CONFIDENTIAL
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CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS ARE DENOTED BY ASTERISKS.
CUSTOMER ACQUISITION AND ADVERTISING AGREEMENT
This agreement ("Agreement") is entered into as of the 10th 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") and Naviant Technology Solutions, Inc., a Delaware corporation,
located at 00 Xxxxxx Xxxxxxxxx. Xxxxx 000, Xxx Xxxx Xxxxxx XX 00000 ("Naviant").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the "Excite
Site"), which, among other things, allows its users to search for and access
content and other sites on the Internet.
B. Naviant operates an electronic registration service (the "Naviant
Registration Service") for vendors of various products and services
("Registration Client").
C. Excite and Naviant wish to enable users of the Naviant Registration Service
to have an Excite membership created for them when registering under the
Naviant Registration Service and Naviant wishes to sell advertising on the
Excite Site targeted to such users.
Therefore, the parties agree as follows:
1. NAVIANT REGISTRATION
a) Beginning on October 1, 1999 (the "Launch Date"), Naviant will
offer all potential registrants of the Naviant Registration Service the
option of having an Excite membership created for them, at the time they
register for a client product; provided the applicable Registration
Client allows Naviant to offer Excite membership to registrants. Naviant
will use commercially reasonable efforts to encourage Registration
Clients to permit the inclusion of the Excite membership option.
b) The Excite membership option will be displayed prominently on
all registration pages. The parties will work together to develop the
copy and placement of this Excite membership option.
c) Excite and Naviant will collaborate on the development of a
compelling PC OEM/ISP registration process for combined ISP and Excite
registration.
d) Naviant will collect the data set out in Exhibit A hereto (the
"Excite Registration Data") from registrants who opt for Excite
membership (the "Excite Registrants").
e) Naviant and Excite will determine mutually agreeable methods for
the transmission of the Excite Registration Data to Excite, such that,
where possible, the Naviant registration will be integrated with the
Excite Universal Registration System on a real time basis and the user
is sent to an Excite URL to complete Excite registration upon completion
of the Naviant registration process.
f) Naviant will have sole responsibility for providing, hosting and
maintaining at its expense, the Naviant Registration Service. Excite
will have sole responsibility for providing, hosting and maintaining at
its expense, the. Excite Universal Registration System.
g) Naviant will cause the Naviant Registration Service software to
modify the browsers of the Excite Registrants to (1) start at
xxx.xxxxxx.xxx or another Excite URL to be determined by Excite; (2)
have the home button reprogrammed to xxx.xxxxxx.xxx, or another Excite
URL to be determined by Excite; and (3) have the browser search button
point to an Excite URL determined by Excite.
h) Excite may, upon fifteen (15) days prior notice to Naviant,
request reasonable revisions to the Excite membership registration
option as needed to reflect changes that will not adversely affect
Naviant, such as changes to the user data collected, changes to Excite's
name and/or brand, or changes to the URLs for the links to the Excite
Site. Naviant will use reasonable efforts to accommodate Excite's
requested changes within the fifteen (15) day period.
i) During the term of this Agreement, Naviant shall not (i)
integrate its registration system with, (ii) market its registration
data with Excite membership or usage as a selection or identifying
criteria to, or (iii) collect or participate in the collection of
registration data for a competing product ***** services. Not more than
once per quarter, Excite may update this list of competitors.
2. ADVERTISING ON EXCITE SITE AND PAYMENT TO NAVIANT
a) Except as specifically provided in this Agreement, Excite will
be solely responsible for selling advertising on the Excite Site
Beginning on the Launch Date, Excite will pay Naviant on a quarterly
basis forty percent (40%) of the "Net Advertising Revenue" that accrues
to Excite during the term of this Agreement from banner advertising that
appears on those page views generated by Excite Registrants sourced from
Naviant. "Net Advertising Revenue" means all banner advertising revenue
that accrues to Excite during the applicable payment period, minus forty
percent (40%) of such revenue (representing Excite's costs for internal
and external sales commissions, hosting expenses and content).
b) Payments by Excite to Naviant will be due within forty five (45)
days of the end of each calendar quarter.
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c) With each payment, Excite will provide to Naviant documentation
reasonably detailing the calculation of the payment.
d) Excite will maintain accurate records with respect to the
calculation of all payments due under this Agreement. Naviant may, upon
no less than thirty (30) days prior written notice to Excite and no more
than once per year, cause an independent Certified Public Accountant to
inspect the records of Excite reasonably related to the calculation of
such payments during Excite's normal business hours. The fees charged by
such Certified Public Accountant in connection with the inspection will
be paid by Naviant, unless the Certified Public Accountant discovers an
underpayment of greater than 10%, in which case Excite will pay such
fees.
3. PROMOTION
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.
4. NAVIANT PURCHASE OF ADVERTISING ON THE EXCITE SITE
a) Naviant shall provide to Excite a copy of the Naviant High-Tech
Household Database (the "HTHH Database") for use by Excite to match such
records against the Excite registered users database to create a
database of users (the "Naviant User Pool") for use by Naviant and its
clients to target advertisements on the Excite Site. Excite will provide
Naviant with a cookie or other identifying number for Naviant to
identify the users Included in the Naviant User Pool.
b) Subject to availability as determined by Excite, Naviant shall
purchase banner advertisements, on the Excite Site for resale to its
Registration Clients and other clients in the minimum quarterly amounts
set forth in Exhibit B ("Minimum Quarterly Purchase Amount") to be
targeted to users registered on Excite through the Naviant registration
service. Fees for advertising inventory made available shall be payable
on a monthly basis as set forth in Exhibit B.
c) Banner impression purchased for delivery to users registered on
Excite through the Naviant Registration Service shall be charged against
the. Minimum Quarterly Purchase Amount at the rate of *****, Naviant may
purchase banner impressions to be sold to their clients for delivery to
users in the Naviant User Pool, but not registered to Excite via the
Naviant registration service at the rate of *****; provided however,
such purchases shall be credited against the Minimum Quarterly Purchase
Amount at a rate of *****. The ***** price includes targeting to the
Naviant User Pool. Naviant shall have right to resell purchased
inventory at any price to its clients.
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d) Naviant may, subject to availability and approval of Excite,
purchase additional inventory from Excite for resale to Registration
Clients at the rate of *****.
e) Naviant shall comply with all Excite guidelines for advertisers
in effect from time to time, including but not limited to those
guidelines set out in Exhibit C hereto. Excite will have the right to
reject any advertisement which does not comply with such guidelines. In
addition, in the event that Excite deems, in its sole discretion, that
any advertising sold by Naviant is inappropriate to Excite's interests,
Excite may choose not to display the advertising. Due to the one-to-one
targeting of these impressions, MatchLogic, Inc. will need to perform
all ad serving under this Agreement and Naviant and its advertisers will
need to coordinate directly, at Excite's option, with either MatchLogic
Inc. or Excite for ad serving. The cost of ad serving is included in the
*****.
f) Naviant will not sell banner advertising to be displayed on the
Excite Site to Excite's Competitors advertising or promoting competing
products to those offered by Excite as provided in Exhibit D, or any
other Web site promoting itself as a provider of Internet search and
navigation services. Not more than once per quarter, Excite may update
this list of competitors. Within twenty-four (24) hours of delivery of
Excite's written update, Excite will be entitled to remove any Naviant
client advertising from Excite's listed competitors.
g) Excite will have the right to determine, in its sole discretion,
where on the Excite Site it will serve the purchased impressions to the
designated users. Excite will use commercially reasonable efforts to
serve all purchased banner inventory to the specified users from the
Naviant User Pool. However, in the event that Excite is not able to
serve all purchased impressions to the users requested, Excite will
deliver such impressions through either targeted inventory from
subsequent quarters, or targeted email. If at the expiration of the term
Excite has not provided the purchased impressions, the term will be
extended for the lesser of (i) 90 (ninety) days or (ii) the number of
days necessary to provide purchased impressions. This obligation states
Excite's entire liability for Excite's delivery of the purchased
impressions under this Agreement.
Within thirty (30) days following the end of each calendar quarter, Excite
shall provide to Naviant a detailed report outlining the impressions
served by Excite for the quarter just ended.
//
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5. USER DATA
a) Subject to Subsection 5 b), below Naviant will retain all right,
title and interest in and to the HHTD Database 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, Naviant hereby grants to Excite and its affiliates a royalty-
free, non-exclusive, license to use the HHTD Database in accordance with
this Agreement.
b) Excite and Naviant will jointly own, the user data collected by
Naviant and used to generate Excite registrations. Naviant will not,
during the term of this Agreement or anytime, sell, disclose, transfer
or rent any data or any selection of data which is identifiable as
having Excite registration, membership or usage.
6. TRADEMARK OWNERSHIP AND LICENSE
a) Excite 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 Naviant in section 6(c) below.
b) Excite hereby grants to Naviant a non-exclusive, limited license
to use the Excite trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with Excite's reasonable policies regarding advertising and
trademark usage as established from time to time.
c) Upon the expiration or termination of this Agreement, Naviant
will cease using the trademarks, service marks and/or trade names of
Excite.
7. TERM
The term of this Agreement will begin on the Effective Date and will
continue until December 31, 2001.
8. 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.
b) Excite shall be entitled to terminate this Agreement upon notice
to Naviant in the event of a Change of Control of Naviant. A "Change of
Control" is defined as: (i) a merger or consolidation with an Excite
Competitor where Naviant is not the surviving entity; (ii) a merger,
consolidation or equity issuance where the equity holders immediately
prior to such transaction own or control less than a majority of the
voting equity of Naviant after the transaction; or (iii) a sale of all
or substantially all of the assets of Naviant to an Excite Competitor.
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c) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within thirty (30)
days thereof.
d) The provisions of Subsection 5 b) (User Data and Trademark
License), Section 9 (Confidentiality), Section 10 (Warranty and
Indemnity), Section 11 (Limitation of Liability) and Section 12 (Dispute
Resolution) will survive any termination or expiration of this
Agreement.
9. 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 try such party as "confidential" or
"proprietary"; or information 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 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.
10. WARRANTY AND INDEMNITY
a) Naviant warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, any and
all data and content provided to Excite or made available to third
parties in connection with this
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Agreement, including but not limited to the HTHH Database, Excite
Registration Data and the banner advertisements of its clients (the
"Third Party Ads").
b) Naviant represents and warrants that ,any and all data and
content transmitted to Excite is designed to be used prior to, during,
and after the calendar year 2000 A.D., and will operate during each such
time period without error relating to date data, specifically including
any error relating to, or the product of, date data which represents or
references different centuries or more than one century.
c) Naviant will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents from
any and ail 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 that the Excite Registration Data, HTHH Database,
Third Party Advertisements or any other content or data provided by
Naviant hereunder 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 that the Excite Registration Data, HTHH Database,
Third Party Advertisements or any other content or data provided by
Naviant hereunder violates any state, federal or local laws,
regulations or statutes; or
iv) Any claim arising from the data or information contained in the
Excite Registration Data, HTHH Database, Third Party Advertisements
or any other content or data provided by Naviant hereunder.
Naviant's obligation to indemnify Excite is conditioned upon Excite
promptly notifying Naviant of any and all such claims, unless the
failure to notify does not materially and adversely affect
Naviant's defense. Excite will reasonably cooperate with Naviant
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 Excite
in any way and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall
require Excite's written consent (not to be unreasonably withheld
or delayed) and Excite may have its own counsel in attendance at
all proceedings and substantive negotiations relating to such claim
at Excite's sole cost and expense.
d) Excite will indemnify, defend and hold harmless Naviant, its
affiliates, officers, directors, employees, consultants and agents from
any and all third party
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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 Site
other than the Third Party Advertisements.
Excite's obligation to indemnify Naviant is conditioned upon
Naviant promptly notifying Excite of any and all such claims,
unless the failure to notify does not materially and adversely
affect Excites defense. Naviant 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
Naviant in any way and such obligation, liability, prejudice or
impact can reasonably be expected to be material, then such
settlement shall require Naviant's written consent (not to be
unreasonably withheld or delayed) and Naviant may have its own
counsel in attendance at all proceedings and substantive
negotiations relating to such claim at Naviant's sole cost and
expense.
e) EXCEPT AS SPECIFIED 1N 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.
11. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 10(c) and 10(d), 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. EXCEPT UNDER 10(c) AND 10(d), THE LIABILITY OF EITHER PARTY
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 THE OTHER PARTY HEREUNDER.
12. 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
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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 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 has its principal place of
business.
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 has its principal place of
business.
13. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole
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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 safe 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
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in accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of Naviant.
c) Notice. Any notice under this Agreement will be in writing and
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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.
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d) No Agency. The parties are independent contractors and will have
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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
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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
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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.
g) Entire Agreement. This Agreement is the complete and exclusive
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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.
Naviant Technology, Inc. Excite, Inc.
By:_____________________________________ By:___________________________
Name:___________________________________ Name:_________________________
Title:__________________________________ Title:________________________
Date:___________________________________ Date:_________________________
000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
415.588.6000 (voice)
000.000.0000 (fax)
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AMENDMENT
TO
CUSTOMER ACQUISITION AND ADVERTISING AGREEMENT
DATED
SEPTEMBER 10, 1999
Whereas the entities known as, d.b.a Excite@Home ("Excite") and Naviant
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Technology Solutions, Inc., ("Naviant") entered into the aforementioned
agreement (the "Agreement") on September 10, 1999, and
Whereas Naviant has changed its name to Naviant, Inc., and
Whereas both parties agree to changes to certain dates and other provisions of
the Agreement, and
Both parties agree that the following amendment, with respect to the contractual
sections identified, further clarifies the beginning dates of the particular
services referred to in the original contract, and better clarifies Naviant's
ability to identify program users.
The following sections will replace the contract sections in their entirety. All
other terms and conditions of the Agreement remain unchanged.
Section 1. NAVIANT REGISTRATION
a) Beginning on January 1, 2000, Naviant will offer all
potential registrants of the Naviant Registration Service
the option of having an Excite registration created for
them at the time they register for a client product;
provided the applicable Registrant Client allows Naviant to
offer Excite membership to registrants. Naviant will use
commercially reasonable efforts to encourage Registration
clients to permit the inclusion of the Excite membership
option.
Section 4. NAVIANT PURCHASE OF ADVERTISING ON THE EXCITE SITE
a) Naviant shall provide to Excite a copy of the Naviant High-
Tech Household Database (the "HTHH Database") for use by
Excite to match such records against the Excite registered
users database, hereby define as all registered users
legally available to Excite whether from internal
registration or merger/acquisition activity, to create a
database of users (the "Naviant User Pool") for use by
Naviant and its clients to target advertisements on the
Excite Network. The Excite Network is defined as the sum of
all Internet sites where Excite can influence the content
and advertising space. Excite will provide Naviant with a
cookie or other identifying number for Naviant to identify
the users included in the Naviant User Pool.
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Section 5. USER DATA
b) Excite and Naviant will jointly own, the user data
collected by Naviant and used to generate Excite
registrations. Naviant will not, during the term of this
agreement or anytime, sell, disclose, transfer or rent any
data or any selection of data, which is identifiable as
having Excite registration, membership or usage. Naviant
reserves the right to identify any Excite registrant in the
HHTD using the term: "Member of Internet Search and
Navigation Service."
Section 7. TERM The Term of this agreement will begin on effective date and
will continue until March 31, 2002.
Exhibit B. MINIMUM QUARTERLY PURCHASE AMOUNT
Quarter Cumulative Minimum Total
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Q3, 1999 $0
Q4, 1999 $0
Q1, 2000 $0
Q2, 2000 $ 250,000
Q3, 2000 $ 500,000
Q4, 2000 $1,000,000
Q1, 2001 $1,750,000
Q2, 2001 $2,500,000
Q3, 2001 $3,250,000
Q4, 2001 $4,250,000
Q1, 2002 $5,500,000
By signing the attached document, both parties agree to be bound by the new
terms created by this Amendment.
_______________________________ ________________________________
Naviant, Inc. Excite@HOME
_______________________________ ________________________________
Printed Name Printed Name
_______________________________ ________________________________
Title Title
_______________________________ ________________________________
Date Date
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