EXHIBIT 10.13
[*] Material has been omitted pursuant to a request for confidential treatment
and the material has been filed separately with the Securities and Exchange
Commission.
WEB ADVERTISING AGREEMENT
This Web Advertising Agreement (the "Agreement") is made effective as of August
13, 1999 (the "Effective Date") by and between Mpath Interactive, Inc.
("Mpath"), a Delaware corporation, with its principal place of business at 000
Xxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000 and eUniverse, a Nevada corporation having
its principal place of business at 000 Xxxxx Xxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000.
1. DEFINITIONS
The following terms, when used in this Agreement, have the respective meanings
ascribed to them:
1.1 "Advertising Campaign" means an advertising package that focuses on the
advertising/promotion of a single product or event.
1.2 "Advertising Revenue" means gross revenue actually received by Mpath from
advertising sales by Mpath's internal or external sales force, less any
commissions paid to external sales force.
1.3 "Confidential Information" means: (i) proprietary or confidential
business information of a party, including but not limited to any information
relating to a party's product plans, product designs, product costs, product
prices, product names, finances, marketing plans, business opportunities,
personnel, research, development or know-how; (ii) any information designated by
any party as "confidential" or "proprietary" or which, under the circumstances
taken as a whole, would reasonably be deemed to be confidential; and (iii) the
terms and conditions of this Agreement. "Confidential Information" excludes
information that: (a) is or becomes known or available by publication,
commercial use or otherwise through no fault of the receiving party; (b) is
known to the receiving party at the time of disclosure without violation of any
confidentiality restriction and without any restriction on the receiving party's
further use or disclosure; or (c) is independently developed by the receiving
party without access or reference to Confidential Information of the disclosing
party.
1.4 "eUniverse Web Sites" means Case's Ladder, Gamer's Alliance, eUniverse and
related web sites and/or networks owned and/or controlled by eUniverse as
described in Exhibit A of this Agreement.
1.5 "Gross Sponsorship Revenue" means gross revenue actually received by Mpath
from the sale and/or promotion of Mpath and eUniverse jointly sponsored events.
1.6 "Mpath's Web Sites" means Xxxxxxx.xxx and Xxxxxx.xxx.
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1.7 "Xxxxxxx.xxx Internet Advertising Network" means network of web sites that
have elected to have Mpath provide advertising services.
1.8 "Xxxxxxx.xxx Newsletter" means the opt-in only electronic newsletter sent
approximately every two weeks to Xxxxxxx.xxx members, with a current
subscription of over 1,000,000 members.
1.9 "Reach" means monthly unique visitors to a web site as measured by a third
party auditing service approved by Mpath which approval may not be unreasonably
withheld.
2. WEB SITE OPERATIONS
2.1 Advertising Sales. eUniverse elects and authorizes Mpath to exclusively
sell advertising and sponsorships to appear on the pages of the eUniverse Web
Sites.
(i) Mpath's Responsibilities.
(a) Mpath will sell advertising on the eUniverse Web Sites on
generally no less favorable terms than advertising sold on Mpath's Web
Sites.
(b) Mpath will undertake to sell all advertising inventory using
Mpath's internal sales force. However, Mpath may use third party
services to sell excess inventory, not to exceed fifty percent (50%)
of the total inventory available. This restriction becomes effective
for each eUniverse Web Site six (6) months from the initial date of
eUniverse's integration of Mpath's advertising serving technologies.
(c) Mpath will administer one Advertising Campaign for eUniverse each
month at no charge and additional campaigns as eUniverse requests at
an administrative cost of $150 per campaign.
(d) eUniverse may elect to have Mpath serve promotional or barter
advertisements, not to exceed thirty percent (30%) of the inventory
on the eUniverse Web Sites. Mpath will have an equal number of
impressions not to exceed three and one-half percent (3.5%) of the
inventory of the eUniverse Web Sites to use in serving its own
promotional or barter advertisements on the eUniverse Web Sites
(ii) eUniverse's Responsibilities.
(a) eUniverse will integrate technologies supplied by Mpath into
eUniverse Web Sites for advertising support.
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(b) eUniverse is responsible for all maintenance, programming, web
pages and content appearing on the eUniverse Web Sites.
(c) eUniverse may agree in writing with Mpath for Mpath to provide
eUniverse with HTML or web programming services and any such services
are outside the scope of this Agreement, at Mpath's then-prevailing
rates for such services and subject to mutual, written agreement.
(d) eUniverse agrees to notify Mpath at least thirty (30) days in
advance of any changes in the eUniverse Web Sites that may result in
more than a ten percent (10%) change in usage of any one of the
eUniverse Web Sites and re-notify Mpath within forty-eight (48) hours
of the actual change or event.
(e) In a manner prescribed by Mpath, eUniverse will include Mpath's
advertising serving html code in every web page where Mpath will be
serving advertising. These unique tags in HTML/Java or other
appropriate languages are proprietary to Mpath and/or Mpath's
licensors.
(f) eUniverse will implement such new advertising technology as may be
reasonably requested by Mpath from time to time for use with eUniverse
Web Sites.
(g) eUniverse Web Sites will include a section listing contact
information for advertising on the site as discussed in Section 4.6.
2.2 Sponsorships. Mpath and eUniverse may promote and/or sell sponsorships of
events jointly held by Mpath and eUniverse based on a price schedule determined
by Mpath. Mpath may act as the sales administration for such sponsorships,
invoicing and collecting payments for such sales. Such sponsorships shall not
include more than [*] percent ([*]%) of their value of standard web advertising
products, else they will be deemed Advertising Revenue. The parties Gross
Sponsorship Revenue will be allocated according to the following schedule:
(i) eUniverse sells and eUniverse administers sponsorships - Mpath
receives [*] percent ([*]%) of Gross Sponsorship Revenue; eUniverse
receives [*] percent ([*]%) of Gross Sponsorship Revenue.
(ii) eUniverse sells and Mpath administers sponsorships - Mpath
receives [*] percent ([*]%) of Gross Sponsorship Revenue; eUniverse
receives [*] percent ([*]%) of Gross Sponsorship Revenue.
(iii) Mpath participates in selling and Mpath administers sponsorships
- Mpath and eUniverse receive [*] percent ([*]%) of Gross Sponsorship
Revenue each.
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2.3 Reach. eUniverse, within three (3) days of Agreement execution, will submit
to the appropriate monitoring and reporting services and to Mpath a signed
statement both electronic and written that authorizes any third party web site
auditing authority to include the eUniverse Web Sites as part of the Xxxxxxx.xxx
Internet Advertising Network. This statement addressed to monitoring and
reporting services will specify that the Reach associated with eUniverse Web
Sites should be attributed to Mpath in calculating Mpath's total Internet Reach.
The initial statement will include the current eUniverse Web Sites.
3. REVENUE, PAYMENT, REPORTS AND AUDITS
3.1 Advertising Revenue. Advertising Revenue will be shared by the parties as
follows: [*] percent ([*]%) to eUniverse and [*] percent ([*]%) to Mpath. No
payment is due from Mpath to eUniverse for barter advertising deals. As advances
against its share of Advertising Revenue, Mpath will pay eUniverse within thirty
(30) days of the following milestones:
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[*] Initial Contract Signing
Month 1 [*] First of the month following the full integration of the Mpath
ad serving technology within the eUniverse Sites.
Month 2 [*] One month after previous payment
Month 3 [*] One month after previous payment
Month 4 [*] One month after previous payment
Month 5 [*] One month after previous payment
Month 6 [*] One month after previous payment
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Month 7 [*] One month after previous payment and Media Metrix shows the
eUniverse Web Sites to have a monthly reach of at least [*]
Month 8 [*] One month after previous payment
Month 9 [*] One month after previous payment
Month 10 [*] One month after previous payment
Month 11 [*] One month after previous payment
Month 12 [*] One month after previous payment
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Month 13 [*] One month after previous payment and Media Metrix shows the
eUniverse Web Sites to have a monthly reach of at least [*]
Month 14 [*] One month after previous payment
Month 15 [*] One month after previous payment
Month 16 [*] One month after previous payment
Month 17 [*] One month after previous payment
Month 18 [*] One month after previous payment
Month 19 [*] One month after previous payment
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Month 20 [*] One month after previous payment
Month 21 [*] One month after previous payment
Month 22 [*] One month after previous payment
Month 23 [*] One month after previous payment
Month 24 [*] One month after previous payment
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$2,080,000 Total Advances
(i) If Media Metrix shows the Reach of the eUniverse Web Sites to
exceed [*] before the beginning of Month 7, the monthly advance
will become [*] at the time Reach exceeds [*].
(ii) If Media Metrix shows the Reach of the eUniverse Web Sites to
exceed [*] before the beginning of Month 13, the monthly advance
will become [*] at the time Reach exceeds [*].
(iii) If eUniverse signs additional web sites and/or networks beyond
the eUniverse Web Sites listed in Exhibit A, Mpath will increase
the monthly advance based on the Reach of the new web sites
and/or networks as reported by Media Metrix within the first
ninety (90) days of the addition of the new web sites and/or
networks by an increase of [*] per person. For example, if Site
X, reporting a Media Metrix Reach of [*] is added by eUniverse,
Mpath will increase the monthly advance by [*].
3.2 Payment Terms. Mpath will pay eUniverse its share of Advertising Revenue
netted against previously paid advances as described above, with surplus
amounts, if any, paid under this Agreement on a monthly basis.
3.3 Mpath's Records. For two (2) years after receipt by Mpath of Advertising
Revenue, Mpath will maintain records and books, in accordance with generally
accepted accounting principles, regarding all payments due under this Agreement.
3.4 Monthly Payment Reports. Within sixty (60) days after the end of each
calendar month, Mpath will deliver to eUniverse, or make available via the
Internet, a report which will provide all information reasonably necessary for
computation and confirmation of payments due to eUniverse from Mpath under this
Agreement, if any, due or credited to eUniverse for such monthly period.
3.5 Audit. A nationally-recognized independent certified public accountant (not
hired on a contingent-fee basis) selected and paid for by eUniverse and
reasonably approved by Mpath may, upon reasonable prior notice and during normal
business hours, inspect the records of Mpath on which such reports are based no
more than once per calendar year and once within six (6) months after
termination of this Agreement. eUniverse agrees to provide Mpath with a copy of
the audit report letter, no later than twenty (20) days after completion of the
audit. If, upon performing such audit, it is determined that Mpath has
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underpaid eUniverse, Mpath will pay to eUniverse the amount of the underpayment
within thirty (30) days of completion of the audit. If, upon performing such
audit, Mpath has overpaid eUniverse, Mpath may offset the amount of any such
overpayment against any balance owing from Mpath to eUniverse. If such offset is
not commercially reasonable, Mpath may invoice eUniverse for such amount and
eUniverse agrees to pay such invoice within thirty (30) days. Notwithstanding
the first sentence of this Section, if such underpayment exceeds the greater of
$2,500 or five percent (5%) of the amounts due eUniverse in the period being
audited, Mpath will bear all reasonable expenses and costs of such audit up to
the amount of the underpayment.
4. MARKETING AND TRADEMARK LICENSES
4.1 eUniverse Marks. Subject to the terms and conditions of this Agreement,
eUniverse hereby grants to Mpath a non-exclusive license to use eUniverse
trademarks, text, graphics and contents of their web site for advertising and
promoting the eUniverse Web Sites. Such use must reference the eUniverse
trademarks as being owned by eUniverse as specified in Exhibit B. Nothing in
this Agreement grants Mpath ownership or any rights in or to use the eUniverse
Marks, except in accordance with this license, and any such use is for and
inures to the benefit of eUniverse. Mpath will neither take nor authorize any
activity inconsistent with such exclusive right. The marketing contact at
eUniverse is [*] who will continue to be eUniverse's marketing contact unless
and until Mpath is notified otherwise in writing.
4.2 Mpath Marks. Subject to the terms and conditions of this Agreement, Mpath
hereby grants to eUniverse a non-exclusive license to use Mpath's trademarks,
text, graphics and contents of their web site for advertising and promoting the
Mpath Web Sites. Such use must reference the Mpath trademarks as being owned by
Mpath as specified in Exhibit C. Nothing in this Agreement grants eUniverse
ownership or any rights in or to use the Mpath Marks, except in accordance with
this license, and any such use is for and inures to the benefit of Mpath.
eUniverse will neither take nor authorize any activity inconsistent with such
exclusive right. The marketing contact at Mpath is [*] who will continue to be
Mpath's marketing contact unless and until eUniverse is notified otherwise in
writing.
4.3 eUniverse Marketing Responsibilities.
(i) Case's Ladder. eUniverse will create Case's Ladder support for all
Xxxxxxx.xxx supported games. eUniverse will promote Xxxxxxx.xxx as the
"official" game service of Case's Ladder, driving traffic to
Xxxxxxx.xxx through web and gameplay links.
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(ii) Display of Mpath Marks.
(a) Xxxxxxx.xxx. eUniverse will prominently display the
Xxxxxxx.xxx graphic image provided by Mpath on the root eUniverse
Web Sites home pages that are game related. Such graphic image
shall be no smaller than 114 X 75 pixels and will hyperlink to
the download, registration, and launch site for the eUniverse
customized version of the Xxxxxxx.xxx client software. eUniverse
may also display the Xxxxxxx.xxx graphic image hyperlink on other
eUniverse Web Site pages at its discretion.
(b) Xxxxxx.xxx. eUniverse will prominently place a Xxxxxx.xxx
graphic image provided by Mpath on the root eUniverse Web Sties
home pages. Such graphic image shall be no smaller than 114 X 75
pixels and will hyperlink to the download, registration, and
launch site for the eUniverse customized version of the
Xxxxxx.xxx client software. eUniverse may remove this link at its
discretion. eUniverse may also display the Xxxxxx.xxx graphic
image hyperlink on other eUniverse Web Site pages at its
discretion.
4.4 Mpath Marketing Responsibilities.
(i) Xxxxxxx.xxx Newsletter. Mpath will provide eUniverse a permanent
section in the Xxxxxxx.xxx Newsletter for announcing and promoting
ladder competitions and events.
(ii) Access to Xxxxxxx.xxx's Community and Calendar Tools. Mpath will
provide eUniverse with reasonable access to Xxxxxxx.xxx's community
and calendar tools to assist eUniverse in scheduling and promoting
events.
(iii) Display of eUniverse Marks. Mpath will prominently display
eUniverse's Case's Ladder graphic image on the Xxxxxxx.xxx home page.
Such graphic image shall be no smaller than 114 X 75 pixels.
(iv) Case's Ladder. Mpath will endorse the Case's Ladder support
provided through Section 4.3(i) as the exclusive "official"
Xxxxxxx.xxx endorsed ladders. This ladder support will initially be
positioned in the default WebViewer position in each particular game
room.
4.5 Publicity. Subject to confidentiality restrictions as expressly stated in
this Agreement, eUniverse and Mpath may each make press releases about the
existence and contents of the Agreement (except with respect to specific
financial terms) with the prior approval of the other of the contents of the
press release, which approval shall not be
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unreasonably withheld or delayed. If the party from whom approval is sought does
not approve or reject such press release within five (5) business days of
submission for approval, such press release shall be deemed approved.
4.6 Advertising. Mpath may sell and place on-line ads on the eUniverse Web
Sites. The advertising contact at Mpath is [*] who will continue to be the
Mpath's advertising contact unless and until eUniverse is notified otherwise in
writing. The eUniverse' advertising contact is [*] who will continue to be
Mpath's advertising contact unless and until Mpath is notified otherwise in
writing. Mpath makes no representation regarding usage statistics or levels of
impressions for an Advertisement and estimated usage statistics are provided
only as a courtesy to the eUniverse. Mpath may not be held liable for any claims
related to usage statistics. If Mpath uses a third party to serve Web
advertising, then Mpath is not responsible for performance issues created by
such third party, incorrect or non-functioning hyperlinks, banner rotation, URL
addresses or other problems created by such third party. Mpath's NetGravity
AdInsight reports will determine the basis for payment and record keeping. All
advertisements are subject to Mpath's approval. Mpath may reject any listing
that does not meet Mpath's reasonable standards. Mpath may reject, discontinue,
or omit any listing or any part of advertisements. Mpath is not liable for
errors in listing's position and/or placement, or typographic errors of any
kind. Mpath may, at its sole option, remove the listing for any reason upon
written notice to the advertiser. eUniverse agrees to provide Mpath with all
reasonable subscribership, viewership, inventory, and usage reports, reviews and
audience studies, deliveries, census requirements, and any other information
regarding the eUniverse Web Sites as is reasonably available to eUniverse.
4.7 Hyperlinks. eUniverse agrees to create a section on their web sites listing
Mpath contact information for those people interested in advertising on
eUniverse's Web Sites, including links back to Mpath's advertising information
web site, xxxx://xxx.xxxxxxx.xxx/xxxxxxxxx/ or to such other Mpath URL as Mpath
may reasonably request from time-to-time. Mpath may include, on eUniverse Web
Sites, commercially reasonable hyperlinks to xxxx://xxx.xxxxxxx.xxx/,
xxxx://xxx.xxxxxx.xxx/ or to such other Mpath URLs as Mpath may reasonably
implement and from time-to-time request. Mpath may reference content appearing
on eUniverse Web Sites by headline in an effort to drive cross traffic to
eUniverse Web Sites {Insert URLS}. Mpath may provide hyperlinks to eUniverse
e-commerce web sites, and in such cases, the parties agree to determine
reasonable compensation schedules.
5. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
5.1 By eUniverse. eUniverse represents and warrants that: (i) it is and will be
the sole and exclusive owner of all right and title, or has license to, the
eUniverse Web Sites, the eUniverse Marks and all intellectual property rights
therein; (ii) it has not granted any licenses or entered into any agreements of
any kind inconsistent with or contrary to this Agreement; (iii) to the best of
eUniverse's knowledge, information and belief, the
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eUniverse Web Sites and the eUniverse Marks do not violate or infringe, and will
not violate or infringe, any intellectual property or other proprietary rights
of any third party; (iv) it has sufficient right and authority to enter this
Agreement and to grant the licenses and rights granted under this Agreement; and
(v) the eUniverse Web Sites will be able to provide specific dates and calculate
spans of dates, and to record, store, process and provide true and accurate
dates and calculations for dates and spans of dates within the interval of
January 1, 1999 through December 31, 2100 (the "Interval Dates") prior to,
including and following January 1, 2000, including by: (a) prior and up to
December 31, 1999 correctly processing day and date calculations within the
Interval Dates; (b) on and after January 1, 2000 correctly processing day and
date calculations within the Interval Dates; (c) recognizing September 9, 1999
and January 1, 2001 as valid dates; (d) recognizing the year 2000 as a leap year
having 366 days, and correctly processing February 29, 2000 as a valid leap year
date; and (e) employing only four-digit year representations.
5.2 By Mpath. Mpath represents and warrants that: (i) it is and will be the
sole and exclusive owner of all right and title, or has license to, the Mpath
Marks; (ii) it has not entered into any agreements of any kind inconsistent with
or contrary to this Agreement; (iii) to the best of Mpath's knowledge,
information and belief, the Mpath Marks do not violate or infringe, and will not
violate or infringe, any intellectual property or other proprietary rights of
any third party, and (iv) it has sufficient right and authority to enter this
Agreement.
5.3 Warranty Disclaimer. THE FOREGOING WARRANTIES IN SECTIONS 5.1 AND 5.2 ARE
IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES IS MPATH RESPONSIBLE FOR ANY CONTENT
ON EUNIVERSES WEB SITES. eUNIVERSE SPECIFICALLY AGREES THAT MPATH IS NOT
RESPONSIBLE OR LIABLE TO eUNIVERSE, USERS OR ANYONE ELSE FOR ANY THREATENING,
DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONDUCT OR SPEECH OF ANY OTHER PARTY
OR ANY INFRINGEMENT OR VIOLATION OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL
PROPERTY AND RIGHT OF PUBLICITY RIGHTS ORIGINATING FROM eUNIVERSE WEB SITES.
5.4 Indemnification by eUniverse. eUniverse agrees to indemnify Mpath against,
and hold Mpath free and harmless from, any and all loss, damage, settlement or
expense (including legal expenses), as incurred, resulting from or arising out
of any claims which allege that the eUniverse Web Sites or the use, display,
performance, transmission or distribution thereof infringe upon any patents,
copyrights, trademarks, trade secret rights or other proprietary rights of
persons, firms or entities who are not parties to this Agreement; provided that
Mpath promptly notifies eUniverse, in writing, of any notice or claim of such
alleged infringement involving the eUniverse Web Sites of which it becomes
aware, and permits eUniverse to control, in a manner not adverse to Mpath, the
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defense, settlement, adjustment or compromise of any such claim using counsel
reasonably acceptable to Mpath. Mpath may employ counsel, at its own expense
(provided that if such counsel is necessary because of a conflict of eUniverse
or its counsel or because eUniverse does not assume control, eUniverse will bear
such expense), to assist it with respect to any such claim.
6. CONFIDENTIALITY
Each party will refrain from using the other party's Confidential Information
except as contemplated in this Agreement and from disclosing such Confidential
Information to any third party except to employees (or subcontractors), legal
advisors, financial advisors and in the course of due diligence as is reasonably
required in connection with the exercise of its rights and obligations under
this Agreement (and only subject to binding use and disclosure restrictions at
least as protective as those set forth in this Agreement executed in writing by
such employees or subcontractors). The parties will each store and protect the
other party's Confidential Information from unauthorized access. However, each
party may disclose Confidential Information of another party: (i) pursuant to
the order or requirement of a court, administrative agency, the SEC or other
governmental body, provided that such party give reasonable notice to the other
party to contest such order or requirement; or (ii) on a confidential basis to
legal and financial advisors. Either party may disclose, subject to written
non-disclosure agreement, this Agreement to its lawyers, accountants and in the
course of investment or financing due diligence.
7. MUTUAL LIABILITY LIMITATION.
REGARDLESS WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL
PURPOSE OR OTHERWISE, UNDER NO CIRCUMSTANCES, EXCEPT BREACH OF SECTION 6, WILL
EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY,
NEGLIGENCE OR OTHER LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOST REVENUE OR LOST PROFITS IN CONNECTION WITH THE
SUBJECT MATTER OF THIS AGREEMENT EVEN IF THE PARTY HAS BEEN INFORMED IN ADVANCE
OF SUCH DAMAGES. THE TOTAL CUMULATIVE AMOUNT RECOVERABLE UNDER THIS AGREEMENT IS
HEREBY CAPPED AT AN AMOUNT EQUAL TO THE TOTAL CUMULATIVE AMOUNT PAID UNDER THIS
AGREEMENT BY MPATH TO EUNIVERSE. THE FOREGOING ALLOCATION OF RISK IS REFLECTED
IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED IN THIS AGREEMENT.
8. TERM AND TERMINATION
8.1. Term. This Agreement commences on the Effective Date and continues in full
force and effect for two (2) years, and will automatically renew for successive
one (1) year terms thereafter, unless either party provides written notice to
the other at least
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ninety (90) days prior to the renewal date.
8.2. Termination by eUniverse.
(i) For Cause. eUniverse may terminate this Agreement if Mpath (a)
breaches a material provision of this Agreement and fails to cure
such breach within thirty (30) days following receipt of written
notice unless such breach is incurable in which case eUniverse may
terminate immediately; or (b) becomes insolvent or seeks protection
under any bankruptcy, receivership, trust deed, creditor's
arrangement or comparable proceeding, or if any such proceeding is
instituted against Mpath (and not dismissed within ninety (90) days).
(ii) Without Cause. eUniverse may terminate this Agreement six (6) months
following the month when the eUniverse Web Sites begin have added all
necessary codes to their pages to receive advertisements from Mpath, upon a
minimum of ninety (90) days written notice to Mpath and by paying to Mpath,
one of the following termination amounts:
(a) If eUniverse gives Mpath written notice to terminate the
Agreement six (6) months or later from when the eUniverse Web Sites
first begin receiving Mpath served advertising and the cumulative
amount of Advertising Revenue earned by eUniverse is less than twice
the cumulative amount of Advertising Revenue advances due from Mpath
(e.g. two hundred percent (200%)), [*].
(b) If eUniverse gives Mpath written notice to terminate the
Agreement six (6) months or later from when the eUniverse Web Sites
first begin receiving Mpath served advertising and the cumulative
amount of Advertising Revenue earned by eUniverse is greater than or
equal to twice the cumulative amount of Advertising Revenue advances
due from Mpath (e.g. two hundred percent (200%)), [*].
(c) If eUniverse gives Mpath one hundred and eighty (180) days
written notice to terminate the Agreement six (6) months or later
from when the eUniverse Web Sites begin receiving Mpath served
advertising, [*].
(iii) Acquisition of eUniverse. If eUniverse is acquired through a
purchase, merger, or other transaction, the acquirer, within thirty (30)
days of the acquisition, may terminate this Agreement upon thirty (30) days
written notice to Mpath, [*].
8.3 By Mpath. Mpath may terminate this Agreement if eUniverse: (a) breaches a
material provision of this Agreement and fails to cure such breach within thirty
(30) days following receipt of written notice unless such breach is incurable in
which case Mpath
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may terminate immediately; or (b) becomes insolvent or seeks protection under
any bankruptcy, receivership, trust deed, creditor's arrangement or comparable
proceeding, or if any such proceeding is instituted against eUniverse (and not
dismissed within ninety (90) days).
8.4 Termination of License. Upon termination of this Agreement for any reason,
the trademark licenses granted under this Agreement terminate and are of no
further force or effect.
8.5 Return of Confidential Information. No later than fifteen (15) business
days after termination or expiration of this Agreement, the recipient of
Confidential Information will return all Confidential Information and all copies
thereof to the owner. With respect to documents or data storage media containing
Confidential Information of the other party, the recipient may elect to delete
therefrom all such Confidential Information, in which event the recipient shall,
upon written request from the owner, deliver to the owner a certificate, signed
by an authorized representative of the recipient, to the effect that all
Confidential Information of the owner has been returned or deleted. Also upon
termination or expiration of this Agreement, the recipient of Confidential
Information agrees to not to use and to delete, in accordance with the
recipient's backup and archive procedures, all copies of the Confidential
Information stored in backup and archive.
9. MISCELLANEOUS
9.1 Controlling Law and Disputes. This Agreement is governed, controlled,
interpreted and defined by and under the laws of the State of California and the
United States, without regard to the conflicts of laws provisions thereof. Any
litigation arising under this Agreement will be brought in the federal or state
courts of the Northern District of California. If any litigation or proceeding
is brought by either party against the other in connection with this Agreement,
the prevailing party in such litigation or other proceeding shall be entitled to
recover from the other party all costs, attorneys' fees and other expenses
incurred by such prevailing party.
9.2 Equitable Relief. Due to the proprietary and sensitive nature of this
Agreement, both parties may be entitled to preliminary or other injunctive or
equitable relief to remedy any actual or threatened dispute arising from any
actions in breach of any of the obligations under this Agreement.
9.3 Waiver and Modification. Failure by any party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement of that or any
other provision. Any waiver, amendment or other modification of any provision of
this Agreement will be effective only if in writing and signed by eUniverse and
Mpath.
9.4 Severability. If for any reason a court of competent jurisdiction finds any
provision or portion of this Agreement to be unenforceable, that provision of
the Agreement will be enforced to the maximum extent permissible so as to effect
the intent
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of the parties, and the remainder of this Agreement will continue in full force
and effect.
9.5 Notices. All notices required or permitted under this Agreement will be in
writing, will reference this Agreement and will be deemed given: (i) when sent
by facsimile to the facsimile number set forth below each party's signature
below and confirmed by registered or certified mail; (ii) five (5) working days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (iii) one (1) working day after deposit with a
commercial overnight carrier, with written verification of receipt. All
communications will be sent to the addresses set forth in the opening paragraph
above or to such other address as may be designated by a party by giving written
notice to the other parties pursuant to this Section.
9.6 Delays Beyond Control. No party is liable to the other parties for any
failure or delay in performance caused by reasons beyond such party's reasonable
control, including delivery of advertising by third parties, and such failure or
delay will not constitute a material breach of this Agreement.
9.7 Assignment. Neither party may assign its rights or obligations under this
Agreement, by operation of law or otherwise, without the express written consent
of the others; except that a party may assign this Agreement to an affiliate
commonly owned and controlled by or with the party or to any other third party
in connection with the merger or acquisition of the party or sale of all or
substantially all of its assets used primarily in connection with this
Agreement. Each party agrees to provide no less than three (3) business days'
prior notification of any authorized assignment under this Agreement, including
assignment to an affiliate or as part of an asset sale. Any attempted assignment
except as expressly allowed by this Section is null and void. Subject to the
foregoing, this Agreement will benefit and bind the successors and assigns of
the parties.
9.8 Relationship of Parties. The parties to this Agreement are independent
contractors and nothing in this Agreement contained shall be deemed to create a
joint venture, partnership or agency relationship between the parties in this
Agreement. No party shall have any power to enter into any contracts or
commitments in the name of, or on behalf of, the other parties, or to bind the
other parties in any respect whatsoever.
9.9 Survival of Contents. Notwithstanding anything else in this Agreement to
the contrary, the parties agree that Sections 1, 3.3, 5.3, 6, 7, 8.4, 9,
ownership rights, and accrued rights to payments under this Agreement survive
the expiration or termination of this Agreement.
9.10 Interpretation. Any headings contained in this Agreement are for
convenience only and shall not be employed in interpreting this Agreement. The
parties and their respective counsel have negotiated this Agreement. This
Agreement will be interpreted fairly in accordance with its terms and conditions
and without any strict construction in favor of or against either party.
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9.11 Execution. This Agreement may be executed in several counterparts, each of
which will be deemed to be an original, and each of which alone and all of which
together, shall constitute one (1) and the same instrument, but in making proof
of this Agreement it shall not be necessary to produce or account for each copy
of any counterpart other than the counterpart signed by the party against whom
this Agreement is to be enforced. This Agreement may be transmitted by
facsimile. The parties may close the Agreement by exchanging fax signatures.
However, they agree to promptly exchange, by courier, duplicate originals signed
by both parties.
9.12 Entire Agreement. This Agreement, including the exhibit, constitutes the
entire agreement between the parties with respect to the subject matter to this
Agreement, and supersedes and replaces all prior or contemporaneous
understandings or agreements, written or oral, regarding such subject matter.
This Agreement includes the following exhibits, which are incorporated into, and
made a part of this Agreement:
(i) Exhibit A - eUniverse Web Sites;
(ii) Exhibit B - eUniverse Marks;
(iii) Exhibit C - Mpath Marks.
eUniverse Mpath Interactive, Inc.
By: ______________________________ By: ______________________________
Name: ______________________________ Name: ______________________________
Title: ______________________________ Title: ______________________________
Date: ______________________________ Date: ______________________________
Fax: ______________________________ Fax: (000) 000-0000
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