Exhibit 2.2
Execution Copy
Web Site Services And Maintenance Agreement
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This Web Site Services and Maintenance Agreement (the "Agreement") is
entered into as of May 16, 2001 (the "Effective Date") by and between LiveWorld,
Inc., a Delaware corporation whose principal place of business is located at
0000 X. Xxxxxx Xxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("LiveWorld") and MYESP
Acquisition Corporation, a Delaware corporation whose principal place of
business is located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
("MYESP").
Recitals
WHEREAS, prior to the date hereof, LiveWorld owned and operated the
interactive website having the URL xxx.xxxxxxxx.xxx, through which LiveWorld
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offered Internet users a range of online community services providing
information and entertainment opportunities;
WHEREAS, LiveWorld and MYESP are parties to a Purchase Agreement (the
"Purchase Agreement") of even date herewith pursuant to which MYESP is
purchasing LiveWorld's assets related to the xxxxxxxx.xxx website, MYESP wishes
to engage LiveWorld to continue operating the xxxxxxxx.xxx website on behalf of
MYESP in accordance with the terms of this Agreement, and LiveWorld agrees to
continue operating xxxxxxxx.xxx on behalf of MYESP in accordance with the terms
of this Agreement;
WHEREAS, LiveWorld and the Vice President/General Manager have entered into
an Employment Agreement in the form of the attached Exhibit F;
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NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other valuable consideration which they acknowledge,
the parties agree as follows:
1. Definitions
1.1 "Business" shall mean the business of providing chat, home pages,
discussion boards, and related consumer-created and staff-created editorial
material through the website xxx.xxxxxxxx.xxx, and as planned to be conducted as
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of the execution of the Purchase Agreement.
1.2 "Content" shall mean all text and multimedia information, including but not
limited to sound, data, audio, video, graphics, photographs, artwork, and/or any
other digital material of any description that is accessible to Users.
1.3 "Intellectual Property Right(s)" shall mean all inventions, patent rights,
trademarks, utility models, copyrights, and trade secrets, including all
applications and registrations with respect thereto.
1.4 "LiveWorld Confidential Information" shall mean any confidential or
proprietary information, source code, software tools, designs, schematics, plans
or any other information relating to any research project, work in process,
future development, scientific, engineering, manufacturing, marketing or
business plan or financial or personnel matter relating to LiveWorld, its
present or future products, sales, suppliers, web site visitors, web site users,
employees, investors, or business, disclosed by LiveWorld to MYESP, whether in
oral, written, graphic or electronic form, or learned by MYESP through its
access to LiveWorld's information during the course of this Agreement.
1.5 "LiveWorld Content" shall mean all Content originating with and provided by
LiveWorld pursuant to this Agreement.
1.6 "MYESP Confidential Information" shall mean any confidential or proprietary
information, source code, software tools, designs, schematics, plans or any
other information relating to any research project, work in process, future
development, scientific, engineering, manufacturing, marketing or business plan
or financial or personnel matter relating to MYESP, its present or future
products, sales, suppliers, web site visitors, web site users,
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employees, investors, or business, disclosed by MYESP to LiveWorld, whether in
oral, written, graphic or electronic form, or learned by LiveWorld through its
access to MYESP's information in the course of providing services hereunder.
1.7 "MYESP Materials" shall mean all software, tools, designs, documentation,
data, logos, trademarks, MYESP Content, and other material that MYESP provides
or makes available to LiveWorld in connection with this Agreement.
1.8 "MYESP Content" shall mean all Content originating with and provided by
MYESP pursuant to this Agreement.
1.9 "LiveWorld Retained Web Site Intellectual Property" shall mean all of the
following to the extent (i) not assigned to MYESP pursuant to the Purchase
Agreement and (ii) prior to the execution of the Purchase Agreement, used by
LiveWorld in the Business, held by LiveWorld in connection with the operation of
the Business, or held by LiveWorld and necessary or useful for the operation of
the Business: all (A) patents, patent applications, patent disclosures and all
related continuation, continuation-in-part, divisional, reissue, re-examination,
utility, model, certificate of invention and design patents, patent
applications, registrations and applications for registrations used in the
Business, (B) trademarks, service marks, trade drafts, logos, trade names and
corporate names and registrations and applications for registration thereof used
in the Business, (C) copyrights and registrations and applications for
registration thereof used in the Business, (D) computer software (in both source
code and object code forms), data and documentation, including without
limitation all software developed or acquired for use in connection with the
Business even if such software has not been used in the Business within the past
twenty-four (24) months, (E) trade secrets and confidential business
information, whether patentable or nonpatentable and whether or not reduced to
practice, know-how, manufacturing and product processes and techniques, research
and development information, copyrightable works, financial, marketing and
business data, pricing and cost information, business and marketing plans and
customer, advertiser and supplier lists and information used in the Business,
(F) all Transaction Data and User Data collected by LiveWorld prior to the date
of this Agreement, whether or not within the past twenty-four (24) months in
connection with the Business, (G) other proprietary rights relating to any of
the foregoing, and (H) copies and tangible embodiments thereof.
1.10 "LiveWorld Services" or "Services" shall mean the services and/or products
to be provided by LiveWorld to MYESP related to operating, supporting and
maintaining the Web Site as described in Exhibit A to this Agreement.
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1.11 "LiveWorld Source Code" shall mean the human-readable, source code form of
any computer software included in the LiveWorld Retained Web Site Intellectual
Property.
1.12 "Term" shall mean the term of this Agreement as set forth in Section 11.1.
1.13 "Transaction Data" shall mean information about visitor and User traffic
derived from "cookies," purchases and other activity tracking mechanisms and all
psychographic, demographic and preference profiles derived therefrom on the Web
Site.
1.14 "User" or "Users" shall mean any user of the Web Site.
1.15 "User Data" shall mean information provided by a User when using the Web
Site (including, but not limited to, names, email addresses, credit card
numbers, shopping preferences and demographic information).
1.16 "Web Site" shall mean the interactive Internet website located at the
following URL: xxxx://xxx.xxxxxxxx.xxx; and all existing and contemplated
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foreign language and other variations of such website used in the Business.
2. LiveWorld Web Site Services
2.1 LiveWorld shall provide all services described on the attached Exhibit A
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and its related schedules. The terms and conditions of Exhibit A and its
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related schedules are incorporated herein by this reference.
2.2 In order to facilitate and permit LiveWorld to render the LiveWorld
Services, MYESP will provide the resources and MYESP Materials and fulfill the
duties set forth in Schedule 2 of Exhibit A to this Agreement. In the event
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that the parties agree that LiveWorld should provide additional services not
expressly set forth on Exhibit A or
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its related schedules, no obligation to provide said services shall arise until
the parties execute an addendum to the Exhibits attached to this Agreement which
fully describes the additional service and any additional payment therefor.
2.3 MYESP acknowledges that it is LiveWorld's policy to provide "clean, well-
lighted community" web site services to the internet community. As such,
LiveWorld does not wish to provide services or participate in the implementation
of web-related Content designed to promote, advertise and/or focus on
pornography, explicit sex, illegal drugs, tobacco, alcohol, hate speech,
profanity or any other content that otherwise violates applicable law
("Prohibited Content"). If MYESP Content contains Prohibited Content, MYESP
acknowledges and agrees that LiveWorld may refuse, reject and/or cancel orders
for such MYESP Content. If there is a dispute between the parties regarding
whether or not the MYESP Content contains Prohibited Content, the parties shall
resolve the dispute pursuant to the arbitration provisions in Section 12.6.
2.4 MYESP agrees that it will not provide fee based services to Fortune 1000
companies (and comparable international companies). MYESP will not provide
private label OEM services. MYESP can provide Talk City branded and/or co-
branded free, subscription or e-commerce transaction services to consumers and
small businesses.
2.5 Until such time as MYESP has established a privacy policy and terms of use
for the Web Site which are reasonably acceptable to LiveWorld, the LiveWorld
Services shall be provided subject to and in accordance with LiveWorld's current
privacy policy and terms of use in effect at the Web Site. LiveWorld may refuse
to host or tolerate any Content introduced by Users onto the Web Site which
conflicts with or violates LiveWorld's privacy policy or terms of use
("Restricted User Content"); provided that LiveWorld shall not suspend a
substantial portion of the Web Site or LiveWorld Services that does not contain
Restricted User Content in order to control Restricted User Content.
LiveWorld's existing privacy and standards policy is attached hereto as Exhibit
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E and LiveWorld may not modify such privacy policy or terms of use unless such
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modifications are reasonably acceptable to MYESP.
3. Financials
3.1 Fees. In consideration of the LiveWorld Services, MYESP shall pay to
LiveWorld the base fees described in Exhibit B to this Agreement. If MYESP
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elects to receive the optional Services set forth in paragraph II to Schedule 1
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attached to Exhibit A, MYESP shall pay to LiveWorld the optional fees described
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in Exhibit B to this Agreement. Fees do not include variable utility costs
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associated with operating the Web Site, such as telecommunications and network
access charges incurred by LiveWorld which are specifically allocated to the Web
Site. All such variable utility charges shall be paid by MYESP. All prices
contemplated in this Agreement shall be in United States dollars and do not
include sales, use, value-added or import taxes, customs duties, tariffs, or
similar taxes not related to LiveWorld's income that may be assessed by any
jurisdiction.
3.2 Audit Rights. LiveWorld shall keep complete, clear, and accurate records
regarding the services performed, LiveWorld's obligations, the payments made,
the calculation of fees and costs payable in connection with this Agreement, and
all other data relevant to LiveWorld's obligations, duties and rights under this
Agreement. MYESP shall have the right, upon thirty (30) days prior written
notice, to have an inspection and audit of LiveWorld's relevant books and
records conducted by an independent audit professional chosen and paid by MYESP
no more than once annually, during regular business hours at LiveWorld's offices
and in a manner that does not interfere with regular business operations. If an
audit discloses that inaccurate information caused a discrepancy of ten percent
(10%) or more of the amount paid by MYESP, then LiveWorld shall bear the costs
of the audit. This provision shall survive any termination or expiration of
this Agreement for a period of two (2) years. Nothing in this provision shall
impair or otherwise affect LiveWorld's access to information and receipt of
reports from MYESP pursuant to the terms of the Purchase Agreement.
3.3 Taxes. Each party shall be responsible for its respective taxes on any
sales, use, excise, value-added, services, consumption, leases, franchise and
privilege taxes on its business, taxes based on net income or gross receipts,
and other taxes and duties payable by either party in the normal course of their
business; provided, however, that MYESP shall be responsible for any sales,
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use, excise, value-added, consumption, franchise and privilege taxes that are
assessed on the provision of the LiveWorld Services to MYESP under this
Agreement, including the purchase of software or other goods and services by
LiveWorld at MYESP's specific request.
3.4 Invoicing; Payments; Late Charges. The first monthly payment of $75,000 is
due upon Closing (as that term is defined in the Purchase Agreement). MYESP
shall prepay the monthly payments for each subsequent month,
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and monthly charges for each subsequent month shall be invoiced at least twenty-
five (25) days before the monthly prepayment is due. Yearly charges shall be
amortized and invoiced on a monthly basis commencing twenty-five (25) days after
the Effective Date. All invoices shall be due and payable on the later of (i)
twenty-five (25) days after the date of the invoice or (ii) the last day of the
month preceding the month for which the payments are to be made (hereinafter,
the "Invoice Due Date"). In the event that MYESP fails to pay the invoice amount
in full on or before the Invoice Due Date, MYESP hereby agrees to pay LiveWorld
a late charge of 1.5% per month, or the maximum lawful rate, whichever is less,
determined and compounded daily from the Invoice Due Date until the date the
invoice is paid in full. Payment of such finance charges will not excuse or cure
any breach or default for late payment. Each party may accept any check or
payment without prejudice to its rights to recover the balance due or to pursue
any other right or remedy. No endorsement or statement on any check or payment
or letter accompanying any check or payment or elsewhere will be construed as an
accord or satisfaction. All payments shall be made in United States dollars.
4. Use and Ownership of Data
4.1 Transaction Tracking and Data Collection. LiveWorld shall be responsible
for tracking any Transaction Data required to perform the LiveWorld Services.
4.2 Use of User Data and Transaction Data. To the extent LiveWorld obtains
such data, MYESP shall own any User Data and/or Transaction Data gathered from
the Web Site in the course of performing this Agreement; provided, however, that
this shall not include any additional User Data and/or Transaction Data
collected as part of LiveWorld's research division panel and not required to
perform the LiveWorld Services, or belonging to a LiveWorld client other than
MYESP.
4.3 Nondisclosure of User Data and User Content. Each party warrants that it
will treat User Data and Transaction Data with the same degree of care as it
treats its own Confidential Information, but in no event with less than
reasonable care. Both parties agree that they will comply with all applicable
laws relating to data protection and privacy, including providing any required
consents, disclosures and/or notices, and making required privacy information
available to a User. Neither party will sell or transfer User Data to any third
party without obtaining the User's consent.
5. Proprietary Rights and Licenses
5.1 MYESP Materials and MYESP Content. MYESP owns or has licenses to all
Intellectual Property Rights in the MYESP Materials and MYESP Content. Subject
to the terms and conditions of this Agreement, MYESP hereby grants LiveWorld a
worldwide, nonexclusive, non-transferable (except in pursuant to Section 12.3),
royalty-free license during the Term to use, reproduce, display, publicly
perform, modify and prepare derivative works of the MYESP Materials and MYESP
Content for the sole purpose of providing the LiveWorld Services to MYESP.
5.2 LiveWorld Retained Web Site Intellectual Property. LiveWorld owns or has
licenses to all LiveWorld Retained Web Site Intellectual Property. Subject to
the terms and conditions of this Agreement and the Purchase Agreement, LiveWorld
hereby grants MYESP a worldwide, irrevocable, nonexclusive, non-transferable
(except pursuant to Section 12.3), license, for the fees set forth in this
Agreement, to use, reproduce, display and publicly perform the LiveWorld
Retained Web Site Intellectual Property solely for the purposes of operating and
maintaining the Web Site and operating the Business; provided that (i) the
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foregoing license shall be a perpetual license to MYESP upon termination or
expiration of this Agreement (except termination by LiveWorld for MYESP's
material breach), and (ii) the foregoing license shall be a perpetual license,
which shall include the LiveWorld Source Code from and after delivery of the
Source Code to MYESP in accordance with the Escrow Agreement (as defined below),
upon the occurrence of a release condition under the Escrow Agreement.
5.3 Trademarks.
5.3.1 Subject to the terms and conditions of this Agreement, MYESP hereby
grants LiveWorld a nonexclusive, non-transferable, worldwide, royalty-free
license to use MYESP's trademarks, trade names and logos (collectively, "MYESP
Trademarks") solely in connection with LiveWorld's performance of its
obligations and duties under this Agreement. LiveWorld shall comply with any
usage guidelines which may be provided by MYESP
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in connection with the MYESP Trademarks, and shall not challenge MYESP's
ownership of the MYESP Trademarks.
5.3.2 Subject to the terms and conditions of this Agreement, LiveWorld
hereby grants MYESP a nonexclusive, non-transferable, worldwide, royalty-free
license to use LiveWorld's trademarks, trade names and logos (collectively,
"LiveWorld Trademarks") solely in connection with MYESP's performance of its
obligations and duties under this Agreement. MYESP shall comply with any usage
guidelines which may be provided by LiveWorld in connection with the LiveWorld
Trademarks, and shall not challenge LiveWorld's ownership of the LiveWorld
Trademarks.
5.4 Restrictions and Proprietary Notices. Neither party may copy, distribute,
reproduce, use, perform, publicly display or allow access to the other party's
Intellectual Property Rights except as explicitly permitted under this
Agreement, and neither party shall, nor will it permit any third party to,
modify, adapt, translate, prepare derivative works from, decompile, reverse
engineer, disassemble or otherwise attempt to derive source code from the other
party's Intellectual Property Rights except as explicitly permitted under this
Agreement. MYESP shall not use LiveWorld Source Code released to it to develop
commercial products, to compete with LiveWorld (as set forth in Section 2.4
herein) or for any purpose other than operating and maintaining the Web Site and
operating the Business. Both parties agree not to remove any copyright or other
proprietary rights notices from the other party's Intellectual Property Rights
without the other party's prior written consent; provided that, subject to
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LiveWorld's prior review and written consent each time, which consent shall not
be unreasonably withheld, MYESP shall be entitled to substitute and modify
proprietary notices for the purpose of creating a uniform Web Site presentation
if MYESP ensures that any substitute or modified notices provide LiveWorld with
equivalent legal protection.
5.5 Ownership. Each party and its licensors (the "Owner") hereby retains
ownership of their respective Intellectual Property Rights. All rights in and to
the foregoing not expressly granted hereunder by the Owner to the other party
are reserved to the Owner thereof. Notwithstanding the foregoing, all
modifications agreed to be made by LiveWorld to the LiveWorld Retained Web Site
Intellectual Property in accordance with a request by MYESP shall be owned by
MYESP ("MYESP Modifications"). LiveWorld agrees to execute all assignments and
to take all further actions as may be reasonably requested by MYESP to vest
ownership of MYESP Modifications in MYESP. All modifications made by LiveWorld
to the LiveWorld Retained Web Site Intellectual Property other than in
accordance with a request by MYESP shall be owned by LiveWorld and shall be
subject to MYESP's license to the LiveWorld Retained Web Site Intellectual
Property set forth in Section 5.2 above. All modifications made by either party
to MYESP's Intellectual Property Rights shall be owned by MYESP. LiveWorld
agrees to execute all assignments and to take all further actions as may be
reasonably requested by MYESP to vest ownership of all modifications to MYESP's
Intellectual Property Rights in MYESP. LiveWorld agrees to make good faith
efforts to undertake modifications requested by MYESP.
5.6 Source Code Escrow. Within sixty (60) days after the Effective Date or as
soon thereafter as possible using all commercially reasonable efforts, LiveWorld
and MYESP shall execute a source code escrow agreement in substantially the form
attached hereto as Exhibit C (the "Escrow Agreement") with DSI Technology Escrow
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Services, Inc. or such other escrow agent as the parties may agree (the "Escrow
Agent"). Upon establishment of the Escrow Agreement, LiveWorld shall deposit
into the escrow account all LiveWorld Source Code and thereafter shall update
such deposit in accordance with the Escrow Agreement. All deposits shall be
accompanied by all programmers' notes, annotations and similar documentation
that LiveWorld uses internally to maintain such LiveWorld Source Code.
LiveWorld agrees that, in the event that for any reason LiveWorld Source Code or
modifications thereto are not deposited into escrow after a reasonable period of
time and, pursuant to the Escrow Agreement, MYESP becomes entitled to a release
of such LiveWorld Source Code, LiveWorld shall be obligated to promptly deliver
such LiveWorld Source Code to MYESP directly.
5.7 Training. During the Term, and for no additional charge, LiveWorld shall
provide two (2) weeks of training (ten (10) business days at eight (8) hours per
day) for up to three (3) MYESP personnel related to the Business and the Web
Site, such training to be in accordance with LiveWorld's customary training
provided to licensees and customers. Such training shall be held at LiveWorld's
Cupertino, California offices and shall be conducted in the English language
only. MYESP shall pay all travel and per diem expenses incurred by its personnel
during such training. Any additional training requested by MYESP shall be as
agreed by the parties, and shall be at LiveWorld's then-current fees for
training.
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6. Representations and Warranties
6.1 Mutual Representations and Warranties. Each party represents and warrants
to the other party that:
6.1.1 When executed and delivered by such party, the Agreement will
constitute the legal, valid, and binding obligation of such party,
enforceable against such party in accordance with the terms and conditions
of the Agreement;
6.1.2 Each party shall not knowingly use rights granted to it hereunder
for any unlawful purpose; and
6.1.3 Each party shall not use any personally identifiable information
provided by any User in a manner which violates applicable international,
U.S. federal or state law, or any legal right of the User regarding the use
and/or disclosure of their personally identifiable information, including,
but not limited to, any rights conferred by the then-current privacy policy
on the Web Site.
6.2 MYESP Representations and Warranties. MYESP represents and warrants that:
6.2.1 MYESP has the full corporate authority, right and power to enter
into, execute and deliver this Agreement, and to perform its obligations
hereunder;
6.2.2 MYESP has all proprietary right, title and interest in and to the
MYESP Materials and MYESP Content, owns or has rights to the copyright and
all trade secret, trademark, tradename and patents, and other proprietary
rights in and to MYESP's Intellectual Property Rights, the MYESP Materials
and MYESP Content, and has full power, right, and authority to use, license
to LiveWorld and exploit the MYESP Materials and MYESP Content in
accordance with this Agreement;
6.2.3 MYESP Materials and MYESP Content will not, to MYESP's knowledge,
violate any copyright, trademark, obscenity, rights of publicity or
privacy, or defamation laws;
6.2.4 To MYESP's knowledge, the MYESP Materials and MYESP Content do not,
as of the Effective Date, and during the Term will not, invade the right of
privacy or publicity of any User or other third person, contain any
libelous, obscene, indecent, or otherwise unlawful material, or infringe
any third party Intellectual Property Rights;
6.2.5 MYESP has received no notice of any claim of invasion, violation or
infringement of rights as described in Sections 6.2.3 and 6.2.4; and
6.2.6 MYESP shall comply with all applicable laws, statutes, ordinances,
rules and regulations of each county, state and city or other political
entity with jurisdiction over the LiveWorld Services for MYESP and/or the
Web Site, and LiveWorld shall not be required by MYESP to violate any
privacy policy or terms of use for the Web Site in connection with
providing the LiveWorld Services.
6.3 LiveWorld Representations and Warranties. LiveWorld represents and
warrants that:
6.3.1 LiveWorld has the full corporate authority, right and power to enter
into, execute and deliver this Agreement, and to perform its obligations
hereunder;
6.3.2 LiveWorld shall comply with all applicable laws, statutes,
ordinances, rules and regulations of each county, state and city or other
political entity with jurisdiction over the LiveWorld Services;
6.3.3 To LiveWorld's knowledge, use of the LiveWorld Retained Web Site
Intellectual Property as authorized by this Agreement will not violate any
laws or regulations or third-party proprietary rights or infringe any other
third party Intellectual Property Rights, including, without limitation,
copyright, trademark, obscenity, rights of publicity or privacy, and
defamation laws;
6.3.4 LiveWorld shall provide all Services in a professional and
workmanlike manner; and
6.3.5 Except for the corporate overhead and administrative assistance
heretofore provided by LiveWorld, the rights and licenses granted by
LiveWorld and MYESP under Section 5.2, together with the Acquired Assets
(as defined in the Purchase Agreement) assigned to MYESP under the Purchase
Agreement, comprise all of the business properties, rights, licenses and
assets necessary for MYESP to operate the Business.
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7. Mutual Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES
ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
WARRANTIES OF TITLE AND NON-INFRINGEMENT, WITH RESPECT TO THE LiveWorld SERVICES
AND ANY OTHER TECHNOLOGY OR SERVICES. LiveWorld ASSUMES NO LIABILITY FOR ANY
ACT OR OMISSION OF MYESP OR A USER, FOR THE QUALITY, AVAILABILITY, OR VALUE OF
ANY GOOD OR SERVICE OFFERED BY A THIRD PARTY IN CONNECTION WITH THE LiveWorld
SERVICES OR ANY INFORMATION AVAILABLE ON THE WEB SITE. LiveWorld SPECIFICALLY
DISCLAIMS ANY WARRANTY THAT THE LiveWorld SERVICES WILL OPERATE AT ALL TIMES IN
AN UNINTERRUPTED MANNER AS THE LiveWorld SERVICES MAY FROM TIME TO TIME BE SHUT
DOWN OR INTERRUPTED DUE TO CAUSES BEYOND THE PARTIES' CONTROL.
8. Mutual Limitation of Liability
EXCEPT FOR CLAIMS ARISING UNDER SECTIONS 9 OR 10 OF THIS AGREEMENT, NEITHER
PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR
PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION LOST
REVENUES OR PROFITS OR LOST BUSINESS WHETHER BASED ON BREACH OF CONTRACT, OR IN
TORT. EXCEPT FOR CLAIMS ARISING UNDER SECTIONS 9 OR 10 OF THIS AGREEMENT,
NEITHER PARTY'S LIABILITY UNDER THIS AGREEMENT SHALL EXCEED $1 MILLION.
9. Mutual Indemnity
9.1 MYESP Indemnity. MYESP agrees to defend, indemnify and hold LiveWorld, and
its successors, officers, directors and employees, harmless from any and all
actions, causes of action, claims, demands, costs, liabilities, expenses and
damages, including reasonable attorneys' fees, to the extent such arise out of:
(i) a breach of any representation, warranty or covenant of MYESP under this
Agreement; (ii) a claim by a third party that data, an image, text, logo, or
other content on the Web Site or in the MYESP Materials, other than content
included in the Acquired Assets (as defined in the Purchase Agreement) or the
LiveWorld Retained Web Site Intellectual Property, infringes an Intellectual
Property Right held by any third party; (iii) a claim by a third party relating
to the quality, availability, value, or safety of any goods and/or services
offered by MYESP or MYESP acting on behalf of a third party, other than such a
claim resulting from LiveWorld's failure to provide the LiveWorld Services in a
professional and workmanlike manner; and (iv) a claim by a third party that
MYESP has, in connection with the operation of the Web Site or the Business,
defamed or libeled, misused private data, or invaded the privacy of a third
party.
9.2 LiveWorld Indemnity. LiveWorld agrees to defend, indemnify and hold MYESP,
and its successors, officers, directors and employees, harmless from any and all
actions, causes of action, claims, demands, costs, liabilities, expenses and
damages, including reasonable attorneys' fees, to the extent such arise out of:
(i) a breach of any representation, warranty or covenant of LiveWorld under this
Agreement; (ii) a claim by a third party that MYESP's use of the LiveWorld
Retained Web Site Intellectual Property or the LiveWorld Services as permitted
hereunder infringes an Intellectual Property Right held by any third party;
(iii) a claim by a third party that LiveWorld has, by means of and in the course
of providing the LiveWorld Services, defamed or libeled, misused private data,
or invaded the privacy of that third party; and (iv) a claim by a third party
resulting from LiveWorld's failure to provide the LiveWorld Services in a
professional and workmanlike manner.
9.3 Indemnity Notice and Process. In connection with any claim for
indemnification under this Section 9, the party seeking indemnification, as a
condition of the indemnity, must: (i) give the indemnifying party prompt written
notice of the claim; (ii) cooperate fully with the indemnifying party in the
defense, handling, and settlement of the claim; and (iii) permit the
indemnifying party to control the defense and settlement of the claim; provided
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that the indemnifying party may not settle the claim without the indemnified
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party's prior written consent.
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10. Confidentiality
10.1 Non-Disclosure. Subject to Sections 10.2 and 10.3, each party agrees that
it shall not make use of, disseminate, or in any way disclose the other party's
Confidential Information to any person, firm or business, except as authorized
by this Agreement or to the extent necessary for performance of this Agreement.
Each party agrees that it shall disclose Confidential Information only to those
of its employees and/or contractors who need to know such information and who
have previously agreed to be bound by the terms and conditions of this
Agreement. Each party agrees that it will treat all Confidential Information of
the other party with the same degree of care as it accords its own Confidential
Information, but in no event shall the standard of care accorded to Confidential
Information of one party in the possession of the other party be less than the
reasonable standard of care. A party's Confidential Information shall mean, in
the case of LiveWorld, the LiveWorld Confidential Information, and in the case
of MYESP, the MYESP Confidential Information.
10.2 Exceptions. The receiving party's obligations with respect to any portion
of Confidential Information will terminate if the receiving party can
demonstrate that: the Confidential Information was in the public domain at the
time it was communicated to the receiving party by the disclosing party; or it
entered the public domain after the time it was communicated to the receiving
party by the disclosing party through no fault of the receiving party; or it was
rightfully in the receiving party's possession free of any obligation of
confidence at the time it was communicated to the receiving party by the
disclosing party; or it was developed by the receiving party independently of
and without reference to any information communicated to the receiving party by
the disclosing party.
10.3 Permitted Disclosure. Either party may disclose the existence and terms
of the Agreement to actual and prospective investors and their counsel and
advisors in connection with any private placement of securities, or in
connection with a merger, acquisition, or sale of all or substantially all of
its assets. Disclosure of the other party's Confidential Information shall not
be a violation of this Agreement if the disclosure was pursuant to applicable
federal, state or local law, regulation, court order, or other legal process;
provided that the disclosing party must first notify the other party of such
disclosure requirement or order and use reasonable efforts to obtain, or permit
the other party to seek, confidential treatment or a protective order therefor.
11. Term and termination
11.1 Term. Unless terminated earlier pursuant to the termination provisions in
this Section 11, this Agreement shall remain in effect for one year from the
Effective Date. The Agreement will then automatically renew for successive one-
year periods unless either party notifies the other in writing at least ninety
(90) days prior to the end of the initial or then-current renewal term that it
will not renew the Agreement, provided that any renewal of this Agreement after
the initial one year term shall be at LiveWorld's current fees for the same
LiveWorld Services as of the renewal date.
11.2 Effects of Expiration or Termination. Upon the expiration or termination
of the Agreement, each party shall destroy all the other's Confidential
Information in its possession, or, at the request of the owner thereof, return
to the owner such Confidential Information, provided, however, that MYESP may
continue to retain LiveWorld Confidential Information after termination or
expiration of this Agreement to the extent necessary to use the license rights
granted under Section 5.2 which survive termination or expiration of this
Agreement. All accrued payment obligations of LiveWorld and MYESP shall survive
expiration or termination of this Agreement. The provisions of this Agreement
respecting Use and Ownership of Data ((S)4), Proprietary Rights ((S)5), Mutual
Disclaimer of Warranties ((S)7), Mutual Limitation of Liability ((S)8), Mutual
Indemnity ((S)9) Confidentiality ((S)10) and certain General Provisions
((S)(S)12.2, 12.5) shall survive any expiration or termination of this
Agreement.
11.3 LiveWorld Default. In the event of a material breach of this Agreement by
LiveWorld, MYESP shall provide written notice thereof to LiveWorld within ten
(10) days of the date MYESP becomes aware of the breach (the "LiveWorld Default
Notice"). If such breach cannot be cured or has not been cured (a "LiveWorld
Default") within twenty (20) days of the date of the LiveWorld Default Notice
(the "LiveWorld Default Date"), this Agreement shall terminate as of the
Termination Date (as defined below) pursuant to the terms and conditions set
forth below in this Section 11.3.
11.3.1 Transition Period. There shall be a ninety-day period following
the LiveWorld Default Date (the "Transition Period"), during which time
MYESP and LiveWorld shall each use their respective
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commercially reasonable efforts to transition the operation of the Business
such that LiveWorld is no longer providing MYESP with the LiveWorld
Services and MYESP is operating the business wholly independently. During
the Transition Period, LiveWorld shall be entitled to receive payment for
LiveWorld Services rendered in connection with the operation of the
Business pursuant to the terms of this Agreement. The termination of this
Agreement in connection with a LiveWorld Default shall be effective as of
the last day of the Transition Period (the "Termination Date").
11.3.2 Payments under the Purchase Agreement. Any LiveWorld Default and
any termination of this Agreement as a result thereof shall not affect the
obligations of MYESP to make payments to LiveWorld of the Purchase Price
(as such term is defined in the Purchase Agreement) pursuant to the
Purchase Agreement; provided, however, that MYESP shall be entitled to
reduce the amount of any unpaid portion of the Purchase Price payable under
the Purchase Agreement by an amount equal to the lesser of: (i) $200,000 or
(ii) any amount of the Purchase Price not yet paid under the Purchase
Agreement as of the Termination Date.
11.3.3 Release of Source Code. In the event of any LiveWorld Default and
any termination of this Agreement as a result thereof, except as otherwise
provided with respect to modifications in Section 5.5 of this Agreement,
both parties shall each take any necessary actions to facilitate the
release of the LiveWorld Source code from the Escrow Agreement to MYESP.
11.4 MYESP Default. In the event of a material breach of this Agreement by
MYESP, including, without limitation, the failure to make payments due hereunder
pursuant to payment terms specified herein, LiveWorld shall provide written
notice of such breach to MYESP within ten (10) days of the date LiveWorld
becomes aware of the breach (the "MYESP Default Notice"). If such breach cannot
be cured or has not been cured (a "MYESP Default") within twenty (20) days of
the date of the MYESP Default Notice (the "MYESP Default Date"), this Agreement
shall terminate as of the MYESP Default Date, or on such other later date as the
parties may mutually agree in writing, pursuant to the terms and conditions set
forth below in this Section 11.4.
11.4.1 Purchase Agreement. In the event of a MYESP Default, LiveWorld
shall be entitled, at the option of MYESP, (i) to regain possession and
ownership of the Acquired Assets (as such term is defined in the Purchase
Agreement) pursuant to the terms and conditions set forth in the Security
Agreement OR (ii) to payment of the entire unpaid balance of the Purchase
Price (as such term is defined in the Purchase Agreement) and MYESP shall
retain possession of the Acquired Assets (as such term is defined in the
Purchase Agreement) and shall receive a license to the LiveWorld Source
Code pursuant to Section 5.2 of this Agreement. Within five (5) days of
the MYESP Default Date, MYESP will provide LiveWorld with written notice of
whether it chooses to proceed via clause (i) or clause (ii) of the
preceding sentence; provided that if MYESP does not make such an election
within five (5) days, MYESP will be deemed to have elected to proceed via
clause (ii).
11.4.2 Release of Source Code. In the event of a MYESP Default and any
termination of this Agreement as a result thereof, and if MYESP chooses to
pay LiveWorld the entire unpaid balance of the Purchase Price, except as
otherwise provided with respect to modifications in Section 5.5 herein,
both parties shall take any necessary actions to release of the LiveWorld
Source Code from the Escrow Agreement to MYESP.
12. General Provisions
12.1 Independent Contractors. Notwithstanding the use of the term "partner" in
this Agreement, the attached Exhibits and/or any marketing materials or press
releases generated in connection with this Agreement, the relationship of
LiveWorld and MYESP is that of independent contractors. Nothing in this
Agreement shall; (i) be construed to create a partnership or joint venture
between LiveWorld and MYESP; (ii) give either party the power to direct or
control the day-to-day activities of the other; (iii) grant authority to the
other party, or allow either party to create, assume or enter into agreements of
any kind on behalf of the other party for any purpose whatsoever.
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12.2 Hiring of Employees. All parties acknowledge and agree that their
respective employees and internet hosts/contractors are important assets of the
parties' respective businesses. Accordingly, all parties agree that they shall
not solicit or knowingly hire the other's employees and/or internet
hosts/contractors during the Term, and for a period of one (1) year following
expiration and/or termination of this Agreement. Notwithstanding the foregoing,
MYESP shall be entitled to hire LiveWorld's employees who are actively involved
in providing the LiveWorld Services upon termination of this Agreement, upon the
agreement of such employees.
12.3 Assignment. This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns. Neither party may assign this
Agreement, in whole or in part, without the other party's prior written consent;
provided, however, that this Agreement may be assigned, or the rights and
-------- -------
obligations of this Agreement may be transferred by either party in connection
with a sale or transfer of all or substantially all of its business or assets
relating to the subject matter of this Agreement. Any assignment, or attempted
assignment, in violation of this Section 12.3 shall be null and void and of no
effect whatsoever.
12.4 Force Majeure. Without limiting the foregoing, neither party shall be
liable for any failure or delay resulting from any governmental action, fire,
flood, insurrection, earthquake, power failure, riot, explosion, embargo,
strikes whether legal or illegal, labor or material shortage, transportation
interruption of any kind, work slowdown or any other condition beyond the
control of the affected party. This section shall not apply to the payment
obligations hereunder.
12.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Delaware.
12.6 Arbitration.
12.6.1. The Parties agree that any dispute or controversy arising out of,
relating to, or in connection with this Agreement, or the interpretation,
validity, construction, performance, breach, or termination thereof, shall
be settled by binding arbitration to be held in accordance with the
American Arbitration Association Commercial Arbitration Rules, and
Supplemental Procedures for Large Complex Disputes (together the "Rules").
If MYESP initiates the arbitration, such arbitration shall be held in the
county of Santa Clara, California. If LiveWorld initiates the arbitration,
such arbitration shall be held in the City of Boston, Massachusetts. Such
dispute or controversy shall be settled by arbitration conducted by one
arbitrator mutually agreeable to the Seller and the Buyer. In the event
that within fifteen (15) days after submission of any dispute to
arbitration, the Seller and the Buyer cannot mutually agree on one
arbitrator, the Seller and the Buyer shall each select one arbitrator, and
the two arbitrators so selected shall select a third arbitrator. The
decision of the arbitrator or a majority of the three arbitrators, as the
case may be, shall be final, binding and conclusive upon the parties to the
arbitration. Judgment may be entered on the arbitrator(s)' decision in any
court having jurisdiction.
12.6.2. At the request of either Party, the arbitrator(s) will enter an
appropriate protective order to maintain the confidentiality of information
produced or exchanged in the course of the arbitration proceedings.
12.6.3. The arbitrator(s) shall apply Delaware law to the merits of any
dispute or claim, without reference to rules of conflicts of law.
12.6.4. THE PARTIES HAVE READ AND UNDERSTANDS THIS SECTION, WHICH
DISCUSSES ARBITRATION. THE PARTIES UNDERSTAND THAT BY SIGNING THIS
AGREEMENT, THEY AGREE TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR
IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING
ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF THE
PARTY'S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT.
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12.7 Complete Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter of this Agreement. The
Agreement supersedes all previous agreements between LiveWorld and MYESP
concerning the subject matter of this Agreement. Neither party has relied on any
statement, representation or promise of the other party or of any officer,
agent, employee or attorney for the other party, in executing this Agreement
except as expressly stated in this Agreement.
12.8 Severability & Waiver. In the event any provision of this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
the remaining provisions shall remain in full force and effect. No waiver of any
breach of any provision of this Agreement, or any delay in exercising rights
hereunder, shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
12.9 Notices. All notices, demands and other communications hereunder shall be
in writing to the addresses specified in Exhibit D to this Agreement, and shall
---------
be deemed to have been duly given as follows: (i) if sent by personal delivery
when delivered personally; (ii) if sent by established overnight courier upon
written verification of receipt; (iii) if sent by facsimile transmission when
receipt is confirmed orally; or (iv) if sent by first class mail, postage fully
pre-paid, on the fifth (5th) calendar day after the notice is deposited in a
U.S. Postal Services mail box or with any U.S. Post Office. All notices must be
sent to the contact person for notices at the addresses specified in the
attached Exhibit D. Either party may change their contact and/or contact
---------
address by means of notice to the other party given in accordance with this
Section 12.8; provided, however, that until such notice is duly given, notices
-------- -------
shall be deemed duly and properly given if delivered to the last address
provided by the other party in accordance with this Section 12.8.
12.10 Publicity. MYESP and LiveWorld may agree to issue a joint or separate
press release, however, both parties must first agree to the content and wording
thereof, and neither party shall be under any obligation to issue a joint or
separate press release or other public disclosure other than disclosures
required by law. Either Party may issue a press release or other disclosure
concerning the general subject matter of this Agreement, subject to prior
written approval of the release or disclosure by the other party. Neither party
will make any public disclosure of the specific business terms of this Agreement
without the prior consent of the other party, except as required by law.
LiveWorld may use MYESP's name as a customer reference and may refer to the
LiveWorld Services provided in its advertising and marketing activities.
12.11 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which, when so executed and delivered, shall
be deemed an original, and all of which, taken together, shall constitute one
and the same Agreement. A counterpart of this Agreement transmitted by a party
hereto to the other parties by facsimile transmission and bearing the signature
of such party shall be deemed an original hereof and may be relied upon by the
recipient as duly executed and effective notwithstanding the fact that the
recipient did not receive an original copy of the transmitter's signature.
12.12 Exhibits. The following Exhibits are attached to this Agreement, and are
incorporated herein by reference:
Exhibit A: Schedule of Services and Deliverables
Exhibit B: Fees
Exhibit C: Form of Escrow Agreement
Exhibit D: Legal Notices
Exhibit E: LiveWorld Privacy and Standards Policy
Exhibit F: Vice President/General Manager Employment Agreement
12.13 Captions. The captions and headings used in this Agreement are for the
convenience of the parties and shall not be utilized to interpret, construe or
define the provisions of this Agreement.
12.14 Remedies. Except as provided herein, the rights and remedies of each
party set forth in this Agreement are not exclusive and are in addition to any
other rights and remedies available to it at law or in equity.
12.15 Further Assurances. Both parties agree to execute and deliver any
further instruments or documentation, or perform any additional acts, that may
be reasonably necessary or appropriate to implement this Agreement.
12.16 Non-disclosure of Agreement Terms. Neither party shall disclose to third
parties, other than its agents and representatives on a need-to-know basis, the
terms of this Agreement or any Exhibits hereto without the prior
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written consent of the other party, except either party shall be entitled to
disclose (i) such terms to the extent required by law or explicitly permitted
hereunder, and (ii) the existence of this Agreement.
12.17 Time is of the Essence. Time is of the essence with respect to the
terms, conditions, obligations and duties under this Agreement.
12.18 Amendment. This Agreement may only be amended by a written instrument
executed by all parties hereto.
12.19 Third Party Beneficiaries. This Agreement is solely for the benefit of
the parties and their successors and permitted assigns, and, except as expressly
provided herein or in any schedule hereto, does not confer any rights or
remedies on any other person or entity.
12.20 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the respective parties hereto, their respective successors and
permitted assigns.
NO CHANGES OR ALTERATIONS TO THIS AGREEMENT SHALL BE BINDING, EFFECTIVE, OR
ENFORCEABLE AGAINST A PARTY UNLESS EACH CHANGE OR ALTERATION HAS BEEN INITIALED
BY A DULY-AUTHORIZED OFFICER OF SUCH PARTY.
[Remainder of the page intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this Web Site Services and
Maintenance Agreement to be executed by their duly authorized representatives as
of the Effective Date.
LiveWorld, Inc. MYESP Acquisition Corporation
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
---------------------------- -----------------------------
Title: Chief Executive Officer Title: President
---------------------------- -----------------------------
Address: 0000 Xxxxx Xxxxxx Xxx Address: Xxxxxxx Center, Suite K-20,
-------------------------- ---------------------------
Xxxxxxxx, XX 00000 000 Xxxx Xxxxxxxx Xxxxxx
-------------------------- ---------------------------
Xxxxxxxxxx, XX 00000
---------------------------
Fax No: (000) 000-0000 Fax No.: (000) 000-0000
-------------------------- ---------------------------
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Exhibit A
SCHEDULE OF SERVICES AND DELIVERABLES
-------------------------------------
This Exhibit A describes the LiveWorld Services, MYESP Materials, deliverables
and service level commitments related to the attached Web Site Services and
Maintenance Agreement and consists of the following schedules:
. Schedule 1: LiveWorld Deliverables
. Schedule 2: MYESP Deliverables
. Schedule 3: Certain In-Kind Resources Provided by MYESP to
LiveWorld
All capitalized terms used in this Exhibit A and the attached schedules shall
retain the same meaning as defined in the attached Web Site Services and
Maintenance Agreement and such definitions are incorporated herein by reference.
The terms and conditions of this Exhibit A and the attached schedules are
applicable solely to the LiveWorld Services described herein and in no way
affect or alter the terms of any other Web Site Services and Maintenance
Agreement executed by the parties prior to or after the Effective Date of the
attached Web Site Services and Maintenance Agreement. To the extent that there
is any conflict between the terms and conditions set forth in the attached
schedules, the terms and conditions of the attached Web Site Services and
Maintenance Agreement shall control.
Exhibit A
Schedule 1
LiveWorld DELIVERABLES
----------------------
I. LiveWorld shall provide the following basic services to Client:
1. Chat Support Services
a. LiveWorld shall manage the chat environment on the Web Site for
75,000 to 100,000 chat rooms and 12,000 peak users
2. Discussion Board Services
a. LiveWorld shall manage one message board with approximately
200,000 daily page views
3. Club Services
a. LiveWorld shall manage up to 100,000 public or private clubs
b. Moderation provided by LiveWorld in connection with the Club
Services shall be limited to reacting to user complaints of
abuse
c. If commercially feasible, LiveWorld shall implement an automated
system to clean-up and/or delete unused clubs
4. Web Page Serving Services
a. LiveWorld shall maintain the Web Site's web pages, but shall be
limited to serving approximately 500,000 daily page views
involving 2.5M+ pages
b. LiveWorld shall design and maintain web pages in connection with
this service which shall include a top page and other supporting
neighborhood, registration, and similar pages
5. Home Page hosting up to 3.2 million home pages
a. LiveWorld shall provide moderation hosting of the Web Site's
home pages, but said service shall be to reacting and responding
to user complaints of abuse
b. If commercially feasible, LiveWorld shall implement an automated
system to clean-up unused home pages
6. LiveWorld shall implement and maintain the existing Auto-registration
system utilized by the Web Site.
7. LiveWorld shall implement event syndication feed promotion of
LiveWorld's customers' online events, subject to approval by those
customers.
8. LiveWorld shall provide 24x7 Network Operations Center coverage.
9. LiveWorld shall provide limited Advertising Operation Services, which
shall primarily consist of advertising insertions and reporting. The
securing of advertising and promotions necessary to fund the operating
costs of the Web Site and the corresponding financial management and
administration shall be the sole responsibility of MYESP.
10. LiveWorld will staff appropriately to provide the following services:
advertising operations support, on site programming/editorial support,
community management/volunteer initiatives, standards enforcement, and
engineering/operations/design support. LiveWorld will make reasonable
best efforts to provide six full time equivalents in delivering these
services.
11. LiveWorld shall provide such additional services as may be reasonably
necessary to ensure the ongoing operations of the Web Site at levels of
performance in effect as of the Effective Date, whether or not such
services would otherwise include any optional services described in
paragraph II below. Such additional services shall include, without
limitation, all additional services necessary for MYESP to meet its
services obligations pursuant to third party marketing agreements
assigned to MYESP under the Purchase Agreement.
Schedule 1
Schedule 1
II. The following optional services will be available to the Client at the
rates set forth in the "Optional Fees" section of the attached Exhibit B:
1. Live visitor support for reporting abuse and online help
2. E-mail visitor support
3. Chat Room hosting
4. Discussion board sweeping
5. COPPA compliance management
6. DBA support
7. Volunteer Program Management
8. Home Page Sweeping
9. Custom Engineering Services
10. Custom Design Services
Schedule 1
Schedule 2
MYESP DELIVERABLES
------------------
I. Although LiveWorld shall be responsible for maintaining and operating the
Web Site, MYESP shall bear all costs and responsibility for maintenance and
upkeep of any hardware owned by MYESP and used in conjunction with the
operation and/or maintenance of the Web Site.
II. MYESP shall be responsible for the payment of all bandwidth and online
access charges associated with the maintenance and operation of the Web Site,
including such charges attributable to the operation of the Web Site that may be
billed by UUNet. As soon as reasonably practicable, LiveWorld shall ask UUNet to
issue a separate xxxx that details only those bandwidth charges and related
costs relating to the operation of the Web Site. Until UUNet is capable of
separating billing in this manner, the parties shall use good faith efforts to
agree upon an equitable division of UUNet's bills in order to most accurately
reflect the Web Site's portion of UUNet bandwidth charges. After UUNet separates
its billing, LiveWorld shall promptly send copies of the billing to MYESP and
MYESP shall pay the UUNet xxxx in full on or before the due date indicated
therein. At the completion or expiration of the existing online services
contract with UUNet, the parties shall confer as to whether the UUNet services
contract shall be renewed. MYESP shall have the right, with thirty (30) days
prior notice, to change providers of the bandwidth and online services provided
to the parties by UUNet; provided, however, the MYESP shall have such right only
if UUNet so agrees and only if LiveWorld does not incur any charges as a result
of MYESP's decision to exercise such right.
Schedule 2
Schedule 3
CERTAIN IN-KIND RESOURCES PROVIDED BY MYESP TO LiveWorld
--------------------------------------------------------
I. MYESP shall provide the following commitments to LiveWorld during the term
of the Agreement:
1. Event calendar promotion (as it is done as of May 1, 2001) on the top
page of the Web Site so long as all or any part of the necessary space
has not been sold by MYESP for revenue and there is no competitive
conflict with or other object from an advertiser to which all or any
part of the top page space has been sold.
2. In the event that MYESP cannot, pursuant to item 1 above, make
available any or all of the necessary top page space, MYESP shall
either provide event calendar promotion consisting of "above the fold"
text links of upcoming events or, if there is no competitive conflict
or other objection and there is a smaller space on the top page
available, a smaller top page space.
3. Continued availability of LiveWorld's existing Event Newsletter opt-in
program.
4. Weekly distribution of LiveWorld's Event Newsletter to the Event
Newsletter opt-in mail list.
5. The implementation and delivery of chat room newsflashes to end users
of the Web Site on an as needed basis.
Schedule 3
Exhibit B
Annual Base Fees for services provided during the first year of the contract
term
-----------------------------------------------------------------------------------------------------------
Included Additional List Extended
Product or Service Descriptions Price Price
Description
-----------------------------------------------------------------------------------------------------------
Chat Support Services 100,000 rooms $ 750,000 $355,000
Up to 12,000 peak visitors*
-----------------------------------------------------------------------------------------------------------
Discussion Board Services 200,000 daily page views* $ 350,000 $ 90,000
-----------------------------------------------------------------------------------------------------------
Club Services 20,000 Active Clubs* $ 160,000 $ 80,000
80,000 Total Clubs*
-----------------------------------------------------------------------------------------------------------
Web Page Hosting Service 500,000 daily page views* $ 300,000 $150,000
-----------------------------------------------------------------------------------------------------------
Home Page Support Services 3.2M home pages* $ 750,000 $150,000
-----------------------------------------------------------------------------------------------------------
Auto-registration system Included $ 0
-----------------------------------------------------------------------------------------------------------
Event Syndication Included $ 0
-----------------------------------------------------------------------------------------------------------
24x7 Network Operations $ 200,000 $ 75,000
Center Coverage
-----------------------------------------------------------------------------------------------------------
Advertising Operation Services included $ 0
-----------------------------------------------------------------------------------------------------------
Technical Support included $ 0
-----------------------------------------------------------------------------------------------------------
Total Charges $2,510,000 $900,000
-----------------------------------------------------------------------------------------------------------
* All quantities refer to peak capacity actually provided or such higher numbers
as would be supported by LiveWorld's current hardware configuration utilized in
operating the Business if such configuration were operated at maximum capacity;
provided, however, that LiveWorld shall expand to such maximum capacity as long
as it does not incur any additional expenses for those services listed on the
chart entitled "Optional Fees" in this Exhibit B or fees for technical support,
services, development, materials, utility costs, personnel or similar expenses,
unless MYESP is willing to pay LiveWorld for such additional expenses or fees.
As soon as practicable after the Effective Date, LiveWorld will provide MYESP
with the maximum capacities for each service.
The above fees cover all of the services described in paragraph I of Schedule 1
to Exhibit A of this Agreement.
Exhibit B
Exhibit B
Optional Fees
-----------------------------------------------------------------------------------------------------------
Optional Additional List Extended
Product or Service Descriptions Price Price
Description
-----------------------------------------------------------------------------------------------------------
Live Visitor Support XXX XXX
-----------------------------------------------------------------------------------------------------------
E-mail Visitor Support XXX XXX
-----------------------------------------------------------------------------------------------------------
Chat Room Hosting 24x7 Coverage for 1 room $438,000 $315,000
-----------------------------------------------------------------------------------------------------------
Discussion Board Sweeping 8 times a day, 7 days per week $146,000 $105,120
-----------------------------------------------------------------------------------------------------------
COPPA Compliance Program $100,000 $ 75,000
-----------------------------------------------------------------------------------------------------------
DBA Support XXX XXX
-----------------------------------------------------------------------------------------------------------
Volunteer Program XXX XXX
-----------------------------------------------------------------------------------------------------------
Home Page Sweeping/Standards XXX XXX
-----------------------------------------------------------------------------------------------------------
Customer Engineering Services Per hour $ 200
-----------------------------------------------------------------------------------------------------------
Custom Design Services Per hour $ 200
-----------------------------------------------------------------------------------------------------------
Notes:
All fees set forth in the above two tables exclude costs for hardware,
bandwidth, cabinet hosting fees, Akamai, and third party licenses.
Exhibit B
