1
EXHIBIT 10.35
CONTENT PARTNER/DISTRIBUTION AGREEMENT
This Content Partner/Distribution Agreement ("Agreement") is entered into by and
among Xxxx.xxx, Inc., a corporation duly organized under the laws of the State
of Delaware, with its principal place of business at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Content Partner"), Buena Vista Internet Group, a
corporation duly organized under the laws of the State of California, with its
principal place of business at 000 Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX
00000-0000 ("BVIG"), and Infoseek Corporation, a corporation duly organized
under the laws of the State of California, with its principal place of business
at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000 ("Infoseek") (BVIG
and Infoseek collectively referred to herein as the "GO Entities"). The
effective date of this Agreement is January 15, 2000 (the "Effective Date").
WITNESSETH:
WHEREAS, BVIG hosts and maintains the U.S. versions of certain Internet sites,
including Xxxxxx.xxx and Xxxxxx.xxx, which sites are part of GO Network.
WHEREAS, Infoseek hosts and maintains the U.S. version of the Internet portal
service which is part of GO Network.
WHEREAS, Catalyst Investments, L.L.C. ("Catalyst") is a limited liability
corporation which makes and holds certain investments for The Xxxx Disney
Company.
WHEREAS, ABC, Inc. ("ABC") owns and/or operates certain broadcast properties.
WHEREAS, BVIG, Infoseek, Catalyst and ABC are subsidiaries and Affiliates of The
Xxxx Disney Company.
WHEREAS, Content Partner is an online retailer of pet products, information and
resources.
WHEREAS, the GO Entities wish to enter into a relationship with Content Partner
for, among other things, the distribution and placement of certain Content
Partner content and advertising on GO Network, advertising by Content Partner on
the ABC broadcast properties, Catalyst's equity investment in Content Partner
and joint on-line and offline promotion opportunities.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, BVIG, Infoseek and Content Partner hereby agree as
follows:
ARTICLE 1 DEFINITIONS
1.1 AFFILIATE means with respect to a party to this Agreement, any
entity that directly or indirectly controls, or is under common
control with, or is controlled by, such party or in which such
party beneficially owns at least fifty percent (50%) of the
equity interests; "control" (including, with its correlative
meanings, "controlled by" and "under common control with") means
possession, directly or indirectly, of the power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership
interests, by contract or otherwise).
1.2 CONTENT means editorial content, products, services, tools,
applications and commerce provided by Content Partner to the GO
Entities or distributed by Content Partner to GO
2
Network Users through the GO Network-Wrapped Pages relating to
pets and animals and as further described in Appendix A,
including, without limitation, advertisements for Content Partner
or its services and/or products.
1.3 CONTENT PARTNER COMPETITORS mean the following pet supply
retailers: [*] and their subsidiaries and direct successors. Upon
written notice to the GO Entities, Content Partner may from time
to time [*] or [*] for the [*] or, subject to the limit described
herein, [*] to the [*] subject to the approval of the GO Entities
which will not be unreasonably withheld. In no event shall the
[*] designated by Content Partner as [*] at any one time.
1.4 CONTENT PARTNER SERVICE means the U.S. version of the web site
located at xxx.xxxx.xxx and/or such other successor, extension or
replacement site(s) as may be designated by Content Partner.
1.5 XXXXXX.XXX is the U.S. version of the Internet service for The
Xxxx Disney Company currently located at xxxxxx.xx.xxx.
1.6 EFFECTIVE DATE shall have the meaning set forth in the Preamble
to this Agreement.
1.7 XXXXXX.XXX is the U.S. version of the Internet service related to
family issues currently located at xxxxxx.xx.xxx.
1.8 XX.XXX (THE ENTITY) refers to the online properties of The Xxxx
Disney Company, including the following subsidiaries and
organizations of The Xxxx Disney Company: BVIG (which operates
Xxxxxx.xxx, Xxxxxx.xxx, xxxxxxxxx.xxx and certain other sites),
Infoseek (which operates the GO Portal), ABC News/Starwave
Partners d/b/a AIV Ventures and ESPN/Starwave Partners d/b/a EIV
Ventures, which respectively operate XXXXxxx.xxx and XXXX.xxx.
1.9 XX.XXX COMPETITORS mean the following [*] companies: [*]; and the
following [*] companies: [*]; and their subsidiaries and direct
successors. Upon written notice to Content Partner, the GO
Entities may from time to time [*] or [*] for the [*] subject to
the approval of Content Partner which will not be unreasonably
withheld. In no event shall the [*] designated by the GO Entities
as [*] exceed [*] at any one time.
1.10 GO ENTITIES has the meaning set forth in the Preamble to this
Agreement and specifically excludes AIV Ventures and EIV
Ventures, which respectively operate XXXXxxx.xxx and XXXX.xxx.
1.11 GO NETWORK is the U.S. version of the Internet service currently
located at xx.xxx and certain subdomains of xx.xxx which service
includes the GO Portal and certain vertical Internet sites such
as Xxxxxx.xxx, Xxxxxx.xxx, XXXXxxx.xxx and XXXX.xxx.
1.12 GO NETWORK-WRAPPED PAGES means co-branded pages with the GO
Wrapper that display the Content, as further described herein.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-2-
3
1.13 GO PORTAL means the U.S. version of the Internet portal service
located at xxx.xx.xxx and/or such other successor, extension or
replacement site(s) as may be designated by the GO Entities.
1.14 GO WRAPPER means a page with the GO Network Trademarks and
includes the GO Network header, footer, tabs, breadcrumb and
other navigational elements and copyright notice as provided by
the GO Entities.
1.15 INITIAL TERM has the meaning set forth in Section 12.1.
1.16 LINK means a so-called "hot link" in graphical and/or textual
format located on the applicable areas of the Service which takes
a User directly to another web site or area within the site.
1.17 [*] AGREEMENT has the meaning set forth in Section 3.4.
1.18 STANDARD DISTRIBUTION DEAL means an advertising and/or shopping
opportunity that is available to multiple parties in a party's
same space. For example, "Standard Distribution Deal" includes
key word buys, advertising banner and button buys, and merchant
slotting buys.
1.19 TDSO means The Disney Store online currently located at
Xxxxx.Xxxxxx.xx.xxx.
1.20 TRADEMARKS means trade names, logos and trademarks, and
representations of the foregoing.
1.21 USERS means individuals or entities that access GO Network.
ARTICLE 2 EQUITY INVESTMENT AND ABC TV ADVERTISING
2.1 Equity Investment. Content Partner will issue to Catalyst [*]
shares of Content Partner's Series C Preferred Stock (the
"Shares") which represent no less than [*] of the total number of
outstanding shares of Content Partner's capital stock (assuming
exercise of all outstanding options and warrants) as of the
Effective Date in exchange for [*] of Promotion as described
below. Terms and conditions regarding the Shares will be as set
forth in executed definitive equity documents substantially in
the form attached hereto as Appendix B (the "Equity Documents").
In the event and to the extent there is a conflict between the
terms and conditions set forth in the Equity Documents and the
terms and conditions set forth in this Agreement, the terms and
conditions in the Equity Documents shall govern.
2.2 Consideration For Shares. Content Partner and the GO Entities
agree that in consideration for the Shares, "Promotion" shall
consist of the ABC Media Rights as described on Appendix C
attached hereto, rights to which will not vest until, but will
become irrevocable upon, the transfer of the Shares to Catalyst.
In the event the GO Entities are unable to provide Promotion as
described herein with an aggregate market value of [*] by the
date [*] years from the Effective Date, the GO Entities shall pay
Content Partner cash in the amount for which it was unable to
provide Promotion. Such make-good cash payment shall be Content
Partner's sole and exclusive remedy for the GO Entities' failure
to provide such Promotion.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-3-
4
ARTICLE 3 PURCHASE OF ONLINE MEDIA PLACEMENT
3.1 Purchase of Online Advertising and Sponsorship. Content Partner
hereby agrees to purchase online media placement on GO Network
("Online Advertising") in an aggregate amount of at least [*]
during the Initial Term of the Agreement. Online Advertising may
be placed on GO Network properties operated by BVIG or Infoseek
and on properties such as XXXXxxx.xxx and XXXX.xxx operated by
XX.xxx entities which are not parties to this Agreement.
3.2 Terms and Conditions of Advertising Purchase. Such purchase of
online media placement shall be on substantially the terms and
conditions set forth in the forms of Advertising Agreement and
Advertising Insertion Order attached hereto as Appendices D-1 and
D-2, respectively (the "Advertising Agreements").
3.3 Placement of Advertising. Content Partner, BVIG and Infoseek will
determine an initial placement schedule and will meet no less
than once every quarter during the Initial Term to review media
placements and actual performance against projected impressions
and to determine future placement schedules to optimize
performance within the projected impression ranges. The initial
placement schedule is attached hereto as Appendix E. Placements
and impression levels on the initial placement schedule are
projections only and are subject to change. Content Partner's
Online Advertising will Link to a page in the Content Partner
Service. Content Partner may determine the page in the Content
Partner Service to which such Online Advertising Links; provided
however that no Link shall take a User directly to a registration
page in the Content Partner Service. All Online Advertising,
including Links from such Online Advertising, shall comply with
the then current XX.xxx Advertising Guidelines, the current form
of which is attached hereto as Appendix F-2, and the terms and
conditions of the relevant Advertising Agreement.
3.4 [*] Agreement. Content Partner acknowledges that Infoseek is a
party to an agreement with [*] which agreement contains certain
advertising and other restrictions. During the term of the [*]
Agreement, Infoseek will be restricted from accepting certain
placements of Content Partner Content, including advertising.
Content Partner acknowledges and agrees that nothing in this
Agreement is intended to put Infoseek in breach of its
obligations under the [*] Agreement and any actions taken by
Infoseek which Infoseek deems necessary or advisable to comply
with the [*] Agreement shall not be deemed a breach of this
Agreement. In the event the advertising purchase portion of the
[*] Agreement becomes available during the term of this
Agreement, Infoseek will grant Content Partner [*] to purchase
such advertising placement.
3.5 Fees and Payments. Content Partner will pay advertising fees in
accordance with the schedule set forth on Xxxxxxxx X-0 and the
provisions in Article 8.
ARTICLE 4 DISPLAY OF CONTENT ON GO NETWORK
4.1 General. Subject to the license set forth in Section 6.1, the GO
Entities and Content Partner plan to integrate Content into
certain areas of GO Network and may display Content on GO
Network-Wrapped Pages as described below during the term of this
Agreement. In addition, the GO Entities and Content Partner plan
to enter into certain joint marketing activities as described
herein and as mutually agreed.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-4-
5
4.2 Display of Content on GO Network.
a. Content Placement. Subject to the license set forth in Section
6.1, the GO Entities will place Content on GO Network as
follows:
- Xxxxxx.xxx will integrate Content on its Animal/Pets Channel
- Xxxxxx.xxx may include a Link to the Content Partner Service
from a fixed position on its Animals/Pets Channel
It is intended that Content will be integrated into the GO
Network so as to retain the "look and feel" of the site/page
where the Content is being integrated. The GO Entities will
host such Content and shall prepare such Content for display
on GO Network by editing and making such other technical
alterations conforming such Content to GO Network format
provided that the GO Entities shall not alter the substantive
meaning of Content. The frequency and actual placement of
Content shall be at the sole discretion of the GO Entities.
The GO Entities will retain ultimate creative approval over
any and all Content displayed on GO Network.
b. Exclusive Content. Content Partner will provide certain
exclusive content to the GO Entities for use on GO Network.
Such exclusive Content will not be provided to third parties;
provided however, that Content Partner may use such exclusive
Content on the Content Partner Service or in its magazine,
newsletters or other online and off-line marketing
communications. The parties will mutually agree upon the
exclusive content to be provided. The GO Entities' use of such
exclusive content shall be subject to the license set forth in
Section 6.1.
c. Attribution. Content Partner will generally receive static
textual attribution at the top-level page where its Content is
distributed on GO Network (other than on the GO
Network-Wrapped Pages) and dynamic Link textual attribution at
the lowest-level page or end of the Content. For example, a
Content Partner article will have a static textual attribution
at the beginning of the article and a dynamic "Find Out More"
Link at the end. Such Link will Link to the Content Partner
Service.
d. Other Distribution of Content. In addition to distribution of
the Content as described above, Content Partner agrees that
the GO Entities may distribute such of Content Partner's
Content elsewhere on GO Network as the GO Entities deem
appropriate. Content displayed on other areas of GO Network
will be subject to the terms and conditions stated herein.
e. Hosting; GO Network Attributes. Xxxxxx.xxx, Xxxxxx.xxx and the
GO Portal will be hosted by the GO Entities. Notwithstanding
anything herein, the GO Entities retain the right to adapt or
otherwise alter the design, look and any other attributes of
Xxxxxx.xxx, Xxxxxx.xxx, the GO Portal and any other pages in
GO Network.
4.3 GO Network-Wrapped Pages.
a. General; Hosting. The GO Entities may request that Content
Partner create GO Network-Wrapped Pages. GO Network-Wrapped
Pages are co-branded pages which will contain the GO Wrapper
and display Content from Content Partner. It is intended that
the GO Network-Wrapped Pages contain substantially the content
and features of the Content Partner Service and other content
and features as the parties mutually agree. The GO
Network-Wrapped Pages may include an opportunity for Users to
register with GO Network and Content Partner as described in
Article 7 below.
-5-
6
Content Partner will host the GO Network-Wrapped Pages and
will serve such pages out of a dynamic virtual domain to be
located at http://[virtual domain name].xx.xxx (the "Virtual
Domain"); provided however, that Users in the Virtual Domain
who are accessing product/commerce pages (as opposed to pages
with editorial content) may be served from the Content Partner
Service as follows: (i) a User in the Virtual Domain who has
been reviewing editorial content who then clicks on a
product/commerce page may be served from a page in the Content
Partner Service upon clicking on to a product/commerce image
or Link and (ii) a User who comes to the Virtual Domain by
clicking on to a product/commerce page, e.g., through a search
for pet supplies, will be served from a GO Network-Wrapped
Page in the Virtual Domain until such time as such User puts a
product into a Content Partner shopping cart at which time
such User maybe served from the Content Partner Service.
Content Partner shall own all revenues generated from commerce
on the Content Partner Service. The parties anticipate that,
excluding virtual domains which may be created for promotions,
Content Partner will not be required to maintain more than one
Virtual Domain to host the GO Network-Wrapped Pages. All GO
Network-Wrapped Pages will include the GO Wrapper but the GO
Wrapper will not displace Content Partner's "look and feel,"
including placement of the Content Partner name and logo.
Content Partner will offer its services and products to Users
through the GO Network-Wrapped Pages on substantially the same
terms and conditions as it offers such services and products
to visitors to the Content Partner Service.
b. Advertising. The GO Entities will be responsible for selling
and serving all advertising on the GO Network-Wrapped Pages.
The GO Entities will not place advertisements from Content
Partner Competitors on the pages in the Virtual Domain;
provided however that such restriction shall not apply to
run-of-site (ROS) banner advertisements. Any advertising
placements in the GO Wrapper will be of a size consistent with
other advertising placements across GO Network. In addition,
Content Partner acknowledges and agrees that the following
shall not constitute a breach of this Section 4.3.b: (a) the
XX.xxx search technology may search the sites of the Content
Partner Competitors and (b) the GO Entities may provide
search-related products that may include results from the
Content Partner Competitors on the Virtual Domain pages.
c. Counting Page Views. The GO Entities will count all page views
on the Virtual Domain.
d. Distribution of Content Displayed on GO Network-Wrapped Pages.
The GO Entities shall not have any rights pursuant to Section
4.2 to integrate, display or otherwise distribute Content
which has been distributed by Content Partner to GO Network
Users through the GO Network-Wrapped Pages simply as a result
of Content Partner's distribution of such Content through the
GO Network-Wrapped Pages.
4.4 Content Guidelines; Delivery of Content; Error Correction.
a. Content Guidelines. All Content will comply with the then
current Content Guidelines and Advertising Guidelines for GO
Network. The current forms of Content Guidelines and
Advertising Guidelines are set forth in Appendices F-1 and
F-2. The GO Entities shall have the right, but not the
obligation, to remove, or direct Content Partner to remove,
any Content, or any information or other material from any
Content, which the GO Entities determine to be offensive, in
poor taste, or otherwise objectionable or which would cause
one of the GO Entities to be in violation of any agreements
existing at the Effective Date with third parties (for
example, exclusivity agreements prohibiting the provision of
credit card services), and Content Partner shall immediately
comply with such request.
-6-
7
b. Delivery of Content. Content Partner will deliver to the GO
Entities the Content to be included on GO Network in a digital
format (such as HTML) or in another mutually agreeable
electronic format, via modem or Internet access (e.g. Internet
ftp or Internet e-mail). Content Partner agrees to certify
that all deliveries hereunder were made electronically. The
initial delivery of Content shall include all items listed on
Appendix A and shall be made no later than March 31, 2000.
Content Partner will provide additional Content elements and
make updates to the Content available to the GO Entities, and
the GO Entities will update the Content on GO Network, on a
mutually agreed upon schedule and basis.
c. Error Correction. Content Partner shall promptly remedy and/or
correct any material limitations or errors in the Content.
Content Partner shall cooperate and assist the GO Entities by
promptly answering questions and complaints regarding the
Content. Each party shall promptly inform the other parties of
any event or circumstance, and provide all information
pertaining to such event or circumstance, related or arising
from this Agreement which could reasonably lead to a claim or
demand against the other parties by any third party.
4.5 Marketing Agreements.
a. Inclusion of Promotional Materials. Content Partner will
permit the GO Entities, The Xxxx Disney Company or any of The
Xxxx Disney Company's Affiliates to place promotional
materials in at least [*] Content Partner customer packages
per year. The GO Entities, The Xxxx Disney Company or The Xxxx
Disney Company's Affiliates, as applicable, shall be
responsible for providing such promotional materials. Content
Partner will be responsible only for labor-related costs
associated with including and shipping such promotional
materials with the Content Partner customer packages. The
content of such promotional materials and timing of inclusion
shall be subjection to approval by Content Partner, which
approval will not be unreasonably withheld.
b. Online Promotions. Content Partner and the Go Entities agree
to create [*] online promotions, such as contests, sweepstakes
or games, during the Initial Term. The details of the online
promotions will be determined as part of the joint marketing
plan described in Section 4.5.c below.
c. [*] Plan. Within [*] of the Effective Date, the GO Entities
and Content Partner will jointly draft and agree upon [*]
which may include, among other things:
i. Special Content Partner offers [*] interested in pets.
ii. Special Content Partner offers targeted at [*] customers.
iii. An opportunity for Content Partner to be an online
distribution source for the purchase of pet-related [*],
other than through [*] (online or off-line).
iv. Opportunity for [*] to send [*] to its customers.
v. Web casts and web chats.
a. Coordination of [*] Efforts. The GO Entities and Content
Partner will coordinate and communicate [*] efforts aimed at
Content Partner Users in order to avoid [*]; provided however
that the foregoing excludes a party's [*] to a User who has
opted to receive [*] from such party.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-7-
8
e. Other [*] Discussions. The GO Entities and Content Partner
agree to discuss the following additional [*] ideas:
i. Content Partner Inc. [*] in the [*].
ii. Content Partner [*] within the Content Partner [*].
iii. Content Partner [*] and [*] on the Content Partner [*].
iv. Content Partner [*].
v. Content Partner special offers within [*] sent to
customers and [*] within Content Partner [*] sent to
Content Partner customers.
vi. Opportunities for sponsorship around [*] sold at the
[*]).
vii. Development of [*], possibly [*] to Content Partner.
viii. Development of [*] merchandise for sale in Disney
Stores.
ix. Opportunities for event sponsorship (e.g. [*].
x. Possibility for Content Partner to participate in
sweepstakes and/or contests with [*].
f. Marketing and Promotions. All joint marketing and promotional
activities shall be subject to final approval and mutual
agreement of all parties involved, including, where
applicable, TDSO and other XX.xxx entities or Affiliates. No
party shall have any obligation to enter into joint marketing
and promotional activities except on terms and conditions
expressly agreed to in writing by such party.
4.6 Exclusivity.
a. Restriction on Content Partner. Content Partner agrees not to
enter into an agreement with any XX.xxx Competitor during the
term of this Agreement except for Standard Distribution Deals
unless mutually agreed to by the parties. Notwithstanding the
foregoing; the GO Entities acknowledge that Content Partner
has entered into an agreement with Blue Mountain Arts/Excite
which will expire on [*] which agreement will be deemed
exempted from the restriction set forth in this Section 4.6.a.
In addition, Content Partner may pursue an extension of such
agreement on terms and conditions substantially similar to
those of the current deal and excluding any provision which
requires Content Partner to provide exclusive content to Blue
Mountain Arts/Excite.
b. Restriction on the GO Entities.
i. The GO Entities agree not to enter into any strategic
equity relationship (i.e., of a similar nature to the
relationship among the parties described in this
Agreement) with any Content Partner Competitor during the
term of this Agreement. Notwithstanding the foregoing, the
GO Entities may make open market purchases or other
investments of any kind strictly for financial investment
purposes (i.e., unrelated to a strategic relationship).
ii. The GO Entities will not include advertisements or branded
(i.e. including attribution) content from Content Partner
Competitors on the pages within the Animals/Pets Channel
on Xxxxxx.xxx and the Pets Category on Xxxxxx.xxx, or
successor channels/online properties designated by the GO
Entities; provided however that the foregoing exclusivity
will not apply to: (i) run-of site advertisements from
Content Partner Competitors or (ii) Content Partner
Competitors to the extent related to sales of pet supplies
or accessories with licensed animated characters, such as
a Lion King cat bowl or a 101 Dalmations dog bed. In
addition, the following shall not constitute a breach of
this Section 4.6.b.ii: (a) the XX.xxx search technology
may search the sites of the Content Partner Competitors,
(b) the GO Entities may provide search-related products
that may include results from the
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-8-
9
Content Partner Competitors on pages within the
Animal/Pets Channel on Xxxxxx.xxx and the Pets Category on
Xxxxxx.xxx, and (c) the Content Partner Competitors may be
included in the Search Directory. As used herein, "Search
Directory" means the general directory on the GO Portal
which is currently accessed through the tab "Search."
iii In the event the GO Entities or their Affiliates determine
to make a significant product change or change of
strategic or product focus, for example merging two or
more of its online properties, which affects the
Animals/Pets Channel on Xxxxxx.xxx and/or the Pets
Category on Xxxxxx.xxx, then the GO Entities' obligations
under Section 4.6.b.ii above shall terminate with respect
to the affected online property. The GO Entities and
Content Partner will work together to make appropriate
substitutions of online media placements and Content
Partner will be entitled to receive a [*] discount on such
substitutions of affected online media placements. The GO
Entities will not be entitled to exercise its rights
hereunder prior to three (3) months from the Effective
Date nor later than June 1, 2001.
4.7 Technical Resources; Key Contacts; Reports.
a. Technical Resources. Content Partner will provide sufficient
resources in order to implement Content and advertising
placements by March 31, 2000.
b. Key Contacts. The GO Entities, on the one hand, and Content
Partner, on the other hand, will each appoint a single point
of contact to manage the relationship among the GO Entities
and Content Partner and will identify key contacts in product
development, merchandising, customer service and technical
support to ensure that the GO Network-Wrapped Pages are
working effectively. Content Partner shall further provide the
GO Entities with a support contact to provide 24-hour
emergency technical support. Until a party provides notice
otherwise to the other parties in accordance with Section
16.6, the contacts shall be as follows:
GO Entities: Content Partner:
----------- ---------------
Relationship Manager: [*] Relationship Manager: [*]
Telephone No.: [*] Telephone No.: [*]
Email address: [*] Email address: [*]
Product Development Contact: [name] Product Development Contact: [*]
Xxxxxxxx
Telephone No.: Telephone No.: [*]
Email address: Email address: [*]
Merchandising: [name] Merchandising: [*]
Telephone No.: Telephone No.: [*]
Email address: Email address: [*]
Customer Service: [name] Customer Service: [*]
Telephone No.: Telephone No.: [*]
Email address: Email address: [*]
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-9-
10
Technical Support: [name] Technical Support: [*]
Telephone No.: Telephone No.: [*]
Email address: Email address: [*]
Emergency Technical Support Contact Emergency Technical Support Contact
(24) hours): (24 hours): [*]
Telephone No.: Telephone No.: [*]
(40 character limit)
Email address: Email address: [*]
c. Reports. Content Partner will provide monthly traffic reports
to the GO Entities containing the number of visitors to the GO
Network-Wrapped Pages, the number of Content Partner Users and
such other information as the GO Entities reasonably request
related to Users and usage of the GO Network-Wrapped Pages.
Reports hereunder will be due within ten (10) business days
after the end of the month to which such report relates.
4.8 Ownership of Intellectual Property. For content or promotions
developed by Content Partner solely for distribution, display or
other use on GO Network or by the GO Entities, which has not been
already incorporated into the Content Partner Service, the GO
Entities shall own all design, technology, code and other
materials produced in relation to this Agreement. Except as set
forth herein, for all content or promotions not created by
Content Partner solely for distribution, display or other use on
GO Network or by the GO Entities, the party creating such content
or promotion shall own such content or promotion, including all
related intellectual property rights. If content or promotions
are jointly created by Content Partner and one or more of the GO
Entities, then the GO Entities will own such content or
promotion, including all related intellectual property right;
provided however that the GO Entities may not license or
otherwise provide such content or promotions to Content Partner
Competitors during the term of this Agreement. In clarification
and not in modification of the foregoing, each party shall retain
all rights for copyrighted material and Trademarks and the GO
Entities shall not have any ownership rights to the Xxxx.xxx,
Inc. Sock Puppet and Content Partner will not have any ownership
rights to any character owned or controlled by The Xxxx Disney
Company during or after the term of this Agreement.
4.9 Linking. Content Partner agrees not to override browser back
button functionality to prevent Users who link to the Content
Partner Service from GO Network from returning to GO Network.
4.10 Costs. Each party will be responsible for its respective
telecommunications charges with respect to the provision of
respective portions of the Content to Infoseek and to Users.
ARTICLE 5 SHOPPING/E-COMMERCE
5.1 GO Network Commerce Areas. The following shopping areas currently
exist on the GO Network Portal, Xxxxxx.xxx and Xxxxxx.xxx: GO
Shopping (currently at xxxx.xx.xxx), FamilySHOP, and TDSO.
5.2 Content Partner Placement in GO Network Commerce Areas. Content
Partner will have placement in TDSO (if and as agreed as part of
the marketing agreements described in Section 4.5) and
FamilySHOP, and, following the expiration or termination of the
[*] Agreement, on GO Shopping. Content Partner Content will be
included in the rotation for the
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-10-
11
"Deal of the Week" feature of the FamilySHOP area on the
Xxxxxx.xxx home page or other comparable feature. Except as
expressly set forth herein, placement of promotions on GO Network
shall be at the discretion of the GO Entities. Any placements of
Content in GO Network Commerce Areas will be subject to the
standard terms and conditions, if any, governing content
placement in such Commerce Areas.
5.3 Commerce Transactions/ Content. Content Partner placement of
Content on GO Network commerce areas, including placement on
FamilySHOP and other BVIG commerce areas, will be on terms and
conditions mutually agreed; provided however that the following
provision shall govern Content Placement on FamilySHOP and other
BVIG commerce areas:
a. Order Fulfillment. Content Partner shall be solely responsible
for (i) processing and fulfilling all orders made through the
Content Partner Service or the GO Network-Wrapped Pages, (ii)
all accounting with respect to such orders, and (c) all
customer service and support with respect to such orders,
purchases and returns. Content Partner shall provide all of
the foregoing services at the highest levels of quality
consistent with the BVIG name and the Xxxx Disney Company
reputation. Content Partner acknowledges and agrees that it is
solely responsible for the security of any transactions
initiated within the Content Partner Service.
ARTICLE 6 LICENSE
6.1 Grant of License by Content Partner. Subject to the terms and
conditions of this Agreement, Content Partner hereby grants to
the GO Entities and their respective Affiliates, a fully-paid,
worldwide (to the extent necessary to implement this Agreement),
limited, non-exclusive, non-transferable right and license,
without right to sub-license, to use, reproduce, incorporate,
integrate and distribute the Content on GO Network and a license
and right to use Content Partner's trade names, trade dress, and
trademarks as reasonably necessary with respect to the display
and use of the Content on GO Network in accordance with the terms
of this Agreement during the term of this Agreement.
6.2 Grant of License by Infoseek. Subject to the terms and conditions
of this Agreement, Infoseek hereby grants to Content Partner a
fully-paid, worldwide (to the extent necessary to implement this
Agreement) limited, non-exclusive, non-transferable right and
license, without right to sub-license, to use, reproduce,
incorporate, integrate and distribute the GO Wrapper and related
GO Network Trademarks solely on the GO Network Wrapped Pages in
accordance with the terms of this Agreement or as otherwise
expressly approved in writing by Infoseek during the term of this
Agreement.
6.3 Acknowledgment by GO Entities. The GO Entities acknowledge that
except as expressly set forth in Section 6.1 above, they may not
use the Content Partner name or other Trademarks owned by Content
Partner without Content Partner's prior written permission.
6.4 Acknowledgment by Content Partner. Content Partner acknowledges
that, except as expressly set forth in Appendix G, it may not use
The Xxxx Disney Company name or, except as expressly set forth in
Section 6.2 above or Appendix G, Trademarks owned by The Xxxx
Disney Company or the GO Entities, without the prior written
permission of The Xxxx Disney Company or the GO Entities, as
applicable.
-11-
12
ARTICLE 7 USER DATA
7.1 User Registration.
a. Privacy Policy. Content Partner shall ensure that its privacy
policy applicable to the Content Partner Service, to the
extent applicable to its performance under this Agreement, is
substantially consistent with the privacy policy of GO
Network, as may be changed from time to time, including,
without limitation, including a mechanism that allows Users to
opt out of sharing of User data with third parties.
b. User Registration Experience. The User registration experience
that shall be implemented pursuant to this Agreement shall be
as follows:
i. "Global Registration". An unregistered User on GO Network
or on a GO Network-Wrapped Page hosted by Content Partner
who encounters Content Partner functionality or Content
that provides the User with an opportunity to register
will be presented with a standard series of GO Network
user registration screens, the first of which explains
that this is a simultaneous registration for Content
Partner and GO Network. The User then has the option to
continue to register or to click back to his/her original
starting point. If the User responds "yes", then the
User's data will go simultaneously to Content Partner and
the GO Entities. If the User elects to opt-in to
simultaneous registration, the User shall only be required
to execute "one click" to transfer the registration data
to Content Partner ("Global Registration"). It is
anticipated that Global Registration will be required only
for certain joint promotions.
ii. "GO-Tagged Users". A User originating from GO Network and
Linking to the Content Partner Service shall be identified
in the Content Partner User database as originating from
GO Network and will be tagged as a "GO-Tagged User."
Content Partner represents that it has the technology to
identify GO-Tagged Users.
7.2 Ownership of User Data
a. Content Partner and the GO Entities shall jointly own all
right, title and interest in all User data generated on GO
Network-Wrapped Pages hosted by Content Partner and User data
for GO-Tagged Users ("Content Partner Users") who register on
the Content Partner Service. In clarification of the
foregoing, the parties will not jointly own User data for
GO-Tagged Users which data is generated on pages in GO Network
not hosted by Content Partner. Content Partner shall make
available to the GO Entities, via a method and timing to be
mutually agreed upon, all first and last names and email
addresses from each such Content Partner User provided that
such User has not opted out of sharing his/her data with third
parties and provided such disclosure is not prohibited by law
or regulation. In addition, except as prohibited by law and
provided the User has not opted out of sharing his/her data,
Content Partner may, to the extent not in violation of Content
Partner's privacy policy, provide to the GO Entities all
available data concerning Users who access the Content Partner
Service and/or the Content from GO Network, concerning
products and/or services purchased by such Users, survey and
promotion responses, and other demographic information
concerning such Users. The parties agree that they will not
sell or share Content Partner User data during the term of the
Agreement or thereafter; provided however that a party may
disclose such aggregate information to third parties as it
deems appropriate in connection with its operations. Aggregate
information described hereunder will include only such
statistical information which relates to a broad category of
Content Partner Users such as gender, age range or level of
education and which is generic enough so as not to identify
particular Users.
-12-
13
b. The GO Entities shall own all right, title and interest in and
to and the exclusive right to use all data concerning Users
which data is generated on all pages of GO Network hosted by
the GO Entities.
c. Content Partner shall own all right, title and interest in and
to and the exclusive right to use all data concerning Users
which data is generated on all pages of the Content Partner
Service, except for jointly-owned User data as specifically
described in Section 7.2.a above.
7.3 Use of User Data.
a. Content Partner shall not specifically target or invite Users
co-owned with the GO Entities to visit a XX.xxx Competitor at
any time during the term of this Agreement.
b. [*] will not specifically [*] with [*] via [*] at any time
during the term of this Agreement; provided however, that [*]
may take such [*] as it reasonably deems necessary or
appropriate to comply with its obligations under the [*].
ARTICLE 8 FEES AND PAYMENTS
8.1 Payments. Content Partner will make payments to Infoseek in the
amounts and at the times specified in Appendix D-3. Content
Partner will be responsible for the proper payment of all taxes,
including sales, excise and value added taxes, which may be
levied in connection therewith, exclusive of taxes based upon
Infoseek's net income.
8.2 Wire Transfers. All payments made to Infoseek hereunder shall be
made via wire transfer in accordance with the following
instructions, or such other instructions as may be provided to
Content Partner in writing by an authorized representative of
Infoseek:
Wire transfer, EFT/ACH Payment remittance instructions:
Bank of America
San Francisco, California
ABA Number: 000000000
Account Name: Infoseek Corporation
Account Number: 12335-30390
Swift ID: XXXXXX0X
ARTICLE 9 CONFIDENTIAL INFORMATION
9.1 Disclosures. The GO Entities, on the one hand, or Content
Partner, on the other hand, may disclose to the other (the
"Receiving Party") certain information that the disclosing party
deems to be confidential and proprietary, including technical and
other business information of the disclosing party that is not
generally available to the public ("Confidential Information").
Confidential Information shall include the terms and conditions
of this Agreement.
9.2 Obligations of Receiving Party. The Receiving Party agrees to use
Confidential Information solely in conjunction with its
performance under this Agreement and not to disclose or otherwise
use such information in any fashion. The Receiving Party,
however, will not be required to keep confidential such
Confidential Information that becomes generally available without
fault on its part; is already rightfully in the Receiving Party's
possession without restriction prior to its receipt from the
disclosing party; is independently developed by the Receiving
Party; is rightfully obtained by the Receiving Party from third
parties without
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-13-
14
restriction; or is otherwise required to be disclosed by law or
judicial process. In the event disclosure of Confidential
Information, including the terms and conditions of this
Agreement, is required by law or judicial process, the Receiving
Party shall promptly notify the disclosing party of such
requirement and provide the disclosing party with a timely and
reasonable opportunity to review the proposed disclosure in
advance and will cooperate with the disclosing party to limit the
scope of disclosure or seek confidential treatment of material
required to be disclosed, if confidential treatment is available.
9.3 Limitations. Unless required by law or to assert its rights under
this Agreement, and except for disclosure on a "need to know
basis" to its own employees, and its legal, investment, financial
and other professional advisers on a confidential basis, each
party agrees not to disclose the terms of this Agreement or
matters related thereto without the prior written consent of the
other party.
ARTICLE 10 REPRESENTATIONS AND WARRANTIES
10.1 Content Partner. Content Partner represents, warrants and
covenants to the GO Entities and their respective Affiliates that
it is the owner of the Content and/or has the right to grant the
rights hereunder. Content Partner represents, warrants and
covenants to the GO Entities and their respective Affiliates that
it holds the necessary rights to permit the use of the Content by
the GO Entities and their respective Affiliates for the purpose
of this Agreement; that its entry into this Agreement does not
violate any agreement with any other party; that its performance
under this Agreement will conform to applicable laws and
government rules and regulations; and that, to the best of its
knowledge after reasonable inquiry, the Content is true, accurate
and does not contain material omissions. Content Partner further
represents, warrants, and covenants to the GO Entities and their
respective Affiliates that the use, reproduction, distribution,
transmission, or display of the Content and Content Partner's
Trademarks, Content Partner's collection and use of Content
Partner User Data and the sale of products and services by
Content Partner as contemplated in this Agreement will not (a)
violate any laws or any rights of any third parties, including,
but not limited to, such violations as infringement or
misappropriation of any copyright, patent, trademark, trade
dress, trade secret, music, image, or other proprietary or
property right, false advertising, unfair competition,
defamation, invasion of privacy or publicity rights, moral or
otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any
person or entity; or (b) contain any material that is: unlawful,
harmful, fraudulent, threatening, abusive, harassing, defamatory,
vulgar, obscene, profane, hateful, racially, or ethnically
objectionable, including, without limitation, any material that
supports, promotes or otherwise encourages wrongful conduct that
would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state,
national or international laws.
10.2 Year 2000 - Content Partner. Content Partner represents, warrants
and covenants that, to the best of its knowledge after reasonable
inquiry, the systems and technology utilized to operate the
Content Partner Service (including, without limitation, order
fulfillment systems relating to products sold by Content Partner,
if any) are compliant with the following Year 2000 requirements:
(a) the occurrence in or use by such systems of dates before, on
or after January 1, 2000 will not adversely affect the
performance of such systems with respect to date-dependent data,
computations, output, or other functions (including, without
limitations, calculating, comparing and sequencing); and (b) such
systems will not abnormally end or provide invalid or incorrect
results as a result of date dependent data.
10.3 BVIG. BVIG represents, warrants and covenants to Content Partner
that its entry into this Agreement does not violate any agreement
with any other party, that it has the full right, power and
authority to enter into this Agreement and to perform the acts
required of it
-14-
15
hereunder, and that BVIG Content will not (a) violate any laws or
any rights of any third parties, including, but not limited to,
such violations as infringement or misappropriation of any
copyright, patent, trademark, trade dress, trade secret, music,
image, or other proprietary or property right, false advertising,
unfair competition, defamation, invasion of privacy or publicity
rights, moral or otherwise, or rights of celebrity, violation of
any antidiscrimination law or regulation, or any other right of
any person or entity; or (b) contain any material that is:
unlawful, harmful, fraudulent, threatening, abusive, harassing,
defamatory, vulgar, obscene, profane, hateful, racially, or
ethnically objectionable, including, without limitation, any
material that supports, promotes or otherwise encourages wrongful
conduct that would constitute a criminal offense, give rise to
civil liability, or otherwise violate any applicable local,
state, national or international laws. As used herein, "BVIG
Content" means any content on the Xxxxxx.xxx and Xxxxxx.xxx pages
where Content is distributed that has been authored and created
solely by BVIG.
10.4 Infoseek. Except with respect to the litigation involving
Xxxx.xxx which has previously been disclosed to Content Partner,
Infoseek represents, warrants and covenants to Content Partner
that its entry into this Agreement does not violate any agreement
with any other party, that it has the full right, power and
authority to enter into this Agreement and to perform the acts
required of it hereunder, and that Infoseek Content will not (a)
violate any laws or any rights of any third parties, including,
but not limited to, such violations as infringement or
misappropriation of any copyright, patent, trademark, trade
dress, trade secret, music, image, or other proprietary or
property right, false advertising, unfair competition,
defamation, invasion of privacy or publicity rights, moral or
otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any
person or entity; or (b) contain any material that is: unlawful,
harmful, fraudulent, threatening, abusive, harassing, defamatory,
vulgar, obscene, profane, hateful, racially, or ethnically
objectionable, including, without limitation, any material that
supports, promotes or otherwise encourages wrongful conduct that
would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state,
national or international laws. As used herein, "Infoseek
Content" means any content on the GO Wrapper that has been
authored and created solely by Infoseek.
ARTICLE 11 LIMITATION OF LIABILITY; DISCLAIMER
11.1 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR A PARTY'S LIABILITY FOR
THIRD PARTY CLAIMS AS SPECIFIED IN ARTICLE 15 BELOW, OR A PARTY'S
BREACH OF ARTICLE9, OR DAMAGES ARISING FROM PERSONAL INJURY, IN
NO EVENT SHALL A PARTY HERETO OR ITS AFFILIATES BE LIABLE TO
ANOTHER PARTY HERETO OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF SUCH
PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER
FAULT OF A PARTY HERETO AND REGARDLESS OF WHETHER SUCH LIABILITY
SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY
OTHER THEORY OF LIABILITY.
11.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 10, NO PARTY
HERETO MAKES ANY, AND EACH PARTY ACKNOWLEDGES THAT EACH OTHER
PARTY HAS NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY,
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING GO
NETWORK, THE CONTENT PARTNER SERVICE, THE CONTENT, OR THE
OPERATION OF THE CONTENT ON GO NETWORK, INCLUDING, BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
-15-
16
ARTICLE 12 TERM AND TERMINATION
12.1 Term. This Agreement shall be effective on the Effective Date and
shall continue in force for an initial term ending [*] from the
Effective Date (the "Initial Term"). Upon prior mutual written
agreement, the term of this Agreement may be renewed at the end
of the Initial Term and each anniversary date thereafter for one
(1) year renewal terms.
12.2 Termination. This Agreement may be terminated as follows:
a. For Breach. Content Partner, on the one hand, and the GO
Entities, on the other hand, will have the right to terminate
this Agreement upon thirty (30) days prior written notice if a
GO Entity, on one hand, or Content Partner, on the other hand,
is in default of any obligation herein, including failure of
Content Partner to provide the Content, and such breach is
incapable of being cured within thirty (30) days, or if such
breach is capable of cure within thirty (30) days, such breach
is not cured within thirty (30) days (or fourteen (14) days
with respect to any default in any payment obligation) after
receipt of written notice of such default from the
non-defaulting party/parties. The non-defaulting party/parties
may authorize an additional cure period in its/their sole
discretion.
b. Performance.
i. By Content Partner. If the Content Partner Service or GO
Network-Wrapped Pages hosted by Content Partner do not
meet the following performance standards (which shall be
measured by the GO Entities), and such failure is not due
to force majeure events or the failure of any third party
services, hardware, software or telecommunications systems
not controlled by Content Partner, one or both of the GO
Entities shall notify the Content Partner in writing and
Content Partner shall cure the breach within 24 hours. In
the event of more than 3 performance failures pursuant to
this Section 12.2.b.i in any 30 day period, the GO
Entities shall have the right to terminate, without
providing an opportunity to cure. Termination of this
Agreement shall be the GO Entities' sole remedy for such
performance failures. The performance standards are as
follows:
A. Uptime/Downtime. Excluding maintenance downtime, the
Content Partner Service and GO Network-Wrapped Pages
hosted by Content Partner will have a minimum uptime
operation of [*] percent (downtime of [*] percent)
measured quarterly. Downtime shall mean any 30 second
interval in which the Content Partner Service is not
able to process queries.
B. Unscheduled Downtime Limits. The Content Partner
Service and GO Network-Wrapped Pages hosted by Content
Partner will not have aggregate unscheduled downtime
exceeding [*] hours per quarter.
C. Maintenance Downtime. The Content Partner Service and
GO Network-Wrapped Pages hosted by Content Partner may
be disabled for up to 3 hours per month for
maintenance. All maintenance downtimes will occur
between 9:00 p.m. and 6:00 a.m. Pacific time (Standard
or Daylight as applicable).
ii. By the GO Entities. If the pages in the GO Network hosted
by Infoseek or BVIG which prominently display Content (the
"GO-Hosted Pages") do not meet the following performance
standards and such failure is not due to force majeure
events
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-16-
17
or the failure of any third party services, hardware,
software or telecommunications systems not controlled
by the GO Entity hosting the GO-Hosted Pages, Content
Partner notify the GO Entity hosting the GO-Hosted
Pages in writing and such GO Entity shall cure the
breach within 24 hours. In the event of more than 3
performance failures pursuant to this Section
12.2.b.ii in any 30 day period, Content Partner shall
have the right to terminate, without providing an
opportunity to cure. Termination of this Agreement
shall be Content Partner's sole remedy for such
performance failures. The performance standards are as
follows:
A. Uptime/Downtime. Excluding maintenance downtime, the
GO-Hosted Pages will have a minimum uptime operation
of [*] percent (downtime of [*] percent) measured
quarterly. Downtime shall mean any 30 second interval
in which the GO-Hosted Pages are not able to process
queries.
B. Unscheduled Downtime Limits. The GO-Hosted Pages will
not have any aggregate unscheduled downtime exceeding
[*] hours per quarter.
C. Maintenance Downtime. The GO-Hosted Pages may be
disabled for up to 3 hours per month for maintenance.
12.3 Effect of Termination.
a. Transition Period. At least ninety (90) days prior to
termination, the parties will effect the following transition
process:
i. The parties will inventory all material online Content
being exchanged and will jointly draft a Content
transition plan for material Content Partner Content that
will not remain on the GO Network beyond the termination
of the Agreement.
ii. The parties will inventory any products and promotions
that have been jointly developed and (A) agree upon a
termination date by which such products can no longer be
sold and promotions can no longer run, respectively.
iii. Either party holding any surplus product or promotional
inventory bearing Trademarks, or other copyrighted
material of the other parties will destroy such product
or promotional inventory within 30 days of termination of
this Agreement unless mutually agreed.
iv. Content Partner will make one final transfer of all the
names and email addresses of Content Partner Users (in
accordance with and as described in Section 7.2).
b. Survival. The following provisions of this Agreement shall
survive the termination or expiration of this Agreement:
Article 1, Article 2, Section 4.8, Section 7.2.a (first
sentence and last two sentences) and Section 7.2.b, Article 8:
Fees and Payments (as to fees accrued prior to termination or
expiration), Article 9: Confidential Information, Article 10:
Representations and Warranties (as to claims arising prior to
termination or expiration or claims based on events arising
prior to termination or expiration), Article 11: Limitation of
Liability; Disclaimer, Section 12.3: Term and Termination -
Effect of Termination, Article 14: Publicity (other than first
two sentences), Article 15: Indemnification and Article 16:
General Terms and Conditions.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-17-
18
c. Return of Materials. Upon the termination or expiration of
this Agreement, each party shall (i) promptly return all
Confidential Information, and other information, documents,
manuals and other materials belonging to the other parties,
except as may be otherwise provided in this Agreement; and
(ii) promptly remove the other parties' content, branding,
links, and any other material provided under this Agreement.
ARTICLE 13 FORCE MAJEURE
No party hereto will be liable for delay or default in the performance
of its obligations under this Agreement (other than for non-payment) if
such delay or default is caused by conditions beyond its reasonable
control, including, but not limited to, fire, flood, accident,
earthquakes, telecommunications line failures, storm, acts of war, riot,
government interference, strikes and/or walk-outs. In the event of a
force majeure event which lasts longer than thirty (30) days, a party
not experiencing the force majeure event may terminate this Agreement
upon prior written notice to the other parties.
ARTICLE 14 PUBLICITY
The parties will draft a joint press release to announce the execution
of this Agreement to be issued at a mutually agreed upon time. The GO
Entities will use commercially reasonable efforts to approve such joint
press release for issuance within one week of the Effective Date. Except
as expressly set forth herein or as described on Appendix G, Content
Partner shall not issue or permit the issuance of any press release or
publicity regarding or grant any interview, or make any public
statements whatsoever concerning, this Agreement, GO Network or the GO
Entities (or their respective Affiliates) without prior coordination
with and written approval from the GO Entities, which approval may be
granted or withheld in such GO Entity's sole discretion. Except as
expressly set forth herein, the GO Entities shall not issue or permit
the issuance of any press releases or publicity regarding, or grant any
interview, or make any public statements whatsoever concerning this
Agreement or Content Partner without prior coordination with and written
approval from Content Partner, which approval may be granted or withheld
in Content Partner's sole discretion. All Content Partner endorsements
and public statements concerning this Agreement must receive the GO
Entities' prior review and approval; provided however that all items
attached hereto as Appendix G shall be deemed approved. Notwithstanding
the foregoing, Content Partner shall not state or imply, in
advertisements, writings, or otherwise, that a GO Entity or its
respective Affiliates endorse Content Partner's products or services or
any other product or service.
ARTICLE 15 INDEMNIFICATION
15.1 Content Partner. Content Partner agees to defend, indemnify and
hold the GO Entities and their respective officers, directors,
agents, employees, and Affiliates harmless from and against any
and all claims, demands, liabilities, actions, judgments, and
expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to
(i) any breach or alleged breach of any of Content Partner's
representations and warranties set forth in Section 10.1; (ii)
any injury to person or property caused by any products or
services sold by Content Partner, or any User's use of or
reliance on the Content; (iii) any injury to person or property
caused by any products or services sold through the Content; (iv)
any other claim with respect to Content Partner, the Content, or
products or services sold by or through Content Partner or its
agents, or (v) Content Partner's sales or marketing practices.
Content Partner shall bear full responsibility for the defense
(including any settlements) of any such claim; provided, however,
that (a) Content Partner shall keep the GO Entities (as
applicable) informed of, and consult with the GO Entities (as
applicable) in connection with, the progress of such litigation
or settlement; and (b) Content Partner shall not have any right,
without the written consent of the Go Entities (as applicable),
to settle any such claim if such settlement arises from or is
part of any
-18-
19
criminal action, suit or proceeding or contains a stipulation to
or admission or acknowledgment of, any liability or wrongdoing
(whether in contract, tort or otherwise) on the part of the GO
Entities (as applicable) or their respective Affiliates or
otherwise requires the GO Entities (as applicable) or their
respective Affiliates to take or refrain from taking any material
action (such as the payment of fees).
15.2 BVIG. BVIG agrees to defend, indemnify and hold Content Partner
and its officers, directors, agents and employees harmless from
and against any and all claims, demands, liabilities, actions,
judgments, and expenses, including reasonable fees and expenses
of attorneys, paralegals and other professionals, arising out of
or related to any breach or alleged breach of any of BVIG's
representations and warranties set forth in Section 10.3. BVIG
shall bear full responsibility for the defense (including any
settlements) of any such claim; provided, however, that (a) BVIG
shall keep Content Partner informed of, and consult with Content
Partner in connection with, the progress of such litigation or
settlement; and (b) BVIG shall not have any right, without
Content Partner's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action,
suit or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of Content Provider or
otherwise requires Content Partner to take or refrain from taking
any material action (such as the payment of fees).
15.3 Infoseek. Infoseek agrees to defend, indemnify and hold Content
Partner and its officers, directors, agents and employees
harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including
reasonable fees and expenses of attorneys, paralegals and other
professionals, arising out of or related to any breach or alleged
breach of any of Infoseek's representations and warranties set
forth in Section 10.4. Infoseek shall bear full responsibility
for the defense (including any settlements) of any such claim;
provided, however, that (a) Infoseek shall keep Content Partner
informed of, and consult with Content Partner in connection with,
the progress of such litigation or settlement; and (b) Infoseek
shall not have any right, without Content Partner's written
consent, to settle any such claim if such settlement arises from
or is part of any criminal action, suit or proceeding or contains
a stipulation to or admission or acknowledgment of, any liability
or wrongdoing (whether in contract, tort or otherwise) on the
part of Content Provider or otherwise requires Content Partner to
take or refrain from taking any material action (such as the
payment of fees).
ARTICLE 16 GENERAL TERMS AND CONDITIONS
16.1 Independent Contractors. The parties to this Agreement are
independent contractors. No party hereto is an agent,
representative or partner of the other parties hereto. No party
hereto shall have any right, power or authority to enter into any
agreement for or on behalf of, or to incur any obligation or
liability for, or to otherwise bind, the other parties hereto.
This Agreement shall not be interpreted or construed to create an
association, joint venture, co-ownership, co-authorship, or
partnership among the parties or to impose any partnership
obligation or liability upon any other party hereto.
16.2 No Assignment. No party hereto shall assign, sublicense or
otherwise transfer (voluntarily, by operation of law, through a
change of control or otherwise) this Agreement or any right,
interest or benefit under this Agreement, without the prior
written consent of the other parties hereto; provided, however,
that a party hereto may assign this Agreement to any entity that
acquires all or substantially all of the assets or shares of such
party; provided that the acquiring entity is not (i) [*] or
(ii) [*]. Any attempted assignment, sublicense or transfer by a
party in derogation
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-19-
20
hereof shall be null and void. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective
successors and assigns.
16.3 No Modifications. No change, amendment or modification of any
provision of this Agreement or waiver of any of its terms will be
valid unless set forth in writing and signed by the party to be
bound thereby.
16.4 Governing Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State
of California. Each party hereto irrevocably consents to the
exclusive jurisdiction of any state or federal court for or
within Santa Xxxxx County, California over any action or
proceeding arising out of or related to this Agreement, and
waives any objection to venue or inconvenience of the forum in
any such court.
16.5 No Waiver. The failure of a party to insist upon or enforce
strict performance by another party of any provision of this
Agreement or to exercise any right under this Agreement shall not
be construed as a waiver or relinquishment to any extent of such
party's right to assert or rely upon any such provision or right
in that or any other instance; rather the same shall be and
remain in full force and effect.
16.6 Notices. Any notice, approval, request, authorization, direction
or other communication under this Agreement shall be given in
writing, will reference this Agreement, and shall be deemed to
have been delivered and given (a) when delivered personally; (b)
three (3) business days after having been sent by registered or
certified U.S. mail, return receipt requested, postage and
charges prepaid; or (c) one (1) business day after deposit with a
commercial overnight courier, with written verification of
receipt. All communications will be sent to the addresses set
forth below or to such other address as may be designated by a
party by giving written notice to the other parties pursuant to
this Section 16.6.
If to BVIG: If to Content Partner:
Buena Vista Internet Group Xxxx.xxx, Inc.
[*] 000 Xxxxxxx Xxxxxx
[*] Xxx Xxxxxxxxx, XX 00000
Attention: Legal Department Attention: President
Tel: [*] Tel: (000) 000-0000
If to Infoseek:
Infoseek Corporation
[*]
[*]
Attention: Legal Department
Tel: [*]
16.7 Entire Agreement. This Agreement and the Appendices attached
hereto and incorporated herein by reference constitutes the
entire agreement between the parties and supersede any and all
prior agreements or understandings between the parties with
respect to the subject matter hereof. No party hereto shall be
bound by, and each party specifically objects to, any term,
condition or other provision or other condition which is
different from or in addition to the provisions of this Agreement
(whether or not it would materially alter this Agreement) and
which is proffered by another party hereto in any purchase order,
correspondence or other document, unless the party to be bound
thereby specifically agrees to such provision in writing.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
-20-
21
16.8 Headings/Construction. The headings used in this Agreement are
for convenience only and are not to be construed to have legal
significance. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court
with jurisdiction over the parties to this Agreement, such
provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance
with applicable law, and the remainder of this Agreement shall
remain in full force and effect.
16.9 Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts which taken together shall be regarded
as one and the same Agreement. A party's facsimile signature will
be deemed a binding acceptance of this Agreement by such party.
BUENA VISTA INTERNET GROUP XXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------------ ---------------------------------
Authorized Signature Authorized Signature
Print Name: Xxxx Xxxxxx Print Name: Xxxx Xxxxx
---------------------------- -------------------------
Title: Title: CFO
--------------------------------- ------------------------------
Date: Date: 1/17/00
---------------------------------- -------------------------------
INFOSEEK CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------------
Authorized Signature
Print Name: Xxxx Xxxxxx
----------------------------
Title:
---------------------------------
Date:
----------------------------------
