Exhibit 10.9
AGREEMENT
This AGREEMENT, with an effective date of January 1, 2000, is
entered into by and between THE WODEHOUSE NO. 3 TRUST ("The Trust"), whose
address is c/o Xxxxx Xxxxxxxxxx & Co., 7W Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx XX0X
IAD, and ASK JEEVES, INC., ("Ask Jeeves"), a Delaware corporation, whose
principal address is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, the Trust is the owner, as successor in interest to the
late X. X. Xxxxxxxxx (the "Author"), of substantially all rights in the literary
and dramatic works written by the Author (the "Works"), including subsisting
copyrights therein and any trademarks relating thereto;
WHEREAS, included in the Works is a character Jeeves, a Gentleman's
Gentleman (xxxxxx) (hereinafter referred to as "the Wodehouse Jeeves"), a
principal character appearing in more than thirty (30) of the Works;
WHEREAS, Ask Jeeves was incorporated in California in June 1996 and
reincorporated in Delaware in June 1999 and has been operating under the
corporate name Ask Jeeves, Inc. from its original date of incorporation until
the present time;
WHEREAS, Ask Jeeves has, since its date of incorporation, utilized
the name Jeeves as part of its corporate identifier and has used the name
Jeeves, a character called Jeeves and a pictorial caricature of the said
character, in connection with its business activities;
WHEREAS, heretofore no license or other agreement has existed
between the Trust and Ask Jeeves;
WHEREAS, the Trust has |*|, and Ask Jeeves has|*|; and
WHEREAS, the parties now wish to resolve their differences on an
amicable basis by entering into this Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
a. "Affiliate" of a company or other entity means any person or entity
directly or indirectly controlling, controlled by or under common
control with the said company or other entity. "Control" for
purposes of this definition shall mean direct or indirect ability to
exercise voting rights in respect of fifty percent (50%) or more of
the voting securities or other voting rights of any entity.
b. "Ask Jeeves Informational Products" means Ask Jeeves Products
available to the public which perform an informational function
similar to Web Sites.
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filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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c. "Ask Jeeves Products" means Web Sites, software and other electronic
and digital products and services (but excluding hardware) which are
developed, distributed, manufactured, owned, controlled or licensed,
whether directly or indirectly, by Ask Jeeves or any Parent,
Affiliate or Successor of Ask Jeeves, whose purpose is predominantly
to provide users access to information on a real-time basis.
d. "Ask Jeeves Web Site" means any web site produced, owned, operated,
controlled or licensed by Ask Jeeves or any Parent, Affiliate or
Successor of Ask Jeeves.
e. "The Caricature" means any and all versions of a pictorial depiction
heretofore or hereafter created by Ask Jeeves of a xxxxxx or the
Character.
f. "The Character" means a fictional character as used by Ask Jeeves in
connection with Ask Jeeves and its products and services, but such
definition shall not encompass the name heretofore used for the
Character, viz. "Jeeves," or any name confusingly similar thereto.
g. "Confidential Information" means any and all technical and
non-technical information heretofore or hereafter provided under, as
a result of, or in connection with the negotiation of, this
Agreement by either party to the other, including but not limited to
(a) patent and patent applications, (b) trade secrets, and (c)
proprietary information, ideas, samples, media, techniques,
sketches, drawings, works of authorship, models, inventions,
know-how, processes, apparatuses, equipment, algorithms, software
programs, software source documents, and formulae related to the
current, future, and proposed products and services of each of the
parties, and including, without limitation, their respective
information concerning research, experimental work, development,
design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing,
customer lists, investors, employees, business and contractual
relationships, business forecasts, sales and merchandising,
marketing plans and information the disclosing party provides
regarding third parties.
h. "Controlled Portion" means that portion of any Ask Jeeves Web Site
or informational Product which contains content supplied or
controlled by Ask Jeeves and/or any Parent, Affiliate or Successor
of Ask Jeeves exclusively and not by a third party.
i. "Endorsement" of a product or service by the Character or Caricature
Jeeves shall be deemed to occur (i) if the Character or the
Caricature is depicted wearing, consuming, personally owning,
ordering, leasing or purchasing the product or service; (ii) if the
name Jeeves is used in a brand name of a product or service; (iii)
if the name Jeeves or the Character or the Caricature is used on
products or on packaging for such products; or (iv) if the Character
or the Caricature overtly recommends a product or service..
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filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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j. Home Page" means the page by which a user normally enters a Web Site
or Informational Product.
k. "In conjunction with" as used in paragraph 3(a) below means, as the
context permits, appearing on the same Home Page, Response Page,
screen or other unit of display such that both elements in question
can be viewed simultaneously by the viewer or user, or appearing in
the same advertisement or promotion.
l. "Internet" means the worldwide-interconnected system of computer
networks.
m. "Jump Page" means a page interposed on a Web Site or Informational
Product in response to any query by users that will produce |*| in
the response.
n. "Net Profits" payable to the Trust hereunder is defined as to each
|*| referred to herein on the same terms as net profits are defined
in the agreement relating to payments from such work to or for the
benefit of Ask Jeeves and/or any Parent, Affiliate or Successor of
Ask Jeeves, provided that if there is no such agreed definition of
net profits relating to such work then a definition of net profits
shall be negotiated in good faith between the Trust and the producer
of the said work on terms customary in the industry, which
definition shall be agreed to between the parties prior to release
of said |*|.
o. "Parent" of a company or other entity shall mean any person or
entity which, directly or indirectly, owns or controls twenty
percent (20%) or more of the voting securities or other voting
rights of the said company or other entity.
p. "Popularity Results" technology means technology developed by Ask
Jeeves which uses the comparative popularity of third-party sites as
sources for ranking responses to questions from users of Ask Jeeves
Web Sites.
q. "Public Market Capitalization" shall mean the closing price of the
common stock of a publicly traded company multiplied by the number
of the then issued and outstanding shares of the common stock of the
said company, on a fully diluted basis, as reported in the company's
year-end filings with the Securities and Exchange Commission.
r. "Successor" of a company or other entity means any person or entity
which, by operation of law or contract, acquires all or
substantially all of the assets and assumes all or substantially all
of the obligations of the said company or other entity.
s. "Web Site" means a linked set of hypertext markup or functionally
similar language documents and multimedia materials accessible via
the World Wide Web portion of the Internet which exist on the Web at
a particular Uniform Resource Locator ("URL").
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filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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t. "WorldWide Web" shall mean the portion of the Internet containing
services which support and display hypertext markup or functionally
similar language documents and multimedia materials.
2. Grant of Exclusive Rights. The Trust hereby grants to Ask Jeeves the
perpetual, irrevocable, non-terminable (except as expressly hereinafter
permitted) exclusive right, subject to the terms of this Agreement, to use the
name Jeeves, limited to the following (the "Exclusive Rights"):
a. In connection with the sale, distribution, marketing, licensing and
operation of one or more Ask Jeeves Products in all electronic or
digital media (now or hereafter known), including, by way of example
only, the online services currently offered at xxx.xxx.xxx and
xxx.xxxxxx.xxx and the other Ask Jeeves Products which are currently
licensed by Ask Jeeves to third parties for deployment on third
party Web Sites.
b. In connection with all aspects of Ask Jeeves' corporate identity,
including, by way of example only, identification of the company,
Ask Jeeves Products and Ask Jeeves' services, regulatory and legal
filings, and advertising, marketing and promotion of Ask Jeeves and
Ask Jeeves Products.
The categories of use referred to in subparagraphs 2.a. and b. above are
hereinafter referred to as the "Exclusive Field of Use". The parties acknowledge
that the grant of Exclusive Rights does not affect the Trust's right to
authorize or create electronic or digital media products or services relating to
X. X. Xxxxxxxxx and his works or the name and/or the Wodehouse Jeeves, or any
other use not granted as Exclusive Rights, so long as such uses do not make use
of Ask Jeeves' distinctive marks and "Ask Jeeves Trade Dress," which shall be
defined to consist of any drawing, design or logo substantially similar to that
in use by Ask Jeeves, its Affiliates, Successors and/or Parents, in their
business activities and advertising as of the date of signing hereof, plus any
change therein or addition thereto as identified by Ask Jeeves and of which the
Trust is aware or should reasonably have been aware. However, the Trust will not
knowingly use, or authorize any third party to use, the words "Ask" and "Jeeves"
together as a trademark or service xxxx, or the marks, logos or domain names
which are authorized for use by Ask Jeeves in accordance with the terms of this
agreement, and when advised in the future by Ask Jeeves of its use of any such
xxxx, logo or domain name the Trust will itself cease any further use thereof
and will thereafter enter into no licenses to third parties therefor. Any
trademark license for the name Jeeves hereafter entered into during the term
hereof by the Trust shall provide that the licensee shall not use the name
Jeeves with the word "Ask" as a trademark or service xxxx.
3. Obligations Related to Exclusive Rights Grant. Except as provided in
paragraph 5 hereof, Ask Jeeves agrees to comply with the following terms and
conditions relative to the Exclusive Rights grant:
a. Neither the name Jeeves nor the Character nor the Caricature will be
displayed visually or used audibly in conjunction with:
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(1) |*|relating to (i) |*|including, without limitation, |*|which
shall be deemed|*|for purposes of this Agreement (provided,
however, that materials related to |*|shall not be included in
the definition of "|*|", and further provided that |*|may
appear on a "Debranded Page" as hereinafter defined); (ii)
|*|; (iii) |*|; (iv) |*|(v) |*| (vi) |*| or (vii) |*|
(2) |*|the Controlled Portion of any Ask Jeeves Product containing
information concerning, or the direct referral to information
concerning, how to |*|; or
b. All Ask Jeeves Web Sites (which include, for purpose of
clarification, the British Ask Jeeves Web Site currently in
operation), and all Ask Jeeves Informational Products shall be
subject to and shall adhere to the following policies with regard to
|*|:
(1) The Ask Jeeves knowledge base will have a system in place such
that any question identifiable as likely to elicit a |*|
response will be identified as such. Questioners will be
notified in advance of viewing |*| and will be given the
opportunity to opt out of having |*| results presented from
the knowledge base. Neither the Character nor the Caricature
shall be seen as directly addressing the matter of |*|or as
personally referring the questioner to an ensuing response
page which contains |*|are presented from the knowledge base,
then there shall be |*| the same manner as and in no larger or
more prominent print than that in which the name currently
appears on the navigation bar of the response page attached
hereto as Exhibit A. (Such a response page shall hereinafter
be referred to as a "Debranded Page".)
(2) All material appearing on non-Debranded Pages which are
generated from what is presently referred to as Ask Jeeves'
"Popularity Results" technology will be filtered by software
or by some other technology designed to screen out any such
material identified as |*| in nature. Ask Jeeves will utilize
at all times a filtering system at least as effective as the
filtering systems in use by the other leading informational
Web Sites. Ask Jeeves does not, however, guarantee that any
such filtering system will be foolproof in all circumstances.
(3) All material appearing on the portion of an Ask Jeeves
non-Debranded Page which retrieves results from and/or directs
questioners to third party sources (presently referred to as
the "meta search" portion) shall be filtered by the use of an
agreed list of banned words which are unambiguously |*| in
nature, such that all such material which would otherwise
include any word on the said list shall not appear. As of the
date hereof, the words included on the banned list are those
attached hereto as Exhibit B, but Ask Jeeves shall hereafter
consider in good faith any suggestions made by the Trust that
additional words be added, provided that the decision of Ask
Jeeves in this matter shall be controlling.
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Ask Jeeves agrees that any third party source to which it
directs users from its site shall not include any site whose
primary purpose is to provide the type of objectionable
content referred to in paragraphs 3a, 3b and/or 4 hereof
unless material on such site is viewed only on Debranded
Pages.
c. Ask Jeeves may change the format or content of its Ask Jeeves
Websites and/or Ask Jeeves Informational Products, or the methods by
which it accomplishes the above-stated objectives, at any time in
its sole good faith discretion, without notice to the Trust,
provided the methods employed shall at all times accomplish no less
than the levels of control required herein.
4. Banned Sites. Ask Jeeves presently maintains a policy of removing from its
knowledgebase sites and categories of sites which it deems inappropriate or
offensive (presently sites promoting |*|)("Banned Sites"). The Trust may at any
time suggest to Ask Jeeves certain sites or categories of subject matter to be
added to the Banned Sites list, which will be considered by Ask Jeeves in its
sole good faith discretion. Ask Jeeves may change the contents of the Banned
Sites list or its exclusion policies at any time in its sole good faith
discretion, but during the Term hereof it will not remove from the Banned Sites
list the categories of sites listed above.
5. Spanish and Japanese Language Sites. The policies provided in paragraphs 3
and 4 hereof shall not at this time apply to the two (2) Ask Jeeves Web Sites to
be operated in the Spanish language and the Japanese language pursuant to joint
venture agreements heretofore entered into by Ask Jeeves which do not currently
include such restrictions. At such time in the future as Ask Jeeves determines
that it is commercially feasible to do so, Ask Jeeves will request of the said
Spanish language and Japanese language joint venturers that they agree to
institute these procedures, or such similar procedures as may be agreed with
them, on the web sites to be operated pursuant to the said joint venture
agreements, but Ask Jeeves cannot guarantee that such procedures will be
adopted. Ask Jeeves shall advise the Trust of the extent to which these or
similar procedures are in place at the time each of the said two web sites are
launched, and if these procedures, or similar procedures acceptable to the
Trust, are not in place, then the license of rights from the Trust herein shall
not extend to that web site. However, by reason of the fact that agreements for
the said web sites were entered into by Ask Jeeves prior to the execution of
this agreement, the Trust irrevocably agrees to waive any claim against Ask
Jeeves, its joint venturers, in the said web sites and/or their respective
successors and assigns by reason of the fact that they do not comply with
paragraphs 3 and/or 4 hereof.
6. X. X. Xxxxxxxxx Page. The Home Page of any Ask Jeeves Web Site using the name
Jeeves, he Character or the Caricature in any manner (except the Spanish and
Japanese language web sites referred to in paragraph 5) will refer the viewer to
a X. X. Xxxxxxxxx page (the "Wodehouse Page") which will provide information
concerning the Author, the Works, their publishers and other X. X. Xxxxxxxxx
sites, all as selected by the Trust and as amended from time to time at the
request of the Trust. On the Wodehouse Page, the Trust will have the right to
include the disclaimer language in the form attached hereto as Exhibit C, or any
substantially similar variation thereof which the Trust may request from time to
time, with any changes in the disclaimer language subject to the prior approval
of Ask Jeeves, such approval not to be unreasonably withheld. The Wodehouse Page
will comply with the technical specifications contained in Ask Jeeves' published
editorial policies, and Ask Jeeves shall have no obligation to
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filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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make changes at the Trust's request more often than quarterly. The Wodehouse
Page will be prepared and submitted to the Trust for its approval within thirty
(30) days after delivery of the content copy therefor, and will be in place
within ten (10) business days after such approval is received.
7. Grant of Non-Exclusive Rights. The Trust hereby also grants to Ask Jeeves the
perpetual, irrevocable, non-terminable (except as herein expressly permitted)
non-exclusive right, subject to the terms of this Agreement, to use the name
Jeeves in all media now or hereafter known, including |*| and all other |*|, and
in |*| of products and services other than Ask Jeeves Products (the
"Non-Exclusive Rights").
8. Obligations Related to Non-Exclusive Rights Grant. Ask Jeeves agrees to
comply with the following terms and conditions relative to the Non-Exclusive
Rights Grant:
a. |*|The use of the name Jeeves, the Character and the Caricature will
be predominantly |*|in nature, or will be for |*|and will not be
primarily structured in a |*|
b. |*|The name Jeeves, the Character and/or the Caricature will not be
used in connection with|*|
c. Ask Jeeves agrees that its use of the name Jeeves, the Character and
the Caricature in the areas covered by the Non-Exclusive Rights will
be in substantially the same form as is used in the fields covered
by the Exclusive Rights; provided, however, that the Character's
and/or the Caricature's poses and attire may vary depending on the
context of the use. The name Jeeves , the Character and/or the
Caricature as used in |*|related to Ask Jeeves Products, including
Ask Jeeves technology whether used by Ask Jeeves or its licensees,
or to Ask Jeeves, Inc. itself), will not be used in such a manner as
to |*|. The parties agree, however, that anything in this paragraph
to the contrary notwithstanding, the |*| The parties further agree
that nothing herein shall preclude the use by Ask Jeeves of the name
Jeeves, the Character or the Caricature in or on the |*| produced
during the term hereof in accordance with the terms hereof or in |*|
therefor. If Ask Jeeves desires to use the name Jeeves, the
Character or Caricature for-an "|*|" in a manner that may be
prohibited by this paragraph (c), it shall request approval from the
Trust. The Trust shall have ten business days, after written notice
of the request is given in. accordance with paragraph 29 hereof, to
approve or disapprove the requested use, provided that if the Trust
does not disapprove within such time the use shall be deemed
approved.
d. Ask Jeeves will provide the Trust with a summary of all agreements
entered into by Ask Jeeves, its Parents, Affiliates and/or
Successors giving rise to an obligation on the part of Ask Jeeves to
account to the Trust, it being understood that the inadvertent
failure to comply with this paragraph shall not be deemed a breach
of this Agreement by Ask Jeeves. The summary shall include the
financial terms, extent of the grant of rights, all restrictions and
limitations thereon and all rights of approval retained by Ask
Jeeves. The Trust shall keep the contents of all
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treatment has been requested with respect to the omitted portions.
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such agreements confidential except to the extent necessary to
enforce its rights hereunder.
e. |*| The parties acknowledge that the two |*| described in Exhibits D
and E attached to this Agreement have been |*|.
9. Character Depiction. In all of its uses of the name Jeeves, the Character and
the Caricature hereunder Ask Jeeves will not cause the Character or the
Caricature to appear with or be associated with any other X. X. Xxxxxxxxx
character or to be depicted with a distinctive character identified as his
master (irrespective of gender), whether or not that master might resemble a X.
X. Xxxxxxxxx character.
10. General Undertaking. In all of its uses of the name Jeeves, the Character
and the Caricature, Ask Jeeves will take no actions which are likely to cause
material harm, whether tangible or intangible, to the good will of the Trust or
to the Works. It is acknowledged and agreed by the Trust that any use of the
name Jeeves, the Character and the Caricature in compliance with the terms of
this Agreement is deemed not to cause material harm to the Trust or its assets.
Both parties will at all times act in good faith to comply with the
understandings contained in this Agreement.
11. The Character and the Caricature. It is acknowledged that the Trust is not
the owner of and has no rights in the Character or Caricature, and all such
rights are vested in Ask Jeeves. Notwithstanding same, Ask Jeeves agrees to the
restrictions imposed upon its use of the Character and the Caricature by the
terms of this Agreement during the term hereof. At such time, if ever, as this
Agreement shall have been terminated pursuant to paragraph 17 or 21 hereof, the
Trust shall not object to Ask Jeeves' use of the Character and the Caricature in
any manner, and the Trust shall have no financial interest therein except as to
amounts owed to the Trust under paragraphs 19 and 20 hereof for license
agreements entered into or arrangements made by Ask Jeeves prior to such
termination. Ask Jeeves shall then, however, be subject to the legal requirement
applicable to the general public that such use shall not infringe upon any of
the Trust's intellectual property rights.
12. Good Faith Attempt To Resolve Disputes. If the Trust believes that Ask
Jeeves is using the name Jeeves and/or the Character in a manner inconsistent
with this Agreement, the Trust will so advise Ask Jeeves in writing, and the
parties will promptly consult in good faith to attempt to reach agreement
concerning any objections made and/or changes requested by the Trust, failing
which either party may commence arbitration in accordance with paragraph 14
below. If the contested use is within the grant of Non-Exclusive Rights, Ask
Jeeves will not proceed with the project until the parties have agreed that it
may go forward or the matter has been resolved through arbitration in accordance
with paragraph 14 below. If the contested use is within the grant of Exclusive
Rights and Ask Jeeves alleges that such use is not in violation of the terms of
this Agreement, then Ask Jeeves is not hereby agreeing to cease or change such
use as requested by the Trust prior to the time when and unless there is a final
award in arbitration which holds that such contested use violates the terms of
this Agreement, but nevertheless in such event the provisions of paragraph 15
shall apply.
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13. Third-Party Actions. Ask Jeeves will not be deemed to have violated the
terms of this Agreement by reason of the unauthorized actions of third parties
in altering any of the Ask Jeeves Products so as to render it not in compliance
with the terms hereof, provided that Ask Jeeves will monitor all Ask Jeeves
Products on a regular basis to determine whether any such alterations have
occurred, and if any such actions and/or alterations are discovered, Ask Jeeves
will make changes as promptly as commercially reasonable, so as to restore the
Ask Jeeves Products to compliance with the terms of this Agreement.
14. Arbitration. The parties agree to the final resolution of any dispute
arising under this Agreement by arbitration in accordance with the terms of this
paragraph, subject to the injunctive and other powers of the court exercisable
in aid of arbitral proceedings and in disputes referable to arbitration under
the terms of this Agreement.
a. In the event of a disagreement or dispute as described in paragraph
12 or 21 hereof, or to establish adequate consideration under
paragraph 20.e.(4) below, if the parties shall, not have resolved
their differences with regard thereto within thirty (30) days after
the disagreement or dispute has arisen, such disagreement or dispute
shall be subject to resolution by arbitration in accordance with the
terms of this paragraph.
b. In the event of any other dispute arising under this agreement or
any alleged breach hereof, the party wishing to complain shall give
notice in writing to the other party of the nature of the dispute or
alleged breach and specify a reasonable time (not to be less than
five (5) or more than ten (10) business days after the other party's
receipt of the notice of complaint) for the complaint to be remedied
and may then, if still not satisfied, refer the matter to
arbitration for resolution in accordance with the terms of this
paragraph.
c. In any such case, either party shall have the right to commence such
arbitration solely in New York City before a single arbitrator
selected or appointed from the panel of JAMS- ENDISPUTE, under its
rules for expedited procedures. In the event JAMS- ENDISPUTE ceases
to exist, the parties agree to use an alternative arbitration
organization such as the American Arbitration Association under its
Commercial Arbitration Rules, it being understood and agreed that
any arbitration will take place solely in New York City and that the
parties will concur in the most expeditious appointment of an
arbitrator under the rules and procedures of the appropriate
arbitration organization.
d. All decisions and awards of the arbitrator in such matters shall be
binding on both parties and shall be enforceable through injunctive
relief, specific performance or such other measures within the power
of the arbitrator as the arbitrator shall consider just in the
circumstances.
e. The arbitrator will have the power to apportion all reasonable legal
fees and costs. The arbitrator shall keep the proceedings and all
items disclosed under the arbitration confidential.
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f. The arbitration shall be subject to applicable law of the state of
New York. Judgment upon the award of the arbitrator may be entered
in the highest court in the State of New York having jurisdiction
and in any and all other United States, foreign or international
courts and tribunals.
15. Delay Without Prejudice. In connection with any disagreement or dispute
involving actions or proposed actions by a party which are alleged by the other
party to be in violation of this agreement, it is agreed between the parties
that subsequent to receipt of written notice by a party from the other party
that such actions may be in violation of the terms of this Agreement, if the
receiving party continues or commences such disputed action it does so at its
own risk, and no delay in resolving the matter occasioned by the good-faith
consultation provision contained in this Agreement, the mandatory negotiation
periods contained in this Agreement, further negotiation between the parties or
actual arbitration proceedings shall be prejudicial to the position taken by the
complaining party at the time such notice was given, or to the right of the
complaining party to obtain injunctive relief and/or to recover damages incurred
from the date of commencement of the disputed actions either from a court in aid
of arbitration or from the arbitrator.
16. Trademarks and Domain Names.
a. The Trust hereby grants to Ask Jeeves the exclusive right during the
term hereof to use the name Jeeves as trademarks and service marks
restricted to the categories encompassed in the Exclusive Rights,
and to register same in its own name or the name of its designees
for all goods and services corresponding to such Exclusive Rights,
provided that when the name Jeeves is used by Ask Jeeves in a tag
line which Ask Jeeves registers as a trademark, such tag line shall
be subject to prior approval by the Trust, which approval shall not
be unreasonably withheld and shall be deemed granted if the Trust
has not disapproved the tag line within ten (10) business days of
receiving written notice from Ask Jeeves of the proposed tag line.
b. The Trust hereby acknowledges that it will not use, and will not
dispute or object to the right of Ask Jeeves to use, the Character
or Caricature as trademarks and service marks in any categories in
which rights are licensed hereunder or any Ask Jeeves marks or trade
dress. Nor will the Trust register, or dispute or object to the
right of Ask Jeeves to register in its own name or the name of its
designees, marks utilizing the Character or Caricature or any Ask
Jeeves marks or Ask Jeeves Trade Dress.
c. The Trust hereby grants to Ask Jeeves a non-exclusive right during
the term hereof to use the name Jeeves as part of trademarks and/or
service marks in the categories encompassed in the Non-Exclusive
Rights and to register same in its own name or the name of its
designees for all goods and services corresponding to such
Non-Exclusive Rights. This grant shall be exclusive to the extent of
the following formats and shall be limited to the said formats: (i)
including the name Jeeves and the word "ask", (ii) including the
name Jeeves and the Character or
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Caricature and/or (iii) including the name Jeeves, the word "ask"
and the Character or Caricature.
d. All other rights to register the name Jeeves or any depiction of the
Wodehouse Jeeves (except in a manner confusingly similar to the
Character, the Caricature, or Ask Jeeves' marks or Ask Jeeves Trade
Dress) as trademarks and/or service marks are reserved to the Trust,
provided that the Trust shall not use, or authorize third parties to
use, the said marks:
(1) within the Exclusive Field of Use;
(2) in conjunction with the word "Ask" (or substantially similar
terms); or
(3) in a tag line confusingly similar to any tag line used by Ask
Jeeves, as permitted above.
e. Upon signing hereof Ask Jeeves will cancel or withdraw any trademark
registrations and/or applications using the name Jeeves inconsistent
with this Agreement, if any. Henceforth the parties will cooperate
in connection with their respective trademark registration
activities, and each party will formally consent, when requested, to
the other's trademark registrations, provided such activities and
registrations are consistent with the terms of this Agreement.
f. Ask Jeeves shall notify the Trust in writing of any unauthorized use
by third parties of the name Jeeves or any unauthorized depiction of
the Wodehouse Jeeves that comes to its attention. The Trust shall
notify Ask Jeeves in writing of any unauthorized use by third
parties that comes to its attention of the name Jeeves, the
Character, the Caricature and/or any depiction of the character
Jeeves within the Exclusive Field of Use. Within the Exclusive Field
of Use Ask Jeeves shall have the right to prosecute, defend or
settle all claims or suits to protect its rights in and to the name
Jeeves, the Character and/or the Caricature and shall have the
discretion as to whether or not to pursue any such claim. In the
event Ask Jeeves shall not have elected to pursue any such claim as
to the name Jeeves within thirty days after notice of the
unauthorized use, the Trust shall have the right to do so to the
extent that the Trust's rights in the Wodehouse Jeeves and/or the
name Jeeves are infringed.. In all areas outside the Exclusive Field
of Use Ask Jeeves shall have the right to prosecute, defend or
settle all claims or suits to protect its rights in and to the name
Jeeves, the Character and/or the Caricature, and the Trust shall
have the right to prosecute, defend or settle all claims or suits to
protect its rights in and to the name Jeeves (outside the Exclusive
Field of Use) and/or any depiction of the Wodehouse Jeeves, and both
parties shall have the discretion as to whether or not to pursue any
such claim. At such time as Ask Jeeves or the Trust elects to pursue
any claim as authorized herein, the other party shall cooperate in
any such claim. All costs and expenses incurred by the prosecuting
party in such actions shall be borne solely by the said party.
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
11
g. Nothingin this paragraph 16, or elsewhere in this Agreement, shall
preclude either party from registering domain names for use on the
Internet incorporating the Jeeves name, provided that the Trust has
not registered and shall not register any domain name using the
words "Ask" and "Jeeves" together, and Ask Jeeves and its
affiliates, agents and employees will not register and refuse to
transfer to the Trust any domain name using the name Jeeves or any
variation thereof alone, i.e. without the word "Ask" immediately
preceding it. Attached as Exhibit F is a list of the domain names
registered by Ask Jeeves that include the name Jeeves or variations
thereof. Ask Jeeves shall have the right to retain any domain name
incorporating the name Jeeves or any variation thereof and to link
it to Ask Jeeves' Web Sites until such time as the Trust notifies
Ask Jeeves that it intends to make substantial use of such domain
name as permitted herein. Upon receipt of such notification Ask
Jeeves agrees that upon reasonable demonstration by the Trust that
its use will be substantial (e. g. not "parking" the domain) it will
transfer to the Trust, upon payment by the Trust of all costs
reasonably incurred by Ask Jeeves in registering and transferring
such domain name, any such domain name held by Ask Jeeves, its
affiliates, agents or employees, provided it does not also contain
the word "ask".
h. All rights in the name and X. X. Xxxxxxxxx character Jeeves and in
the content, including titles, plots and characters, of the Works
except those rights specifically granted to Ask Jeeves in this
Agreement, are hereby reserved to the Trust, and the Trust shall be
free to exploit them in whatever manner it shall choose, subject to
any restrictions imposed on the Trust by the terms of this
Agreement.
i. This Agreement does not apply to any names, symbols, logos, drawings
or other marks or domain names used by Ask Jeeves that do not
include the name "Jeeves" or any variation thereof, the Character,
the Caricature or any other depiction of the character Jeeves.
17. Term. Except as otherwise provided in paragraphs 19 and 21 hereof, the term
of this Agreement is perpetual unless and until terminated upon not less than
thirty (30) days written notice by Ask Jeeves to the Trust stating that Ask
Jeeves and its Parents, Affiliates and Successors have ceased all use of the
name Jeeves, and that they have no intention of resuming such use in the future.
As of the effective date of the said notice of termination, any rights granted
to Ask Jeeves by the Trust shall revert to the Trust and thereafter neither Ask
Jeeves nor any Parent, Affiliate or Successor of Ask Jeeves shall utilize the
name Jeeves in any manner whatsoever other than a descriptive fair-use reference
to the name as may be available to the general public. As of the said date Ask
Jeeves shall assign to the Trust an undivided co-interest in any then
outstanding licenses of any right to use the name Jeeves, the Character and/or
the Caricature, other than within the Exclusive Field of Use, theretofore issued
by Ask Jeeves or any Parent, Affiliate or Successor of Ask Jeeves to any
third-party, and thereafter the parties shall share equally any approvals and/or
other control provisions retained by Ask Jeeves in the said agreements and shall
continue to share proceeds therefrom as provided herein. Ask Jeeves will sign
any documents reasonably requested by the Trust to effect and/or evidence the
termination, reversion and assignments referred to in this paragraph, including
written notice to licensees under outstanding license agreements advising of the
assignment of a co-interest therein to the
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
12
Trust with an irrevocable instruction to thenceforth pay monies due to the Trust
from exploitation under the said license agreements directly to the Trust.
Failure of a third party to pay the Trust directly pursuant to such instructions
shall not be deemed a violation of this Agreement provided Ask Jeeves promptly
pay over to the Trust any monies received by it properly payable to the Trust.
18. Reinstatement. In the event Ask Jeeves shall have voluntarily terminated
this Agreement pursuant to paragraph 17 above and shall have ceased using the
name Jeeves for a period of two years or more after the date of such
termination, Ask Jeeves. shall have the right to reinstate this Agreement as of
the beginning of any calendar quarter by serving formal notice upon the Trust of
its intention to do so together with simultaneous payment of the first quarterly
payment due pursuant to paragraph 19b hereof and, if Ask Jeeves intends the
reinstated Agreement to be applicable to |*| the first annual advance guaranty
payment due pursuant to paragraph 20.e.(1) hereof. Upon such reinstatement of
this Agreement the Trust shall advise Ask Jeeves of any licenses of the Jeeves
name and/or character which it shall have entered into during the period of time
when this Agreement was not in effect which are inconsistent with the terms
hereof, in which event the rights granted to Ask Jeeves hereunder pursuant to
the reinstated Agreement shall not include any rights inconsistent with the said
licenses, and this Agreement shall be deemed amended accordingly.
19. Consideration or Grant of Exclusive Rights. As full consideration for the
Exclusive Rights, Ask Jeeves agrees to pay the Trust the following:
a. A guaranteed payment of $|*| payable in eight quarterly installments
on the first day of each calendar quarter commencing as of January
1, 2000, the first five payments of which have been paid on the date
of signing hereof by release to the Trust of $|*| plus interest
thereon heretofore held in escrow by Xxx Xxxxxxx & Xxxxx LLP under
agreement dated January 18, 2000, and payment of an additional $|*|
plus interest of $|*| to the Trust by Ask Jeeves.
b. If this Agreement shall not have been terminated prior to January 1,
2002, a quarterly payment on the first day of each calendar quarter
commencing January 1, 2002, so long as this agreement is in effect,
as follows:
(1) January 1, 2002 through October 1, 2003, $|*| per calendar
quarter; and
(2) January 1, 2004 and thereafter, an amount per calendar quarter
equal to |*|% of |*|% of the Public Market Capitalization of
Ask Jeeves as of the close of business on the last business
day of the immediately preceding calendar year, but not less
than $|*| nor more than $|*| per quarterly payment. If Ask
Jeeves or its shareholders enter into a transaction, whether
in the form of a sale, merger or otherwise, by reason of which
Ask Jeeves is no longer an independent public company with an
identifiable Public Market Capitalization, then on the first
day of the calendar year commencing after the date of such
transaction, and on the first day of all calendar quarters
thereafter, the quarterly payment shall be (i) an amount equal
to |*|% of |*|% of the Public Market Capitalization,
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
13
as of the close of business on the last business day of the
immediately preceding calendar year, of the surviving public
company owning substantially all of the assets formerly owned
by Ask Jeeves, but not less than $|*| nor more than $|*| or
(ii) if there is no surviving public company owning
substantially all of the assets formerly owned by Ask Jeeves,
$|*| Until such time as the Public Market Capitalization as of
the close of business on the last day of any calendar year is
determined by reporting to the Securities and Exchange
Commission, the amount of the quarterly payments during the
immediately preceding year shall apply, and any necessary
adjustment will be made at the next subsequent quarterly
payment date after such determination.
c. If Ask Jeeves defaults in any quarterly payment hereunder and does
not cure such default within ten (10) business days after receipt of
written notice of default from the Trust, the Trust shall1have the
right to seek enforcement of the payment obligations hereunder as
provided in the dispute resolution procedures of this Agreement. The
parties acknowledge and agree that in the event Ask Jeeves fails to
make a quarterly payment or makes a quarterly payment, the amount of
which is disputed by the Trust, such failure to pay or disputed
payment will not give the Trust the right to terminate this
Agreement unless the arbitrator, in accordance with paragraph 11
above, determines such amounts are owing and Ask Jeeves fails to
pay. Such termination shall be without prejudice to the Trust's
rights to receive the payments guaranteed under paragraph 19(a)
hereof, and following such termination neither Ask Jeeves nor any
Parent, Affiliate or Successor shall have the right to use the name
Jeeves in any manner whatsoever other than a fair use reference to
the name as may be available to the general public.
20. Consideration for Grant of Non-Exclusive Rights. As consideration for the
Non-Exclusive Rights, Ask Jeeves shall pay to the Trust the following:
a. For each |*| utilizing the name Jeeves, the Character or the
Caricature (other than a |*| which is primarily about Ask Jeeves and
its services and products) which is produced, commissioned or
licensed by Ask Jeeves and offered for sale, and where the |*|
contains reference to the name Jeeves or the Character |*| or more
than an incidental reference to Jeeves or the Character in the |*|,
a royalty on all |*| sold equal to |*|% of the full suggested retail
price (or sum equivalent thereto) of all |*| sold in the United
States through normal retail channels, with the same terms
concerning percentage reductions for sales outside normal retail
channels, sales of |*| through or to |*| export |*| sales, returns
and reasonable reserves for returns, etc., as are applicable to Ask
Jeeves in its agreement with the publisher of the said |*|, or to
the Authors) of the said |*| to the extent any such terms are not
included in any agreement applicable to Ask Jeeves.
b. For the licensing by the publisher of subsidiary publishing rights
in the |*| referred to above and for |*| produced, commissioned or
licensed by Ask Jeeves and offered for sale, and where the |*|
contains more than an incidental reference to Jeeves (specifically
excluding |*| about the business of Ask Jeeves for which
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
14
Ask Jeeves receives no payment) utilizing the name Jeeves, the
Character and/or the Caricature, |*|percent (|*|%) of the
proceeds therefrom received by Ask Jeeves, its Parents,
Affiliates and/or Successors.
c. For |*| uses of the name Jeeves, the Character and/or the
Caricature, a royalty of |*|% of the wholesale price on all items
sold, less returns and a reasonable reserve for returns.
d. For the use of the name Jeeves, the Character or the Caricature in
|*| other than Ask Jeeves Products, a royalty in an amount equal to
|*|percent|*|%|*| of gross proceeds therefrom received by Ask
Jeeves, its Parents, Affiliates and/or Successors.
e. For |*|:
(1) An annual advance guarantee of $|*| payable on the first
business day of each calendar year commencing with the year
2000, of which the first two annual payments have been paid on
the date of signing of this Agreement by release to the Trust
of $|*| plus interest thereon heretofore held in escrow by Xxx
Xxxxxxx & Xxxxx LLP under agreement dated January 18, 2000,
and payment of an additional $|*| to the Trust by Ask Jeeves.
Each annual payment shall be applied against and recouped from
any of the rights payments referred to in subparagraph (2)
below which become due and payable to the Trust during the
year in which the advance guarantee payment is made, except
that the two payments made on signing hereof shall be applied
against and recouped from any such payments due and payable
during the year 2000 and/or 2001. This annual payment shall be
due and payable on each such anniversary date unless prior to
the said date Ask Jeeves shall have terminated this Agreement
in accordance with the terms hereof or shall have reassigned
to the Trust in writing all |*| granted hereunder and an
undivided co-interest in all then outstanding licenses of such
rights issued by Ask Jeeves, its Parents, Affiliates and/or
Successors to third parties prior to such reassignment.
Subsequent to the date of such reassignment and during the
term of this Agreement neither Ask Jeeves nor its Parents,
Affiliates and/or Successors shall exploit further or license
any |*| utilizing the name Jeeves, the Character or the
Caricature except as granted under the grant of Exclusive
Rights, and the terms of paragraph 17 will apply as to the
required notices concerning, control of, and sharing of
proceeds from, any |*| then outstanding.
(2) Upon utilization of the name Jeeves, the Character or the
Caricature (except for an incidental or
non-principal-character use) in any |*| whether produced for
|*| on |*| or in any other medium, $|*| payable upon
commencement of principal photography, plus |*|% of |*|% of
the Net Profits of each such |*|.
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
15
(3) Upon utilization of the name Jeeves, the Character or the
Caricature (except for an incidental or non-recurring use) in
a |*|$|*| per |*|over |*|$|*|per|*|, and
$|*|per|*|$|*|per|*|$|*|per|*|$|*|per|*|; and in a
|*|$|*|per|*|$|*|per|*|$|*|per|*| The initial payment for each
|*| shall in all cases be due upon |*| |*| and there shall
also be paid to the Trust |*| payments of |*|% of the initial
payment over each of the first |*|, plus an amount equal to
|*|% of |*|% of the Net Profits of each |*|. If |*|per
|*|shall be paid when such deal is made. (e.g.|*|$|*|$|*|
(4) For exploitation of any Non-Exclusive Right in any other
media, now or hereafter known or devised, or for an
incidental, non-principal-character or non-recurring use as
referred to in subparagraphs 20.e.(2) and (3) above,
consideration to be mutually agreed. Failing such agreement,
the consideration shall be determined by arbitration in
accordance with the provisions of paragraph 14 above.
21. |*| If at any time after December 31, 2002, in the reasonable opinion of Ask
Jeeves there shall have been |*|(i) |*|, |*|(ii) |*|and/or (iii) |*|Ask Jeeves
shall have the right to notify the Trust in writing of its opinion to that
effect and request that the |*|of this agreement be |*|If after thirty (30) days
the parties shall not have agreed on a mutually acceptable |*|Ask Jeeves shall
have the right to commence arbitration in accordance with the procedures
outlined in paragraph 14 hereof, end the arbitrator shall have the right to
|*|Following such |*|this Agreement shall remain in full force and effect,
subject to any changes |*|In the event any such |*|shall have been made by the
arbitrator |*|such issue may be revisited by either party in the future based on
|*|but no sooner than two years following the most recent determination by the
arbitrator, with Ask Jeeves having the right to seek|*|
22. Accounting. Ask Jeeves shall prepare a statement of account semiannually as
of each June 30 and December 31 for all six-month periods during which there is
any exploitation by Ask Jeeves, any Parent, Affiliate or Successor of Ask Jeeves
or any assignee or licensee thereof, of those categories of rights as to which
royalties and/or profit participations are payable under this Agreement, which
statement shall include the following with regard to all uses of the rights
licensed hereunder: Full details of all exploitation to be accounted for under
this Agreement, together with a computation of monies due to the Trust for the
said period itemized in accordance with this Agreement and accompanied by
payment of the monies shown due thereon. The statement and payment shall be
rendered no later than ninety (90) days following the end of the semi-annual
period. Notwithstanding anything to the contrary in this Agreement, the Trust
acknowledges and agrees that with respect to the Non-Exclusive Rights, Ask
Jeeves will not be responsible for making payment to the Trust as provided in
paragraph 20 unless and until Ask Jeeves has received such payment from the
sub-licensee, and a default by such sub-licensee in making such payment to Ask
Jeeves will not be deemed a default by Ask Jeeves under this Agreement provided
there shall also have been a failure to pay to Ask Jeeves its share of proceeds
and Ask Jeeves shall have taken all commercially reasonable steps to obtain such
payment.
23. Verification of Account. Ask Jeeves shall keep full, accurate, and timely
records and books of account relating to all exploitation for which Ask Jeeves
is to account to the Trust under
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
16
paragraph 20 of this Agreement. Ask Jeeves shall similarly contractually require
any Parent, Affiliate, Successor, authorized licensee or third party with or
through which such exploitation is conducted to maintain such books of account.
Ask Jeeves shall keep all such records and books of account for not less than
two (2) calendar years from the end of each semiannual period of account and
shall permit a firm of certified public accountants not retained on a
contingency basis (not then conducting an audit of Ask Jeeves) on the Trust's
behalf to inspect and examine such records and books of account at the offices
where Ask Jeeves maintains such records and books, insofar as they directly
relate to exploitation for which Ask Jeeves is to account to the Trust under
this Agreement, and Ask Jeeves shall also, without charge, permit copies and
extracts to be made of such records and books of account during the course of
any such inspection and examination. Any such inspection and examination shall
require at least ten (10) days' prior written notice, be conducted during normal
office hours, and may not be carried out more than once in any calendar year.
The Trust's costs of any such inspection and examination shall be at the Trust's
expense unless such inspection and examination shall reveal an undisputed
underaccounting or underpayment to the Trust of at least 10% for any semiannual
accounting period, in which case Ask Jeeves shall bear the reasonable and
verifiable costs of the inspection and examination, but in no event exceeding
the actual amount of the underpayment. Ask Jeeves shall be furnished with a copy
of the audit report at the same time as it is furnished to the Trust. Failure by
the Trust to object in writing to any statement within two (2) years of receipt
shall be deemed an acceptance thereof and an irrevocable waiver of the right to
challenge such statement or the content thereof. Failure by the Trust to
commence an arbitration proceeding hereunder within one (1) year after written
notification to Ask Jeeves of objection to a statement or within one (1) year of
the date of an audit report shall be deemed an irrevocable waiver of the right
to challenge the statements which are the subject of the objection or audit, as
the case may be. Any books and records once audited may not be reaudited.
24. Assignment or Merger. Ask Jeeves shall not assign its rights under this
Agreement to any company except to a Parent, Affiliate or Successor of Ask
Jeeves. Any such assignment shall be effective only if the Trust is provided
with a copy of a duly executed agreement of assignment pursuant to which the
assignee (1) agrees to comply with and be liable for all of the terms and
obligations of Ask Jeeves under this agreement, and (2) acknowledges that the
Trust may take such steps or action (including arbitration) against the assignee
in accordance with the terms of this Agreement as if the Assignee had been an
original signatory of this Agreement. Ask Jeeves will be released from its
obligations under the Agreement upon its assignment to a Parent, Affiliate or
Successor of Ask Jeeves if the Trust is provided with an assignment as referred
to in the preceding sentence and the assignment is to a publicly owned company
with Public Market Capitalization greater than or substantially equal to that of
Ask Jeeves at the time of such transaction. In the event the proposed assignee
is not a company with a Public Market Capitalization greater than or
substantially equal to that of Ask Jeeves, Ask Jeeves, if it survives as an
independent or merged entity, agrees to remain responsible for its obligations
under this Agreement.
25. Sublicenses.
a. Any sublicense agreement pursuant to which rights granted to Ask
Jeeves herein are licensed to a third party, whether that third
party be a Parent, Affiliate or Successor of Ask Jeeves or any other
person or entity, shall be a written
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
17
agreement pursuant to which the sub-licensee agrees that it will
comply with terms equivalent to the terms of this Agreement relevant
to the rights being sublicensed. Ask Jeeves hereby agrees
to-indemnify the Trust against any loss or damage to the Trust by
reason of the failure of any sub-licensee to meet its obligations in
accordance with this paragraph, other than any non-affiliated
sublicensee's failure to pay any amounts owed under the sublicense
provided that there shall also have been a failure to pay to Ask
Jeeves its share of proceeds and Ask Jeeves shall have taken all
commercially reasonable steps to obtain payment of the sum payable
to the Trust.
b. Any license agreement hereafter entered into by the Trust
authorizing use of the name Jeeves or a caricature of the Jeeves
character shall be a written agreement pursuant to which the
licensee is precluded from making any use of such name or caricature
that would violate the terms of this Agreement. The Trust hereby
agrees to indemnify Ask Jeeves against any loss or damage incurred
by reason of the failure of any such licensee to meet its
obligations in accordance with this paragraph.
26. Release. The parties hereby release each other from any and all claims
arising from any actions taken by either party prior to the date of signing of
this Agreement except to the extent of any claim arising as a result of a breach
of the warranties contained in paragraph 28 below.
27. Confidentiality.
a. The parties agree that the terms of this Agreement shall remain
confidential and shall not be revealed to any third parties who are
not within the control group of each party or the professional
advisors thereto (and in those cases only under confidentiality.
terms equivalent to those of this paragraph 27), except as may be
required (i) to preserve any right or entitlement arising under this
Agreement; (ii) to the adjudicating tribunal and any expert or ether
witnesses during the course of any arbitration or litigation
relating to this Agreement; (iii) as may be necessary in the course
of negotiations with third parties, which third parties shall
execute written non-disclosure agreements covering the terms of this
Agreement; or (iv) as may be necessary to comply with any statutory
or other legal obligation.
b. Press releases or responses to press inquiries concerning this
Agreement and its terms shall be formulated and distributed in
cooperation between the two parties and shall be subject to the
reasonable approval of both parties. A party's failure to object to
a press release or inquiry within ten business days of notice from
the other party shall be deemed approval for that instance.
c. In addition, each party acknowledges that in connection with
implementing the terms of this Agreement, it may become privy to
certain Confidential Information of the other party. Each party
agrees that at all times, and notwithstanding any termination or
expiration of this Agreement, it will hold in strict confidence and
not disclose to any third party Confidential Information of the
other, except as approved in writing by the other party to this
Agreement, and will use the
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
18
Confidential Information for no purpose other than as necessary to
implement the terms of this Agreement. Each party shall only permit
access to Confidential information of the other party to those of
its employees or authorized representatives having a need to know
and who have signed confidentiality agreements or are otherwise
bound by confidentiality obligations at least as restrictive as
those contained herein. Each party shall immediately notify the
other in writing upon discovery of any loss or unauthorized
disclosure of the Confidential Information of the other party. Each
party's obligations under this Agreement with respect to any portion
of the other party's Confidential Information shall terminate when
the party to whom confidential Information was disclosed (the
"Recipient") can document that: (a) it was in the public domain at
the time it was communicated to the Recipient by the other party;
(b) it entered the public domain subsequent to the time it was
communicated to the Recipient by the other party through no fault of
the Recipient; (c) it was in the Recipient's possession free of any
obligation of confidence at the time it was communicated to the
Recipient by the other party; (d) it was rightfully communicated to
the Recipient free of any obligation of confidence subsequent to the
time it was communicated to the Recipient by the other party; (e) it
was developed by employees or agents of the recipient independently
of and without reference to any information communicated to the
Recipient by the other party; (f) it was communicated by the other
party to an unaffiliated third party free of any obligation of
confidence; or (g) the communication was in response to a valid
order by a court or other governmental body, was otherwise required
by law, or was communicated solely as necessary to establish the
rights of either party under this Agreement.
28. Warranties and Indemnities.
a. The Trust hereby warrants and represents that (i) the Trustees have
the sole and exclusive right under the Trust instrument to enter
into this agreement; (ii) the Trust is the sole owner of
substantially all of the intellectual property in the Works as the
Author's successor in interest; (iii) no claims adverse to the
rights granted under this Agreement have been asserted against the
Trust; (v) the Trust has not heretofore entered, and will not
hereafter, during the term of this Agreement, enter into any
agreements inconsistent with any of the rights granted under this
Agreement to Ask Jeeves; (vi) the exercise of the rights granted to
Ask Jeeves under this Agreement, if done m accordance with a terms
hereof will not violate the personal or property rights of any third
party; (vii) nothing on the Wodehouse Page will violate the personal
or property right of any person or entity.
b. The Trust agrees to indemnify and hold Ask Jeeves, its Parents,
Affiliates and Successors, and their respective licensees,
successors and assigns (and their respective directors, officers,
employees and agents) harmless from and against any losses, costs,
expenses (including reasonable attorneys' fees and court costs),
judgments and damages resulting from any claim, including any
settlement thereof approved by the Trust, such approval not to be
unreasonably withheld,
-------
|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
19
which, if sustained, would constitute a breach of any of the
foregoing warranties and representations made by the Trust. The
liability for any obligation undertaken by the Trust hereunder shall
be limited to recourse to the assets of the Trust and shall not
constitute personal liability of the Trustees of the Trust or its
beneficiaries. In the event of any third-party claim which in the
good faith judgment of Ask Jeeves will, if sustained, establish a
breach of the Trust's warranties and representations hereunder, Ask
Jeeves shall have the right, pending the outcome of the said claim,
to withhold and place in escrow monies otherwise due to the Trust
hereunder, in an amount reasonably sufficient to satisfy the Trusts'
obligations as to the said claim, the reasonableness of such
withholding to be referable to arbitration under paragraph 14 of
this Agreement if the Trust elects to do so.
c. The Trust will have no responsibility for any actions of third
parties in violation of the rights granted to Ask Jeeves under this
Agreement, provided those third parties have not been authorized to
take such actions by the Trust. Additionally, the Trust will have no
obligation to xxx or take other action against such third parties
but the Trust agrees to cooperate fully with any action taken
against such third parties by Ask Jeeves, and hereby authorizes Ask
Jeeves to take such action and to retain all recoveries therefrom.
d. Ask Jeeves represents and warrants that it has created and owns the
Caricature, and that use of the Character and the Caricature as
authorized will not infringe the personal or property rights of any
party not a signatory hereto. Ask Jeeves hereby warrants and
represents that the officers signing this agreement have the
authority to sign on behalf of the company and to bind the company
in accordance with the terms hereof.
e. Ask Jeeves agrees to indemnify and hold the Trust, its Trustees and
beneficiaries, and their respective successors and assigns, harmless
from and against any losses, costs, expenses (including reasonable
attorneys fees and court costs), judgments and damages resulting
from any claim, including any settlement thereof approved by Ask
Jeeves, such approval not to be unreasonably withheld, which, if
sustained, would constitute a breach of any of the foregoing
warranties and representations made by Ask Jeeves.
29. Notices and Payments. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given or made: if by hand,
immediately upon delivery and receipt acknowledged; if by telex, telecopier or
similar electronic device, two hours after sending and receipt confirmed,
provided it is sent on a business day in both London and New York City, but if
not then immediately upon the beginning of the first such business day after
being sent; if by Federal Express, express mail or any other overnight delivery
service, on the second such business day after dispatch with proof of delivery
from the company making such delivery; and if by first class mail, upon receipt
thereof. All notices, requests and demands are to be given or made at the
following addresses (or to such other address as either party may designate by
notice in accordance with the provisions of this paragraph): If to the Trust:
The Wodehouse No. 3 Trust
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
20
c/o Xxxxx Xxxxxxxxxx & Co., 00 Xxxxxxxx Xxxx, Xxxxxx XXXXXXX XX0X l AD with a
courtesy copy to Xxx Xxxxxxx & Xxxxx LLP, Attention R. Xxxxxx Xxxxx, Esq., Xxx
Xxx Xxxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. If to Ask Jeeves: Ask Jeeves,
Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attention: General
Counsel, with a courtesy copy to Lazarus & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention Xxxxxx X. Xxxxxx, Esq. All monies payable upon
signing hereof, and until further written notice from the Trust all monies due
to the Trust pursuant to paragraph 19~hereof, shall be paid by check made
payable to Prudential-Bache Limited and shall be sent to Xxxxx Xxxxxxxxxx and
Co. at its above stated address; and until further written notice from the
Trust, all statements of account due pursuant to paragraph 22 hereof and all
monies due to the Trust pursuant to paragraph 20 (except those monies due upon
signing hereof) hereof shall be sent and made payable to A.P. Watt Ltd. as
agents for the Trust, 00 Xxxx Xxxxxx, Xxxxxx XX0X 0XX Xxxxxxx.
30. Survival. Paragraphs 11, 17, 18, 19.c., 21, 22, 23, 26, 27, 28 and 32, as
well as any provisions which by their nature are intended to survive, will
survive any termination of this Agreement.
31. Applicable Law. This agreement shall be governed by and construed and
interpreted in accordance with the law of the State of New York applicable to
contracts made and performed entirely therein.
32. |*| The parties acknowledge that notwithstanding the use of language in this
Agreement |*|The parties agree that neither |*|nor|*|although this agreement
shall be enforceable in accordance with its terms.
33. Entire Understanding. This agreement represents the entire understanding
between the parties with regard to the subject matter hereof, supercedes all
prior agreements between them with regard to the subject matter hereof,
including a prior memorandum of points of agreement dated January 18, 2000, and
may not be amended except in writing signed by both parties.
WHEREFORE the parties have set their hands and seals as of the date
first above written.
THE WODEHOUSE NO. 3 TRUST
By: /s/ illegible
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Its: /s/ illegible
----------------------------------------------
Date:
---------------------------------------------
ASK JEEVES, INC.
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
21
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Its: Chief Legal Officer & General Counsel
Date:
---------------------------------------------
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
22
EXHIBIT A
[Image of navigation bar of the response page ]
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
23
EXHIBIT B
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
|*|
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
24
EXHIBIT C
Wodehouse Page Disclaimer
The Wodehouse No. 3 Trust, which is the owner as successor-in-interest
to the late X.X. Xxxxxxxxx of substantially all rights in his literary and
dramatic works, including those containing the character Jeeves, is not
responsible for the content or operation of this website, and it cannot be
assumed that the Trustees or the Beneficiaries of the Trust approve or endorse
any material appearing on it.
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
25
EXHIBIT D
|*|
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
26
EXHIBIT E
|*|
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|*| Indicates that certain information in this exhibit has been omitted and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
27
