PROMOTION AGREEMENT
THIS PROMOTION AGREEMENT (this "Agreement") is dated as of June 14th, 1998,
between CNET, Inc., a Delaware corporation ("CNET"), on the one hand, and
Insurion, Inc., a Pennsylvania corporation ("Insurion"), on the other hand (the
"Company") (CNET and the Company, individually a "Party" and collectively, the
"Parties").
BACKGROUND
A. The Company operates an insurance sales business through its Internet
site located at xxx.xxxxxxxxxx.xxx.
B. CNET produces television programs and operates a network of Internet
sites on the world wide web.
C. Pursuant to this Agreement, CNET will provide various links and other
online and television promotions to the Company to assist the Company in
conducting the Relevant Business (as defined below) and the Company will
compensate CNET for providing such promotions.
NOW THEREFORE, the Parties hereby agree as follows:
TERMS
1. DEFINITIONS
"Above the Fold" means the first displayed portion of a web page that is
visible without scrolling.
"AdvantEdge" means a certain category of lower cost/higher restriction
health plans offered by the Company or a designee of the company.
"Banner" means an advertising strip which appears Above the Fold,
occupying at least half of the width of a web page, that is capable of
displaying dynamic graphics and other content and embedded links. An
exemplar of a Banner as contemplated by this Agreement is found on
Exhibit A.
"Banner Program" means the number of Banner advertising Impressions per
month that constitutes a standard banner advertising program in
accordance with CNET's rate card for a particular CNET Site. For example,
a Banner Program on XXXX.XXX currently consists of at least [***] Banner
Impressions, and a Banner Program on XXXXXX.XXX currently consists of at
least [***] Banner Impressions.
"Co-Sponsored Sales" means insurance policies that are: (i) underwritten
by a third party insurance provider who has engaged the Company to market
and sell such policies through the Company Site; (ii) branded under the
trademark of such third party insurance provider;
and (iii) purchased through online registration on the Company Site
during the Initial Term or the Renewal Term (as applicable) by a Tagged
User who accessed the Company Site through an Online Promotion during the
Term and for which policies the Company ultimately receives the premium.
"CNET Sales" means insurance policies that are underwritten by the
company or a designee of the company , as the principal insurance
provider: and purchased through online registration on the Company Site
during the Initial Term or the Renewal Term (as applicable) by a Tagged
User who accessed the Company Site from an Online Promotion during the
Term and for which policies the Company ultimately receives the premium,
but excluding any Co-Sponsored Policy Sales whereby Insurion is acting as
an agent.
"CNET Sales Payments" has the meaning set forth in Section 3.1(b)(i).
"CNET Sites" means the Internet sites operated by or for CNET or its
affiliates, including without limitation the sites referenced in Section
2.3 and in Exhibit B.
"Company Marks" has the meaning set forth in Section 6.
"Company Site" means the Internet site located at the URL
xxx.xxxxxxxxxx.xxx or such other site as the Company may designate as its
replacement and through which the Company conducts the Relevant Business.
"Competitive Business" means any Relevant Business operated by a person
or entity other than the Company.
"Deficient Retail Impressions" means the total amount of Impressions
below the Retail Impressions due to have been delivered in each period
described in Section 2.3(a)(iv) if CNET does not deliver [***] of the
Impressions due to have been delivered in each such period.
"Graphical Link" means an advertising space appearing Above the Fold on a
web page that contains a graphical/HTML hypertext link to another web
page and has dimensions substantially similar to that illustrated in
Exhibit A.
"Impressions" means a user exposure to a page on the CNET Sites
containing an Online Promotion as such exposure is reasonably determined
and measured by CNET in accordance with standard methodologies and
practices customary in the industry.
"Initial Promotions" means the Banners described in Exhibit B to be
provided by CNET pursuant to Section 2.2.
"Initial Term" has the meaning set forth in Section 4.1.
"Launch" means the date on which the Company Site is made commercially
available for processing transactions.
"Online Promotions" means the Retail Promotions and the Initial
Promotions.
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"Referral Fee" means any commission fee and/or referral fee paid by a
co-sponsored insurance provider to the Company directly as consideration
for sourcing premiums for Co-Sponsored Sales. Expressly excluded are
administrative fee, application fee, association fee, up-front slotting
feesor advertising and marketing fee.
"Permanent Placement" means a Banner or Graphical Link that permanently
appears on a specified web page of the CNET Site.
"Products" means any products and services offered to Users by the
Company or through the Company Site.
"Promotions" means Banners, Permanent Placements, Graphical Links,
buttons and other online promotional content.
"Relevant Business" means the marketing and/or sale, through the Internet
or other online service, of medical and PPO, dental, vision,
prescription, long-term care and/or long-term disability insurance.
"Renewal Term" has the meaning set forth in Section 4.2.
"Retail Impressions" means the at least [***] Impressions of Retail
Promotions as defined in Section 2.3.
"Retail Promotions" means the Banners and Graphical Links as provided in
Section 2.3.
"Run-of-Site" means CNET's standard rotation of Banners applicable to
Banner Programs within a particular CNET Site.
"Snap" means CNET's Snap! aggregation service located at the URL
xxx.xxxx.xxx, together with any co-branded editions of such service.
"Tagged User" means each user who is tagged with a cookie (i.e.,
information is placed in the HTTP header in response to a browser
request) by the Company or CNET when accessing the Company Site through
an Online Promotion during the Term.
"Term" has the meaning set forth in Section 4.2.
"Users" means users of the CNET Sites.
"Web Board" means a standard advertisement run by and or for CNET to
promote web sites on its TV program known as XX.XXX or its successors.
2. PROMOTIONS.
2.1 TV Promotions. CNET will provide the Company one 15 second Web
Board on its syndicated weekly TV program, XX.XXX. Such Web Board
will run on each weekly episode of XX.XXX during the Term ;
provided that XX.XXX remains on
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the air throughout such period (the "TV Promotions"). Should
XX.XXX not be run on the air during a portion of the Term, CNET
will run two XXXXXXXX.XXX Banner Programs per month during such
portion of the Term in which XX.XXX is not on the air, which shall
be in addition to the minimum Impressions requirements set forth
in this Agreement.
2.2 Initial Promotions. Prior to the Launch, CNET will provide Banners
for the Company as described in Exhibit B (the "Initial
Promotions"). The specific placement and location of the Initial
Promotions within the CNET Sites and Snap will be mutually agreed
upon by the Parties prior to running the Banners.
2.3 Retail Promotions. Consistent with the provisions of Section 2.6,
CNET will provide various Retail Promotions across the CNET Sites
as follows:
(a) Commencing upon the Launch, CNET will provide the Company
with a total of at least [***] Impressions of Retail
Promotions ("Retail Impressions") as follows:
(i) at least [***] Retail Impressions in accordance with
the monthly schedule described in Section 2.3(a)(iv)
during the Initial Term in the form of two Run-of-Site
Banner Programs per month per site on the following
sites:
XXXX.XXX
XXXXXX.XXX
XXXX.XXX
XXXXXXXX.XXX
(ii) at least [***] Retail Impressions within Snap in
accordance with the monthly schedule described in
Section 2.3(a)(iv) during the Initial Term in the form
of:
(1) Graphical Links within the following Snap
categories
Health
Business & Money
Insurance (to be created by CNET)
Living(1)
(2) Run-of-Site Banner Programs within Snap; and
(iii) at least an additional [***]overall Retail Impressions
during the Initial Term, which will include Banners
that appear on the first search results page for
searches on the following key words within XXXXXX.XXX
and Snap: [***]
-------------------
(1) CNET may also create additional categories that relate to the Relevant
Business that will contain such Graphical Links.
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(iv) provided that the Launch occurs in accordance with
Section 2.9, the Retail Impressions described in
Sections 2.3(a)(i) and 2.3(a)(ii) will be delivered as
follows during the Initial Term:
(1) [***]of such Retail Impressions between Launch
and December 31, 1998;
(2) [***]of such Retail Impressions between January
1, 1999 and March 31, 1999;
(3) [***]of such Retail Impressions between April
1, 1999 and June 30, 1999;
(4) [***]of such Retail Impressions between July l,
1999 and September 30, 1999;
(5) [***]of such Retail Impressions between October
1, 1999 and December 31, 1999; and
(6) [***]of such Retail Impressions between January
1, 2000 and March 31, 2000.
CNET will use reasonable efforts to cause such
percentages of Retail Impressions to be delivered pro
rata on a monthly basis within each of the periods
described in 1 through 6 above. If there are Deficient
Retail Impressions in any of the periods described in
this Section 2.3(a)(iv), at the Company's option, CNET
will either: (i) over-deliver Impressions in the
succeeding period(s) in an amount at least equal to
such number of Deficient Retail Impressions and in such
allocation as reasonably agreeable to the Company; or
(ii) agree to a prorata reduction in the payments due
under Section 3.1(a)(iv).
(b) During the Renewal Term (as defined in Section 4.2), if any,
CNET will provide the Company with a total of at least
[***]Retail Impressions of substantially the same type as
described in Section 2.2 with respect to the Initial Term.
2.5 Search Results. During the Term, the Company Site will appear as
the first site link in all search result pages for searches
performed in XXXXXX.XXX for the Snap key words described in
Section 2.3(a)(iii).
2.6 Placement of Online Promotions. Subject to the requirements of
Section 2.3 and other terms contained herein, CNET will determine
the location of each Retail Promotion displayed throughout the
CNET Sites pursuant to Section 2.3(a)(i) and
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(ii) and may phase in certain types of Retail Promotions as they
are developed by the Company. CNET will consult with the Company
concerning the location and type of the Online Promotions and will
use reasonable efforts to accommodate the Company's reasonable
requests with respect thereto. The Parties agree that the Online
Promotions will receive reasonable and appropriate prominence
designed to enhance user exposure to the Online Promotions and
promote the Company's status as CNET's exclusive provider of
services and products related the Relevant Business. CNET will
monitor and adjust accordingly the location and placement of
Retail Impressions as changes are made in the applicable CNET
Sites. In addition, CNET will use reasonable efforts to ensure
that Retail Promotions are placed on areas of the CNET Sites that
relate to the Relevant Business. On a monthly basis, the Parties
will evaluate the effectiveness of the Retail Promotions and
negotiate reasonably and in good faith to improve the performance
of the Impressions to the extent commercially reasonable for both
parties.
2.7 Design and Production of Online Promotions. The Company will
design any graphics, text, and other content required for the
Online Promotions, with reasonable assistance from CNET, and the
Company will supply digital copies of such graphics and other
materials to CNET. CNET will be responsible for incorporating the
Online Promotions into the CNET Sites and for ensuring that the
Online Promotions are accessible to Users.
2.8 Operation of CNET Site. CNET will be responsible for ensuring that
the CNET Sites function with reasonable reliability and in a
commercially reasonable manner throughout the Term. In particular,
CNET agrees that the CNET Sites will comply with the performance
standards set forth in Exhibit C throughout the Term. Any failure
by CNET to comply with this paragraph after 30 days notice and
cure period will be deemed to be a material breach of this
Agreement.
2.9 Operation of Company Site. The Company will insure that the Launch
occurs no later than November 1, 1998, which may be extended at
the option of the Company for a thirty (30) day period. The
Company will be responsible for ensuring that each link embedded
within an Online Promotion takes the User to the appropriate area
within the Company Site, and that the Company Site functions with
reasonable reliability and in a commercially reasonable manner
throughout the Term. In particular, the Company agrees that the
Company Site will comply with the performance standards set forth
in Exhibit C throughout the Term. Any failure by the Company to
comply with this paragraph after 30 days notice and cure period
will be deemed to be a material breach of this Agreement.
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2.10 Reporting.
(a) CNET to the Company. Within 30 days after the end of each
month during the Term, CNET will provide: (i) a written
report to the Company indicating the number and location of
Retail Promotions displayed on each CNET Site during such
month and the number of times that a User used an embedded
link in each Retail Promotion during such month; and (ii)
other information in CNET's possession or control as
reasonably requested by the Company to verify the number of
Impressions and to perform market analysis of the Online
Promotions and TV Promotions. In addition, CNET will share
with the Company(without requirement of any additional
payment or consideration) certain demographic information
collected by CNET relating to Tagged Users and their usage
behavior; provided that CNET is under no obligation to incur
any additional burden, expense or liability to collect or
supply such information.
(b) The Company to CNET. Within 30 days after the end of each
month during the Term, the Company will provide a report to
CNET indicating the aggregate number of Tagged Users, CNET
Sales and Co-Sponsored Sales (including the aggregate number
Tagged Users responsible for such sales) during such month.
The Company will make this information available in a manner
which allows CNET and the Company to understand the
performance of the various Online Promotions.
(c) User Information. At least once each calendar quarter during
the Term, the Company will deliver to CNET all aggregate
data that the Company collects, if any, with respect to the
Tagged Users, CNET Sales, demographic data, buying behavior,
and a comparison to the respective average for the Company;
provided that the Company is under no obligation to incur
any additional burden, expense or liability to collect or
supply such information.
3. FEES.
3.1 Initial Term Fees. During the Initial Term, in consideration of
and subject to CNET's performance of the terms of this Agreement,
the Company will pay CNET:
(a) an aggregate of [***]payable as follows:
(i) [***] will be payable on June 30, 1998 in
exchange for the Initial Promotions to be
delivered during the second quarter of 1998.
(ii) [***] will be payable on September 30, 1998 in
exchange for the Initial Promotions to be
delivered during the third quarter of 1998;
(iii) [***]will be paid during the Initial Term in
exchange for the Retail Impressions, subject to
the reductions in payments to account for
Deficient Retail Impressions, payable as
follows:
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[***]on December 31, 1998
[***]on March 31, 1999
[***]on June 30, 1999
[***]on September 30, 1999
[***]on December 31, 1999
[***]on March 31, 2000
(iv) [***]will be paid during the Initial Term in
exchange for the television Promotions within
XX.XXX, payable as follows:
[***]on December 31, 1998
[***]on March 31, 1999
[***]on June 30, 1999
[***]on September 30, 1999
(b) policy fees (the "Policy Fees") as follows
(i) CNET Sales Payments. For each CNET Sale
completed during the period from November 1,
1998 until the end of the Initial Term (the
"Revenue Sharing Period") in excess of
[***]such CNET Sales, CNET will receive a
commission of [***]except for such CNET Sales
for the AdvantEdge policy for which the
commission will be [***] ("CNET Sales
Payments"). If the policy underlying a CNET
Sale is in effect for less than 6 months, CNET
will credit the Company [***]per month of early
termination against future Policy Fees, except
with respect to AdvantEdge policies, as to
which CNET will credit the Company [***] per
month of early termination. CNET Sales Payments
will be due within 30 days after the end of the
month in which the Company receives payment for
such CNET Sale, upon delivery of the report
referenced in Section 2.10(b).
(ii) Co-Sponsored Sales Payments. In addition to the
payments described above, for each Co-Sponsored
Sale completed during the Revenue Sharing
Period in excess of [***] Co-Sponsored Sales,
CNET will receive a commission of [***] of the
Referral Fee received by the Company
("Co-Sponsored Sales Payments"). Co-Sponsored
Sales Payments will be due 30 days after the
end of the month in which the Company receives
payment of Referral Fee for such Co-Sponsored
Sales, upon delivery of the report referenced
in Section 2.10(b).
3.2 Renewal Term Fees.
(a) Retail Impressions Payments. During the Renewal Term,
if any, the Company will pay CNET an aggregate of
[***] in exchange for the [***] guaranteed Retail
Impressions during such Renewal Term, payable as
follows:
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[***] on June 30, 2000
[***] on September 30, 2000
[***] on December 31, 2000
[***] on March 31, 2001
(b) Renewal Policy Fees. In addition to the Retail
Impressions Payments during the Renewal Term, for
each CNET Sale completed during the Renewal Term in
excess of [***]such CNET Sales, CNET will receive a
commission of [***] except CNET will only receive
[***] for each such CNET Sale of an AdvantEdge
policy. If the policy underlying a CNET Sale is in
effect for less than 6 months, CNET will credit the
Company [***] per month of early termination (or
[***] per month for AdvantEdge policies) against
future Renewal Policy Fees. CNET will also receive a
non-regulated referral fee which is based upon [***]
of the Referral Fees that the Company receives from
each Co-Sponsored Sale completed during the Renewal
Term, if any, in excess of [***] Co-Sponsored Sales
made during the Renewal Term. CNET Sales Payments and
Co-Sponsored Sales Payments will be due within 30
days after the end of the quarter in which the
Company receives payment for such CNET Sales, upon
delivery of the report referenced in Section 2.10(b).
3.3 Payment. Payments under this Section 3 will be made in U.S.
Dollars by wire transfer of immediately available funds and
are nonrefundable once paid.
4. TERM AND TERMINATION.
4.1 Initial Term. The initial term of this Agreement will begin
within 72 hours of the execution of this Agreement during
which time the Company will promptly seek Board approval and
end on March 31, 2000, except that the Company may terminate
this Agreement upon [***] days notice if the Company deems
that they will be unable to fulfill the obligations of this
agreement (for reasons relating to insurance regulations) at
any time after payment of [***] pursuant to section 3.1(a)(i)
(the "Initial Term").
4.2 Renewal Option and Term. The Company, at its option, may
extend the Term for an additional 12 month period beginning on
April 1, 2000 and ending on March 31, 2001 (the "Renewal
Term") (the Initial Term and Renewal Term referred to as the
"Term"). The Renewal Option may be exercised by the Company
notifying CNET in writing during the period beginning January
1, 2000 and ending January 31, 2000.
4.3 Termination. Notwithstanding the foregoing, either Party may
terminate this Agreement at any time by giving written notice
of termination to the other Party, if the other Party commits
a material breach of its obligations hereunder that is not
cured within 30 days after notice thereof from the
non-breaching Party.
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4.4 Effect of Termination. If this Agreement is terminated during
the Term for any reason, the required number of Retail
Impressions under Sections 2.2 and 2.3 will be pro rated
accordingly; provided that CNET will be required to deliver
after termination (in accordance with the terms of this
Agreement in effect before termination, which terms will
survive to the extent applicable thereto) any Deficient Retail
Impressions applicable to the period prior to termination, in
accordance with the last paragraph of Section 2.3(a)(iv).
Termination of this Agreement will not affect any obligations
arising prior to termination, including without limitation the
Company's obligation to pay fees with respect to CNET Sales
and Co-Sponsored Sales occurring and Impressions delivered
prior to termination.
4.5 Termination of Referral Fees and Renewal Fees. In the event of
the termination of this agreement, for whatever cause, the
Company will be obligated to pay CNET all referral and renewal
fees due through the end of the quarter in which the
termination has taken effect. However, all future referral and
renewal fees will cease.
5. EXCLUSIVITY. Prior to the expiration of the Initial Term, CNET will not
negotiate with any third party with respect to any agreement or arrangement to
provide Promotions for a Competitive Business within the CNET Sites. During the
Term, CNET , will not promote or display within any CNET Site any kind of
Promotions for a Competitive Business, and will not enter into any agreement or
arrangement regarding the same. The Parties acknowledge that the foregoing will
not prevent CNET from displaying text links and other references to a
Competitive Business as reasonably necessary to provide appropriate editorial
and search related services (e.g. by providing text links within articles and in
response to search results) within the CNET Sites for which no consideration is
received by CNET.
6. TRADEMARK LICENSES. The Company hereby grants during the Term to CNET a
non-exclusive, royalty-free license to use, display and publish the Company's
trademarks, trade names, service marks and logos that may be delivered by the
Company to CNET expressly for inclusion in the Online Promotions, solely for use
in connection with the Online Promotions (the "Company Marks"). Any use of the
Company Marks by CNET must comply with any reasonable usage guidelines
communicated by the Company to CNET from time to time. Nothing contained in this
Agreement will give CNET any right, title or interest in or to the Company Marks
or the goodwill associated therewith, except for the limited usage rights
expressly provided above. CNET acknowledges and agrees that, as between the
Company and CNET, the Company is the sole owner of all rights in and to the
Company Marks.
7. RESPONSIBILITY FOR THE COMPANY PRODUCTS AND CNET SITES.
7.1 The Company acknowledges and agrees that, as between the
Company and CNET, the Company will be solely responsible for
any claims or other losses associated with or resulting from
the marketing or operation of the Company Site or the offer or
sale of any Products by the Company or through the Company
Site. CNET is not authorized to make, and agrees not to make,
any representations or warranties concerning the Products,
except to the extent (if any) contained within Promotions
delivered to CNET by the Company.
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7.2 CNET acknowledges and agrees that, as between the Company and
CNET, CNET will be solely responsible for any claims or other
losses associated with or resulting from the operation of the
CNET Sites.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Each Party. The Parties each represent and warrant that its
entry into, and performance of its obligations hereunder are
rightful and do not violate any other agreement to which it is
a party, and that its conduct in performing this Agreement
will be in conformity with all applicable and valued laws,
rules and regulations.
8.2 The Company. The Company hereby represents and warrants to
CNET that the Company has, and will have throughout the Term,
all full and unrestricted rights to use and exploit and to
authorize CNET to use the Company Marks as contemplated by
this Agreement and that CNET's use of the Company Marks will
not infringe any trademark right of any third party within the
United States.
9. MUTUAL INDEMNIFICATION.
9.1 Indemnification by CNET. CNET shall indemnify and hold
harmless the Company, its parents, subsidiaries, directors,
officers, employees and shareholders from and against any
costs, losses, liabilities and expenses, including all court
costs, reasonable expenses and reasonable attorney's fees
(collectively, "Losses") that the Company may suffer, incur or
be subjected to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether commenced
or threatened, arising out of or as a result of (a) any breach
or alleged breach by CNET of its representations, warranties
or covenants hereunder; or (b) the operation of the CNET Sites
(except in cases where the Company is required to indemnify
CNET under the following paragraph), including claims of
infringement or misappropriation of intellectual property
rights.
9.2 Indemnification by the Company. Except to the extent the
Company is entitled to indemnification from CNET under Section
9.1, the Company shall indemnify and hold harmless CNET, its
parents, subsidiaries, directors, officers, employees and
shareholders from and against any Losses that CNET may suffer,
incur or be subjected to by reason of any legal action,
proceeding, arbitration or other claim by a third party,
whether commenced or threatened, arising out of or as a result
of (a) any breach or alleged breach by the Company of its
representations, warranties or covenants hereunder; (b) claims
of infringement or misappropriation of intellectual property
rights as a result of the authorized use by CNET of the
Company Marks or any content provided by the Company to CNET
expressly for display in connection with or as part of the
Online Promotions and TV Promotions in accordance with this
Agreement; or (c) the operation of the Company Site or the
offer or sale of the Products through the Company Site.
9.3 Indemnification Procedures. If an indemnifiable claim should
be made against either Party, the party seeking
indemnification (the "Indemnified Party") shall
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promptly notify the other Party (the "Indemnifying Party"). If
an Indemnified Party provides such notice, the Indemnified
Party shall permit the Indemnifying Party to control the
defense, disposition or settlement of the matter at its own
expense; provided that the Indemnifying Party shall not,
without the consent of the Indemnified Party enter into any
settlement or agree to any disposition that imposes an
obligation on the Indemnified Party that is not wholly
discharged or dischargeable by the Indemnifying Party, or
imposes any conditions or obligations on the Indemnified Party
other than the payment of monies that are readily measurable
for purposes of determining the monetary indemnification or
reimbursement obligations of Indemnifying Party. The
Indemnified Party shall notify Indemnifying Party promptly of
any claim for which Indemnifying Party is responsible and
shall cooperate with Indemnifying Party in every commercially
reasonable way to facilitate defense of any such claim;
provided that the Indemnified Party's failure to notify
Indemnifying Party shall not diminish Indemnifying Party's
obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of
such failure. An Indemnified Party shall at all times have the
option to participate in any matter or litigation through
counsel of its own selection and at its own expense.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL (OTHER THAN LOST PROFITS FOR BREACH OF
CONTRACT) OR INCIDENTAL DAMAGES.
11. MISCELLANEOUS.
11.1 Assignment. This Agreement may not be assigned by either
Party, except (a) to the transferee of substantially all of
the business operations of such Party (whether by asset sale,
stock sale, merger or otherwise) or (b) to any entity that
controls, is controlled by or is under common control with
such Party. Each Party acknowledges that the other Party may
reorganize its business so that certain of the business or
obligations hereunder are operated or performed by affiliates
of such other Party, in which case such affiliates may perform
on behalf of such other Party pursuant to this Agreement;
provided that such other Party will not be relieved of any of
its obligations hereunder.
11.2 Relationship of Parties. This Agreement will not be construed
to create a joint venture, partnership or the relationship of
principal and agent between the Parties hereto, nor to impose
upon either Party any obligations for any losses, debts or
other obligations incurred by the other Party except as
expressly set forth herein.
11.3 Entire Agreement. This Agreement constitutes and contains the
entire agreement between the Parties with respect to the
subject matter hereof and supersedes any prior oral or written
agreements. This Agreement may not be amended except in
writing signed by both Parties. Each Party acknowledges and
agrees that the other
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has not made any representations, warranties or agreements of
any kind, except as expressly set forth herein.
11.4 Audit Rights. Each Party will have the right to engage an
independent third party to audit the books and records of the
other Party relevant to the verification of Online Promotions,
the calculation of Retail Impressions or the calculation of
CNET Sales, upon reasonable notice and during normal business
hours, and the other Party will provide reasonable cooperation
in connection with any such audit. The Party requesting the
audit will pay all expenses of the auditor unless the audit
reveals an underpayment by the other Party of more than 5%, in
which case the other Party will reimburse all reasonable
expenses of the auditor.
11.5 Applicable Law and Venue. This Agreement will be construed in
accordance with and governed by the laws of the State of
California, without regard to principles of conflicts of law.
11.6 Confidentiality. In connection with the activities
contemplated by this Agreement, each Party may have access to
confidential or proprietary technical or business information
of the other Party, including without limitation (a)
proposals, ideas or research related to possible new products
or services; (b) financial statements and other financial
information; and (c) the material terms of the proposed
relationship between the Parties (collectively, "Confidential
Information"). Each Party will take reasonable precautions to
protect the confidentiality of the other Party's Confidential
Information, which precautions will be at least equivalent to
those taken by such Party to protect its own Confidential
Information. Except as required by law or as necessary to
perform under this Agreement, neither Party will knowingly
disclose the Confidential Information of the other Party or
use such Confidential Information for its own benefit or for
the benefit of any third party. A Party's "Confidential
Information" does not include any information that is or
becomes generally available to others (other than through a
breach of this provision by the other Party) or that is or was
independently developed or obtained by the other Party without
use of or reliance upon any Confidential Information received
in connection with the proposed business relationship.
Notwithstanding the foregoing, the following information will
not be considered "Confidential Information" provided that
such information is not publicly identified as relating to or
coming from the Company: (a) information contained in the
reports described in Section 2.10, and (b) any information
obtained by CNET from Users who affirmatively request to be
added to an e-mail newsletter.
11.7 Press Release. Each Party may issue a press release which is
agreed upon by the Parties, concerning the business
relationship contemplated by this Agreement, and each Party
will provide an appropriate quote from one of its senior
executive officers for use in the other Party's release. The
Company agrees that CNET's press releases may disclose the
total consideration payable to CNET hereunder. Each Party will
provide the other with a reasonable opportunity to review and
comment on its press release.
-13-
11.8 Waiver. The failure of either Party to insist upon or enforce
strict performance by the other Party of any provision of this
Agreement or to exercise any right under this Agreement will
not be construed as a waiver or relinquishment to any extent
of such Party's right to assert or rely upon any such
provision or right in that or any other instance; rather, the
same will be and remain in full force and effect.
11.9 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which
together constitute one and the same document.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
CNET, INC., PROVIDENT AMERICAN INSURANCE
a Delaware corporation CORP., a Pennsylvania corporation
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxx
---------------------------- ----------------------------
Title: Vice President Finance Title: Chairman and CEO
and Administration ---------------------------
---------------------------
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------
Title: President
---------------------------
INSURION, INC.,
a Pennsylvania corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------
Title: Chairman and CEO
---------------------------
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------
Title: President
---------------------------
-14-
EXHIBIT A
1. Banner - the Datek Online advertisement taken from XXXX.XXX is an exemplar of
a Banner
[GRAPHIC OMITTED]
2. Graphical Link - the IBM advertisement taken from XXXX.XXX is an exemplar of
a Graphical Link:
A-1
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
Another example of a Graphical Links is the promotional button (88 x 31 pixels)
for ETRADE, which appears at
xxxx://xxx.xxxx.xxx/Xxxxxxxx/Xxxxx/0,000,0x0x0xxXXXXxxxxxx,00.xxxx___________.
A-2
EXHIBIT B
INITIAL PROMOTIONS
CNET will display Banners on the CNET Sites and Snap with an aggregate value,
based on CNET's then-current rates, equal to [***] during the second quarter of
1998 and [***] during the third quarter of 1998, as indicated in the table
below:
---------------------------------------------------------------------
Number of Impressions
Site: Banner Value Per Month
---------------------------------------------------------------------
XXXX.XXX [***] [***], in the month of June 1998
(second quarter 1998)
---------------------------------------------------------------------
XXXX.XXX [***] [***] for the months of July 1998,
August 1998, September 1998 (third
quarter 1998
---------------------------------------------------------------------
B-1
EXHIBIT C
PERFORMANCE STANDARDS
1. The Company Site. The Company Site and the Company's related
operations must comply with the following performance standards throughout
the Term:
1.1 The Company Site will be operational and fully functional in all
material respects (i.e. capable of displaying information, receiving purchases
and conducting transactions as contemplated in the ordinary course of business)
at least 97% of the time during any 30 day period.
1.2 The average time required to start displaying the HTML on a page of
the Company Site after a link from a CNET Site shall not exceed a daily average
of 3 seconds, and the average time required to deliver an entire page of the
Company Site over the open Internet shall not exceed a daily average of 6
seconds. For both measurements, the Company may assume high-speed connectivity
to the Internet (not modem connection speeds).
1.3 Without limiting the effect of 1 and 2, the Company shall provide
to users coming to the Company Site from the Retail Promotions at least the same
level of service as is offered to users coming directly to the Company Site.
2. The CNET Sites. The CNET Sites and CNET's related operations must
comply with the following performance standards throughout the Term.
2.1 CNET will be operational and fully functional in all material
respects (i.e. capable of displaying information, receiving purchases and
conducting transactions as contemplated in the ordinary course of business) at
least 97% of the time during any 30 day period.
C-1
FIRST AMENDMENT TO PROMOTION AGREEMENT
THIS FIRST AMENDMENT TO THE PROMOTION AGREEMENT (the "Amendment") is dated as of
November 13, 1998 between CNET, Inc., with its principal place of business
located at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("CNET"), and
Insurion, Inc., with its principal place of business located at 0000 XxXxxx
Xxxx, Xxxxxxxxxx, XX 00000 (the "Company"). CNET and Company entered into the
Promotion Agreement dated June 14, 1998 (the "Agreement") wherein CNET agreed to
provide various promotions on the CNET Sites and CNET television shows. Company
has been unable to comply with certain provisions of the Agreement, and CNET and
Company have determined that it is in the best interest of each party to modify
the Agreement on the terms set forth in this Amendment. Accordingly, the
parties, intending to be legally bound, hereby agree as follows:
1. Delivery of Promotions. Notwithstanding the terms of Section 2 of the
Agreement, CNET will not provide any Promotions. Online Promotions, or TV
Promotions (collectively the "Programs") for the Company during October,
November and December 1998 (collectively the "Fourth Quarter") or January
1999, and no Impressions will be due prior to January 31, 1999. All
Programs that were intended in the Agreement to be delivered during the
Fourth Quarter and January 1999 will be delivered, at CNET's discretion
and subject to available inventory, over the remainder of the Term
beginning on February 1, 1999, provided that CNET will use commercially
reasonable efforts to deliver all TV Promotions by December 31, 1999.
2. Payment for Promotions. Notwithstanding the terms of Section 3 of the
Agreement, if the Company completes a round of financing after November
17, 1998, for at least $500,000 during the Fourth Quarter, then on or
before December 31, 1998, the Company will pay to CNET the sum of
$75,000, which will be applied to reduce the $250,000 debt owed to CNET
for Programs provided for the Company during July, August and September
1998 (collectively the "Third Quarter"). Notwithstanding the foregoing,
all amounts due to CNET for Programs provided for the Company during the
Third Quarter will be due and payable on March 31, 1999, and the Company
agrees to promptly pay the same. Further, the Company will pay for
Programs to be delivered in January, February and March 1999 on or before
March 31, 1999. All Programs delivered after March 31, 1999, will be paid
for in advance at the beginning of each month during which such Programs
will run, with the first such payment due on or before April 1., 1999.
After April 1, 1999, if payment for the Programs is not received by the
tenth day of any month, CNET may terminate the Agreement immediately upon
written notice to Company.
3. Upon the execution of this Amendment, each reference in the Agreement to
"this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference in any document related thereto, or executed
in connection herewith, shall mean and be a reference to the Agreement as
amended hereby, and the Agreement and this Amendment shall be read
together and construed as one single instrument. Any capitalized terms
not defined herein shall have the meaning set forth in the Agreement.
4. Except as specifically amended above, the Agreement and any document
related thereto or executed in connection therewith shall remain in full
force and effect and are hereby ratified and confirmed in all respects.
5. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right,
power or remedy of either party under any document related thereto, or
constitute a waiver of any provision of any document related thereto.
IN WITTNESS WHEREOF, the parties have executed this Amendment effective the day
and year first written above.
CNET, INC. INSURION, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------ ------------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx Xxxxxx
------------------------------ ------------------------------
Title: Vice President Title: President
------------------------------ ------------------------------
