Exhibit 10.12
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
CONFIDENTIAL
CONTENT LICENSE AND CO-BRANDED AREA AGREEMENT
This agreement ("Agreement") is entered into as of the 30th day of September,
1999 ("Effective Date"), by and between Excite, Inc., a wholly owned
subsidiary of At Home Corporation, located at 000 Xxxxxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Excite@Home"), and Xxxxxx.xxx, a California corporation,
located at 000 Xxxxxxxx Xxxxxx Xxx Xxxxxxxxx, XX 00000 ("Content Provider").
RECITALS
A. Excite@Home maintains a site on the Internet at xxxx://xxx.Xxxxxx.xxx
and owns and/or manages related narrowband Web sites worldwide
(collectively, the "Excite Network") which, among other things, allow
its users to search for and access content and other sites on the
Internet.
B. Excite@Home maintains a broadband internet service currently available
to subscribers.
C. Excite@Home also maintains and/or manages certain Web pages which may be
delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies, and wireless technology (collectively, "Broadcast
Pages") which may incorporate content supplied to Excite@Home by third
parties for the purpose of providing value to Excite@Home users and
providing access to the content, products and/or services of such third
parties.
D. Content Provider owns or has the right to distribute certain education
and lifelong learning content and resources and maintains a related site
on the Internet at xxxx://xxx.xxxxxx.xxx (the "Content Provider Site")
for which it wishes to generate increased traffic, user registrations
and educational transactions.
E. Excite@Home and Content Provider wish to distribute Content Provider's
content through the Excite Network, Broadcast Pages, and the
Excite@Home broadband internet service, establish and maintain related
co-branded pages in the Content Provider Site, establish links between
the Excite Network, Excite@Home broadband internet service and the
co-branded pages in the Content Provider Site and display banner
advertising promoting Content Provider on the Excite Network .
Therefore, the parties agree as follows:
1. PROMOTION ON THE EXCITE NETWORK
a) Content Provider will publish to Excite@Home subsets of its
content in an XML format (e.g. captions, brief 2 sentence
descriptions, news headlines, pointers into longer descriptions
and abstracts) in order for Excite@Home to integrate "portions"
of the content into its search results, directory results and other
areas of the Excite Network in order to drive traffic to the Co-
Branded Area, as defined below ("Content"). Content Provider will
also
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CONFIDENTIAL
provide database mappings necessary to maximize search integration
for the Co-Branded Area.
b) Excite@Home will create web pages incorporating the Content (the
"Content Pages).
c) Content Provider will be featured in relevant areas of the Excite
Network through a display of the Content. Content will be
displayed on the Excite Network as follows: programmed search
results, on the home page of the Education Channel and the home
pages of the following subchannels: [*] and subchannels as
mutually agreed by the parties. Content Provider may be featured,
outside the Education Channel, in additional areas that may
include [*] and relevant subchannels including [*] and other areas
as mutually agreed. In the event that Excite@Home alters the
taxonomy of the Education Channel, Excite@Home will consider in
good faith providing Content Provider similar placement in the new
channel design. All placements are subject to change to conform
to any redesign of the Excite Network, and/or changes/additions to
platform or technology; provided, however, in no event will the
placements be reduced in prominence or quality relative to the
placements described above.
d) The Content may be incorporated into certain additional pages in
the Excite Network and reasonable excerpts or portions of the
Content Previews may be incorporated into Broadcast Pages, at
Excite@Home's discretion.
e) Content Provider and Excite@Home will determine mutually agreeable
methods for the transmission and incorporation of updates to the
Content. Other than updates to the Content, Content Provider will
not alter the Content without Excite@Home's prior consent.
f) Excite@Home will have sole control over of the "look and feel" of
the Excite Network. Excite@Home will have sole control over of the
content, composition, "look and feel" and distribution of the
Broadcast Pages. Excite@Home will have sole responsibility for
providing, hosting and maintaining, at its expense, the Excite
Network and for providing and delivering the Broadcast Pages.
g) Content Provider will have sole responsibility for providing, at
its expense, the Content to Excite@Home.
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2. THE CO-BRANDED AREA
a) Content Provider will design and create Web pages ("Co-Branded
Pages" or, collectively, the "Co-Branded Area") with the
functionality and content described in Exhibit A (the "Co-Branded
Content"). Each Co-Branded Page will display the name and/or
brands of Content Provider and Excite@Home in substantially
similar size and prominence. The placement and appearance of
branding shall be consistent with branding across the Excite
Network, as it may be changed from time to time. Content Provider
and Excite@Home will collaborate on the "look and feel" of the
Co-Branded Pages including, but not limited to, the display,
appearance and placement of the parties' respective names and/or
brands and of advertising displayed on the Co-Branded Pages.
Excite@Home will have final approval over the "look and feel" of
the Co-Branded Pages, which approval will not be unreasonably
withheld.
b) The Co-Branded Area and Co-Branded Pages will comply with
Excite@Home guidelines including but not limited to page
performance standards, headers and other design/user interface
standards.
c) The Co-Branded Area will be hosted by Content Provider. The
Co-Branded Area will be displayed on a URL masked to the
Xxxxxx.xxx URL, or other URL as determined by Excite@Home and
Excite@Home will receive page view and reach credit. Content
Provider will have sole responsibility for providing and
maintaining, at its expense, the Content Provider Site, the
Co-Branded Area, the Co-Branded Content and any updates thereto.
d) Each Co-Branded Page will include one or more links to the Excite
Network. Excite@Home will supply Content Provider with the URLs
for these links.
e) Other than updates to the Co-Branded Content and to advertising
displayed on the Co-Branded Pages, Content Provider will not
change the Co-Branded Area without Excite@Home's prior consent,
which consent will not be unreasonably withheld.
f) Excite@Home may, upon thirty (30) days prior notice to Content
Provider, request reasonable revisions to the Co-Branded Area as
needed to reflect changes that will not adversely affect Content
Provider, such as changes to Excite@Home "look and feel",
Excite@Home's name and/or brand or changes to the URLs for the
links to the Excite Network. Content Provider will use reasonable
efforts to accommodate Excite@Home's requested changes within the
fifteen (15) day period.
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3. BROADBAND DISTRIBUTION
a) Content Provider will be featured on the Excite@Home Broadband
Internet Service. The Broadband Internet Service will be subject
to design, programming and look and feel standards that might be
different than those on the Excite Network. Placement on the
Broadband Internet Service will be substantially similar in the
level of promotion as provided on the Excite Network. Broadband
Internet Service means any Internet web site programmed by
Excite@Home and designed for users of high speed internet
connectivity.
b) Each page of the Co-Branded Area for the Excite@Home Broadband
Internet Service will display the name and/or brands of Content
Provider and Excite@Home in substantially similar size and
prominence. The placement and appearance of branding shall be
consistent with branding across the Excite@Home Broadband Internet
Service, as it may be changed from time to time.
4. ADVERTISING AND FEES
a) Excite@Home will be solely responsible for selling advertising on
the Content Pages and Co-Branded Pages.
b) Content Provider will pay Excite@Home Total Fees as shown in Table
A. Total Fees include Promotion Fees, Transaction Fees and
Advertising Fees, as defined below. Total Fees will be due at
the beginning of each applicable year and payable within thirty
days of the beginning of each applicable year. Any Additional
Transaction Payment, as defined below, due pursuant to Section
3(f) will be due within thirty (30) days of the end of each
calendar quarter.
TABLE A
Total Fees
Year 1: [*]
Year 2: [*]
Year 3: [*]
Year 1 is defined as the twelve month period between October 1,
1999 and September 30, 2000. Year 2 is defined as the twelve
month period between October 1, 2000 and September 30, 2001. Year
3 is defined as the sixteen month period between October 1, 2001
and January 31, 2003.
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c) Allocation of Total Fees:
(i) [*]
[*]
Year 1: [*]
Year 2: [*]
Year 3: [*]
(ii) [*]
Year 1: [*]
Year 2: [*]
Year 3: [*]
(iii) [*]
Year 1: [*]
Year 2: [*]
Year 3: [*]
d) Content Provider will pay Excite@Home on a quarterly basis [*] of
the Transaction Gross Margins in excess of [*] per quarter in
Year 1, [*] per quarter in Year Two and [*] per quarter in Year 3
which accrues to Content Provider during the applicable quarter
and which are generated by applicants who are referred from the
Co-Branded Areas of the Excite Network and the Excite@Home
Broadband Internet Service ("Additional Transaction Fee").
Transaction Gross Margins means revenue from transactions such as
[*] and [*] on the Co-Branded Areas less cost of goods sold.
e) In order to drive additional traffic to the Co-Branded Area, in
addition to the promotion and distribution provided in Sections 1
and 4, the Advertising Fee, as described above, will be applied to
the purchase of available advertising banners and sponsorship
inventory in the Education and [*] and other areas of Excite
Network and/or
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Broadband Internet Service as mutually agreed. Excite@Home will
provide advertising to Content Provider at preferred advertising
rates.
f) With each payment, Content Provider will provide to Excite@Home
documentation reasonably detailing the calculation of the payment.
g) Content Provider will maintain accurate records with respect to
the calculation of all payments due under this Agreement.
Excite@Home may, upon no less than thirty (30) days prior written
notice to Content Provider, cause an independent Certified Public
Accountant to inspect the records of Content Provider reasonably
related to the calculation of such payments during Content
Provider's normal business hours. The fees charged by such
Certified Public Accountant in connection with the inspection will
be paid by Excite@Home unless the payments made to Excite@Home are
determined to have been less than ninety-five percent (95%) of the
payment owed to Excite@Home, in which case Content Provider will
be responsible for the payment of the reasonable fees for such
inspection.
h) Neither party will make any public statement, press release or
other announcement relating to the terms of or existence of this
Agreement without the prior written approval of the other.
Notwithstanding the foregoing, either party hereby grants to the
other the right to issue an initial press release, the timing and
wording of which will be subject to the other party's reasonable
approval, regarding the relationship between Excite@Home and
Content Provider.
5. COMMUNITIES AND REGISTRATION
a) Co-Branded Pages will display links that point to Excite@Home
community products which include message boards, chat, clubs, home
pages, instant messaging, calendar, address book, email, photos
and any other community products developed by Excite@Home during
the term of this Agreement ("Community Products"). Content
Provider will not feature non-Excite@Home community products on
the Co-Branded Area without the written permission of Excite@Home.
b) Content Provider will, at Excite@Home's discretion, integrate the
Co-Branded Content with Excite@Home's Universal Registration
System. Content Provider will integrate according to
Excite@Home's technical and operational specifications. Each
party will incur their own costs related to the integration.
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6. USAGE REPORTS AND USER DATA
a) Content Provider and Excite@Home will each provide the other via
email usage reports containing the information set forth in
Exhibit B ("Usage Reports"). Each Usage Report will cover a
calendar month and will be delivered within fifteen (15) days
following the end of the applicable month. The parties may, by
mutual written agreement, alter the content and the timing of the
delivery of the Usage Reports.
b) CONTENT PROVIDER AND EXCITE@HOME WILL USE REASONABLE EFFORTS TO
ENSURE THE ACCURACY OF THE USAGE REPORTS BUT NEITHER PARTY
WARRANTS THAT THE USAGE REPORTS WILL CONFORM TO ANY SPECIFICATIONS
AT ANY GIVEN TIME. NEITHER PARTY WILL BE HELD LIABLE FOR ANY
CLAIMS AS THEY RELATE TO SUCH USAGE REPORTS, EXCEPT TO THE EXTENT
THAT SUCH USAGE REPORTS SERVE AS THE BASIS FOR PAYMENTS UNDER THIS
AGREEMENT.
c) For the purpose of this Agreement, "User Data" shall mean all
information submitted by a user (the "User") in the Co-Branded
Area with the exception of data entered into a college's specific
application or inquiry system, trading data, credit card numbers,
checking account numbers, etc. "Individually Identifiable User
Data" shall mean that subset of "User Data" which can be
reasonably used to identify a specific individual such as their
name, address, phone number, etc.
d) Both parties acknowledge that any individual user of the
Internet could be a customer of Excite@Home, Inc. and/or Content
Provider through activities unrelated to this Agreement. Both
parties further acknowledge that any User Data gathered
independent of this Agreement, even for Users that utilize both
party's services, shall not be covered by this Agreement.
e) Both parties will provide to each other all User Data collected in
the Co-Branded Area in connection with this Agreement within
thirty (30) days following the end of each calendar month in a
standard electronic format to be mutually agreed upon by the
parties.
f) The User Data shall be deemed to be the joint property of the
parties, so long as the joint ownership of such data is not in
violation of the privacy policy of either party, provided,
however, Content Provider will provide Excite@Home the User Data
set described in Section 6 (h) below [*]
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[*]
g) Both parties agree that they will not sell, disclose, transfer, or
rent the Individually Identifiable User Data to any third party,
nor will either party use said Individually Identifiable User Data
on behalf of any third party, without the express permission of
the User. In such cases where User permission for dissemination
of Individually Identifiable User Data has been obtained, Content
Provider shall use all reasonable efforts to include and enforce
within such dissemination contracts or agreements a requirement
for the inclusion of an unsubscribe feature in all email
communications generated by, or on behalf of, third party users of
said Individually Identifiable User Data. Content Provider agrees
that it will at all times maintain and comply with standards and
privacy policy that are no less protective of User Data than the
then current Excite@Home privacy policy and standards.
h) Content Provider agrees that for all customer registrations, a
minimum set of User Data shall be delivered in a format to be
defined by Excite@Home and which shall from time to time be
modified at Excite@Home's option. Nothing in this clause should
be interpreted to prevent Content Provider from collecting
additional information as is deemed desirable by mutual consent of
both parties.
7. CONTENT OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and
to the Content and the Co-Branded Content worldwide (including,
but not limited to, ownership of all copyrights and other
intellectual property rights therein). Subject to the terms and
conditions of this Agreement, Content Provider hereby grants to
Excite@Home a royalty-free, non-exclusive, worldwide license to
use, reproduce, distribute, transmit and publicly display the
Content in accordance with this Agreement and to sub-license the
Content to Excite@Home's parent, wholly-owned subsidiaries or to
joint ventures in which Excite@Home participates for the sole
purpose of using, reproducing, distributing, transmitting and
publicly displaying the Content in accordance with this Agreement.
b) Excite@Home will retain all right, title, and interest in and to
the Excite Network and the Broadcast Pages worldwide (including,
but not limited to, ownership of all copyrights, look and feel and
other intellectual property rights therein).
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8. TRADEMARK OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and
to its trademarks, service marks and trade names worldwide,
subject to the limited license granted to Excite@Home hereunder.
b) Excite@Home will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide, subject
to the limited license granted to Content Provider hereunder.
c) Each party hereby grants to the other a non-exclusive, limited
license to use its trademarks, service marks or trade names only
as specifically described in this Agreement. All such use shall
be in accordance with each party's reasonable policies regarding
advertising and trademark usage as established from time to time.
d) Upon the expiration or termination of this Agreement, each party
will cease using the trademarks, service marks and/or trade names
of the other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
9. TERM
The term of this Agreement will begin on the Effective Date and
will end on January 31, 2003. The Agreement will automatically
renew for terms of six (6) months each, unless either party
notifies the other in writing at least thirty (30) days prior to
automatic renewal that it does not wish to renew this Agreement.
10. PREMIER STATUS
Content Provider will be the premier provider of college search,
scholarship, financial aid, test preparation and online
applications on the Education Channel. Excite@Home will use
commercially reasonable efforts not to display content or banner
advertising from Content Provider Competitors or otherwise
promote, above the fold, the same content from the Content
Provider Competitors. Content Provider Competitors mean
Xxxxxxxx'x, College Board, [*], Princeton Review, and Xxxxxx. Upon
written notice from Content Provider, Excite@Home will remove
Content Provider Competitor advertising or promotion from the
Co-Branded Area as described above.
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11. TERMINATION
a) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following the notice to the
breaching party of the breach, with the following exceptions:
(i) In the event of three or more errors, failures or outages of
the Content or the Co-Branded Content in any thirty (30) day
period, Excite@Home may elect to immediately terminate this
Agreement upon written notice to Content Provider and enter
into an other arrangements for the acquisition of similar
content;
(ii) Content Provider will ensure that the Content and Co-Branded
Content will at all times be at least comparable to any
other source of similar topical content available on the
Internet in terms of the following factors, taken as a
whole: (i) breadth and depth of coverage, (ii) timeliness
of content updates and (iii) tools and functionality and
(iv) reputation and ranking based on a cross-section of
third party reviewers in terms of features, functionality,
quality and other qualitative factors. If the Content
becomes less comparable, as described above, Excite@Home
will inform Content Provider and provide Content Provider
with thirty (30) days to update the Content. In the event
that Content Provider fails to meet these quality criteria,
Excite@Home may terminate this agreement on thirty (30) days
written notice and enter into an other arrangements for the
acquisition of similar content
(iii) Notwithstanding the foregoing, Excite@Home may terminate
this Agreement if Content Provider fails to pay any amount
due hereunder and such non-payment remains uncured for
twenty-one (21) days following notice to the Content
Provider of non-payment.
b) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within thirty
(30) days thereof.
c) The provisions of this Section, Section 12 (Confidentiality),
Section 13 (Warranty and Indemnity), Section 14 (Limitation of
Liability) and Section 15 (Dispute Resolution) will survive any
termination or expiration of this Agreement.
12. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's (or its suppliers')
business or activities that is proprietary and confidential, which
shall include all business, financial, technical and other
information of a party marked or designated by such party as
"confidential" or "proprietary"; or information
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CONFIDENTIAL
which, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as confidential.
b) Confidential Information will not include information that (i) is
in or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party
without restriction on disclosure and without breach of a
nondisclosure obligation or (iii) the receiving party knew prior
to receiving such information from the disclosing party or
develops independently.
c) Each party agrees (i) that it will not disclose to any third party
or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it
will take all reasonable measures to maintain the confidentiality
of all Confidential Information of the other party in its
possession or control, which will in no event be less than the
measures it uses to maintain the confidentiality of its own
information of similar importance.
d) Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court of
competent jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a "need-to-know" basis
under an obligation of confidentiality to its legal counsel,
accountants, banks and other financing sources and their advisors.
e) The information contained in the Usage Reports provided by each
party hereunder will be deemed to be the Confidential Information
of the disclosing party.
f) The terms and conditions of this Agreement will be deemed to be
the Confidential Information of each party and will not be
disclosed without the written consent of the other party.
13. WARRANTY AND INDEMNITY
a) Content Provider warrants that it owns, or has obtained the right
to distribute and make available as specified in this Agreement,
any and all content provided to Excite@Home or made available to
third parties in connection with this Agreement.
b) Content Provider warrants that the Content will comply with the
description and technical specifications contained in Exhibit A.
Content Provider warrants that the Co-Branded Content will comply
with the description and technical specifications contained in
Exhibit B.
c) Content Provider will indemnify, defend and hold harmless
Excite@Home, its affiliates, officers, directors, employees,
consultants and agents from
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any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
i) The breach of any warranty, representation or covenant in
this Agreement;
ii) Any claim that the Content or Co-Branded Content infringes
or violates any third party's copyright, patent, trade
secret, trademark, right of publicity or right of privacy or
contains any defamatory content; or
iii) Any claim arising from content displayed on the Content
Provider Site other than the Co-Branded Content.
Excite@Home will promptly notify Content Provider of any and all
such claims and will reasonably cooperate with Content Provider
with the defense and/or settlement thereof (which shall be under
the control of Content Provider); provided that, if any settlement
requires an affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally impacts Excite@Home in
any way and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall
require Excite@Home's written consent (not to be unreasonably
withheld or delayed) and Excite@Home may have its own counsel in
attendance at all proceedings and substantive negotiations
relating to such claim.
d) Excite will indemnify, defend and hold harmless Content Provider,
its affiliates, officers, directors, employees, consultants and
agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, attorneys fees)
arising from:
i) Its breach of any warranty, representation or covenant in
this Agreement; or
ii) Any claim arising from content displayed on the Excite
Network other than the Content or Co-Branded Pages.
Excite's obligation to indemnify Content Provider is conditioned
upon Content Provider promptly notifying Excite of any and all
such claims, unless the failure to notify does not materially and
adversely affect Excite's defense. Content Provider will
reasonably cooperate with Excite with the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts Content Provider in any way and such
obligation, liability, prejudice or impact can reasonably be expected
to be material, then such settlement shall require Content Provider's
written consent (not to be unreasonably withheld or delayed) and
Content Provider may have its own counsel in attendance at all
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proceedings and substantive negotiations relating to such claim at
Content Provider's sole cost and expense.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT
AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE REGARDING SUCH SUBJECT MATTER.
14. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 13(c), IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF
EXCITE@HOME FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL
NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY CONTENT PROVIDER TO
EXCITE@HOME HEREUNDER.
15. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality would 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 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. For the purposes of this
section only, the parties consent to venue in either the state
courts of the county in which Excite@Home has its principal place
of business or the United States District Court for the Northern
District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names and/or confidentiality, the parties will
first attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot be resolved
through good faith negotiation, the parties will refer the
dispute(s) to a mutually acceptable mediator for hearing in the
county in which Excite@Home has its principal place of business.
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c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names and/or confidentiality, cannot be resolved
through good faith negotiation and mediation, the parties will
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 will be held
in the county in which Excite@Home has its principal place of
business.
16. GENERAL
a) ASSIGNMENT. Neither party may assign this Agreement, in whole or
in part, without the other party's written consent (which will not
be unreasonably withheld), except that no such consent will be
required in connection with a merger, reorganization or sale of
all, or substantially all, of such party's assets. Any attempt to
assign this Agreement other than as permitted above will be null
and void.
b) GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of California,
notwithstanding the actual state or country of residence or
incorporation of Content Provider.
c) NOTICE. 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 below or such other address as that party may
specify in writing pursuant to this Section.
d) NO AGENCY. The parties are independent contractors and will have
no power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not
be construed to create or imply any partnership, agency or joint
venture.
e) 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.
f) SEVERABILITY. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will remain in
full force and effect.
14
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
CONFIDENTIAL
g) ENTIRE AGREEMENT. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement
may only be modified, or any rights under it waived, by a written
document executed by both parties.
Xxxxxx.xxx Excite, Inc.
By: /s/ Xxxxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------- ----------------------------
Name: Xxxxxxxxx X. Xxxx Name: Xxxx X. Xxxxxxx
-------------------------- ----------------------------
Title: VP Strategy & Business Dev. Title: EVP
-------------------------- ----------------------------
Date: September 30, 1999 Date: 30 September 1999
-------------------------- ----------------------------
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
(000) 000-0000 (voice) 415.568.6000 (voice)
(000) 000-0000 (fax) 000.000.0000 (fax)
15
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
CONFIDENTIAL
EXHIBIT A
CONTENT AND FUNCTIONALITY DESCRIPTION FOR CO-BRANDED AREA
1. College & Universities database with detailed information on each, and
links to their homepages
2. Grad School Database (with similar information)
3. Law school Database (with similar information)
4. MBA Database (with similar information)
5. ESL program listing (with a smaller number of profiles)
6. Scholarship database
7. Financial aid road maps/information/calculators for College, MBA, law,
and grad school applicants
8. Choosing a major information for college applicants
9. Soft content and advice for College, grad, MBA, law, parents, and
international students
10. Links to WebApps and Recruiter
11. Test Preparation - initially SAT tools, practice tests and information
[*], adding more tests later.
12. Other content to be mutually agreed such as Lifelong learning and
Continuing Education, including database of online classes [*], English
as a Second Language Programs, Alternative Education Opportunities, Take
a Class and Online Education.
16
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
CONFIDENTIAL
EXHIBIT B
DESCRIPTION AND FORMAT OF USAGE REPORTS
Content Provider will provide Excite@Home, on a monthly basis or on a basis
that is mutually agreed by both parties, usage reports containing the
following information:
- Total number of page views generated by links from the Excite Network to
the Co-Branded Area.
Excite@Home will provide Content Provider, on a monthly basis or on a basis
that is mutually agreed by both parties, usage reports containing the
following information:
- Total number of page views generated by links from the Excite Network to
the Content Pages.
17
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
CONFIDENTIAL
EXHIBIT C
EXCITE@HOME COMPETITORS
Xxxxxx.xxx
America OnLine, Netscape
AltaVista
Xxx.xxx
Askjeeves
Xxxxxxxxx.xxx
Disney
Xxxxxxx.xxx
Geocities
Go Network
Xxxx.xxx
Xx0xxx.xxx
HotBot
Infoseek
LookSmart
Lycos Network
Microsoft/Hotmail
Xxxxxxxx.xxx
NBC
RealNetworks
Roadrunner
Xxxxxx.xxx
Snap
Time Warner
Xoom
Yahoo
18
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
