CO-BRANDING & MARKETING AGREEMENT
This is a Co-Branding & Marketing Agreement ("Agreement") between Go2Net, Inc.
("Go2Net") and Asymetrix Learning Systems Inc. including its wholly owned
subsidiary Xxxxx0Xxxxx.xxx, Inc. ("Asymetrix").
WHEREAS, Go2Net currently offers through the world wide web portion of the
internet certain sites, namely xxxxxxxxxxxxxxx.xxx, xxxxxxxxxx.xxx, xx0xxx.xxx,
xxxxxxxxxxx.xxx, xxxxxxxxxx.xxx and xxxxxxxxx.xxx (collectively "Go2Net Web
Sites");
WHEREAS, Asymetrix offers a system of online learning courses on various topics
with a sophisticated new "browser-only" free authoring and publishing system
that allows users to create and publish courseware (collectively the "Click2Net
Service") accessible on or through the internet; and,
WHEREAS Go2Net desires to have Asymetrix's Click2Net Service offered on or
through certain Go2Net's internet sites and Asymetrix desires to offer its
Click2Net Service on or through such internet sites;
NOW THEREFORE, in consideration of the above circumstances and of the mutual
promises and conditions contained herein, the parties agree as follows:
1. TERM. This Agreement shall be effective as of the date of the closing (the
"Effective Date") of the investment in Asymetrix by Go2Net under the Securities
Purchase Agreement and shall continue for an initial term of three (3) years
thereafter. This Agreement shall automatically terminate at the end of the
initial term unless renewed by mutual agreement of the parties prior to the end
of the initial term.
2. CLICK2LEARN SERVICE. The Click2Learn Service comprises:
a learning destination site for information technology and business
professionals to help improve performance and give access to relevant
information quickly;
online courses combined with a community of learners developing and sharing
expertise and experiences;
online learning courses available from leading vendors plus short learning
titles called 2MinuteTutors for immediate reference;
free content including "2MinuteTutors" as described herein;
content available for purchase including a wide range of topics covering
business, personal improvement, and computing/programming;
ability to receive user input in order to suggest topics of interest to be
developed for content, review and rate courses, and create content and
share learning experiences;
free, online authoring tool to create content and share knowledge; and,
sale of training materials.
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3. CO-BRANDED AREA. Go2Net and Asymetrix shall work together to develop a
co-branded area featuring a customized version of the Click2Learn Service within
each of the following Go2Net Web Sites: MetaCrawler; HyperMart; Virtual Avenue;
and, Silicon Investor. Such co-branded areas shall be referred to herein as the
"Subject Co-Branded Areas." The Subject Co-Branded Areas shall be hosted by
Asymetrix on its computer systems and Asymetrix shall be responsible for serving
the Subject Co-Branded Areas, system operation software, hardware costs, and
network costs. Asymetrix shall also provide administrative support for the
Subject Co-Branded Areas.
a. The Subject Co-Branded Areas shall feature, among other things as the
parties may agree, free "2 Minute Tutorials" and the sale of on-line
training materials.
b. To the extent that Asymetrix offers any services or features that
compete with services or features offered by Go2Net, Go2Net may request
that Asymetrix exclude its competitive services or features from the
Subject Co-Branded Areas.
c. The following Go2Net trademarks shall be used in connection with the
Subject Co-Branded Areas: GO2NET, the applicable Go2Net Web Site trademark,
and/or such other trademarks as Go2Net may specify from time to time.
d. The following Asymetrix trademarks shall be used in connection with the
Subject Co-Branded Areas: CLICK2LEARN and/or ASYMETRIX.
e. When a user enters a Subject Co-Branded Area, all user navigation shall
be within the Subject Co-Branded Area except for advertisements in space
sold by Go2Net and as otherwise approved by Go2Net, until the user exits
the Subject Co-Branded Area back to a Go2Net Web Site.
f. Go2Net shall have the right to not include certain tutorials and/or
on-line training materials on or in the Subject Co-Branded Areas.
4. ASYMETRIX PROMOTION. Asymetrix shall promote the Subject Co-Branded Areas
as set forth in Exhibit A attached hereto.
5. GO2NET PROMOTION. Go2Net shall promote the Subject Co-Branded Areas on the
Go2Net Web Sites by means of strategically placed links, buttons and banners as
set forth in Exhibit B attached hereto.
6. EXCLUSIVITY. Asymetrix shall be the exclusive provider on the Go2Net Web
Sites of on-line training materials specifically targeted at business users and
directly delivered to computer monitors over the World Wide Web, so long as such
on-line training materials are reasonably competitive with comparable training
materials offered by third parties. Nothing herein shall prohibit Go2Net from
advertising, promoting, marketing, offering, or selling other training
materials, educational materials, and/or other media (e.g. books, videos, dvd,
cd-roms, magazines, newsletters, etc.) that may include training or educational
content. Asymetrix shall have a right of first offer to provide training
materials which are not targeted at business users through one of Go2Net's Web
Sites if Click2Learn offers a competing product.
7. FREE TUTORIALS. During the first year of this Agreement, Asymetrix shall
create and provide twenty five (25) free tutorials for placement on or in the
Go2Net Web Sites and Subject Co-Branded Areas. Asymetrix shall use its
reasonable commercial best efforts to create and
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provide additional free tutorials (in an amount to be mutually agreed by the
parties hereto) during the subsequent years of this Agreement. Go2Net shall
provide the subject matter for the free tutorials to Asymetrix and Asymetrix
shall provide editorial assistance in cooperation with Go2Net. Asymetrix may
re-purpose the content of these free tutorials for distribution through its
internet sites, subject to Go2Net's approval for such tutorials that relate to
products, services or properties that are specific to Go2Net or any portion of
Go2Net's network of web sites.
8. ON-LINE TRAINING MATERIAL AUTHORING TOOLS. Asymetrix shall provide
server-side content authoring tools free of charge to all Go2Net Web Site users
to enable them to produce their own on-line training materials. Authors shall
own the in-line training materials they create but they may not republish such
on-line training materials created with the Click2Learn authoring tools outside
the Click2Learn network including all co-branded areas created with affiliates
like Go2Net.
9. ON-LINE TRAINING MATERIAL TRANSACTIONS. Net revenues derived from the sale
of on-line training materials shall be shared as set forth in sub-sections a and
b below after Asymetrix receives the Triggering Amount of net revenue in the
applicable year of this Agreement as set forth in sub-section d below. Such net
revenue shall mean all revenue received by a party in connection with such sales
less payments by the customers of taxes, actual shipping and handling expenses,
credit card cancellation fees, credit card processing fees, chargebacks, returns
and bad debt.
a. Online training materials acquired by Asymetrix from third parties for
the Click2Learn Service in individually negotiated transactions and sold
through the Subject Co-Branded Areas, [ ] percent [ %] to Go2Net and
the remainder at Asymetrix's discretion.
b. On-line training materials created by Asymetrix, Go2Net and Subject
Co-Branded area users, and/or others not included in sub-section a above:
------------------------------------------------------------------------------------------------------
Transaction Type Go2Net Asymetrix Others
------------------------------------------------------------------------------------------------------
Go2Net resells on-line training materials [ ]% [ ]% [ ]% to publisher and
author
------------------------------------------------------------------------------------------------------
Go2Net publishes and resells on-line training [ ]% [ ]% [ ]% to independent author
materials
------------------------------------------------------------------------------------------------------
Go2Net on-line training materials (including [ ]% [ ]% [ ]% to independent author
Go2Net user created on-line training materials)
sold by Asymetrix
------------------------------------------------------------------------------------------------------
Go2Net on-line training materials sold through [ ]% at [ ]% to independent
another Asymetrix distribution affiliate Asymetrix's author, remainder at
discretion Asymetrix's discretion
------------------------------------------------------------------------------------------------------
c. Prior to any Go2Net on-line training materials being offered or sold by
another Asymetrix distribution affiliate, each such Go2Net on-line training
material must be approved for such distribution by Go2Net except as set
forth in Section 7 above. Go2Net on-line training materials shall mean
those on-line training materials including 2MinuteTutors and free tutorials
prepared for Go2Net pursuant to this Agreement and on-line training
materials prepared by Go2Net users.
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d. The net revenue "Triggering Amounts" shall be:
i. First year of this Agreement: [ ] United States
dollars (US$[ ]).
ii. Second year of this Agreement: [ ] United States
dollars (US$[ ]).
iii. Third year of this Agreement: [ ] United States dollars
(US$[ ]).
10. ADVERTISING & SPONSORSHIPS.
a. GO2NET.
i. Go2Net shall have the exclusive right to sell advertising space and
sponsorship references on or in the Subject Co-Branded Areas, subject
to the revenue sharing provisions of sub-section c(i) below.
ii. Go2Net shall have the exclusive right to sell advertising space
and sponsorships on or in tutorials created or provided by Asymetrix
for the Subject Co-Branded Areas and/or the Go2Net Web Sites pursuant
to Section 7 above, subject to the revenue sharing provisions of
sub-section c(i) below.
b. ASYMETRIX.
i. Nothing herein shall preclude Asymetrix from selling advertising
space and sponsorship references on or in tutorials, on-line training
materials, and the Click2Learn Service as such tutorials, on-line
training materials and service appear outside the Subject Co-Branded
Areas.
ii. Asymetrix shall not place or caused to be placed any advertising
or sponsorship references on or in the Subject Co-Branded Areas or on
or in the Click2Learn Service as such service appears on or in the
Subject Co-Branded Areas except as may be permitted pursuant to
sub-section b(iv) below.
iii. Asymetrix shall not place or cause to be placed any advertising
on or in tutorials and/or on-line training materials appearing on or
in the Subject Co-Branded Areas.
iv. For tutorials not created or provided by Asymetrix for the Subject
Co-Branded Area and/or the Go2Net Web Sites pursuant to Section 7
above, Asymetrix may sell sponsorship references on or in such
tutorials appearing on or in the Subject Co-Branded Areas subject to
the revenue sharing provisions of sub-section c(ii) below. If
Asymetrix does not sell a sponsorship reference for a tutorial
appearing on or in the Subject Co-Branded Areas or available for
appearance on or in a Subject Co-Branded Area within sixty (60) days
of the availability such tutorial, then Go2Net shall have the right to
sell such sponsorship reference for that tutorial for when that
tutorial appears in the Subject Co-Branded Areas.
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v. For tutorials not created or provided by Asymetrix for the Subject
Co-Branded Areas and/or Go2Net Web Sites pursuant to Section 7 above,
and for which Asymetrix has sold a sponsorship reference, if Go2Net
elects to include such tutorial in a Subject Co-Branded Area, such
tutorial shall include the sponsorship and shall be subject to the
revenue sharing provisions of sub-section c(ii) below.
vi. The parties hereto shall work together in good faith to establish
standards that distinguish between sponsorship and advertisements.
c. Revenue Sharing
i. Go2Net shall pay Asymetrix [ ] percent [ %] of net revenues for
advertising space and sponsorship references sold and appearing on or
in the Subject Co-Branded Areas, on-line training materials, and
tutorials. Net advertising revenues shall mean gross revenues (net of
advertising agency fees and costs) collected by Go2Net for the
appearances of such advertising space and sponsorship references on or
in the Subject Co-Branded Areas less credits, refunds, and twenty
percent ([ ]%) selling costs.
ii. Asymetrix shall pay Go2Net [ ]fifty percent ([ ]%) of net
revenues for sponsorship references sold and appearing on or in
tutorials appearing on or in in the Subject Co-Branded Areas. Such
net revenues shall mean gross revenues (net of advertising agency
fees and costs) collected by Asymetrix for the appearances of such
sponsorships references on or in the Subject Co-Branded Areas less
credits, refunds, twenty percent ([ ]%) selling costs, and one time
actual out of pocket creation and development costs (including an
appropriate allocation of personnel costs) directly associated with
the initial creation of such tutorial.
11. ASYMETRIX SALES. Asymetrix shall pay Go2Net [ ] percent ([ ]%) of net
revenues derived from the sale of hard goods and instructor-led courses sold on
or through the Subject Co-Branded Areas featuring the Click2Learn Service or via
any Go2Net Web Site or to purchasers referred through a Go2Net Web. Net revenue
shall mean all revenue received by Asymetrix in connection with such sales less
the cost of the goods sold, payments by the customers of taxes, actual shipping
and handling expenses, credit card cancellation fees, credit card processing
fees, chargebacks, returns and bad debt.
12. OTHER REVENUE. Asymetrix shall pay Go2Net [ ] percent ([ ]%) of net
revenues derived from distribution on or through the Subject Co-Branded Areas or
via any Go2Net Web Site or to purchasers referred through a Go2Net Web Site. Net
revenue shall mean all revenue received by Asymetrix in connection with such
sales less the cost of the goods sold, payments by the customers of taxes,
actual shipping and handling expenses, credit card cancellation fees, credit
card processing fees, chargebacks, returns and bad debt.
13. REVENUE SHARING PAYMENT SCHEDULE & REPORTING. Revenue sharing payments
pursuant to this Agreement shall be made within thirty (30) days of the end of
each calendar quarter in which such payment accrues together with a detailed
report of the calculation of each such payment.
14. AUDIT. The parties shall keep and maintain true and complete records
relating to their activities pursuant to this Agreement in sufficient detail to
enable the fees payable hereunder to
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be accurately determined. Such books and records shall be made available upon
reasonable notice, at reasonable times during regular business hours, for
inspection by the other party, or its designated representative. Such books and
records shall be maintained for at least one (1) year after the expiration or
termination of this Agreement. An auditing party shall bear its own expenses in
conducting such audit unless the audited party has underpaid by more than five
percent (5%) of the total amount due for the period of the audit, in which case
the audited party shall bear the reasonable cost of the audit.
15. TRANSACTION PROCESSING. Go2Net shall assist Asymetrix to implement use of
the Xxxxxxxxx.Xxx technology in the Click2Learn network with follow-up over the
first three (3) months following execution of this Agreement. Upon successful
completion of the implementation of the Xxxxxxxxx.Xxx gateway for Asymetrix:
a. Asymetrix shall process all on-line transactions conducted through all
Go2Net web sites through Go2Net's subsidiary Xxxxxxxxx.Xxx's gateway.
b. Asymetrix shall process all on-line transactions conducted through the
Subject Co-Branded Areas through Go2Net's subsidiary Xxxxxxxxx.Xxx's
gateway.
c. Asymetrix shall process all on-line transactions conducted through all
Asymetrix's internet sites through Go2Net's subsidiary Xxxxxxxxx.Xxx's
gateway for so long as such service is reasonably competitive with services
offered by third parties.
d. Xxxxxxxxx.Xxx shall have a right of first refusal to handle online
transactions conducted through any Click2Learn distribution partner. In the
event that a Click2Learn distribution partner requires services that
Xxxxxxxxx.Xxx does not offer, then such services shall not be covered by
this right of first refusal.
16. FEE. In consideration of Go2Net featuring the Click2Learn Service in a
Subject Co-Branded Area on or via the designated Go2Net Web Sites, Asymetrix
shall pay Go2Net [ ] United States dollars (US$[ ]) according to the
following schedule:
a. on the date of execution of this Agreement by Asymetrix, [ ] United
States dollars (US$[ ]).
b. on the first anniversary of the date of execution of this Agreement by
Asymetrix, [ ] United States dollars (US$[ ]).
c. on the second anniversary of the date of execution of this Agreement by
Asymetrix, [ ] United States dollars (US$[ ]).
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d. Payments pursuant to this Section shall be made by wire transfer to the
following account:
---------------------------------------------------------------
company Go2Net, Inc.
---------------------------------------------------------------
account number 00-000-000
---------------------------------------------------------------
address 000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
---------------------------------------------------------------
bank address Imperial Bank
0000 Xxxxxxxxx Xxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
---------------------------------------------------------------
bank phone number 000-000-0000
---------------------------------------------------------------
ABA routing number 000000000
---------------------------------------------------------------
e. Payments pursuant to this section shall be non-refundable and not
pro-rated.
17. LATE PAYMENT. In the event that a party hereto fails to timely or
completely make any payment when due, compound interest at the rate of
eighteen percent (18%) per annum shall accrue on all past due amounts until
such amounts including interest are paid in full and the owed party shall
have the right to: (a) immediately cease providing access to the
Click2Learn Service; (b) to pursue all other legal and equitable remedies
available to it; and, (c) if any payment is late by fifteen (15) or more
days, to terminate this Agreement without further obligation. Further, in
the event a party fails to timely or completely make any payment when due,
the other party shall be entitled to recover its reasonable collection
costs, including attorney's fees.
18. AVAILABILITY OF SERVICE. The Click2Learn Service shall be accessible in the
Subject Co-Branded Areas twenty-four (24) hours a day, seven (7) days a
week, except for scheduled maintenance and required repairs, and except for
any loss or interruption due to causes beyond the control of Asymetrix or
which are not reasonably foreseeable by Asymetrix, including, but not
limited to, interruption or failure of telecommunication or digital
transmission links and internet slow-downs or failures. Asymetrix shall use
commercially reasonable efforts to maintain the performance and robustness
of the Subject Co-Branded Area substantially the same as that for its
xxxxxxxxx.xxx and xxxxx0xxxxx.xxx internet sites for users of the two most
recent versions of Netscape Navigator and Microsoft Internet Explorer on
Windows 95 or newer systems.
19. SERVICE RIGHTS.
a. Asymetrix assumes sole responsibility for the accuracy of the
Click2Learn Service other than materials provided by users and/or Go2Net,
including, without limitation, descriptive claims, warranties, guarantees,
nature of business, and address where business is conducted and ensuring
that the Click2Learn Service does not infringe or violate any right of any
third party. Notwithstanding the foregoing, Go2Net reserves the right, in
its sole discretion, to exclude or remove from the its internet sites the
Click2Learn Service or any portion thereof which in Go2Net's sole
discretion, may violate or infringe any law or third party rights or which
otherwise exposes or potentially exposes Go2Net to civil or criminal
liability or public ridicule, provided that such right shall not place an
obligation on Go2Net to monitor or exert editorial control over its
internet sites.
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b. Go2Net assumes sole responsibility for the accuracy of its contributions
to the Subject Co-Branded Areas other than materials provided by users,
including, without limitation, descriptive claims, warranties, guarantees,
nature of business, and address where business is conducted and ensuring
that such contribution does not infringe or violate any right of any third
party. Notwithstanding the foregoing, Asymetrix reserves the right, in its
sole discretion, to exclude or remove from the Click2Learn Service and the
Co-Branded Areas or any portion thereof which in Asymetrix's sole
discretion, may violate or infringe any law or third party rights or which
otherwise exposes or potentially exposes Asymetrix to civil or criminal
liability or public ridicule, provided that such right shall not place an
obligation on Asymetrix to monitor or exert editorial control over its
internet sites.
20. LIMITATIONS ON SERVICE. Asymetrix shall not place or cause to be placed on
a Go2Net Web Site, the Click2Learn Service and/or the Subject Co-Branded Areas
anything which is obscene, threatening, malicious, or which infringes on or
violates any applicable law or regulation or any proprietary, contract, moral,
privacy or other third party right, or which otherwise exposes Asymetrix and/or
Go2Net to civil or criminal liability. A breach of this provision by Asymetrix
shall be a material breach of this Agreement.
21. PROPRIETARY RIGHTS OF ASYMETRIX. As between Asymetrix and Go2Net, the
Click2Learn Service shall remain the sole and exclusive property of Asymetrix
and/or its suppliers, including, without limitation, all copyrights, trademarks,
patents, trade secrets, and any other proprietary rights. Nothing in this
Agreement shall be construed to grant Go2Net any ownership right in, or license
to, the Click2Learn Service.
22. USER INFORMATION. Asymetrix and Go2Net shall jointly own the user data
generated in connection with the Subject Co-Branded Areas. Neither party shall
rent, lease, lend, sell, disclose user data to, or use user data on behalf of,
any third party that offers an internet site or service competitive with the
other party to this Agreement.
23. TRADEMARK USAGE.
a. ASYMETRIX MARKS. Asymetrix hereby grants to Go2Net during the term of
this Agreement a worldwide, nonexclusive, nontransferable, non-assignable
right to use Asymetrix's trademarks as specified in this Agreement in
connection with the Click2Learn Service featured on Go2Net's internet
sites. All such use of Asymetrix's trademarks shall inure to the benefit of
Asymetrix. Nothing in this Agreement shall create any further right, title
or interest for Go2Net in Asymetrix's trademarks or in any of Asymetrix's
other names, trademarks, service marks, design marks, symbols and/or other
indicia of origin and no use of such will be made by Go2Net for any purpose
without the prior written approval of Asymetrix. Go2Net shall use
Asymetrix's trademarks in accordance with such reasonable guidelines as
Asymetrix may provide to Go2Net from time to time. Go2Net agrees to
cooperate with Asymetrix in facilitating the monitoring and control of the
use of Asymetrix's trademarks, and to supply Asymetrix with samples of use
upon request. All uses of Asymetrix's trademarks shall be subject to
Asymetrix's prior approval. Go2Net shall not modify any of Asymetrix's
trademarks without Asymetrix's prior written approval. Go2Net shall not use
any name or xxxx confusingly similar to any Asymetrix name or xxxx as part
of any domain name without the prior written approval of Asymetrix.
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b. GO2NET MARKS. Go2Net hereby grants to Asymetrix during the term of this
Agreement a worldwide, nonexclusive, nontransferable, non-assignable right
to use Go2Net's trademarks as specified in this Agreement in connection
with the Click2Learn Service featured on Asymetrix's internet sites. All
such use of Go2Net's trademarks shall inure to the benefit of Go2Net.
Nothing in this Agreement shall create any further right, title or interest
for Asymetrix in Go2Net's trademarks or in any of Go2Net's other names,
trademarks, service marks, design marks, symbols and/or other indicia of
origin and no use of such will be made by Asymetrix for any purpose without
the prior written approval of Go2Net. Asymetrix shall use Go2Net's
trademarks in accordance with such reasonable guidelines as Go2Net may
provide to Asymetrix from time to time. Asymetrix agrees to cooperate with
Go2Net in facilitating the monitoring and control of the use of Go2Net's
trademarks, and to supply Go2Net with samples of use upon request. All uses
of Go2Net's trademarks shall be subject to Go2Net's prior approval.
Asymetrix shall not modify any of Go2Net's trademarks without Go2Net's
prior written approval. Asymetrix shall not use any name or xxxx
confusingly similar to any Go2Net name or xxxx as part of any domain name
without the prior written approval of Go2Net.
c. APPROVAL. All advertising, marketing, and promotional material bearing
the marks of one party must be submitted to that party prior to use,
display or publication for approval. If such material is not disapproved
within seven (7) days of submission, it shall be deemed approved.
d. NO OTHER MARKS. Neither party shall not use any trademark or logo of the
other party except as expressly provided in this Agreement.
e. NO USE AFTER EXPIRATION OR TERMINATION. The parties shall, upon the
expiration of expiration or termination of this Agreement, cease and desist
from all use of the other party's marks.
24. AVAILABILITY OF THE GO2NET WEB SITES. Go2Net's Web Sites providing access
to the Click2Learn Service in Subject Co-Branded Areas shall be accessible
twenty-four (24) hours a day, seven (7) days a week, except for scheduled
maintenance and required repairs, and except for any loss or interruption due to
causes beyond the control of Go2Net or which are not reasonably foreseeable by
Go2Net, including, but not limited to, interruption or failure of
telecommunication or digital transmission links and internet slow-downs or
failures. Go2Net shall use commercially reasonable efforts to maintain the
performance and robustness of the Subject Co-Branded Area substantially the same
as that for its Xx0Xxx.xxx internet site for users of the two most recent
versions of Netscape Navigator and Microsoft Internet Explorer on Windows 95 or
newer systems.
25. CONFIDENTIALITY. In connection with performing pursuant to this Agreement,
the parties acknowledge that they may disclose and/or receive confidential
information proprietary to the other party.
a. "Confidential information" includes, but is not limited to, all
information proprietary to Go2Net or to Asymetrix, whether or not reduced
to writing or other tangible medium of expression, and whether or not
patented, patentable, capable of trade secret protection, or protected as
an unpublished or published work under the United States Copyright Act of
1976 as amended. Confidential information also includes information
relating to the intellectual property and business practices of Go2Net or
Asymetrix. Confidential
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information also includes comparable information that Go2Net or Asymetrix
may receive or has received from others they do business with.
b. "Intellectual property" includes information relating to research and
development, inventions, discoveries, developments, improvements, methods
and processes, know-how, drawings, blueprints, specifications, product
briefs, algorithms, computer programs and software, compositions, works,
concepts, designs, ideas, prototypes, models, samples, screens, molds,
patents, copyrights, trademarks, trade names, trade secrets, formulate,
writings, notes, and patent, trademark, and copyright applications.
c. "Business practices" includes information relating to intellectual
property, business plans, financial information, products, services,
manufacturing processes and methods, costs, sources of supply, advertising
and marketing plans, customer lists, sales, profits, pricing methods,
personnel, and business relationships.
d. This Agreement and the terms hereof shall be confidential information.
e. Confidential information does not include information which (i) was
already known to the other party, (ii) becomes generally available to the
public other than through a breach of this Agreement, (iii) is furnished to
the other party by a third party who is lawfully in possession of such
information and who lawfully conveys that information, or (iv) is
subsequently developed by the receiving party independently of the
information received from the disclosing party.
f. The parties agree to take reasonable steps to protect the other's
confidential information. The parties shall not: (a) use, except as
required by the normal and proper course of performing under this
Agreement, (b) disclose, (c) copy, or (d) allow access to, the other's
confidential information without express prior written consent or as may be
required by law or by action of a competent government authority subject to
the party compelled to disclose good faith efforts to meet such requirement
subject to a confidentiality agreement or protective order. These
restrictions will continue to apply as long as the confidential nature of
the information is maintained and shall survive the expiration or
termination of this Agreement.
g. The parties shall upon the completion or termination of this Agreement,
or at any other time when requested, promptly return all property of the
other, including but not limited to all confidential information and copies
thereof.
26. NEW DEVELOPMENTS. As between the parties, each party shall exclusively own
all intellectual property that it independently creates, develops or acquires.
If the parties jointly create, develop, or acquire intellectual property in
connection with their performance pursuant to this Agreement, the parties shall
jointly own such intellectual property.
27. WARRANTIES.
a. Each party represents and warrants that it has not and will not disclose
to the other party to this Agreement any confidential or proprietary
information belonging to a third party (including prior employers,
employees and customers) unless written authorization from the third party
is first obtained in form and substance satisfactory to the receiving
party.
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b. Each party represents and warrants that it has not engaged and will not
engage in any activity, made any commitment, or entered into any agreement
inconsistent or in derogation of the rights granted in this Agreement.
c. Asymetrix represents and warrants that the Click2Learn Service and its
contributions to the Subject Co-Branded Areas pursuant to this Agreement
(not including material provided by users) do not and shall not (i)
infringe the intellectual property rights of any person or entity, or (ii)
violate any law or regulation of the United States including the
territories and possessions thereof.
d. Go2Net represents and warrants that its contributions to the Subject
Co-Branded Areas pursuant to this Agreement (not including material
provided by users) do not and shall not (i) infringe the intellectual
property rights of any person or entity, or (ii) violate any law or
regulation of the United States including the territories and possessions
thereof.
28. NO GUARANTEES. There are no guarantees whatsoever made by Go2Net as to the
results of its efforts in connection with its internet sites and the Click2Learn
Service provided by Asymetrix as featured on such internet sites in Subject
Co-Branded Areas. There are no warranties, promises or statements made by Go2Net
or Asymetrix except as specifically stated herein with respect to any matter.
Neither Go2Net nor Asymetrix has made any affirmation of fact or promise
relating to the Click2Learn Services or duties that have become any basis of
this Agreement other than as stated herein, and each of Go2Net and Asymetrix
acknowledges that it has relied on no warranties, promise or statements other
than those expressly set forth in this Agreement.
29. PUBLICITY. The parties shall cooperate to issue a joint press release
announcing this Agreement and/or the launch of the co-branded area, such joint
press release shall require the approval of both parties prior to issuance. The
parties shall be permitted to use previously approved text with no further
approvals subject to the text being substantially the same with allowance only
of context and time. Except in the course of performing pursuant to this
Agreement, the parties shall not publicize their relationship or the work done
in connection with this Agreement without the prior written approval of the
other party.
30. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE
PARTIES MAKE NO WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIM ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
31. LIABILITY LIMITATION. EXCEPT AS SET FORTH IN SECTION 32 BELOW, THE PARTIES
SHALL HAVE NO LIABILITY TO EACH OTHER FOR UNAUTHORIZED ACCESS TO, OR ALTERATION,
THEFT OR DESTRUCTION OF, THE CLICK2LEARN SERVICE AND/OR ANY INTERNET SITE OR
AREA FEATURING THE CLICK2LEARN SERVICE, OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
32. INDEMNIFICATION.
a. BY ASYMETRIX. With respect to claims or actions against one or both
parties by third parties insofar as such claim, demand or action is
attributable to the acts or omissions of
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Asymetrix or a breach by Asymetrix of a representation and/or warranty made
in this Agreement, Asymetrix shall (i) indemnify Go2Net against any
liability, cost, loss, or expense of any kind; and (ii) hold harmless
Go2Net and save it from any liability, cost, loss, or expense of any kind.
b. BY GO2NET. With respect to claims or actions against one or both parties
by third parties insofar as such claim, demand or action is attributable to
the acts or omissions of Go2Net or a breach by Go2Net of a representation
and/or warranty made in this Agreement, Go2Net shall (i) indemnify
Asymetrix against any liability, cost, loss, or expense of any kind; and
(ii) hold harmless Asymetrix and save it from any liability, cost, loss, or
expense of any kind.
c. PROCEDURE. If any action shall be brought against a party in respect to
which indemnity may be sought from the other party pursuant to the
provisions of this Section, the party seeking indemnity (the "Indemnitee")
shall follow the procedures in this Section. If an Indemnitee receives any
notice of a claim or other allegation with respect to which the other party
(the "Indemnitor") has an obligation of indemnity hereunder, then the
Indemnitee will, within fifteen (15) days of receipt of such notice, give
the Indemnitor written notice of such claim or allegation setting forth in
reasonable detail the facts and circumstances surrounding the claim. The
Indemnitee will not make any payment or incur any costs or expenses with
respect to such claim, except as requested by the Indemnitor or as required
to comply with this procedure. The Indemnitor shall immediately assume the
full control of the defense or settlement of such claim or allegation,
including the selection and employment of counsel, and shall pay all
authorized costs and expenses of such defense and settlement. The
indemnified party must consent to any settlement that imposes restrictions
on or requires the Indemnitee to contribute financially to such settlement.
The Indemnitee will fully cooperate, at the expense of the Indemnitor, in
the defense or settlement of the claim. The Indemnitee shall have the
right, at its own expense, to employ separate counsel and participate in
the defense or settlement of the claim.
34. DISPUTE RESOLUTION. If any dispute arises under this Agreement, the parties
shall make a good faith effort to resolve the dispute before taking any action.
The parties shall meet to discuss the dispute no later than thirty (30) days
after either party gives written notice to the other party that such a dispute
exists. Such meeting may be held telephonically if travel is impractical for
either party. At such meeting, an officer of each of Asymetrix and who has
authority to resolve the dispute shall be in attendance. No action, suit,
arbitration or other proceeding may be commenced before the parties have met
pursuant to this provision unless immediate injunctive relief is being sought,
in which case the noted meeting shall take place at the earliest opportunity
after such immediate injunctive relief is sought.
35. WAIVER OF JURY TRIAL. The parties hereby agree to waive their respective
rights to a jury trial of any claim or cause of action related to or arising out
of this Agreement. The scope of the waiver is intended to be all encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter herein, including without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims.
The parties each acknowledge that the waiver is a material inducement for each
party to enter into a business relationship, that each party has already relied
on the waiver in entering into this Agreement and that each will continue to
rely on the waiver in their related future dealings. Each party further warrants
and represents that each has had the opportunity to have legal counsel review
the waiver. The waiver is irrevocable, meaning that it may not be modified
either orally or in writing,
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and the waiver shall apply to any subsequent amendments, renewals, supplements
or modifications to this Agreement. In the event of litigation, this Agreement
may be filed as written consent to a trial by court.
36. PREVAILING PARTY. If any legal action or other proceeding is brought for a
breach of this Agreement or any of the warranties herein, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and other costs
incurred in bringing such action or proceeding, in addition to any other relief
to which such party may be entitled.
37. INDEPENDENT CONTRACTOR. The parties hereto are independent contractors.
Neither party undertakes by this Agreement, or otherwise, to perform any
obligation of the other. In no way is one party to be construed as an agent, or
acting as an agent of the other in any respect.
38. PRIOR OBLIGATIONS. The parties represent and warrant that entering into and
performing under this Agreement does not conflict with any prior obligations to
third parties.
39. TAXES. Each party shall be responsible for any income and other taxes
required under applicable laws arising out of monies received by each of them
pursuant to this Agreement.
40. TERMINATION DUE TO INSOLVENCY. If either party: (a) commences or becomes
the subject of any case or proceeding under the bankruptcy, insolvency or
equivalent laws of the United States; (b) has appointed for it or for any
substantial part of its property a court-appointed receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official; (c) makes
an assignment for the benefit of its creditors; (d) fails generally to pay its
debts as they become due; or (e) takes corporate action in furtherance of any of
the foregoing (collectively, herein referred to as "Events of Insolvency"),
then, in each case, such party shall immediately give notice of such event to
the other. Whether or not such notice is given, the other party shall have the
right, to the fullest extent permitted under applicable law, following the
occurrence of any Event of Insolvency and without prejudice to any other rights
it may have, at any time thereafter to terminate this Agreement without further
obligation, effective immediately upon giving notice.
41. TERMINATION IN THE EVENT OF MATERIAL EVENTS. Either party may terminate
this Agreement at any time in the event of a material breach of the terms herein
by the other party, if such party shall fail to cure such material breach within
fifteen (15) days of notice of such breach.
42. WAIVER OF BREACH. A breach of any provision of this Agreement may only be
waived in writing and the waiver of such breach shall not operate or be
construed as a waiver of any subsequent breach.
43. SEVERABILITY. If any provision of this Agreement should, for any reason, be
held invalid or unenforceable in any respect, the remainder of this Agreement
shall be enforced to the full extent permitted by law. A court of competent
jurisdiction is hereby empowered to modify the invalid or unenforceable
provision to make it valid and enforceable.
44. PERFORMANCE EXCUSED. The parties shall be excused from delays in performing
or from any failure to perform hereunder to the extent that such delay or
failure result from causes such as war or natural disaster or strike which are
beyond the reasonable control of the party, provided that, in order to be
excused from delay or failure to perform, the party must act diligently to
remedy such delay or failure. In the event such delay continues for ten (10)
consecutive days, either party shall have the right to terminate this Agreement.
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45. ASSIGNMENT & TRANSFER. Neither party shall assign or transfer this
Agreement without the express prior written consent of the other party except in
connection with the sale or transfer of substantially all the assets and/or
outstanding stock of a party.
46. BIND & BENEFIT. This Agreement shall bind and benefit the successors and
assigns of the parties.
47. NOTICE AND DELIVERY. Under this Agreement, if one party is required to
deliver or submit something to the other, or give notice, such delivery and such
notice shall be by fax to the fax numbers set forth below with a confirmation
copy by next day courier (such as Federal Express, DHL, UPS or the like)
addressed as set forth below or as may otherwise be agreed to in writing. Notice
shall be deemed given on the day of delivery by courier.
For Go2Net: General Counsel For Asymetrix: General Counsel
Go2Net, Inc. Asymetrix Learning Systems Inc.
Xxxxx 0000 Xxxxx 000
999 3d Avenue 110 - 110th Avenue N.E.
Seattle, WA 98104 Xxxxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
48. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties as to the subject hereof. This Agreement supersedes all prior oral and
written agreements between the parties as to the subject hereof. This Agreement
may not be modified or amended except by writing signed by an officer of Go2Net
and an officer of Asymetrix.
49. HEADINGS. Headings in this Agreement are for the purpose of convenience
only. They are not intended to be a material part of the Agreement, and in the
event of any conflict between the heading and the text, the text shall govern.
50. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Washington, United States of America.
The parties consent to the federal and state courts sitting in the city of
Seattle in the State of Washington having jurisdiction over them.
IN WITNESS WHEREOF, Asymetrix and Go2Net have caused duplicate originals of this
Agreement to be executed by their duly authorized officers on the date(s) set
forth below:
GO2NET, INC. ASYMETRIX LEARNING SYSTEMS INC.
---------------------------------- -----------------------------------
printed name: printed name:
title: title:
Date: Date:
----------------------------- -----------------------------
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