EXHIBIT 10.17
TERMINATION, SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Termination, Settlement and Mutual Release Agreement (the "Termination
Agreement") is made and entered into as of the date of the last signature below
(the "Effective Date") between At Home Corporation (as successor-in-interest to
Excite, Inc.) a Delaware corporation (d/b/a "Excite@Home" or "Contract Party"),
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, XX 00000, and FairMarket, Inc., a
Delaware corporation ("FairMarket" or "Company"), located at 000 Xxxxxxx Xxxx
Xxxxx, Xxxxxx, XX 00000 (each a "Party", or jointly the "Parties").
RECITALS
A. Whereas, Contract Party and Company are parties to an Auction Services
Agreement dated as of August 23, 1999 (the "Agreement") pursuant to which
FairMarket has developed and maintains a co-branded version of the
FairMarket Auction Services on behalf of Contract Party on an integrated
basis with the Excite Network (capitalized terms used and not defined
herein having the meanings specified in the Agreement).
B. Whereas, the Parties desire to enter into a new arrangement to govern the
relationship of the Parties and to terminate the Agreement.
Now, therefore, in consideration of the premises and for other good and valuable
consideration, which the parties acknowledge to be sufficient, the Parties agree
as follows:
1) Contract Party and Company agree that the Agreement is hereby terminated
effective as of the Effective Date, subject to the satisfaction of
Company's and Contract Party's obligations set forth in Paragraphs 2, 3 and
4 below.
2) Separate from and in addition to its obligations under Sections 3 and 4, in
accordance with the currently executed Auction Services Agreement, Company
shall continue its obligation to purchase, and Contract Party agrees to
provide, the $2.5 million of advertising services set forth in all
currently executed insertion orders, namely the Excite@Home insertion order
number 47960 in full satisfaction of the obligations of the parties set
forth in Section 4 of the Agreement for the quarter ended December 31,
2000. Such advertising services will be paid via credit by Contract Party,
effective December 31, 2000, against the remaining uncredited $2.5 million
of the "Withheld Amount" as defined in and pursuant to Section 4 of the
Letter Agreement dated August 20, 1999.
3) In addition, Company shall, separate from and in addition to its
obligations under Sections 2 and 4, purchase and Contract Party agrees to
provide, $500,000 of advertising services on or before December 31, 2000,
such advertising services being described in Exhibit B hereto. The
advertising services will run on the Excite Network, including, but not
limited to, Excite@Home properties such as Excite, Communities, Webshots,
and Blue Mountain Arts. Such $500,000 is non-refundable and will be paid by
Company 30-days after the Effective Date of this Termination Agreement.
4) In addition, Company shall, separate from and in addition to its
obligations under Sections 2 and 3, pay to Contract Party of the
non-refundable sum of Three Million Five Hundred Thousand Dollars
(US$3,500,000) by way of wire transfer no later than Friday, December 29,
2000. In consideration of this payment, Contract Party agrees to license
to Company the "Licensed Data" as defined in and pursuant to the Email
Data License Agreement attached as Exhibit A hereto, such agreement to be
executed by each Party concurrently with the execution of this Termination
Agreement.
5) The payment and performance of the obligations set forth in Sections 2, 3
and 4 are in full and complete satisfaction of all obligations of the
Parties required to be paid or performed under the
Agreement on or before December 31, 2000. Upon the effective termination
of the Agreement pursuant to Section 1, neither Party shall have any
further obligation to the other pursuant to the Agreement.
6) Each Party hereby releases and forever discharges the other from all
obligations, liabilities, causes of action, claims or demands, whether
known or unknown, that the other, its affiliates, subsidiaries, officers,
directors, agents, employees or legal representatives may now have or that
may subsequently accrue directly relating to or arising from the Agreement
other than those relating to or arising from this Termination Agreement.
Specifically, each Party agrees that the other Party has fulfilled all of
its obligations under the Agreement required to be fulfilled on or before
December 31, 2000 and Company acknowledges that the payment by Company
outlined in Section 2 is for services fully rendered by Contract Party.
7) The Parties expressly waive the provisions and protections of Section 1542
of the California Code of Civil Procedure which provides as follows:
a) A general release does not extend to claims which one party does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement.
b) The Parties expressly acknowledge and understand the significance,
effect and consequence of a waiver of Section 1542 and hereby assume
full responsibility for such a waiver.
8) Contract Party acknowledges that FairMarket intends to publicly announce
the existence and terms of this Termination Agreement and that FairMarket
will be required to file this Termination Agreement as an exhibit to a
report filed by it under the Securities Exchange Act of 1934, as amended,
in accordance with the rules and regulations under such Act (or, if
applicable, pursuant to the Securities Act of 1933, as amended, and the
rules and regulations thereunder) or the rules of the Nasdaq. Contract
Party hereby consents to such public announcement provided that FairMarket
notifies Contract Party at least 24 hours in advance of such announcement
and provides Contract Party with a reasonable opportunity to review the
text of such announcement regarding the existence and terms of this
Termination Agreement.
9) Each person executing this Termination Agreement warrants and represents
that he or she has the authority to bind the Party on whose behalf his or
her signature appears. The Parties to this Termination Agreement
acknowledge that they have read, and that they fully understand the terms
of this Termination Agreement, and that they each have been advised of the
legal effect and consequences of this Termination Agreement by their
respective legal counsel.
10) This Termination Agreement may be executed in counterparts, all of which
together shall constitute one document. This Termination Agreement has been
jointly drafted by the Parties and, as such, should not be construed or
interpreted as if drafted by one Party or the other.
11) This Termination Agreement, expressly supersedes all previous discussions,
negotiations, understandings, or agreements, written or otherwise, between
the Parties with respect to the subject matter of this Termination
Agreement and shall be binding upon the Parties' successors and assigns.
This Termination Agreement fully, completely and exclusively sets forth the
agreement of the Parties as to the subject matter hereof and may only be
amended in a writing executed by all Parties. This Termination Agreement
shall be governed by the laws of the State of California. If any provision
of this Termination Agreement is subsequently is held by to be
unenforceable by a court or arbitrator, that provision shall be stricken
from this Termination Agreement and the remaining provisions shall remain
in full force and effect.
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12) In the event of any dispute between the Parties arising from or concerning
in any manner the subject matter of this Termination Agreement, the Parties
shall refer the dispute(s) to the American Arbitration Association for
resolution through binding arbitration by a single arbitrator pursuant to
the American Arbitration Association's rules applicable to commercial
disputes. The arbitration shall be held in Redwood City, California, and
the decision reached by such arbitrator shall be entered as a judgment in
any court of competent jurisdiction.
IN WITNESS HEREOF, each of the Parties has caused this Termination
Agreement to be executed by a duly authorized representative thereof as of the
day and year set forth below.
SIGNED BY: SIGNED BY:
AT HOME CORPORATION FAIRMARKET, INC.
Signature: /s/ Xxxxx X. Xxxxx Signature: /s/ Xxxxxx Xxxxxx
------------------ -----------------
Type or print clearly: Type or print clearly:
Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
-------------- -------------
Title: EVP, Consumer Broadband Svcs & Cmc Title: CEO
---------------------------------- ---
Date: 12/28/00 Date 12/28/00
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TERMINATION AGREEMENT
EXHIBIT A
EMAIL DATA LICENSE AGREEMENT
This Email Data License Agreement (the "Agreement") is entered into effective
this__________________ day of December 2000 (the "Effective Date") between
MatchLogic, Inc. with its principal place of business located at 0000 Xxxxxx
Xxxxx Xxxx., Xxxxxxxxxxx, Xxxxxxxx 00000 ("Licensor") and FairMarket, Inc. a
Delaware corporation with its principal place of business at 000 Xxxxxxx Xxxxx,
Xxxxxx, XX 00000 ("Licensee").
1. INTERPRETATION. For purposes of this Agreement, "Licensed Data" shall have
the meaning ascribed thereto in the attached Exhibit A, which is hereby
incorporated by reference into this Agreement.
2. LICENSES.
x. XXXXX OF LICENSE. Licensor grants Licensee a nonexclusive, worldwide,
perpetual license (without the right to sublicense) to use the
Licensed Data in accordance with the terms and conditions of this
Agreement to send up to three (3) email messages per month to each
Licensed Data address for the purposes of Licensee's content creation
and user acquisition and for the purposes of promotion and marketing
of Licensee's products, activities, content or services (it being
understood and agreed that users, products, activities, content and
services of third parties will be deemed to be those of Licensee for
purposes of this Agreement to the extent that the same relate to any
web site developed, hosted and maintained by Licensee whether or not
directly in the name of Licensee but only to the extent that any such
users, products, activities, content and services are directly related
to Licensee's business of providing ecommerce services and technology
(such third parties being referred to below as "Customers")). Licensee
may not use any part of the Licensed Data in email campaigns promoting
the products or services of third parties (except as otherwise
permitted under the preceding sentence). Any email messages sent using
the Licensed Data shall be branded as messages from Licensee or as
messages from Licensee and a Customer, and shall contain the footer
and unsubscribe verbiage set forth in Exhibit A. Licensee shall be
responsible for unsubscribing any end-user when requested to do so,
and will ensure that its use of the Licensed Data meets the standards
set forth in MatchLogic's publicly posted privacy policy.
b. RESTRICTIONS ON USE. Licensee agrees to use the Licensed Data only for
the purposes set out above. Licensee shall not (i) use the Licensed
Data for market research purposes (i.e., for purposes other than
conducting the marketing and promotional activities described in
Section 2(a) above.); (ii) permit any parent, subsidiaries, affiliated
entities or third parties (other than third party contractors or
agents retained by Licensee to store or use the Licensed Data to
perform services for Licensee which, if performed by Licensee, would
fall within the scope of the use permitted hereunder) to use the
Licensed Data, directly or indirectly, provided that the uses
permitted under Section 2(a) will not be deemed to be prohibited by
this clause; or (iii) use the Licensed Data to send email messages on
behalf of any third party or include any advertisement or promotion
for any third party in any email message, except that Licensee may
include messages from its Customers, suppliers and sponsors for the
purpose of promoting Licensee's activities, products, content or
services.
c. COPIES. Licensee, solely to enable it to use the Licensed Data in
accordance with the terms and conditions of this Agreement, may make a
reasonable number of copies of the Licensed Data (but in any event no
more than 3 copies plus a reasonable number of copies for back-up
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and archiving purposes), provided that all such copies shall include
Licensor's copyright and any other proprietary notices. Licensee shall
have no other right to copy, in whole or in part, the Licensed Data.
Any copies of the Licensed Data made by Licensee are the exclusive
property of Licensor.
d. MODIFICATIONS. Licensee may alter or otherwise modify the Licensed
Data, but Licensee acknowledges that Licensor shall not have any
liability or responsibility that may result from Licensee's alteration
or modification of the Licensed Data, and Licensee agrees to indemnify
Licensor against any and all liability arising out of any such
modification or alteration by Licensee.
e. MATERIAL TERMS AND CONDITIONS. Licensee specifically agrees that each
of the terms and conditions of this Section 2 are material and that
the breach of any term or condition of this Section 2 in any material
respect shall constitute an Event of Default to which the provisions
of Section 12 of this Agreement apply.
3. GOOD BUSINESS PRACTICES. Each party will: (a) conduct business in a manner
that reflects favorably at all times on the other party; (b) avoid
deceptive, misleading or unethical practices that are or might be
detrimental to the other party and the other party's products and services
or the public; (c) make no false or misleading representations with regard
to the other party or the other party's products or services; (d) make no
representations, warranties or guarantees to customers with respect to the
specifications, features or capabilities of the other party's products and
services that are inconsistent with the literature distributed by the other
party; (e) comply with all applicable laws and regulations in performing
its duties under this Agreement and in any of its dealings with respect to
the other party's products and services; and (f) comply with all aspects of
its publicly posted privacy policy.
4. LICENSOR OBLIGATIONS.
a. DELIVERY OF LICENSED DATA. Licensor shall deliver the Licensed Data to
Licensee in a mutually agreed to format upon payment of the License
Fee.
b. ACCURACY AND CORRECTIONS. Licensor shall use commercially reasonable
efforts to ensure that all Licensed Data provided hereunder is true,
current and accurate.
5. LICENSE FEE.
a. IN GENERAL. In consideration for the license granted by Licensor under
this Agreement, Licensee shall pay Licensor a fee as set forth in the
attached Exhibit B (the "License Fee"), which is hereby incorporated
by reference into this Agreement.
b. PAYMENT TERMS. The License Fee shall be due and payable in accordance
with the payment schedule set forth in Exhibit B. All amounts not paid
within ten (10) days of the due date shall bear interest at the rate
of one and one-half percent (1.5%) per month, or at the highest rate
allowed by law, whichever is less, from the date due until paid.
c. TAXES. All amounts payable by Licensee pursuant to this Agreement
shall be exclusive of all excise, sales, use and other similar taxes
imposed by any federal, provincial, municipal or other governmental
authority (other than taxes on income), all of which taxes that are
payable shall be paid by Licensee to Licensor or to a governmental
authority as may be required by law.
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d. NON-PAYMENT. In addition to the termination rights set out in Section
12 of this Agreement, Licensor may terminate this Agreement if
Licensee fails to pay any amount due hereunder and such non-payment
remains uncured for five (5) business days following the receipt by
Licensee of written notice of such non-payment.
6. OWNERSHIP. Licensee and Licensor agree that Licensor owns all proprietary
rights, including patent, copyright, trade secret, trademark and other
proprietary rights, in and to the Licensed Data. Licensee agrees that it
shall not transfer, assign, or sub-license all or any part of the rights
granted to Licensee hereunder except as expressly permitted in this
Agreement.
7. CONFIDENTIAL INFORMATION. Licensee agrees that the Licensed Data contains
proprietary information, including trade secrets, know-how and confidential
information, that is the exclusive property of Licensor (the "Confidential
Information"). Confidential Information shall include the terms of and the
existence of this Agreement. During the period this Agreement is in effect
and at all times after its termination, Licensee and its employees and
agents shall maintain the confidentiality of this Confidential Information
and not sell, license, publish, display, distribute, disclose or otherwise
make available this Confidential Information to any third party nor use
such Confidential Information except as authorized by this Agreement or as
required by law, rule, regulation, or court order. Except as required by
law, rule, regulation, or court order, Licensee shall not disclose any such
Confidential Information other than to employees, agents and permitted
contractors of Licensee who reasonably need to know such Confidential
Information in connection with the exercise of rights or the performance of
obligations under this Agreement without the prior written consent of
Licensor. Notwithstanding the foregoing, Licensor acknowledges that, for
the purpose of this Section 6, Confidential Information does not include
the following information:
a. information which is in the public domain when it is received by or
becomes known to Licensee or which subsequently enters the public
domain through no fault of Licensee (but only after it enters the
public domain);
b. information which is already known to Licensee at the time of its
disclosure to Licensee by Licensor and is not known by Licensee to be
the subject of an obligation of confidence of any kind;
c. information which is independently developed or received by Licensee
in connection with its own business activities;
d. information which is received by Licensee without an obligation of
confidence of any kind from a third party who Licensee had no reason
to believe was not lawfully in possession of such information free of
any obligation of confidence of any kind, but only until Licensee
subsequently comes to have reason to believe that such information was
subject to an obligation of confidence of any kind when originally
received; and information which is not subject to an obligation of
confidence of any kind when released, disclosed, made available or
communicated by Licensor to a third party.
8. WARRANTY. Licensor represents and warrants that it has all rights necessary
to grant the license to the Licensed Data under this Agreement.
9. DISCLAIMER OF ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE LICENSED DATA IS PROVIDED TO LICENSEE ON AN "AS IS" BASIS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LICENSOR MAKES, AND
LICENSEE RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ALLEGEDLY
EXTENDED IN ANY COMMUNICATION WITH LICENSEE. LICENSOR
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SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PUPOSE AND NONINFRINGEMENT. LICENSOR DOES NOT WARRANT THAT
THE DATA WILL BE ERROR FREE.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LICENSOR IS UNDER NO
OBLIGATION AND SHALL NOT PROVIDE TO LICENSEE ANY TECHNICAL SUPPORT
WHATSOEVER RELATED TO THIS DATA.
10. NO CONSEQUENTIAL DAMAGES. Except for claims for brought pursuant to Section
11, neither party shall be liable to the other party for indirect, special,
incidental, exemplary or consequential damages (including, without
limitation, lost profits) related to this Agreement or resulting from
Licensee's use or inability to use the Data, arising from any cause of
action whatsoever, including contract, warranty, strict liability, or
negligence, even if such party has been notified of the possibility of such
damages.
11. LIMITATION ON RECOVERY. Except for claims for claims brought pursuant to
Section 11, under no circumstances shall the liability of either party
exceed the amounts paid by Licensee to Licensor under this Agreement.
12. INDEMNIFICATION.
a. LICENSOR. Licensor shall indemnify and hold harmless Licensee from and
against any claims, including reasonable legal fees and expenses, that
the Licensed Data does or will infringe, violate or misappropriate any
third party U.S. patent, copyright, trademark, trade secret or other
intellectual property right, or that the Licensed Data, as delivered
to Licensee, violates the privacy rights of any third party, and will
pay all costs incurred, final judgments awarded or settlements entered
into on such claims.
b. LICENSEE. Licensee shall indemnify and hold harmless Licensor from and
against any claims, including reasonable legal fees and expenses,
arising from Licensee's use of the Licensed Data, and will pay all
costs incurred, final judgments awarded or settlements entered into on
such claims.
c. CONDITIONS. The indemnifying party's indemnification obligations are
conditioned upon the indemnified party: (i) giving prompt notice to
the indemnifying party of the claim or action; (ii) granting to the
indemnifying party sole control of the defense or settlement of the
claim or action (except that the indemnified party's prior written
approval will be required for any settlement that reasonably can be
expected to require a material affirmative obligation of, result in
any ongoing material liability to or materially prejudice or
detrimentally impact the indemnified party in any way); and (iii)
providing reasonable cooperation and, at the indemnifying party's
request and expense (except for the value of the time of the
indemnified party's employees), assistance in the defense or
settlement of the claim or action.
d. THIS SECTION 11 STATES THE ENTIRE LIABILITY AND SOLE REMEDY IN THE
EVENT OF ANY THIRD PARTY CLAIM ARISING OUT OF INFRINGEMENT OR
MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY OR OUT OF ANY OF
THE OTHER RIGHTS, OBLIGATIONS OR LIABILITIES DESCRIBED IN THIS SECTION
11.
13. TERMINATION.
a. TERMINATION. In addition to the termination rights set out in
subsection 12(b), each party shall have the right to terminate this
Agreement and the license granted herein in the event the
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other party violates any material provision of this Agreement in a
material respect (an "Event of Default") and fails to cure such Event
of Default in accordance with subsection 12(b) hereof.
b. NOTICE AND OPPORTUNITY TO CURE. Upon the occurrence of an Event of
Default, a party shall deliver to the defaulting party a written
notice of its intention to terminate that identifies in detail the
Event of Default (a "Default Notice"). If the Event of Default remains
uncured for thirty (30) business days following the receipt by the
defaulting party of the Default Notice, the party may terminate this
Agreement and the license granted herein by delivering to the
defaulting party a notice of termination that identifies the effective
date of the termination, which date shall not be less than thirty (30)
business days after the date of delivery of the Default Notice.
c. PROCEDURE. Within ten (10) business days after termination of this
Agreement, Licensee shall return to Licensor, at Licensee's expense,
the Licensed Data and all copies thereof, delete or destroy all other
copies of the Licensed Data, and deliver to Licensor a certification,
in writing signed by an officer of Licensee, that the Licensed Data
have been returned, all copies deleted or destroyed, and its use
discontinued.
14. ASSIGNMENT. This Agreement shall enure to the benefit of, and shall be
binding on, the parties and their respective successors and permitted
assigns, provided that neither party may assign or subcontract this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party. Notwithstanding the foregoing, either
party may assign this Agreement in connection with a merger, consolidation
or sale of all or substantially all of its assets.
15. FORCE MAJEURE. Any delay in or failure of performance by either party under
this Agreement will not be considered a breach of this Agreement and will
be excused to the extent caused by any occurrence beyond the reasonable
control of such party including, but not limited to, acts of God, power
outages and governmental restrictions, laws or regulations; provided,
however, that lack of funds shall not be deemed to be a reason beyond a
party's reasonable control. The parties will promptly inform and consult
with each other as to any of the above causes, which in their judgment may
or could be the cause of a delay or failure in the performance of this
Agreement, and shall use commercially reasonable efforts to remedy the
delay or failure or implement an acceptable workaround which minimizes the
effect of the delay or failure.
16. DISPUTE RESOLUTION.
a. INJUNCTIVE RELIEF. The parties agree that any breach of either of the
parties' obligations regarding Licensed Data, trademarks, service
marks or trade names, or confidentiality may result in irreparable
injury for which there is no adequate remedy at law. Therefore, in the
event of any breach or threatened breach of a party's obligations
regarding Licensed Data, trademarks, service marks or trade names or
confidentiality, the aggrieved party will be entitled to seek
equitable relief in addition to its other available legal remedies in
a court of competent jurisdiction.
b. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Colorado. Each of the parties, (i)
irrevocably submits to the non-exclusive jurisdiction of the courts of
Colorado for the purpose of any suit, action or other proceeding
arising out of this Agreement, the subject matter hereof or any of the
transactions contemplated hereby brought by either party or its
successors or assigns, (ii) hereby waives, and agrees not to assert,
by way of motion, as a defense or otherwise, in any such suit, action
or proceeding, to the fullest extent permitted by applicable law, that
the suit, action or proceeding is brought in an inconvenient forum,
that the venue or the suit, action or proceeding is improper, or that
this Agreement, or the
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subject matter hereof or any of the transactions contemplated hereby
may not be enforced in or by such courts, (iii) hereby waives the
right to trial by jury of any such suit, action or proceeding, and
(iv) hereby waives any right, claim, or entitlement to any punitive or
exemplary damages whatsoever.
c. ATTORNEYS FEES. The prevailing party in any dispute to enforce the
terms of this agreement shall be entitled to the recovery of
reasonable attorneys fees and costs, notwithstanding the provisions of
Section 10.
17. NOTICES. Any notice under this Agreement will be in writing and delivered
by personal delivery, express courier, confirmed facsimile, confirmed email
or certified or registered mail, return receipt requested, and will be
deemed given upon personal delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or email or five (5)
days after deposit in the mail. Notices will be sent to a party at its
address set forth in this Agreement or such other address as that party may
specify in writing pursuant to this Section 16.
18. GENERAL PROVISIONS.
a. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement shall remain in full force and effect
except to the extent that such invalid or unenforceable provision was
material to the economic benefits of either party under this
Agreement. Any provision of this Agreement held invalid or
unenforceable only in part or degree shall remain in full force and
effect to the extent not held invalid or unenforceable.
b. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes a complete and exclusive statement of the terms of the
agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by
the parties.
c. WAIVER. A waiver of any default, breach or non-compliance under this
Agreement is not effective unless in writing and signed by the party
to be bound by the waiver. No waiver shall be inferred from or implied
by any failure to act or delay in acting by a party in respect of any
default, breach, non-observance or by anything done or omitted to be
done by another party. The waiver by a party of any default, breach or
non-compliance under this Agreement shall not operate as a waiver of
that party's rights under this Agreement in respect of any continuing
or subsequent default, breach or non-compliance (whether of the same
or any other nature).
d. PUBLICITY. Neither party shall disclose or permit the disclosure to
any other person the existence of this Agreement or any of the
transactions contemplated hereby unless such disclosure is approved in
writing in advance by the other party or is required by any applicable
law, regulation (including, but not limited to, stock exchange
regulations) or legal process. Any public announcement or similar
publicity with respect to this Agreement or the transactions
contemplated hereby will be issued, if at all, at such time and in
such manner as is agreed by the parties.
e. RELATIONSHIP OF THE PARTIES. Each of the parties are independent
contractors. Nothing herein shall be construed to place the parties in
a relationship of principal and agent, partners or joint venturers,
and neither party shall have the power to obligate or bind the other
party in any manner whatsoever.
f. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which will serve to evidence the parties' binding agreement.
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MATCHLOGIC, INC. ("Licensor") FAIRMARKET, INC. ("Licensee")
By: By:
---------------------------------------- ----------------------------------------
Name: Name:
-------------------------------------- --------------------------------------
Title: Title:
------------------------------------- -------------------------------------
Date: Date:
-------------------------------------- --------------------------------------
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