CONTENT USER AGREEMENT
This agreement ("Agreement") is entered into by and between Lineup
Technologies, Inc., a content syndication and internet media company, ("Lineup
Technologies, Inc."), and Fetchomatic Global Internet Inc. ("Customer"), and
shall become effective upon the date of Lineup Technologies, Inc.'s execution
("Effective Date").
1. DEFINITIONS.
"Content" means any and all materials (including but not limited to video, text,
information, data, images, still and moving, search boxes, product offerings and
sound recordings), and any portion thereof, Lineup Technologies, Inc. provides
to Customer as further defined in Schedule 1.
"Customer's Site" means Customer's Internet site at URL:xxx.xxxxxxxxxxx.xxx and
any successor to such site provided it is of the same branding as the
aforementioned URL.
"Content Provider" means the entities that license Content to Lineup
Technologies, Inc.
"Usage Restrictions" means the conditions and requirements on use and storage of
Content (including but not limited to proprietary notices) that accompany such
Content, as listed in Sections 2, 5 and Schedule 1.
"Development Fees" are the fees charged for Lineup Technologies, Inc.
Development Services.
"Development Services" means production account development work (as specified
on Schedule 1 of this Agreement) by Lineup Technologies, Inc.
"Lineup Technologies, Inc. Launch" means completion of all Development Services
and delivery of all Content to Customer.
"Partial Lineup Technologies, Inc. Launch" means the completion of a portion of
the Development Services and/or the delivery of a portion of the Content
referenced in Schedule 1. In the event of a Partial Lineup Technologies, Inc
Launch, Customer will be billed for the Content delivered.
"Co-Branded Content" means Content hosted on Content Provider server for
Customer.
"Marks" means the trademarks, service marks, and trade names, whether or not
registered, identifying or used in connection with the subject matter of this
Agreement.
"PlayerPage" means a branded web page created by Lineup that displays or frames
the Content, as more fully described above.
2. USE OF CONTENT.
2.1 License Grant. Subject to the terms of this Agreement and compliance
with all Usage Restrictions, Lineup Technologies, Inc. hereby grants to Customer
a worldwide, non-exclusive, non-transferable (except as set forth in Section
12), non-sublicensable license during the Term to access the Content and to use,
publicly display and digitally perform Content and marks only on Customer''
Site.
2.2 Restrictions. Except as expressly set forth in Section 2.1, Customer
may not, directly or indirectly:
(a) sell, modify, edit, rent, translate, copy, display, perform,, publish,
transmit, distribute or otherwise disseminate the Content;
(b) remove, conceal or obliterate any copyright or other proprietary notice
or any credit-line or date-line included on Content;
(c) display the identity of another entity in such a way that creates a
reasonable impression that such entity is the creator or publisher of the
Content;
(d) store any Content for longer than specified on Schedule 1; or
(e) make any warranties, representations, or sign any documentation on
behalf of Lineup Technologies, Inc. or its Content Providers.
2.3 Duties. Customer has no obligation to display Lineup Technologies, Inc.
content. If Customer does display content, Customer will:
(a) use the Content in accordance with all applicable laws;
(b) display the Content only in the exact form in which it is received by
Customer (excluding reasonable changes to format);
(c) display the Content in the Playerpage with the logo of the content
creator;
(d) comply with any and all Usage Restrictions as further defined in Section
2.2, 4.1 and 5;
(e) post a general disclaimer to all persons that access Customer's Site
("Users") stating that the Content may not be duplicated, distributed,
published, transferred, transmitted, copied, altered, sold, sued to create
derivative works or otherwise misused;
(f) as soon as reasonably possible, and in any event within two (2) business
days, cease use of Content upon receipt of notice from Lineup Technologies, Inc.
in the event that Lineup Technologies, Inc. receives notice from its Content
Providers that any or all of the Content is or may be infringing on a third
party's rights or any Usage Restrictions; and
(g) ensure that Customer's Site is free from any pornographic, defamatory,
obscene, profane, illegal, racist or hateful material.
3. OWNERSHIP.
As between the parties, Lineup Technologies, Inc. and its Content Providers
exclusively retain all patent, design right, copyright, trademark, service xxxx
(and any application or registration respecting the foregoing), database right,
trade secret, know-how and/or other present or future intellectual property
right of any type, wherever in the world enjoyable (collectively "Intellectual
Property Rights"), whether now existing or hereinafter devised, to the
trademarks, service marks, and trade names, whether or not registered,
identifying or used in connection with the subject matter of this Agreement
(collectively the "Marks"), services, Content, and any portion and all
compilations thereof. Customer shall retain all ownership rights in its own
patents, design rights, trademarks, trade names, service marks and copyrights,
whether registered or not, used in connection with the subject matter of this
Agreement.
4. CONFIDENTIAL INFORMATION.
4.1 Nondisclosure. All business, technical and financial information
exchanged between Customer and Lineup Technologies, Inc. in connection with this
Agreement, except for the Content, and the terms of this Agreement shall be
treated as confidential information ("Confidential Information"). During the
Term and or a period of two (2) years after the termination or expiration of
this Agreement, neither Customer nor Lineup Technologies, Inc. shall disclose
any Confidential Information to any third party or use any Confidential
Information except in the extent necessary to carry out obligations under this
Agreement and only under confidentiality obligations substantially equivalent to
those in this Agreement.
4.2 Exclusions. Customer's and Lineup Technologies, Inc.'s nondisclosure
obligation shall not apply to information that either party can document: (a)
is or becomes generally available to the public through no improper direct or
indirect action or inaction by Customer or Lineup Technologies, Inc.; (b) is
independently developed by Customer or Lineup Technologies, Inc.; or (c) is
required to be disclosed by operation of law, provided that the party required
to disclose gives notice to the other party prior to disclosure in order for the
other part to seek appropriate confidential treatment of such information.
Because of the unique and proprietary nature of the Confidential Information,
either party shall be entitled to seek injunctive relief in addition to all
other remedies available in law or equity in the event of any breach of Section
4.
4.3 Press Releases/Customer Lists/Marketing Materials
Customer may issue a press release regarding the existence of this Agreement
using Lineup Technologies, Inc.'s name only with the consent of Lineup
Technologies, Inc., which shall not be unreasonably withheld.
Customer gives Lineup Technologies, Inc. permission to mention Customer's name
in a standard customer list, to use Customer's logo and Customer's website or
wireless site images in Lineup Technologies, Inc. marketing and promotional
material, including but not limited to Lineup Technologies, Inc. presentations,
demonstrations, collateral and on Lineup Technologies, Inc.'s website. Customer
gives Lineup Technologies, Inc. the right to use descriptions of the services
and products Customer is licensing from Lineup Technologies, Inc. and how
Customer is using such services and products in Lineup Technologies, Inc.
marketing and promotional material. Customer gives Lineup Technologies, Inc.
the right to include Customer's name and the existence of this Agreement in a
press release subject to Customer's permission.
5. CREDITS AND BRANDING.
In addition to posting all notices required by the User Restrictions in Section
2.2, Customer shall insert, on each full-text page of Content, the following:
(a) a Customer-hosted link to Lineup Technologies, Inc.'s Legal Disclaimer;
(b) the notice, "Copyright (year) Lineup Technologies, Inc.";
(c) subject to guidelines of size and placement, the Marks of each Content
Provider and the copyright notice of each Content Provider, on any page
containing Content of such Content Provider.
6. FEES & CHARGES
6,1 Net 30 Days. Customer shall pay all Lineup Technologies, Inc. fees set
forth in Schedule 1 in US dollars within 30 days of Lineup Technologies, Inc.
invoice date.
6.2 Development Fees. Development Fees are non-refundable and are invoiced
to the customer immediately upon the execution of this Agreement.
6.3 Monthly Fees. Monthly Fees are billed quarterly in advance and commence
upon Lineup Technologies, Inc. Launch, or Partial Lineup Technologies, Inc.
Launch if applicable. Payment responsibility of quarterly Fees is not
contingent upon Customer's use of Content.
6.4 Customer Supplied Templates. In the event Customer is required to
supply Lineup Technologies, Inc. with templates (ie. Lineup Technologies, Inc.
is hosing Customer's content or Customer licenses Co-branded Content), Customer
shall deliver such templates to Lineup Technologies, Inc. within five (5)
business days after signing this Agreement. If customer fails to deliver such
templates within five (5) business days and Lineup Technologies, Inc. has
completed all Development Services, Lineup Technologies, Inc. will launch a
standard Playerpage, Lineup Technologies, Inc. Launch will be recognized, and
billing will commence.
7. WARRANTY DISCLAIMER.
NEITHER LINEUP TECHNOLOGIES, INC. NOR CONTENT PROVIDERS MAKE ANY WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, FOR ANY CONTENT OR SERVICES PROVIDED UNDER
THIS AGREEMENT, INCLUDING ANY WARRANTY OR MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN THE EVENT THAT SOME OF THE
AFOREMENTIONED WARRANTIES MAY NOT BE DISCLAIMED AS A MATTER OF LAW, THE SCOPE
AND DURATION OF SUCH WARRANTIES WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
8. LIMITATION OF LIABILITY.
EXCEPT AS SET FORTH IN SECTION 10 OR IN THE EVENT OF A BREACH OF SECTION 2.2,
4.1 OR 5, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR (1) THE LESSER OF $10,000 OR OF THE AMOUNT
OF FEES PAID (II) ANY SPECIAL, INDIRECT, INCIDENTAL CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES, OR (III) PROCUREMENT OF SUBSTITUTE GODS OR SERVICES.
9. INDEMNIFICATION.
9.1 Indemnification by Customer. customer will indemnify and hold Lineup
Technologies, Inc. and its officers, directors, employees, stockholders and
Content Providers harmless from and against any and all third party claims,
liability, losses, costs and expenses (including reasonable attorney's fees)
incurred by Lineup Technologies, Inc. arising in connection with: (1)
customer's Site excluding the Content; (ii) customer's use, misuse or abuse of
Content in breach of this Agreement; or (iii) Customer's breach of Section 4.1.
9.2 Indemnification by Lineup Technologies, Inc. Lineup Technologies, Inc.
will indemnify and hold Customer and its officers, stockholders, directors and
employees harmless from and against any and all claims, liability, losses, costs
and expenses (including reasonable attorney's fees) incurred by Customer arising
from (i) any Content or Xxxx which, as provided to customer by Lineup
Technologies, Inc., infringes any third party intellectual property rights;
provided that (a) the relevant claim does not arise from any modification to the
Content or Lineup Technologies, Inc. Marks made by Customer or any person
receiving the Content through customer; or (b) the relevant claim does not
concern Content that Lineup Technologies, Inc. notified Customer in advance not
to use, purchase to Section 2.3(c) and (ii) Lineup Technologies, Inc.'s breach
of Section 4.1.
9.3 Notice of and Restrictions on Indemnification. A party seeking
indemnification pursuant to this Section (an "Indemnified Party") from or
against the assertion of any threats, claims and proceedings by a third person
(a "Third Person Assertion"), must give the other party: (i) prompt notice of
all third Party Assertions related thereto, (ii) reasonable assistance to the
party from whom indemnification is sought (the "Indemnifying Party"), and (iii)
control over such defense or settlement as a condition to receiving
indemnification. The Indemnified Party may participate in the defense or
settlement of any Third Person Assertion at its own expense, however, the
Indemnifying Party will not be responsible for any settlement it does not
approve in writing.
10. TERM
This Agreement has an initial term of 12 months. The Term commences upon Lineup
Technologies, Inc. Launch. In the event of a Partial Lineup Technologies, Inc.
Launch, the Term commences upon Lineup Technologies, Inc.
Launch (the completion of all Development Services and the delivery of all
Content referenced in Schedule 1 of this Agreement). The Term shall renew for
subsequent 12-month periods (thereafter the "Term") unless either party gives
the other party at least 30 days' advance written notice of intent not to renew
for an additional term prior to expiration of the then current Term.
11. TERMINATION.
11.1 Material Breach. Either party may terminate this Agreement
immediately, without further obligation to the other party (except as set forth
in Section 11.3) in the event of: (a) any material breach of the Agreement by
the other party that is not remedied within 30 days of receipt of written notice
of such breach in writing; and (b) Either party may terminate this Agreement
with five (5) days written notice for any breach of Section 2.2(a) (b) (d) or
(e), 4.1, 5(d) or 6 that is not cured within five (5) days.
11.2 Bankruptcy. Either party may terminate this Agreement in the event of
an assignment for the benefit of its creditors or the filing of a voluntary or
involuntary petition under any bankruptcy or insolvency law, under the
reorganization or arrangement provisions of the United States Bankruptcy Code,
or under the provisions of any law of like import in connection with the other
party, or the appointment of a trustee or receiver for the other party or its
property.
11.3 Withdrawal of a Service. Customer's use of all Content is subject to
Content Provider final approval. Lineup Technologies, Inc. may cancel, modify
or delay all or party of the content where Lineup Technologies, Inc. is unable
to continue to provide all or part of the Lineup Technologies, Inc. Services due
to modifications or terminations by the Content Providers; provided that Lineup
Technologies, Inc. shall: (a) provide Customer with 30 days notice whenever
possible; (b) replace such Content with substantially similar services or
Content; or (c) refund Customer any Monthly Fees paid in advance for the unused
and canceled part of the Content. If, after a good-faith effort to find
substitute Content, Customer and Lineup Technologies, Inc. reasonably determine
that such change materially affects Customer, Customer may terminate this
Agreement with 30 days written notice.
11.4 Replacing Content. Customer may replace Lineup Technologies, Inc.
Content only with Lineup Technologies, Inc.'s prior approval and Customer must
an Addendum to this Agreement and provide 30 days written notice. Customer
acknowledges that it may be subject to Development Fees and additional Monthly
Fees if Customer decides to replace its originally selected Content. If
Customer wishes to replace Content, Customer must sign an addendum to this
agreement and provide 30 days written notice. Notwithstanding the foregoing,
customer acknowledges that in cases where it is merely dissatisfied with
content, having to replace Content does not constitute Lineup Technologies,
Inc.'s material breach of this Agreement.
11.5 Early Termination. This Agreement is a lump sum contract. If Customer
wishes to terminate this Agreement prior to the expiration of the Term for a
reason not specified in 11.1, 11.2, 11.3 or 11.4, it may do so at any time by
giving 30 days written notice and by paying its outstanding account balance plus
all Monthly Fees otherwise payable through the remainder of the Term.
11.6 Obligations Upon Termination. Promptly upon termination of this
Agreement for any reason, Customer will delete or destroy any Content stored or
otherwise in its possession, custody or control and, if applicable, remove the
Lineup Technologies, Inc. software from Customer's systems. If required by
Lineup Technologies, Inc., an officer of the Customer shall execute a
certificate attesting to such deletion or destruction. In the event of Lineup
Technologies, Inc.'s material breach of this Agreement, Lineup Technologies,
Inc. shall refund Customer prorata portion of Monthly Fees pre-paid by Customer
for Content that was not received by Customer prior to termination.
11.7 Survival. The provisions of Sections 3, 4.1, 4.2, 7, 8, 9, 11.5, 11.7,
and 13 and the obligation to pay al fees outstanding prior to termination will
survive any termination or expiration of this Agreement.
12. ASSIGNMENT.
This Agreement will be binding upon the parties and their respective successors
and assigns. Neither party may assign any of its rights or delegate any of its
duties under this Agreement without the prior written consent of the other,
except that no such consent is required for assignment to any third party who
succeeds to substantially all of the business or assets of either party,
provided the assigning party gives written notice. Any transfer in violation of
the following shall be null and void.
13. MISCELLANEOUS
13.1 Relationship of the Parties. This Agreement does not create any joint
venture, partnership, agency or fiduciary relationship between the parties.
13.2 Full Integration. This Agreement and all Schedules hereto represent
the entire agreement of the parties and supercede all other oral or written
understandings regarding the subject matter hereof. This Agreement may not be
modified unless expressly agreed to in writing by both parties.
13.3 Governing Law. This Agreement shall be governed in accordance with the
internal laws of the State of California. The parties hereby agree to submit to
exclusive jurisdiction in San Francisco, California. If any provision is held
by a court of competent jurisdiction to be contrary to law, such provision shall
be limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect.
13.4 Compliance. Each party shall be responsible for compliance with all
applicable laws, rules and regulations, if any, related to the performance of
its obligations under this Agreement.
13.5 Force Majeure. Neither party will be liable for any failure to perform
any obligation (other than payment obligations) hereunder, or from any delay in
the performance thereof, due to causes beyond its reasonable control.
13.6 Non-Exclusivity. Nothing in this Agreement will be deemed to limit or
restrict either party from entering into agreements with any other entity
covering services similar to the other party or from offering such similar
services itself.
13.7 No Third Party Beneficiaries. This Agreement shall be binding upon and
inure solely to the benefit of the parties hereto and their permitted assigns
and nothing herein, express or implied, is intended to or shall confer upon any
other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
13.8 Waiver. The failure of either party at any time to require performance
by the other party of any provision herein shall not affect the full right to
require such performance at any time thereafter, nor shall the waiver by either
party of a breach of any provision herein be taken or held to be a waiver of any
succeeding breach of such provision or as a waiver of the provision itself.
13.9 Notice. All notices, requests and other communications to any party
hereunder will be in writing and will be sent via certified mail to such party
at its address set forth below (if to Lineup Technologies, Inc., Attention:
Legal Department)
Duly authorized representative of
Lineup Technologies, Inc., Inc.: Fetchomatic Global Internet Inc.
X /s/ Xxxxxx X. Xxxxx X /s/ Xxxxxxx Xxxx Xxxxx
------------------------ ---------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx Xxxx Xxxxx
Title: VP Business Development Title: President & CEO
Date: 1/6/01 Date: 1/8/01
Address: 2329 South Purduc Address: 0000 - 00xx Xxxxxx
Xxx Xxxxxxx, XX 00000 Xxxxx, X.X, Xxxxxx X0X 0X0
Fax: (000) 000-0000
SCHEDULE 1: FEES & TERMS
SET-UP FEE: $500 per Playerpage
This fee covers standard production account development work, including the
creation of a mutually agreed upon Playerpage. Additional or unexpected
technical programming and production design work requested by Customer in excess
of those mentioned above will be billed at $250.00 an hour. Development Fee is
due upon execution of this Agreement.
MONTHLY CONTENT FEES TOTAL:
HOSTING: Lineup Technologies, Inc.
PlayerPage #1: NEWS & FINANCE (Business District)
Customer Acknowledgement (please print)
One Time Set-up fee: $500
Monthly Fee: $1,500
Refresh: Daily
Providers: Associated Press, InternationalWaters, Media 1st
Playerpages # 2-7: Fetchomatic choice of 6 "District" Installations
Lineup recommends auto, Health, Shopping, Sports,
Travel, and University
One time Set-up Fee: $500
Monthly Fee: $1,500
Refresh: Updated as released by provider
Customer Acknowledgement (please print)
PlayerPage #8: ENTERTAINMENT & ANIMATION (Arts/Entertainment District)
One Time Set-up fee: $500
Monthly Fee: $1,500
Refresh: Updated as released by creators, no less than weekly
Providers: Movie Trailers with an option to select up to 5 additional
providers
Streaming Package: Minimum 25,000 megabytes per month ($.04 per mb)
Overage Charge: $.06 per megabyte over 25,000
Minimum Monthly Fee: $1,000
Estimated Launch Date: January 15, 2001
Customer Acknowledgement (please print)
ADVERTISING REVENUE SHARE
The Company shall pay to Lineup fifty percent (50%) of the Net Advertising
Revenue paid to Company for Advertisements displayed on PlayerPages. "Net
Advertising Revenues" means the total revenue received by a party for
Advertisements, less any costs related to the creation, obtaining and delivery
of Advertisements, including without limitation data analysis, licensing, sales
or agency commissions, hosting costs, bad debts and payments to third parties
related to such Advertisements. Such expenses shall not exceed thirty percent
(30%) of the total revenue received by a party for Advertisements.
SPECIAL PRICING CONDITIONS:
Playerpages #1-#7: Waive Set-up Fee
Waive monthly fee for One-Year
PlayerPage #8: Set-up Fee: $500.00
Reduce Monthly Fee to $1,000 for months 1-6
Monthly Fee months 7-12 $1,500
Streaming Package: Waive overage charge for first term, thus keeping per
megabyte charge at $.04
Estimated Total: Months 1-6 $2,000 plus 50% of Net Advertising and $.04
per megabyte overage.
Months 7-12 $2,500 plus 50% of Net Advertising and $.04 per megabyte
overage.
Estimated Launch Date: Indicates the latest date that specified Content will be
launched by Lineup Technologies, Inc. ("Estimated Launch Date"). If Content is
launched prior to Estimated launch Date, Monthly Fees will commence on date
Content is actually launched (Lineup Technologies, Inc. Launch or Lineup
Technologies, Inc. Partial Launch). If specified Content is launched after
Estimated launch Date, Monthly Fees will commence on date Content is actually
launched (Lineup Technologies, Inc. Launch or Lineup Technologies, Inc. Partial
Launch). Lineup Technologies, Inc.'s failure to launch Content by Estimated
launch Date does not constitute a material breach of this Agreement.
