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EXHIBIT 10.18
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
CONTENT LICENSE AND CHANNEL SPONSORSHIP TERM SHEET
This agreement ("Agreement") is entered into as of the 12th day of September,
1997 ("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and
Auto-By-Tel, a California corporation, located at 00000 XxxXxxxxx Xxxx, #000,
Xxxxxx, Xxxxxxxxxx, 00000-0000 ("Auto-By-Tel").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx and
owns and/or manages related Web sites worldwide (collectively, the
"Excite Network") which, among other things, allow its users to search
for and access content and other sites on the Internet.
B. Within the Excite Network, Excite currently organizes certain content
into topical channels, including the Excite Automotive Channel.
C. Excite also maintains and/or manages certain Web pages which may be
delivered to users via email, desktop "channels" or Internet "push"
technologies (collectively, "Broadcast Pages") which may incorporate
content supplied to Excite by third parties for the purpose of
providing value to Excite users and providing access to the content,
products and/or services of such third parties.
D. Auto-By-Tel owns or has the right to distribute certain content
relating to online automobile buying and maintains a related site on
the Internet at xxxx://xxx.xxxxxxxxx.xxx (the "Auto-By-Tel Site") for
which it wishes to generate increased traffic.
E. Auto-By-Tel wishes to promote use of the Auto-By-Tel Site to Excite's
users by sponsoring the Excite Automotive Channel and purchasing banner
advertising on the Excite Network.
Therefore, the parties agree as follows:
1. SPONSORSHIP OF EXCITE AUTOMOTIVE CHANNEL
a) Auto-By-Tel will be the exclusive online automobile buying
service sponsor of the Excite Automotive Channel, located at
xxxx://xxx.xxxxxx.xxx.
b) During the term of the Agreement, Excite will not display any
banner advertising or promotional placements for any of
Auto-By-Tel's direct competitors (listed in Exhibit C) in the
Excite Automotive Channel. Not more than once per quarter,
Auto-By-Tel may update this list of competitors.
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c) In the event that Excite intends to enter into an agreement
with a third party with respect to sponsorship of the Excite
Automotive Channel before the expiration of the term of the
Agreement, Excite will deliver to Auto-By-Tel a written notice
describing the relevant opportunity. Although Excite will not
be required to disclose any information in violation of any
nondisclosure agreement between Excite and any third party,
the notice will include information sufficient to permit
Auto-By-Tel to evaluate the requirements for meeting the
competing offer for sponsorship of the Excite Automotive
Channel and to formulate a meaningful response. Auto-By-Tel
will have ten (10) days after receipt of such written notice
to provide notice to Excite that it is prepared to enter into
an agreement with Excite on the same terms and conditions as
Excite proposes to accept from such third party. Excite and
Auto-By-Tel will then promptly commence good faith
negotiations to conclude the agreement. If Auto-By-Tel rejects
said offer or fails to notify Excite of its acceptance within
the ten (10) day period, Excite shall have the right to enter
into the agreement with such third party, provided the terms
and conditions of the agreement are not less favorable to
Excite than previously offered by Auto-By-Tel.
2. MARKETING AND PROMOTION
a) Excite will feature Auto-By-Tel in the Auto Buying Services
department of the Excite Automotive Channel for the term of
the Agreement.
b) Excite will conduct three (3) two-week car give away
promotions on the Excite home page promoting Auto-By-Tel
during the first year of the Agreement, with one promotion
coinciding with the launch of Auto-By-Tel's sponsorship and
the other two to be mutually scheduled. Excite will conduct
similar promotions in years two and three of the Agreement.
Auto-By-Tel will provide the cars to be given away through
these promotions.
c) Auto-By-Tel will purchase banner advertising on the Excite
Network in Year One of the Agreement in the amounts described
in Exhibit A. Auto-By-Tel will purchase banner advertising on
the Excite Network in Year Two and Year Three in amounts
substantially comparable to the amounts agreed upon in Exhibit
B.
d) Excite will deliver a minimum of [*] impressions of
Auto-By-Tel promotional placements during the term of the
Agreement, including the placement in the Auto Buying Services
department of the Excite Automotive Channel, the car give-away
promotions and the banner advertisements described above, the
display of Auto-By-Tel's content described below and other
promotional placements that may be determined by the parties.
e) Neither party will make any public statement, press release or
other announcement relating to the terms of or existence of
this Agreement without the prior written approval of the
other. Notwithstanding the foregoing, Auto-By-Tel hereby
grants to Excite the right to issue an initial press release,
the
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timing and wording of which will be subject to Auto-By-Tel's
reasonable approval, regarding the relationship between Excite
and Auto-By-Tel.
3. CONTENT PROVIDED TO EXCITE
a) Auto-By-Tel will provide to Excite mutually agreed upon
content relating to online automobile buying such as AutoSite
and The Bank Rate Monitor (the "Content") which is described
in Exhibit D. Excite may display the Content in the Excite
Automotive Channel and in other locations in the Excite
Network. Excite will determine the "look and feel" of the
Excite Automotive Channel and the Excite Network.
b) Auto-By-Tel and Excite will determine mutually agreeable
methods for the transmission and incorporation of updates to
the Content. Other than updates to the Content or revisions as
needed to reflect changes to Auto-By-Tel's name and/or brand,
Auto-By-Tel will not alter the Content without Excite's prior
consent.
c) Auto-By-Tel will have sole responsibility for providing, at
its expense, the Content to Excite.
d) Reasonable excerpts or portions of the Content may be
incorporated into "Broadcast Pages" delivered by Excite via
email, desktop "channels" or Internet "push" technologies.
Excite will determine the "look and feel" of the Broadcast
Pages.
4. SPONSORSHIP AND ADVERTISING FEES AND REVENUE SHARING
a) A set-up fee of [*] will be due to Excite upon execution of
the Agreement as compensation for costs of initiating access
to the Excite Network, programming costs associated with the
incorporation of the Content into the Excite Network, set-up
costs and other expenses associated with Excite's initiation
of the links, placements, advertisements and promotions
contemplated by this Agreement.
b) Separate and apart from the set-up fee, sponsorship and
advertising fees will be due to Excite as follows:
Year 1 Year 2 Year 3
------ ------ ------
Sponsorship [*] [*] [*]
Banners - US [*] [*] [*]
Banners - WebTV/
International [*] [*] [*]
Total [*] [*] [*]
In the event that Excite is unable to deliver the agreed-upon
amount of banner advertising in the WebTV and/or International
rotations, Excite will provide the
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undelivered amounts in rotation on its primary Web site.
c) Auto-By-Tel will pay Excite a bounty per unique purchase
request submitted by users referred to the Auto-By-Tel Site
from the Excite Network of [*] for the first [*] unique
purchase requests in each year of the Agreement, [*] for the
second [*] unique purchase requests in each year of the
Agreement and [*] for each unique purchase request in excess
of [*] in each year of the Agreement. [*]
d) If the number of unique purchase requests submitted by users
referred directly to the Auto-By-Tel Site from the Excite
Network in any year of the Agreement exceeds [*], the bounty
increases to [*] for the first [*] unique purchase requests in
the following year of the Agreement, [*] for the second [*]
unique purchase requests in the following year of the
Agreement and [*] for each unique purchase request in excess
of [*] in the following year of the Agreement.
e) The set-up, sponsorship and advertising fees are gross amounts
and do not reflect any agency commissions to be paid by
Auto-By-Tel. The bounty payment amounts are net of any agency
commissions to be paid by Auto-By-Tel.
f) Sponsorship and advertising fees will be paid in twelve equal
monthly installments commencing on the execution of the
Agreement. Bounty payments will be made quarterly. The parties
will conduct annual reviews to ensure accurate payments and
accounting.
g) Auto-By-Tel will maintain accurate records with respect to the
calculation of all payments due under this Agreement. Excite
may, upon no less than thirty (30) days prior written notice
to Auto-By-Tel, cause an independent Certified Public
Accountant to inspect the records of Auto-By-Tel reasonably
related to the calculation of such payments during
Auto-By-Tel's normal business hours. The fees charged by such
Certified Public Accountant in connection with the inspection
will be paid by Excite unless the payments made to Excite are
determined to have been less than ninety-five percent (95%) of
the payment owed to Excite, in which case Auto-By-Tel will be
responsible for the payment of the reasonable fees for such
inspection.
5. CUSTOMER INFORMATION
a) Auto-By-Tel will retain all rights to customers acquired
pursuant to the Agreement.
b) Once per quarter, in connection with Auto-By-Tel's bounty
payments, Auto-By-Tel will provide Excite with all of the
customer information it acquires through the purchase requests
submitted by users referred directly to Auto-By-Tel's Web site
from the Excite Network. This customer information will be
deemed to be the joint property of the parties. Under no
circumstances will Excite sell, provide or transfer this
customer information to any third party.
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6. OPERATIONAL SUPPORT
a) Excite will provide, at its sole expense, Account Management
support of the Auto Buying Services department of the Excite
Automotive Channel sufficient to support for the level of
sales and marketing contemplated by the Agreement.
b) The parties will hold formal reviews on a monthly basis to
maintain anticipated results according to the sponsorship
objectives. Advertising and sponsorship placements will be
adjusted monthly by mutual agreement.
7. TERM AND TERMINATION
a) The Agreement will have an initial term of three (3) years.
b) Auto-By-Tel will have the option to cancel the Agreement if,
at the end of the first year of the Agreement, users referred
to the Auto-By-Tel Site from the Excite Network do not submit
[*] unique purchase requests.
c) Excite will have the option to cancel the Agreement if, at the
end of the second year under the term of the Agreement, Excite
has not received an aggregate amount of [*] in Bounty.
d) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following the notice to
the breaching party of the breach, with the following
exceptions:
(i) In the event of three or more errors, failures or
outages of the Content in any thirty (30) day period,
Excite may elect to immediately terminate this
Agreement upon written notice to Auto-By-Tel and
enter into an other arrangements for the acquisition
of similar content; or
(ii) Auto-By-Tel will ensure that the Content will at all
times be at least comparable to any other source of
similar topical content available on the Internet in
terms of the following factors, taken as a whole: (i)
breadth and depth of coverage, (ii) timeliness of
content updates and (iii) reputation and ranking
based on a cross-section of third party reviewers in
terms of features, functionality, quality and other
qualitative factors. In the event that Auto-By-Tel
fails to meet these quality criteria, Excite may
terminate this agreement on thirty (30) days written
notice and enter into an other arrangements for the
acquisition of similar content.
e) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within
thirty (30) days thereof.
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f) The provisions of Section 10 (Confidentiality), Section 11
(Warranty and Indemnity), Section 12 (Limitation of Liability)
and Section 13 (Dispute Resolution) will survive any
termination or expiration of this Agreement.
8. CONTENT OWNERSHIP AND LICENSE
a) Auto-By-Tel will retain all right, title and interest in and
to the Content worldwide (including, but not limited to,
ownership of all copyrights and other intellectual property
rights therein). Subject to the terms and conditions of this
Agreement, Auto-By-Tel hereby grants to Excite a royalty-free,
nonexclusive, worldwide license to use, reproduce, distribute,
transmit and publicly display the Content in accordance with
this Agreement.
b) Excite will retain all right, title, and interest in and to
the Excite Network and the Broadcast Pages worldwide
(including, but not limited to, ownership of all copyrights,
look and feel and other intellectual property rights therein).
9. TRADEMARK OWNERSHIP AND LICENSE
a) Auto-By-Tel will retain all right, title and interest in and
to its trademarks, service marks and trade names worldwide,
subject to the limited license granted to Excite hereunder.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject
to the limited license granted to Auto-By-Tel hereunder.
c) Each party hereby grants to the other a non-exclusive, limited
license to use its trademarks, service marks or trade names
only as specifically described in this Agreement. All such use
shall be in accordance with each party's reasonable policies
regarding advertising and trademark usage as established from
time to time.
d) Upon the expiration or termination of this Agreement, each
party will cease using the trademarks, service marks and/or
trade names of the other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
10. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's (or its
suppliers') business or activities that is proprietary and
confidential, which shall include all business, financial,
technical and other information of a party marked or
designated by such party as "confidential" or "proprietary";
or information which, by the nature of the
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circumstances surrounding the disclosure, ought in good faith
to be treated as confidential.
b) Confidential Information will not include information that (i)
is in or enters the public domain without breach of this
Agreement, (ii) the receiving party lawfully receives from a
third party without restriction on disclosure and without
breach of a nondisclosure obligation or (iii) the receiving
party knew prior to receiving such information from the
disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third
party or use any Confidential Information disclosed to it by
the other except as expressly permitted in this Agreement and
(ii) that it will take all reasonable measures to maintain the
confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality
of its own information of similar importance.
d) Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court
of competent jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a "need-to-know" basis
under an obligation of confidentiality to its legal counsel,
accountants, banks and other financing sources and their
advisors.
e) The information contained in the Usage Reports provided by
each party hereunder will be deemed to be the Confidential
Information of the disclosing party.
f) The terms and conditions of this Agreement will be deemed to
be the Confidential Information of each party and will not be
disclosed without the written consent of the other party.
11. WARRANTY AND INDEMNITY
a) Auto-By-Tel warrants that it owns, or has obtained the right
to distribute and make available as specified in this
Agreement, any and all content provided to Excite or made
available to third parties in connection with this Agreement.
b) Auto-By-Tel warrants that the Content will comply with the
description and technical specifications contained in Exhibit
D.
c) Auto-By-Tel will indemnify, defend and hold harmless Excite,
its affiliates, officers, directors, employees, consultants
and agents from any and all third party claims, liability,
damages and/or costs (including, but not limited to, attorneys
fees) arising from:
i) The breach of any warranty, representation or
covenant in this Agreement;
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ii) Any claim that the Content infringes or violates any
third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or
contains any defamatory content; or
iii) Any claim arising from content displayed on the
Auto-By-Tel Site.
Excite will promptly notify Auto-By-Tel of any and all such
claims and will reasonably cooperate with Auto-By-Tel with the
defense and/or settlement thereof; provided that, if any
settlement requires an affirmative obligation of, results in
any ongoing liability to or prejudices or detrimentally
impacts Excite in any way and such obligation, liability,
prejudice or impact can reasonably be expected to be material,
then such settlement shall require Excite's written consent
(not to be unreasonably withheld or delayed) and Excite may
have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim.
d) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT
MATTER.
12. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 11(c), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EXCITE FOR
DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY
AUTO-BY-TEL TO EXCITE HEREUNDER.
13. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality would result in irreparable injury for
which there is no adequate remedy at law. Therefore, in the
event of any breach or threatened breach of a party's
obligations regarding trademarks, service marks or trade names
or confidentiality, the aggrieved party will be entitled to
seek equitable relief in addition to its other available legal
remedies in a court of competent jurisdiction. For the
purposes of this section only, the parties consent to venue in
either the state courts of the county in which Excite has its
principal place of business or the United States District
Court for the Northern District of California.
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b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names and/or confidentiality, the
parties will first attempt to resolve the dispute(s) through
good faith negotiation. In the event that the dispute(s)
cannot be resolved through good faith negotiation, the parties
will refer the dispute(s) to a mutually acceptable mediator
for hearing in the county in which Excite has its principal
place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names and/or confidentiality, cannot be
resolved through good faith negotiation and mediation, the
parties will refer the dispute(s) to the American Arbitration
Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration
Association's rules applicable to commercial disputes. The
arbitration will be held in the county in which Excite has its
principal place of business.
14. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole
or in part, without the other party's written consent (which
will not be unreasonably withheld), except that no such
consent will be required in connection with a merger,
reorganization or sale of all, or substantially all, of such
party's assets. Any attempt to assign this Agreement other
than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of
California, notwithstanding the actual state or country of
residence or incorporation of Auto-By-Tel.
c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail,
return receipt requested, and will be deemed given upon
personal delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or email or
five (5) days after deposit in the mail. Notices will be sent
to a party at its address set forth below or such other
address as that party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors and will
have no power or authority to assume or create any obligation
or responsibility on behalf of each other. This Agreement will
not be construed to create or imply any partnership, agency or
joint venture.
e) Force Majeure. Any delay in or failure of performance by
either party under this Agreement will not be considered a
breach of this Agreement and will be
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excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited
to, acts of God, power outages and governmental restrictions.
f) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will
remain in full force and effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject
matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject
matter. This Agreement may only be modified, or any rights
under it waived, by a written document executed by both
parties.
Auto-By-Tel Excite, Inc.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
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Name: Xxxx X. Xxxxxxx Name: Xxxxxx X. Xxxx
--------------------------- ----------------------------------
Title: Title: EVP - CFO
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