZero and LookSmart acknowledges and agrees that LookSmart and NetZero
shall jointly hold all title to, and ownership rights in, the aspects of the
Co-branded Site and Co-branded Services which are jointly created and/or
contributed to by both parties, but excluding any NetZero brand features
which are the sole property of NetZero and any LookSmart brand features which
are the sole property of LookSmart.
7. TERM [***]. This Agreement shall have a term ("TERM") of one (1)
year from the Effective Date unless terminated earlier in accordance with
Section 14. [***]
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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8. MARKS. LookSmart hereby grants to NetZero a non-exclusive,
non-transferable, non-sublicensable license to reproduce and display
LookSmart's trademarks, service marks, logos and the like in the United
States solely for the purposes specified in this Agreement. NetZero hereby
grants LookSmart a non-exclusive, non-transferable, non-sublicensable license
to reproduce and display NetZero's trademarks, service marks, logos and the
like in the United States solely for the purposes specified in this
Agreement. Except as expressly stated herein, neither party shall make any
other use of the other party's marks. Furthermore, each party agrees and
acknowledges that the use of any of the other party's trademarks, service
marks, logos and the like shall not create any right, title or interest in or
to the use of such trademarks, service marks, logos and the like and that all
such use and goodwill associated therewith shall inure to the benefit of the
other party. Upon request of either party, the other party shall provide
appropriate attribution of the use of the requesting party's marks. All
licenses granted hereunder shall terminate automatically upon the effective
date of expiration or termination of this Agreement.
9. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants as follows:
a. CORPORATE POWER. Such party is duly organized and validly
existing under the laws of the state of its incorporation and has full corporate
power and authority to enter into this Agreement and to carry out the provisions
hereof.
b. DUE AUTHORIZATION. Such party is duly authorized to execute
and deliver this Agreement and to perform its obligations hereunder.
c. BINDING AGREEMENT. This Agreement is a legal and valid
obligation binding upon it and enforceable with its terms. The execution,
delivery and performance of this Agreement by such party does not conflict with
any agreement, instrument or understanding, oral or written, to which it is a
party or by which it may be bound, nor violate any law or regulation of any
court, governmental body or administrative or other agency having jurisdiction
over it.
d. INTELLECTUAL PROPERTY RIGHTS.
i. NetZero (i) has the full and exclusive right to
permit LookSmart to utilize NetZero's intellectual property, including
any trademark, service xxxx, graphics, logos or other material provided
to LookSmart hereunder, to the extent contemplated by this Agreement,
(ii) is the sole owner or is a valid licensee of the NetZero Software
and the AdVantage Window, and (iii) NetZero is aware of no claims by
any third parties adverse to any of such intellectual property rights,
including the NetZero Software and the AdVantage Window.
ii. LookSmart (i) has the full and exclusive right to
grant or otherwise permit NetZero to access the Co-branded Site
(including the Co-
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branded Start Page) and the Co-branded Services, and to use
LookSmart's intellectual property, including any trademark,
service xxxx, graphics, logos or other material provided to NetZero
hereunder, to the extent contemplated by this Agreement, (ii) is the
sole owner or is a valid licensee of the software underlying the
Co-branded Site, and (iii) LookSmart is aware of no claims by any third
parties adverse to any of such intellectual property rights, including
any software underlying the Co-branded Site.
iii. If either party's (the "INFRINGING PARTY")
intellectual property rights are alleged or held to infringe the
intellectual property rights of a third party, the Infringing Party
shall, at its own expense, and in its sole discretion, (1) procure for
the non-Infringing Party the right to continue to use the allegedly
infringing intellectual property or (2) replace or modify the
intellectual property to make it non-infringing.
The representations and warranties and covenants in this Section 9 are
continuous in nature and shall be deemed to have been given by each party at
execution of this Agreement and at each stage of performance hereunder. These
representations, warranties and covenants shall survive termination or
expiration of this Agreement.
10. LIMITATION OF WARRANTY. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9
ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ITS WEB-SITE, THE NETZERO
SOFTWARE, THE NETZERO ISP SERVICE, THE CO-BRANDED SITE, THE CO-BRANDED SERVICES,
AND THE CO-BRANDED START PAGE AND NEITHER PARTY SHALL BE LIABLE FOR THE
CONSEQUENCES OF ANY INTERRUPTIONS, DOWNTIME, NON-PERFORMANCE OR ERRORS RELATED
THERETO.
11. INDEMNIFICATION.
a. MUTUAL INDEMNITY. Each party (in such case, the
"INDEMNIFYING PARTY") will at all times defend, indemnify and hold harmless the
other party (in such case, the "INDEMNIFIED PARTY") and the Indemnified Party's
officers, directors, shareholders, employees, accountants, attorneys, agents,
successors and assigns from and against any and all third party claims, damages,
liabilities, costs and expenses, including reasonable legal fees and expenses,
arising out of or related to the Indemnifying Party's breach of any express
representations and warranties set forth in Section 10 of this Agreement. In
addition, (i) NetZero shall indemnify LookSmart, its officers, directors,
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shareholders, employees, accountants, attorneys, agents, successors and assigns
from and against any and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to the operation, provision or maintenance of the NetZero ISP Service,
the ISP Software, the AdVantage Window, or any other services offered by
NetZero, and (ii) LookSmart shall indemnify NetZero, its officers, directors,
shareholders, employees, accountants, attorneys, agents, successors and assigns
from and against any and all thrid party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to the operation, provision or maintenance of services offered by
LookSmart on the Co-branded Site (other than services or products offered by
NetZero). The Indemnified Party shall give the Indemnifying Party prompt written
notice of any claim, action or demand for which indemnity is claimed. The
Indemnifying Party shall have the right, but not the obligation, to control the
defense and/or settlement of any claim in which it is named as a party and which
arises as a result of its breach of any warranty, representation, covenant
or agreement under this Agreement. The Indemnified Party shall have the right to
participate in any defense of a claim by the Indemnifying Party with counsel of
the Indemnified Party's choice at its own expense. The foregoing indemnity is
conditioned upon; prompt written notice by the Indemnified Party to the
Indemnifying Party of any claim, action or demand for which indemnity is
claimed; complete control of the defense and settlement thereof by the
Indemnifying Party; and such reasonable cooperation by the Indemnified Party in
the defense as the Indemnifying Party may request.
b. SETTLEMENT. Neither party shall, without the prior written
consent of the other party, settle, compromise or consent to the entry of any
judgment with respect to any pending or threatened claim unless the settlement,
compromise or consent provides for and includes an express, unconditional
release of all claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, against the indemnified party.
12. CONFIDENTIALITY, PRESS RELEASES.
a. NON-DISCLOSURE AGREEMENT. The parties agree and acknowledge
that, as a result of negotiating, entering into and performing this Agreement,
each party has and will have access to certain of the other party's Confidential
Information (as defined below). Each party also understands and agrees that
misuse and/or disclosure of that information could adversely affect the other
party's business. Accordingly, the parties agree that, during the Term of this
Agreement and thereafter, each party shall use and reproduce the other party's
Confidential Information solely for purposes of this Agreement and only to the
extent necessary for such purpose and shall restrict disclosure of the other
party's Confidential Information to its employees, consultants or independent
contractors with a need to know and shall not disclose the other party's
Confidential Information to any third party without the prior written approval
of the other party. Notwithstanding the foregoing, it shall not be a breach of
this Agreement for either party to disclose Confidential Information of the
other party if required to do so under law (including compliance with any
applicable federal or state securities laws) or in a judicial or other
governmental investigation or proceeding, provided the other party has been
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given prior written notice and the disclosing party has sought all commercially
reasonable safeguards against any further dissemination prior to such
disclosure.
b. CONFIDENTIAL INFORMATION DEFINED. As used in this
Agreement, the term "Confidential Information" refers to: (i) each party's
trade secrets, business plans, strategies, methods and/or practices; and (ii)
other information relating to either party that is not generally known to the
public, including information about either party's personnel, products,
customers, marketing strategies, services or future business plans.
Notwithstanding the foregoing, the term "Confidential Information"
specifically excludes (A) information that is now in the public domain or
subsequently enters the public domain by publication or otherwise through no
action or fault of the other party; (B) information that is known to either
party without restriction, prior to receipt from the other party under this
Agreement, from its own independent sources as evidenced by such party's
written records, and which was not acquired, directly or indirectly, from the
other party; (C) information that either party receives from any third party
reasonably known by such receiving party to have a legal right to transmit
such information, and not under any obligation to keep such information
confidential; and (D) information independently developed by either party's
employees or agents provided that such party can show that those same
employees or agents had no access to the Confidential Information received
hereunder.
c. PRESS RELEASES. Except to the extent permitted pursuant
to the last sentence of paragraph (a) above and except for disclosure to
investors or potential investors (including disclosures to federal and state
regulatory agencies in connection therewith), in no event shall either party,
its employees, consultants or affiliates disclose to any third parties or
make any press release or any public announcement relating in any way
whatsoever to the financial provisions of this Agreement, including but not
limited to the individual or aggregate payments to be made to NetZero
hereunder and the CPM for Referrals, without the express prior written
consent of the other party; provided, however, following the initial press
release NetZero and LookSmart may reference the financial term as "a multi
million dollar deal", specifically and only. The parties agree to cooperate
with one another to determine the content of the initial press release
relating to this Agreement and to issue such press release on or about the
commercial launch of the Co-branded Start Page.
13. TERMINATION.
a. TERMINATION. Either party may terminate this Agreement if
(i) the other party files a petition for bankruptcy or is adjudicated bankrupt;
(ii) a petition in bankruptcy is filed against the other party and such petition
is not dismissed within sixty (60) days of the filing date; (iii) the other
party becomes insolvent or makes an assignment for the benefit of its creditors
pursuant to any bankruptcy law; (iv) a receiver is appointed for the other party
or its business; (v) upon the occurrence of a material breach of a material
provision by the other party if such breach is not cured within thirty (30) days
after written notice is received by the breaching party identifying the matter
constituting the material breach; or (f) by mutual consent of the parties. In
addition, if
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LookSmart fails to pay any CPM Revenues within ten (10) calendar days
following written notice that payment is delinquent and without any
limitation on NetZero's remedies, NetZero shall have the right, at its
option, to (a) immediately terminate this Agreement on delivery of written
notice to LookSmart or (b) switch its default start page and search page to
any other start or search page of its choice until LookSmart has cured such
delinquency.
b. EFFECT OF TERMINATION. Upon such termination, (i)
LookSmart shall remove the Co-branded Site, (ii) each party shall promptly
deliver to the other party all originals and copies of any of the other
party's content or material provided by the other party hereunder, and (iii)
if at the time of termination, NetZero has failed to deliver at least [***]
Referrals for any reason other than a reason primarily attributable to
LookSmart including, without limitation, LookSmart's failure to develop and
operate the Co-branded Site as set forth herein, [***]. Each party shall
ensure that such materials have been erased from all computer memories and
storage devices within its possession or control.
14. FORCE MAJEURE. In the event that either party is prevented from
performing, or is unable to perform, any of its obligations under this Agreement
due to any cause beyond the reasonable control of the party invoking this
provision, the affected party's performance shall be excused and the time for
performance shall be extended for the period of delay or inability to perform
due to such occurrence.
15. RELATIONSHIP OF PARTIES. NetZero and LookSmart are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture or agency relationship between NetZero and
LookSmart. Neither party has authority to enter into agreements of any kind on
behalf of the other.
16. ASSIGNMENT. Neither LookSmart nor NetZero may assign this Agreement
or any of its rights or delegate any of its duties under this Agreement without
the prior written consent of the other. Notwithstanding the foregoing, each
party may assign this Agreement to any successor of such party.
17. CHOICE OF LAW AND FORUM. This Agreement, its interpretation,
performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, the laws of State of
California applicable to contracts entered into and wholly to be performed
within said State. Each of NetZero and LookSmart hereby consents to the personal
jurisdiction of the State of California, acknowledges that venue is proper in
any state or Federal court in the State of California, agrees that any action
related to this Agreement must be brought in a state or Federal court in the
State of California, and waives any objection it has or may have in the future
with respect to any of the foregoing.
18. GOOD FAITH. The parties agree to act in good faith with respect to
each provision of this Agreement and any dispute that may arise related hereto.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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19. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures will be considered original signatures.
20. NO WAIVER. The waiver by either party of a breach or a default of
any provision of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
22. SEVERABILITY. Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the
legal enforceability of any specific provision.
23. NOTICES. All notice required to be given under this Agreement must
be given in writing and delivered either in hand, by certified mail, return
receipt requested, postage pre-paid, or by Federal Express or other recognized
overnight delivery service, all delivery charges pre-paid, and addressed:
If to LookSmart: LookSmart, Ltd.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: SVP, Sales
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
If to NetZero: NetZero, Inc.
00000 Xxxxxx Xxxx #000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President; General Counsel
with a copy to:
12
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx XxXxx Esq.
24. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the transactions and
matters contemplated hereby, supersedes all previous agreements between
LookSmart and NetZero concerning the subject matter, and cannot be amended
except by a writing signed by both parties. No party hereto has relied on any
statement, representation or promise of any other party or with any other
officer, agent, employee or attorney for the other party in executing this
Agreement except as expressly stated herein.
25. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY HAS BEEN
ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM SUCH PARTY'S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY
PROVISION OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY'S SITE (INCLUDING
SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, HOWEVER, THIS SECTION SHALL NOT LIMIT EITHER PARTY'S LIABILITY
TO THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES TO
REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH CAUSED BY
NEGLIGENCE; OR (D) INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER.
26. SURVIVAL. All terms of this Agreement which by their nature extend
beyond its termination (including any accrued payment or refund obligations)
remain in effect until fulfilled, and apply to respective successors and
assigns.
13
Executed as of the date first written above.
NetZero, Inc. LookSmart, Ltd.
By: /s/ XXXXXX X. XXXX By: /s/ XXXXX X. XXXXXXX
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxxx
------------------------------ -----------------------------
Title: President Title: Senior Vice President
------------------------------ -----------------------------
14
AMENDMENT NO. 1 TO START PAGE AGREEMENT
This Amendment No. 1 to Start Page Agreement, effective as of the 1st
day of September 1999 (the "Effective Date"), is made by and between
LookSmart, Ltd., a Delaware corporation with a principal place of business at
000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 ("LOOKSMART"), and NetZero, Inc.,
a California corporation with a principal place of business at 0000 Xxxxxxxxx
Xxxx, Xxxxxxxx Xxxxxxx, XX 00000 ("NETZERO"). Capitalized terms not
otherwise defined herein shall have the meaning ascribed to such terms in
that certain Start Page Agreement between the parties dated effective April
30, 1999 (the "Existing Agreement").
RECITALS
WHEREAS NetZero and LookSmart are party to the Existing Agreement and
have agreed to amend the Existing Agreement as set forth below;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, LookSmart and NetZero hereby agree as follows:
1. Sections 2(e), (f), (g) and (h) of the Existing Agreement are hereby
deleted in their entirety and replaced by the following:
e. Except as set forth in this Section 2, LookSmart shall pay to
NetZero [***]. Within twenty (20) days of the end of each month,
LookSmart shall provide NetZero with information (as described in
Section 3 below) regarding the [***] generated by NetZero during
the preceding month and the payment for such [***] (unless amounts
due are covered by prepayment). Delinquent payments shall accrue
interest at an annualized rate of [***]. For the purposes of this
Agreement, a [***].
f. At such time as the [***] generated during the period commencing
[***] equal [***], the [***] will be [***] from [***] during
such period in excess of [***] (which represents [ ***] of [***])*.
Effective [***], the [***] for all [***] following [***] shall
be [***]; provided, however, at such time as the [***] generated
during the period commencing [***] and ending [ ***] equal [***],
the [***] will be [***] from [***] to [***] for all [***]
during such period in excess of [***] (which represents [***]). At
such time as the [***] generated during the period commencing [***]
and ending [***] equal [***], the [***] will be [***] from
[***] to [***] for all [***] during such period in excess of [***]
(which represents [***] of [***]).
2. Section 3 of the Existing Agreement is hereby deleted in its entirety
and replaced with the following:
---------------------
* Confidential treatment is requested for confidential information enclosed
in the brackets and underlined.
1
3. REPORTING; AUDITING. LookSmart shall provide Netzero with monthly
reports regarding the [***] delivered, along with a statement of
[***] relating to such [***]. NetZero shall have the right, at its
expense, to audit LookSmart's books and records for the sole
purpose of verifying the number of [***] previously reported. Such
audits will be made not more than twice per year, on not less than
ten (10) days written notice, during regular business hours, by
auditors reasonably acceptable to LookSmart. If the auditor's
figures reflect a number different than those reported by
LookSmart, the party benefited by the error shall immediately pay
the other party the difference in [***] arising from such error.
Information revealed to the auditors shall be kept confidential by
such auditors, and such auditors will sign customary
confidentiality agreements if requested by LookSmart.
3. Section 7 of the Existing Agreement is hereby deleted in its entirety
and replaced by the following:
7. TERM. This Agreement shall have a term ("TERM") through April 30,
2000 unless terminated earlier in accordance with Section 14 or as
provided in this Section 7. NetZero shall have the option, at its
convenience and without cause, to terminate this Agreement prior to
the end of the Term by delivering written notice to LookSmart;
provided, however, NetZero may not exercise such right to deliver
notice prior to the first date that the [***] are [***] below
[***] pursuant to the terms of Section 2 (e.g., at the latest,
[***]* or, if earlier, on such date as the [***]). The effective date
of such termination shall be as specified in the written notice but
shall in no event be less than forty five (45) days following
delivery of such written notice. The delivery of written notice
shall not affect either party's obligation to continue performance
hereunder through the effective date of termination, nor shall it
relieve a party of its obligations (including payment obligations)
incurred prior to the effective date of termination or which
survive the termination of this Agreement.
4. Section 13(b) is hereby deleted in its entirety and replaced with the
following:
b. EFFECT OF TERMINATION. Upon such termination (including termination
pursuant to Section 7), (i) LookSmart shall remove the Co-branded
Site and (ii) each party shall promptly deliver to the other party
all originals and copies of any of the other party's content or
material provided by the other party hereunder. Each party shall
ensure that such materials have been erased from all computer
memories and storage devices within its possession or control.
5. Section 23 of the Existing Agreement is hereby deleted in its entirety
and replaced by the following:
---------------------
* Confidential treatment is requested for confidential information enclosed
in the brackets and underlined.
2
23. NOTICES. All notice required to be given under this Agreement must be
given in writing and delivered either in hand, by certified mail,
return receipt requested, postage pre-paid, or by Federal Express
or other recognized overnight delivery service, all delivery
charges pre-paid, and addressed:
If to LookSmart: LookSmart, Ltd.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: SVP, Sales
With a copy to: Senior Counsel at the same address
If to NetZero: NetZero, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: President; General Counsel
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx XxXxx, Esq.
6. Each of the parties represents to the other in connection with the
execution and delivery of this Amendment that it is not aware of any
breach by the other party of the Existing Agreement. Each of the
parties agrees that, except for disclosures to, and filings with, the
Securities and Exchange Commission; disclosures to potential investors,
advisors and others who have a reasonable need to know, and disclosures
that may be required under GAAP or relevant laws or regulations, that it
will not make any press release or other similar announcement with
respect to the financial terms of this Amendment.
7. LookSmart agrees to pay NetZero by wire transfer (a) concurrently with
the execution of this Amendment the sum of [***], (b) on January 1,
2000 the sum of [***] and (c) on April 1, 2000 the sum of [***]. Such
amounts shall be a prepayment against payments to be made under the
Existing Agreement, as revised by this Amendment. If, due to NetZero's
termination under Section 7 of the Existing Agreement (as amended by
this Amendment), at the effective date of such termination a portion of
any of the foregoing amounts have been paid to NetZero but are still
unearned because NetZero has not generated the [***] that give rise to
the payment obligations,
---------------------
* Confidential treatment is requested for confidential information enclosed
in the brackets and underlined.
3
LookSmart shall be entitled to a refund of the unearned amount. If
NetZero gives notice of its intent to terminate this Agreement under
Section 7 of the Existing Agreement (as amended by this Amendment) and
one of the payments referenced above becomes payable after the date of
notice but prior to the effective date of termination, LookSmart's
payment obligation shall be decreased. The amount of the payment shall
be reduced by multiplying the payment by a fraction, the numerator of
which is the number of days remaining from the due date of the payment
to the effective date of termination and the denominator of which is the
number of days in the period for which the prepayment applies.
8. Except as specifically set forth herein, the Existing Agreement shall
remain unaffected by this Amendment and shall remain in full force and
effect.
This Agreement has been executed to be effective as of the date first written
above.
NetZero, Inc. LookSmart, Ltd.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxx
---------------------------- ----------------------------
Title: Chief Executive Officer Title: Senior Vice President
--------------------------- ---------------------------
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