PREFERRED CARRIAGE AGREEMENT
This Preferred Carriage Agreement (the "Agreement") is made effective as of June
30, 1998 (the "Effective Date"), among CNET, Inc., a Delaware corporation
("CNET"), National Broadcasting Company, Inc., a Delaware corporation ("NBC"),
NBC Multimedia, Inc., a Delaware corporation ("NBC Multimedia"), and Snap! LLC,
a Delaware limited liability company (together with its successors, the "LLC" or
"Snap").
Reference is made to the Contribution Agreement, dated as of June 4, 1998, among
the parties hereto (the "Contribution Agreement"). Capitalized terms used in
this Agreement and not otherwise defined have the meanings assigned to such
terms in the Contribution Agreement.
Pursuant to the Contribution Agreement, CNET is contributing the Snap! Assets to
the LLC so that the LLC can begin to operate the Snap! Business. On the terms
and subject to the conditions set forth in this Agreement, the LLC has agreed to
provide certain preferred carriage rights to CNET, NBC and NBC Multimedia, and
CNET, NBC and NBC Multimedia have agreed to certain exclusivity provisions.
THEREFORE, CNET, NBC, NBC Multimedia and the LLC hereby agree as follows:
1. CARRIAGE OF CNET SERVICES ON SNAP SITES:
Until the earlier to occur of (i) CNET no longer owing 3,656,250 Units
(adjusted as appropriate to reflect any conversion to corporate form and any
stock split or similar recapitalization) or (ii) CNET no longer owning 5% of the
outstanding Units (or common stock of any successor corporation as contemplated
by the LLC Agreement) on a fully-diluted basis (the "CNET Carriage Period"),
certain Content (as defined below) from sites majority-owned or otherwise
controlled by CNET ("CNET Content") will be displayed in the following manner on
Snap Sites, subject to Snap's editorial and technical guidelines and standards:
1.1 In the Computing and Internet Topic (as defined below)
as it exists today (and its successors) and the Subtopics (as defined
below) for such Topic as they exist today (and their successors,
including any new Topics into which such Subtopics may be converted)
(collectively, the "CNET Topics and Subtopics"), Snap Sites will
display CNET Content or link to CNET Content where applicable as the
Default and Preferred (as defined below) but non-exclusive Content (as
defined below) provider, including in "Showcase Portals", "Highlight
Links", and "Resource Pages" (which are illustrated in Appendix A)
which appear on pages where the CNET Topics or Subtopics are located.
As used herein, the following terms have the following meanings:
(a) "Content" means headlines, summaries, commodity information
(such as weather), links to databases of information, and other
information.
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(b) "Topic" means a sub-section of the Snap Site that
organizes information about a particular area of interest. Topics
are organized in a hierarchy. The top-most level of the hierarchy
is called the "Main Topic Page." Pages within the Topic but below
the Main Topic Page are called "Sub-Topic Pages". Main Topic
Pages and Sub-Topic Pages may include links to Resource Centers,
which aggregate Content relevant to the Topic. Resource Centers
may contain one or more pages which may be programmed by a third
party content provider or Snap or both.
(c) "Preferred" means (i) when a link to or
display of Content appears in a list, the link or Content is in
the default, top-most, and left-most position; or (ii) when a link
to or display of Content appears in a format other than a list,
the link or Content is more visually prominent than links to or
Content displayed from competitive services.
(d) "Default" means Content that appears in all
versions of the Snap Site, including but not limited to all
co-branded versions, unless an individual Snap distribution
partner has been granted the right to replace the Default with its
own Content or Content from third parties. The LLC will treat
CNET's Content and NBC's Content equally with respect to the
manner and terms upon which it allows distribution partners to
replace Content within versions of the Snap Site. For purposes of
clarity, the parties acknowledge that the preceding sentence will
not prevent a distribution partner from choosing to replace CNET
Content but not NBC Content (or vice versa).
1.2 In any case where a Snap Site provides a link to a site the
principal purpose of which is to promote, provide information about or
sell computer hardware or software, Xxxxxxxxx.xxx and/or
XxxxxxxxXXX.xxx (or other appropriate successor sites majority-owned or
otherwise controlled by CNET and designated by CNET) will be the
Preferred, but non-exclusive Content provider on a Default basis.
1.3 CNET will be the Preferred and Default software
downloading service for Snap Sites. The software downloading service
to be provided by CNET will be a web-based service that aggregates over
500 independent software titles in a web-based environment that
facilitates direct software downloading and is similar in functionality
to xxxxxxxx.xxx or the successor thereof. CNET will not charge the LLC
for this service, except that Snap will reimburse CNET for reasonable
direct costs of providing the service plus 10%. CNET will not share
revenue from this service with the LLC, and the LLC will not charge
CNET fees for using this service. The LLC will access the underlying
raw software downloading data from CNET and such data will be served by
the LLC on Snap and the LLC will retain all related revenue. The LLC
will not alter the order of CNET's listing of FTP sites or remove any
promotional links embedded in such listing, but the LLC may
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alter the formatting of such promotional links (for example, by
changing graphical links or buttons into text links). CNET will retain
any revenue related to the ordering of such listing or such promotional
links.
1.4 No third party Content provider can buy a more prominent
position on any page of the Snap Site than the position to which CNET
Content is entitled to appear on such page pursuant to this Section 1.
1.5 Whenever CNET provides Content to the LLC in accordance
with this Section 1, such Content will include branding for CNET
similar to branding provided for similarly situated content and service
providers, subject to Snap's reasonable guidelines and subject to
compliance with CNET's reasonable trademark usage guidelines.
1.6 The LLC will not charge CNET, and (except as set forth
in the next sentence) CNET will not charge the LLC, for the right to
display CNET Content or links to CNET Content within Snap Sites. If
the LLC pays a CNET competitor for the right to display the
competitor's Content or links to the competitor's Content within Snap
Sites in the CNET Topics or Subtopics and such Content is comparable to
Content provided by CNET within the CNET Topics or Subtopics, then the
LLC will negotiate terms for provisions of equivalent Content by CNET
on a most favored nations basis, such that, in return for providing
Content comparable to that to be provided by the relevant competitor
under the applicable arrangement in terms of subject matter, breadth,
depth and quality, CNET will receive compensation as favorable as the
compensation afforded by the LLC to any provider of like Content.
1.7 During the one year period following expiration of the
CNET Carriage Period set forth above, other than due to a sale of all
of CNET's Units pursuant to the buy/sell procedure in Section 7.5 of
the LLC Agreement (the "Buy/Sell") (in which event this Section 1.7
will not apply), CNET will have a right of first offer to provide to
each Snap Site on a Preferred and Default basis any Content provided by
CNET to such Snap Site on a Preferred and Default basis immediately
prior to such expiration, provided that in Snap's good faith judgment
CNET's Content is comparable to the best Content provided by other
Content providers in terms of subject matter, breadth, depth and
quality. Such right of first offer will be implemented as follows: (a)
before offering any third party the right to provide any portion of
such Content on a Preferred and Default basis, the LLC and CNET will
negotiate in good faith concerning the terms on which CNET would be
willing to provide such portion of the Content on a Preferred and
Default basis; and (b) if the LLC elects not to obtain such portion of
the Content from CNET on such terms, then the LLC will be able to
obtain such portion of the Content from a third party, but only on
terms that are no more favorable to such third party than those
previously offered to CNET.
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2. Carriage of NBC Services on Snap Sites:
Until the earlier to occur of (i) NBC Multimedia no longer owning
3,656,250 Units (adjusted as appropriate to reflect any conversion to corporate
form and any stock split or similar recapitalization) or (ii) NBC Multimedia no
longer owning 5% of the outstanding Units (or common stock of any successor
corporation as contemplated by the LLC Agreement) on a fully-diluted basis (the
"NBC Carriage Period"), certain NBC Content (as defined below) will be displayed
in the following manner on Snap Sites, subject to Snap's editorial and technical
guidelines:
2.1 In the News Topic as it exists today (and its
successors) and the Subtopics for such Topic as they exist today (and
their successors including any new Topics into which such Subtopics may
be converted), Snap Sites will display or link to content from sites
majority-owned or otherwise controlled by NBC (such as CNBC or MSNBC)
(collectively, "NBC Content") where applicable as the Default and
Preferred but non-exclusive Content provider, including in "Showcase
Portals", "Highlight Links", and "Resource Pages" which appear on pages
where such Topics or Subtopics are located.
2.2 In the Business and Money and Sports Topics as they
exist today (and their successors) and in the Subtopics for such Topics
as they exist today (and their successors including any new Topics into
which such Subtopics may be converted), Snap Sites will display NBC
Content or link to NBC Content (including, without limitation,
XXXXXXxxxxx.xxx and XXXXxxxxx.xxx) where applicable, with the
prominence of such display or link being commensurate with the quality
of such Content in terms of subject matter, breadth, depth and quality
relative to other Content that is displayed or linked to. With respect
to such Topics and Subtopics, NBC Content will be displayed or linked
to where applicable as the Default and Preferred but non-exclusive
Content provider, including in "Showcase Portals", "Highlight Links"
and "Resource Pages" which appear on pages where such Topics or
Subtopics are located, if such NBC Content is comparable to the best
such Content otherwise available to the Snap Site (measured in terms of
subject matter, breadth, depth and quality taken as a whole) such that
the quality of such Topic or Subtopic would not be adversely affected
in any material respect by NBC Content being the Preferred Content.
2.3 In the Local Topic as its exists today (and its
successors) and in the Subtopics for such Topic as they exist today
(and their successors including any new Topics into which such
Subtopics may be converted), Snap Sites will provide (i) a fixed
position branded link to the appropriate NBC television station site
positioned prominently above the fold on the Resource Center page
corresponding to the geographic area served by such NBC television
station and (ii) for each NBC Interactive Neighborhood (NBC-IN)
affiliate, a directory listing on the Subtopic page for such relevant
city.
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2.4 With respect to any existing or future NBC Content
relating to Topics or Subtopics not governed by Section 2.1 or 2.2
above (including, without limitation, under the Entertainment and Audio
Video Topics and Subtopics under such Topics) the provider of such
Content and the LLC will, at NBC's request, enter into carriage and
prominence arrangements with Snap for consideration commensurate to the
prominence received, with the carriage and prominence received being
commensurate with the quality of such Content in terms of subject
matter, breadth, depth and quality relative to other Content contained
on Snap Sites in the relevant Topic or Subtopic.
2.5 No third party Content provider can buy a more prominent
position on any page of the Snap Site than the position to which NBC
Content is entitled to appear on such page pursuant to this Section 2.
2.6 Whenever NBC Content is provided to the LLC in accordance
with this Section 2, such Content will including branding for NBC
similar to branding provided for similarly situated content and service
providers, subject to Snap's reasonable guidelines and subject to
compliance with NBC's reasonable trademark usage guidelines.
2.7 The LLC will not charge NBC, and (except as set forth in
the next sentence) NBC will not charge the LLC, for the right to
display NBC Content or links to NBC Content within Snap Sites. If the
LLC pays a NBC competitor for the right to display the competitor's
Content or links to the competitor's Content within Snap Sites on
Topics or Subtopics within which NBC Content is entitled to appear
pursuant to this Section 2 ("NBC Topics and Subtopics") and such
Content is comparable to Content provided by NBC within the NBC Topics
or Subtopics, then the LLC will negotiate terms for provisions of
equivalent Content by NBC on a most favored nations basis, such that,
in return for providing Content comparable to that to be provided by
the relevant competitor under the applicable arrangement in terms of
subject matter, breadth, depth and quality, NBC will receive
compensation as favorable as the compensation afforded by the LLC to
any provider of like Content.
2.8 During the one year period following expiration of the
NBC Carriage Period set forth above, other than due to a sale of all of
NBC's Units pursuant to the Buy/Sell (in which event this Section 2.8
will not apply), NBC will have a right of first offer to provide to
each Snap Site on a Preferred and Default basis any Content provided by
NBC to such Snap Site on a Preferred and Default basis immediately
prior to such expiration, provided that in Snap's good faith judgment
NBC's Content is comparable to the best Content provided by other
Content providers in terms of subject matter, breadth, depth and
quality. Such right of first offer will be implemented as follows: (a)
before offering any third party the right to provide any portion of
such Content on a Preferred and Default basis, the LLC and NBC will
negotiate in good faith concerning the terms on which NBC would be
willing
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to provide such portion of the Content on a Preferred and Default
basis; and (b) if the LLC elects not to obtain such portion of the
Content from NBC on such terms, then the LLC will be able to obtain
such portion of the Content from a third party, but only on terms that
are no more favorable to such third party than those previously offered
to NBC.
2.9 All references herein to "NBC" when related to NBC
Content will include the relevant NBC-affiliated provider of such NBC
Content.
3. NBC EXCLUSIVITY
3.1 The provisions of this Section 3 will apply during the
period ending on the earlier to occur of (i) the five year anniversary
of the Closing, (ii) the exercise of the NBC Call and (iii) closing of
any purchase and sale under the Buy/Sell (the "Exclusivity Period").
3.2 "Snap Competitor" means a broad-based information,
navigation and content aggregation service distributed primarily
through the world wide web that provides, across more than five topics
of general interest that do not relate to each other or to any other
common topic or theme, a combination of all or substantially all of the
following: Internet searching, content aggregation, online community,
topical interest categories, and web directories (a "General Internet
Portal Service"). A "topic of interest" ("Main Topic") is defined as a
top-level category of information as shown (or, in the case of a Snap
competitor, comparable to a category of information as shown) on the
home page of Snap (e.g., Sports, Travel, Computing and the Internet,
etc.). As of today, the "Snap Competitors" are Microsoft Start,
Netscape NetCenter, AOL, Prodigy Internet, Yahoo, Excite, Infoseek,
Lycos, LookSmart, HotBot, Alta Vista, and Planet Direct. For the
avoidance of doubt, the terms "Snap Competitor" and "General Internet
Portal Service" do not include any information, navigation and content
aggregation service (a "Specialized Internet Content Service") designed
to organize a specific type of Internet Content that is limited in
scope by topic or otherwise not intended to organize the broad spectrum
of the Internet as described above. Examples of Specialized Internet
Content Services that do not constitute Snap competitors include
XXX.xxx, NBC-IN, MSNBC, Videoseeker, Xxxxxx.xxx, XXXX.XXX, XXXX.XXX,
XXXXXXXXX.XXX, XxxxxxxxXXX.xxx, XXXXXXXXXX.XXX, XXXXXXXX.XXX,
XXXXXXXXX.XXX and XXXXXXX.XXX.
3.3 Snap will be the Preferred search engine and general
content aggregation service (i.e., General Internet Portal Service) on
any NBC Site (as defined below) with the exception of links to Snap
Competitors that are provided as part of editorial content (e.g. a news
story), which shall not be subject to this clause. At the option of
NBC, such services shall be delivered via either (i) a direct link to
Snap or (ii) a real time query ("RTQ") to Snap which is served on pages
of the relevant NBC Site. If NBC chooses RTQ delivery, it will pay the
LLC's actual direct costs plus
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10% for providing such service. Notwithstanding the foregoing, if (a)
Snap cannot provide the required functionality within a reasonable
period of time, or (b) if the quality of services available from Snap
is materially inferior to those available from a third party, or (c)
with respect to customized or specialized search or aggregation
services (as opposed to general search services covering an unlimited
range of Content areas), if the price of services available from Snap
is not competitive with that offered by a third party, then the NBC
Site may utilize another search engine or general content aggregation
service, as applicable, as the Preferred service for such function,
provided that NBC first offers Snap the right to provide such services
on the specified terms and does not thereafter offer more favorable
terms to a third party. For purposes hereof, an "NBC Site" (i) shall
include any Internet site directly operated and controlled by NBC or
any of its majority-owned subsidiaries and (ii) for the avoidance of
doubt will not include any Internet site operated or controlled by
MSNBC, Interactive Desktop Video LLC, Interactive Business News Video
LLC, European business News Partners or ASIA Business News (Singapore)
Private.
3.4 Whenever Snap provides search or aggregation services to
an NBC Site pursuant to this Section 3, such services will include
branding for Snap similar to branding provided for similarly situated
service providers, subject to the NBC Sites' reasonable guidelines and
subject to compliance with Snap's reasonable trademark usage
guidelines. To the extent that an NBC Site is required to provide
branding for a third party information provider (e.g. Inktomi) in
connection with such Snap services, branding for Snap will be more
prominent than branding for such third party (subject to Snap's
contractual obligations to such third party).
3.5 Notwithstanding anything to the contrary herein, NBC may
continue to allow Infoseek to provide services on NBC-IN in accordance
with, and until termination of, NBC's current agreement with Infoseek.
NBC will use reasonable commercial efforts to terminate such
arrangement if possible without detrimental economic impact to NBC if
requested by CNET.
3.6 NBC will not enter into a relationship with a Snap
Competitor that allows the Snap Competitor to co-brand its General
Internet Portal Service with NBC's brand. Notwithstanding the
foregoing, NBC may co-brand NBC Content provided to a Snap Competitor.
NBC will not enter into any agreement to provide to any Snap Competitor
NBC Content having greater overall breadth, depth, or quality than the
Content offered by NBC to the LLC.
3.7 Neither NBC, any subsidiary of NBC in which NBC,
directly or indirectly, owns more than 50% of the voting securities of
such subsidiary or any other entity for which NBC directly or
indirectly has the right to designate a majority of the board of
directors or similar governing body or otherwise solely controls (i.e.,
no other Person has control rights) (collectively, a "majority owned
subsidiary of NBC"), will invest in, purchase or loan money to a Snap
Competitor, provided that this
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will not prevent (i) the acquisition of up to a 5% equity interest in a
Snap Competitor, (ii) acquisitions of a majority of the voting
securities or partnership interests, or the right to designate a
majority of the directors or other governing body, of any Person or
business that has as part of its operations a Snap Competitor provided
that such Snap Competitor accounts for less than 20% of such acquired
Person's or business's gross revenues at the time of acquisition and
the acquiring party divests (or takes such actions as may be necessary
so that the operations no longer constitute a Snap Competitor) no later
than 18 months after such acquisition and (iii) investments ("NBC
Ancillary Investments") constituting less than a majority of the voting
securities or partnership interests (without any right to designate a
majority of the directors or other governing body) of any Person or
business that has as part of its operations a Snap Competitor provided
that (A) at the time of such investment such Snap Competitor accounts
for less than 20% of the gross revenues of the Person in whom such
investment is made, (B) neither NBC nor any of its majority-owned
subsidiaries is actively involved in the management or operations of
such Snap Competitor and (C) NBC and its majority-owned subsidiaries
will not make available to such Snap Competitor any promotional
assistance except pursuant to clause (ii) of the following sentence.
NBC and its majority-owned subsidiaries will not provide promotional
assistance to a Snap Competitor, other than (i) in the case of Snap
Competitors other than those owned by NBC Ancillary Investments,
promotional assistance provided as part of or in connection with the
provision by NBC or its majority-owned subsidiaries of Content,
provided that the value of such promotion does not exceed $5 million
per year as measured by NBC's or its subsidiary's standard rate card;
and (ii) promotional assistance that is acquired by a Snap Competitor
on market terms in the ordinary course of conduct of NBC's and its
subsidiaries' business. The foregoing will not prevent NBC or its
subsidiaries from selling, providing, purchasing or acquiring
advertising or advertising time or space to or from a Snap Competitor
in the ordinary course of business.
3.8 For the avoidance of doubt, "Snap Competitor" does not
include any service the principal purpose of which is (i) the
transmission of any kind, now or hereafter devised, which makes
programs and other audio and/or visual recordings of any length,
available for viewing in a linear predetermined presentation (E.G.,
broadcast television, cable television, pay-per-view, video-on-demand)
and/or (ii) the delivery of Content related to the material transmitted
in clause (i). In addition, (A) "Snap Competitor" does not include any
General Internet Portal Service or application having as its primary
target use in connection with television and/or television-related
devices (e.g. Web TV) and (B) the provisions of this Section 3 will not
apply to (and NBC and its majority-owned subsidiaries will not in any
way be restricted or have any obligations or liabilities with respect
to) any Internet services or sites (including without limitation, Web
TV) having as its primary target use in connection with television
and/or television-related devices and applications. Snap intends to
actively pursue becoming a general
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Internal portal for television-based Internet applications, which could
result in Snap becoming a competitor of WebTV and similar services.
3.9 The provisions of this Section 3 shall also apply to
activities of a subsidiary of General Electric Company (a "GE Entity")
to the same extent they apply to NBC if and only if (1) NBC or any of
its majority-owned subsidiaries is directly or indirectly responsible
for, or oversees, the management of such activity or (2) for internal
financial reporting purposes such activity is considered part of NBC
and its subsidiaries or is otherwise reflected on NBC's consolidated
financial results. For avoidance of doubt, except as provided in the
immediately preceding sentence, none of the GE Entities (other than NBC
and its majority-owned subsidiaries) will be subject to the provisions
of this Section 3.
4. CNET EXCLUSIVITY
During the Exclusivity Period:
4.1 Snap will be the Preferred search engine and general
content aggregation service (i.e. General Internet Portal Service) on
any CNET Site (as defined below), with the exception of links to Snap
Competitors that are provided as part of editorial content (e.g. a news
story, which shall not be subject to this clause). At the option of
CNET, such services shall be delivered via either (i) a direct link to
Snap or (ii) a RTQ to Snap which is served on pages of the relevant
CNET slide. If CNET chooses RTQ delivery, it will pay the LLC's actual
direct costs plus 10% for providing such service. Notwithstanding the
foregoing, if (a) Snap cannot provide the required functionality within
a reasonable period of time, or (b) if the quality of services
available from Snap is materially inferior to those available from a
third party, or (c) with respect to customized or specialized search or
aggregation services (as opposed to general search services covering an
unlimited range of Content areas), if the price of services available
from Snap is not competitive with that offered by a third party, then
the CNET Site may utilize another search engine or general content
aggregation service, as applicable, as the Preferred service for such
function, provided that CNET first offers Snap the right to provide
such services on specified terms and does not thereafter offer more
favorable terms to a third party. For purposes hereof, a "CNET Site"
shall include any Internet site directly operated and controlled by
CNET or any of its majority-owned subsidiaries.
4.2 Whenever Snap provides search or aggregation services to
a CNET Site pursuant to this Section 4, such services will include
branding for Snap similar to branding provided for similarly situated
service providers, subject to the CNET Sites' reasonable guidelines and
subject to compliance with Snap's reasonable trademark usage
guidelines. To the extent that a CNET Site is required to provide
branding for a third party information provider (e.g. Inktomi) in
connection with such Snap
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services, branding for Snap will be more prominent than branding for
such third party (subject to Snap's contractual obligations to such
third party).
4.3 CNET will not enter into a relationship with a Snap
Competitor that allows the Snap Competitor to co-brand its General
Internet Portal Service with CNET's brand. Notwithstanding the
foregoing, CNET may co-brand Content provided to a Snap Competitor.
CNET will not enter into any agreement to provide to any Snap
Competitor Content having greater overall breadth, depth, or quality
than the Content offered by CNET to the LLC.
4.4 Neither CNET, any subsidiary of CNET in which CNET,
directly or indirectly, owns more than 50% of the voting securities of
such subsidiary or any other entity for which CNET directly or
indirectly has the right to designate a majority of the board of
directors or similar governing body or otherwise solely controls (i.e.,
no other Person has control rights) (collectively, a "majority-owned
subsidiary of CNET") will not invest in, purchase, or loan money to a
Snap Competitor, provided that this will not prevent (i) the
acquisition of up to a 5% equity interest in a Snap competitor or (ii)
acquisitions of a majority of the voting securities or partnership
interests, or the right to designate a majority of the directors or
other governing body, of any Person or business that has as part of its
operations a Snap Competitor provided that such Snap Competitor
accounts for less than 20% of such acquired Person's or business's
gross revenues at the time of acquisition and the acquiring party
divests (or takes such actions as may be necessary so that the
operations no longer constitute a Snap Competitor) no later than 18
months after such acquisition. CNET and its majority- owned
subsidiaries will not provide promotional assistance to, or license any
material intellectual property or technology to or provide material
technical or operational assistance to, a Snap Competitor, other than
(i) promotional assistance provided as part of or in connection with
the provision by CNET, or its majority-owned subsidiaries, of Content,
provided that the value of such promotion does not exceed $5 million
per year for any Snap Competitor as measured by CNET's or its
Subsidiary's standard rate card; (ii) promotional assistance that is
acquired by a Snap Competitor on market terms in the ordinary course of
conduct of CNET's and its subsidiaries' business; and (iii) the
licensing of any intellectual property or technology or the provision
of technical or operational assistance to a Snap Competitor relating to
the transmission of CNET Content to such Snap Competitor and/or the
formatting and technical display of CNET Content by such Snap
Competitor. The foregoing will not prevent CNET or its subsidiaries
from selling, providing purchasing or acquiring advertising or
advertising time or space to or from a Snap Competitor in the ordinary
course of business.
4.5 Xxxxxx.xxx
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4.5.1 CNET operates a web site that is an
organized collection of search engines, and includes both
broad-based search engines as well as those dedicated to specific
subject areas ("Xxxxxx.xxx").
4.5.2 No later than 4 months after the
execution of a Definitive Agreement, and until expiration of the
Exclusivity Period, CNET will (i) position Xxxxxx.xxx in marketing
and promotion efforts and, except as contemplated by Sections
4.5.3 and 4.5.4 below, in design and functionality, as providing
technology-oriented searches and the aggregation of
technology-oriented information; (ii) not aggregate information
other than technology related information; (iii) not develop
co-branded versions of Xxxxxx.xxx; and (iv) not market or promote
Xxxxxx.xxx, or enter into agreements pursuant to which Xxxxxx.xxx
would be promoted, as a default portal to the Internet or as a
provider of general search results (as defined in Section 4.5.4
below). Provided that Xxxxxx.xxx complies with this sub-section,
Xxxxxx.xxx will not be considered a Snap Competitor.
4.5.3 Until CNET has repositioned Xxxxxx.xxx as
described in Section 4.5.2, CNET will provide promotion for Snap
under a transition plan whereby:
4.5.3.1 CNET will take all reasonable
actions within its control to, and will permit the LLC to,
replace Infoseek with Snap, as soon as reasonably
practicable, within the "Search the Web" and "Express Search"
areas of Xxxxxx.xxx (to the extent that such areas continue
to be offered), such that Snap will provide search results on
the business terms described in Section 4.5.5 and Xxxxxx.xxx
will provide branding for Snap no less favorable than that
currently provided to Infoseek (as illustrated in Appendix
B).
4.5.3.2 Continue to make Snap the
default search partner in the "Express Search" function on
Xxxxxx.xxx and move the "Express Search" function so that it
is between the "Search the Web" function and "Specialty
Search" function (as illustrated in Appendix C).
4.5.3.3 Provide links to Snap! no less
favorable than those currently provided to Snap! on
Xxxxxx.xxx (as illustrated in Appendix D).
4.5.4 Until expiration of the Exclusivity
Period, and provided that Snap provides services with quality
reasonably comparable to those available from third parties, Snap
shall be the Preferred provider of general search results to
Xxxxxx.xxx. For the purposes of this sub-section, "general search
results" mean results that span more than technology-related
topics based on a user's query. Nothing herein shall limit the
ability of CNET to
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include on Xxxxxx.xxx links to Snap Competitors, provided
that the requirements of Sections 4.5.2 and 4.5.3 are met.
4.5.5 During the Exclusivity Period, Snap will
provide search results to Xxxxxx.xxx on the following terms:
4.5.5.1 Xxxxxx.xxx will request, and
Snap will provide, search results through the Real-Time Query
Interface or successor thereof. Xxxxxx.xxx will display the
results in the Xxxxxx.xxx user interface with branding for
Snap similar to the branding Snap currently provides to
Inktomi. To the extent that branding for Inktomi is also
required on Xxxxxx.xxx in connection with displaying the Snap
results, branding for Snap will be more prominent than
branding for Inktomi (subject to Snap's contractual
obligations to Inktomi).
4.5.5.2 CNET will sell all advertising
and e-commerce opportunities and retain all revenue
associated with the display of search results on Xxxxxx.xxx.
CNET will reimburse the LLC for the LLC's actual direct costs
to supply the search results (e.g., Inktomi and any bandwidth
costs), plus 10%.
5. REMNANT INVENTORY: Parties agree that during the Exclusivity Period,
NBC (collectively, with its majority-owned subsidiaries) and CNET (collectively,
with its majority-owned subsidiaries) will each be able to use 10% of any unsold
advertising inventory on Snap to promote their products. The remaining
inventory will be used by the LLC for the LLC's business purposes.
6. MISCELLANEOUS.
6.1 INVALIDITY OF PROVISIONS. If any provision of this Agreement is
declared or found to be illegal, unenforceable or void, in whole or in part,
then the parties will be relieved of all obligations arising under such
provision, but only to the extent that it is illegal, unenforceable, or void, it
being the intent and agreement of the parties that this Agreement be deemed
amended by modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
6.2 RELATIONSHIP OF PARTIES. This Agreement will not be construed to
create a joint venture, partnership or the relationship of principal and agent
between the parties hereto, nor to impose upon either party any obligations for
any losses, debts or other obligations incurred by the other party except as
expressly set forth herein.
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6.3 ENTIRE AGREEMENT. This Agreement, together with the Contribution
Agreement and the other Implementing Agreements, constitute the final agreement
of the parties with respect to the subject matter hereof and thereof and
supersede any prior oral or written agreements between the parties. This
Agreement will be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
6.4 ASSIGNMENT. The rights and obligations of the parties under this
Agreement may not be assigned except to the transferee of all or substantially
all of a party's business or, in the case of the LLC, the Snap! Business
(whether by stock sale, merger, asset sale or otherwise).
6.5 GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the substantive laws (and not the choice of law provisions)
of the State of New York.
6.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which together will constitute a single agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized representatives as of the date first above
written.
CNET, INC.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx W. Xxxxxx
Executive Vice President
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President, NBC Cable/
Executive Vice President, NBC
NBC MULTIMEDIA, INC.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: President
SNAP! LLC
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: President
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APPENDIX A
SHOWCASE PORTALS, HIGHLIGHT LINKS AND RESOURCE PAGES
See attached.
Screen printouts of certain Snap! Web pages.
00
XXXXXXXX X
EXISTING INFOSEEK BRANDING
See attached.
Screen printouts of Xxxxxx.xxx Web page.
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APPENDIX C
REPOSITIONING OF EXPRESS SEARCH
See attached.
Screen printout of Xxxxxx.xxx Web page.
17
APPENDIX D
SNAP LINKS
See attached.
Screen printout of Xxxxxx.xxx search results Web page.
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