Exhibit 10.22
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
INTERNET KEYWORD PROVIDER AGREEMENT
BETWEEN REALNAMES CORPORATION AND XXXXXXXXX.XXX, INC.
This Agreement (this "AGREEMENT") IS entered into as of October 26,
1999, and made effective as of October 15, 1999 ("EFFECTIVE DATE") by and
between RealNames Corporation, a Delaware corporation ("REALNAMES"), and
Xxxxxxxxx.xxx, Inc., a Delaware corporation ("COMPANY" and, together with
RealNames, the "PARTIES").
WHEREAS, RealNames is the provider of the RealNames Service, which
allows Internet users to access the World Wide Web sites of RealNames
subscribers by using a short keyword, trade name or phrase in lieu of a Uniform
Resource Locator ("URL");
WHEREAS, Company is the operator of World Wide Web site(s) specified on
EXHIBIT A hereto (the "COMPANY WEB SITE(S)");
WHEREAS, Company desires to use certain designated routing prefixes
within the RealNames Service and to become a Keyword Provider for the Company
Web Sites on the terms and conditions set forth below.
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS.
1.1 "INTERNET KEYWORD" means a proprietary natural language Web address
assigned by RealNames to a third party that can be translated into a URL address
through Keyword Resolution (as herein defined).
1.2 "KEYWORD RESOLUTION" occurs each time an Internet user uses an
Internet Keyword or Routing Prefix subscribed by Company to navigate to a
Company owned or controlled URL through the RealNames Service.
1.3 "ROUTING PREFIX" means a unique phrase or keyword to be used as a
routing prefix in the RealNames Service as follows: RealNames' routers will (i)
recognize the format of a Routing Prefix, followed by certain other words and
phrases supplied by an Internet user, (ii) transform such Routing Prefix plus
such additional words or phrases into an appropriate rules-based dynamic syntax
query on the Company Web Site assigned to such Routing Prefix, and (iii) route
the Internet user directly to the Company URL appropriate to such query or, if
no appropriate URL exists, to an intermediary page on such Company Web Site
listing relevant directory results to the query (e.g., the Routing Prefix
"Furniture" followed by "Table" to form a query on the Company Web Site located
at xxx.xxxxxxxxx.xxx for the content relevant to tables).
1.4 "REALNAMES SERVICE" means RealNames' subscriber-based Internet
addressing system that utilizes unique RealNames Keyword Resolution to direct
Internet users to URLs
determined by RealNames.
All other capitalized terms used herein will have the meanings assigned
to them herein.
2. SERVICES PROVIDED BY REALNAMES.
2.1 ROUTING PREFIX SUBSCRIPTION. Subject to the terms and conditions of
this Agreement, Company hereby subscribes to the use of: (i) the Routing
Prefix(es) set forth on EXHIBIT A for the corresponding Company Web Site(s) set
forth on such EXHIBIT A; and (ii) the
Internet Keywords set forth on EXHIBIT A. Subject to the term and conditions of
this Agreement (including without limitation Section 2.3), such Routing Prefixes
and Internet Keywords will be included in the RealNames Service for the term of
this Agreement. RealNames will ensure that each such Routing Prefix and Internet
Keyword, when used in the RealNames Service, will route Internet users to such
Company owned or controlled URL addresses as Company may nominate from time to
time; provided that RealNames makes no representation or warranty and provides
no guarantee that such Routing Prefixes or Internet Keywords will be accessible
through any particular search engine, browser or other means of distribution.
2.2 OWNERSHIP. As between the Parties, subject to Section 4 below,
RealNames will retain all rights, titles and interests in the Routing Prefixes
and Internet Keywords to the extent they exist in the RealNames database.
Company's use of a Routing Prefix an Internet Keyword or the RealNames Service
confers no property, business or competition rights upon Company.
Notwithstanding the foregoing, RealNames hereby agrees and acknowledges that no
right title or interest to the Routing Prefix(es) and Internet Keywords set
forth on EXHIBIT A as they exist outside of the RealNames database, are
conferred on RealNames by Company. Company understands and agrees that RealNames
has the right to compile usage statistics and other data regarding use of the
RealNames Service and to sell and provide any and all such data to third
parties.
2.3 RESERVATION. Company agrees that allocation of Routing Prefixes and
Internet Keywords by RealNames is subject to RealNames' sole discretion.
RealNames may at any time, with notice to Company that is reasonable in the
circumstances (including immediate notice when that is appropriate) withdraw or
reallocate a Routing Prefix or Internet Keyword previously or currently
subscribed by Company. RealNames may also elect in its sole discretion, not to
include a Routing Prefix or Internet Keyword in any foreign language keyword
systems comprising part of the RealNames Service. Company understands and agrees
that RealNames requires absolute discretion over the allocation of Routing
Prefixes and Internet Keywords (1) in light of the uncertain and often
conflicting principles and law that are at work in the current state of the
Internet and (2) to exercise its own judgment as to what constitutes an optimal
service and system and that RealNames may apply standards of decision regarding
inclusion, allocation, reallocation, or withdrawal of Routing Prefixes and
Internet Keywords that evolve or change over time. Company agrees and
acknowledges that RealNames may withdraw approval of a Routing Prefix or
Internet Keyword. If RealNames withdraws approval of a Routing Prefix or
Internet Keyword, RealNames will attempt to provide an alternative that is
acceptable to both Parties. Company accords to RealNames the right to make
decisions that it deems best in each context.
3. COMPENSATION.
3.1 FEES. During the term of this Agreement; Company shall pay
non-refundable (subject to Section 5.1) fees to RealNames as set forth on
EXHIBIT B.
3.2 METHOD OF PAYMENT. Payments shall be made in the manner and on the
dates set forth in EXHIBIT B.
4. USE OF COMPANY NAMES. RealNames may use applicable trade names and brand
names of Company (collectively, the "COMPANY NAMES") in connection with the
provision of the RealNames Service and Company's subscription of a Routing
Prefixes or Internet Keyword in accordance with this Agreement. Nothing herein
will grant RealNames any right, title or interest in the Company Names. Any and
all goodwill arising
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from RealNames' use of the Company Names will inure solely to the benefit of
Company.
5. TERM AND TERMINATION.
5.1 TERM AND TERMINATION. This Agreement will commence on the Effective
Date and continue for an initial term that will expire on October 15, 2001
unless earlier terminated as set forth herein.
This Agreement may be terminated immediately for cause by either Party
on written notice to the other Party in the event that the other Party: (a)
ceases to function as a going concern or to conduct its operations in the normal
course of business; or (b) is in material default of its obligations under this
Agreement and fails to cure such default within thirty (30) days after written
notice thereof.
In the event that RealNames removes or reallocates any of the Routing
Prefixes or Internet Keywords identified on EXHIBIT A from the RealNames
Service, and fails to replace any such Routing Prefix or Internet Keyword with a
substitute Routing Prefix or Internet Keyword, as applicable, acceptable to
Company, Company may terminate this Agreement upon fifteen (15) days written
notice to RealNames.
In the event that RealNames reasonably believes that Company's use of a
Routing Prefix or an Internet Keyword may result in liability to RealNames,
RealNames may immediately terminate this Agreement upon written notice to
Company.
Upon termination of this Agreement as specified in this Section 5.1,
Company shall be entitled to a pro rata refund of fees paid to RealNames as
specified on Exhibit B but only to the extent that any such fees were prepaid
for a given period.
5.2 LIMITATION ON LIABILITY. Except as expressly required by law, in
the event of termination of this Agreement by either Party in accordance with
its terms, neither Party shall be liable to the other for compensation,
reimbursement or damages resulting from such termination and resulting from (i)
the loss of prospective profits or anticipated sales; or (ii) expenditures,
inventory, investments, leases or commitments in connection with the business or
goodwill of the Parties.
5.3 SURVIVAL. In the event of termination or cancellation of this
Agreement, Sections 1, 2.2, 2.3, 5.2, 5.3, 6, 7 and 8 shall survive and shall
continue to apply in accordance with their terms. In addition, Company's
obligation for any unpaid amounts owing to RealNames pursuant to Section 3 shall
survive termination or cancellation of this Agreement.
6. WARRANTY AND INDEMNITY.
6.1 WARRANTY AND DISCLAIMER.
COMPANY AGREES THAT SUBSCRIPTION OF A ROUTING PREFIX OR INTERNET KEYWORD DOES
NOT CONFER IMMUNITY FROM OBJECTION TO EITHER THE SUBSCRIPTION OR USE OF THE
ROUTING PREFIX OR INTERNET KEYWORD BY THIRD PARTIES, COMPANY ACKNOWLEDGES AND
AGREES THAT THE REALNAMES SERVICE AND THE ROUTING PREFIX AND THE INTERNET
KEYWORDS) (COLLECTIVELY, THE "SERVICES") ARE BEING PROVIDED "AS IS," WITH "ALL
FAULTS," AND THAT REALNAMES MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON ITS OWN BEHALF
ON AND BEHALF OF ITS AFFILIATED PARTIES, ANY WARRANTIES AS TO THE USEFULNESS,
ACCURACY, RELIABILITY, NON-INFRINGEMENT OR EFFECTIVENESS OF SUCH SERVICES OR
THAT ANY OF
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SUCH SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR WILL MEET THE NEEDS OF ANY
PARTY OR THAT THE ROUTING PREFIXES OR INTERNET KEYWORDS SUBSCRIBED UNDER THIS
AGREEMENT WILL BE ACCESSIBLE THROUGH ANY PARTICULAR BROWSER, SEARCH ENGINE OR
OTHER METHOD OF DISTRIBUTION. WITHOUT LIMITING THE FOREGOING, REALNAMES
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL REALNAMES BE LIABLE TO THE COMPANY FOR ANY FAILURE, DISRUPTION,
DOWNTIME, INCORRECT LINKAGE OR OTHER NON PERFORMANCE OF THE REALNAMES SERVICE.
6.2 INDEMNITY. Company, at its own expense, will defend, indemnify and
hold RealNames, its officers, directors, employees, agents and successors
harmless against any liability, or any litigation cost or expense (including
reasonable attorneys' fees), arising out of third-party claims as a result of
the use of the Routing Prefixes and Internet Keywords subscribed hereunder.
7. CONFIDENTIALITY. Each Party may disclose the existence of this Agreement, but
agrees that the terms and conditions of this Agreement will be treated as
Confidential Information; provided, however, that each Party may disclose the
terms and conditions of this Agreement: (i) as required by any court or other
governmental body; (ii) as otherwise required by law, (iii) to legal counsel of
the parties; (iv) in confidence, to accountants, banks, and financing sources
and their advisors; (v) in connection with the enforcement of this Agreement or
rights under this Agreement; or (vi) in confidence, in connection with an actual
or proposed merger, acquisition, or similar transaction. The parties will use
reasonable efforts to issue a joint press release announcing this Agreement
within 30 days of the Effective Date.
8. GENERAL.
8.1 MISCELLANEOUS. Nonperformance of either Party will be excused to
the extent that performance is rendered impossible by any other reason where
failure to perform is beyond the reasonable control and not caused by the gross
negligence or willful misconduct of the nonperforming Party. The relationship of
RealNames and Company established by this Agreement is that of independent
contractors. This Agreement will be governed by and construed under the laws of
the State of California without reference to conflict of law principles. In any
action arising out of this Agreement the Parties consent to the nonexclusive
jurisdiction and venue in the state and federal courts sitting within the
Northern District of California. This Agreement, together with all exhibits and
attachments hereto, set forth the entire agreement and understanding of the
Parties relating to the subject matter herein and merges all prior discussions
and agreements between them, including but not limited to that certain Internet
Keyword Provider Agreement dated as of September 13, 1999 by and between the
Parties, pursuant to which the Parties took no action. No modification of or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing signed by the Party to be charges, and the
waiver of any breach or default will not constitute a waiver of any other right
hereunder or any subsequent breach or default. Company may not assign this
Agreement, or assign or delegate any right or obligation hereunder, without the
prior written consent of RealNames, except in the case of a sale or other
transfer of substantially all of Company's assets or equity, whether by sale of
assets or stock or by merger or other reorganization, provided that the assignee
has agreed in writing to be bound by all the terms and conditions of this
Agreement. Subject to the
4
foregoing sentence, this Agreement shall be binding on each Party's respective
successors and assigns. If any provision in this Agreement is found invalid then
such provision will be construed, if feasible, so as to render the provision
enforceable, and if no feasible interpretation would save such provision, it
will be severed from the remainder of this Agreement, and the parties will
negotiate, in good faith, a substitute, valid and enforceable provision that
most nearly effects the Parties' intent in entering into this Agreement.
8.2 RIGHT OF FIRST REFUSAL. Subject to Section 2.3, in the event this
Agreement has not been terminated prior to October 15, 2001, Company shall have
a right of first refusal (the "RIGHT") as follows: if Company intends to allow a
third party to subscribe to the Routing Prefix "furniture", RealNames shall give
Company written notice of such intention, which notice shall include the
material terms of the proposed agreement with such third party. Upon receipt of
such notice, Company shall have the option, for a period of ten days from the
receipt of the notice, to subscribe to the Routing Prefix "furniture" on the
same terms as specified in the notice by notifying RealNames in writing during
such ten (10) day period. In the event Company fails to exercise the Right
within such ten (10) day period, RealNames may enter into an agreement with such
third party on terms no more favorable to such third party as were specified in
RealNames' notice. The Right shall expire on October 15, 2003.
8.3 NOTICES. Any notice required or permitted to be given by either
Party under this Agreement will be in writing or by email and will be deemed
given: (i) one day after pre-paid deposit with a commercial courier service
(e.g., DHL, FedEx), (ii) upon receipt, if personally delivered, (iii) three days
after deposit, postage pre-paid, with first class airmail (certified or
registered if available), or (iv) upon receipt, when sent by facsimile or
e-mail, in any such case, to the other Party at its address below, or to such
new address as may from time to time be supplied hereunder by the Parties
hereto:
NOTICE ADDRESS FOR REALNAMES:
RealNames Corporation
Xxx Xxxxxx Xxxx Xxx, 0x Xxxxx
Xxx Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: LEGAL(@XXXXXXXXX.XXX
NOTICE ADDRESS FOR COMPANY:
Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxx. #0
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: XXXXXX@XXXXXXXX.XXX
8.4 DISPUTES. In the event that Company's subscription of any Routing
Prefix, Internet Keyword, or any other aspect of the RealNames Service, or any
conduct by the Company results in any challenge, claim, demand, or action to or
against RealNames, Company agrees that RealNames shall have the right to decide
in its sole discretion what actions to take, including without limitation
whether to continue to provide Company's subscription to a Routing Prefix or
Internet Keyword, reservation or any other aspect of the RealNames Service
affected by such claim. Company understands and agrees that it has no vested
interest or right in any procedures or rules of dispute resolution.
8.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which together
shall constitute a single instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be signed by their duly authorized officers or representatives as of the date
first above written.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
-------------------------------
Title: V.P., Business Development
------------------------------
REALNAMES CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
-------------------------------
Title: General Counsel
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EXHIBIT A
SUBSCRIPTIONS
A. ROUTING PREFIXES
ROUTING PREFIX COMPANY WEB SITE (URL)
Furniture xxx.xxxxxxxxx.xxx
xxxxxxxxx.xxx xxx.xxxxxxxxx.xxx
B. INTERNET KEYWORDS
Furniture
Xxxxxxxxx.xxx
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT B
FEES PAYABLE TO REALNAMES
A. PLATFORM LICENSE FEES
During the term of this Agreement, Company shall pay to RealNames a
quarterly platform subscription fee of [**] that shall be prorated for any
partial calendar quarter during the term of this Agreement. The first quarterly
platform subscription fee shall become payable within thirty (30) days of the
Effective Date. Thereafter, the quarterly platform subscription fee shall be
invoiced at the beginning of each calendar quarter.
B. AFFILIATE PROGRAM
In addition to the payments in SECTION A above, RealNames will enter
into Xxxxxxxxx.xxx's Affiliate Program as stated:
Xxxxxxxxx.xxx will give RealNames a [**] for referred customers who
register with the Xxxxxxxxx.xxx site.
RealNames will also receive a [**] commission for referred customers
who make a purchase with Xxxxxxxxx.xxx.
Xxxxxxxxx.xxx will handle transactions, processing and customer service
and provide RealNames with detailed reports that track sales activity
originating from the RealNames distribution network.
C. METHOD OF PAYMENT
RealNames will submit to Company quarterly invoices of the fees due and
payable to RealNames by Company under SECTION A of this EXHIBIT B. Company shall
pay such invoices within thirty (30) days of receipt.
The Affiliate Program Fees, payable pursuant to SECTION B of this
EXHIBIT B, will be due and payable in accordance with Xxxxxxxxx.xxx's Affiliate
Program.
