Exhibit 4.8
THE DAILY RACING FORM
ONLINE AFFILIATE AGREEMENT
THIS ONLINE AFFILIATE AGREEMENT (the "AGREEMENT"), dated as of April
1st, 2000, between Daily Racing Form, L.L.C. ("DRF") and Starnet
Communications International Inc., Starnet Communications International,
Starnet Place - Newgate Street P.O. Box 1589 St. John's Antigua West Indies,
(the "Affiliate")
WHEREAS, DRF and the Affiliate wish to set forth the terms and conditions
for the participation of the Affiliate in the DRF Online Affiliate Program
(the "PROGRAM").
1. DEFINITIONS.
"AFFILIATE" has the meaning set forth in the preamble to this Agreement.
"AFFILIATE SITE" means the web site upon which the Affiliate posts the
DRF Content as part of the Program.
"DRF" has the meaning set forth in the preamble to this Agreement.
"DRF CONTENT" means all existing and future digitized and non-digitized
articles, reviews, digital or transcribed interviews, video and audio
libraries, photographs, books, Intellectual Property and any other content
which DRF or any of its affiliates has through a licensing arrangement with
any other entity, together with the DRF online edition, DRF Banner and all
thoroughbred handicapping information and news.
"INTELLECTUAL PROPERTY" means all of the following as they exist in all
jurisdictions throughout the world, in each case, to the extent owned by,
licensed to, or otherwise used by DRF or any of its affiliates: (i)
trademarks, service marks, trade dress, trade names, Internet domain names,
logos, slogans, personalities and corporate names, whether registered or
unregistered, and all registrations and applications for registration
thereof; (ii) copyright registrations and applications for registration
thereof and non-registered copyrights; (iii) patents, trade secrets,
know-how, data, inventions, improvements, and other proprietary rights
(whether or not patentable or subject to copyright, mask work, or trade
secret protection); and (iv) computer software programs, including, without
limitation, all source code, object code, and documentation related thereto.
"NEW DRF SUBSCRIBER" has the meaning set forth in Section 4 to this
Agreement.
"PROGRAM" has the meaning set forth in the recitals to this Agreement.
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"REFERRAL PAYMENT" has the meaning set forth in Section 4 to this
Agreement.
"SPECIAL LINKS" has the meaning set forth in Section 3 to this Agreement.
2. DRF CONTENT. The Affiliate will receive the DRF Content for a
particular DRF Website, which the Affiliate is required to use or link, on an
exclusive basis, at all times in conformity with guidelines provided by DRF.
In accordance with this exclusive agreement, the Affiliate may not permit or
enter into an agreement with a third party for an Affiliate link to that
third party's handicapping information, past performances, racing news and
features, entries or results or for any other product the same or
substantially similar to the DRF Content. Further, Affiliate shall not
display advertisements from third parties which contain copy stating or
implying that such parties can provide, supply or offer past performances.
The Affiliate may not store old DRF Content, or create any archive of the DRF
Content the Affiliate obtains. DRF will provide links that the Affiliate also
must post at the Affiliate Site and the Affiliate may not add other links
from or to the DRF Content or the DRF Website. The Affiliate will notify DRF
of the name and url of the Affiliate Site(s) on which the DRF Content will be
posted and the Affiliate cannot post the DRF Content anywhere other than on
the listed Affiliate Site, or make it available to third parties for posting
on other Web sites or distribution in placement and presentation of the DRF
Content shall at all times conform to the guidelines provided by DRF.
2a. DRF ENTRIES AND RESULTS. DRF will provide entries and results for
display on Affiliate's Website, and at Affiliate's sole cost and expense.
Such display shall be on an exclusive basis and shall contain the logo
identification of DRF. Affiliate shall provide DRF prominent identification
and recognition on its Website including, but not limited to, a home page
link to xxx.xxx.
3. SPECIAL LINKS. DRF will provide the Affiliate with guidelines and
graphical artwork to use in linking to the DRF Website. To permit accurate
tracking, reporting and Referral Payment accrual, DRF will provide the
Affiliate with special "tagged" link formats ("SPECIAL LINKS") to be used in
all links between the Affiliate Site and the DRF Website. The Affiliate must
insure that each of the links between the Affiliate Site and the DRF Website
property utilizes such Special Links. The Affiliate will only earn the
Referral Payment with respect to activity on the Affiliate Site occurring
through Special Links and DRF will not be liable to the Affiliate with
respect to any failure of the Affiliate to use Special Links, including to
the extent such failure may result in any reduction of amounts which would
otherwise be paid the Affiliate pursuant to this Agreement. Affiliate
warrants and represents that such links shall be exclusive between it and DRF,
as defined herein.
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4. REWARDS FOR PARTICIPATION. DRF will pay the Affiliate for
certain paid subscriptions to THE DAILY RACING FORM (the "FORM") that result
directly form the Affiliate's participation in the Program at the rate of ten
per cent (10%) of the then subscription price. For every person who purchases a
paid subscription to DRF as a direct result of using one of the Special Links
from the Affiliate Site to DRF that DRF provides to the Affiliate, does not
cancel that paid subscription within 45 days after first registering for the
Form, and is not a then-current or previous (a "NEW DRF SUBSCRIBER"), regardless
of the payment plan selected, as follows:
SUBSCRIPTION PLAN AFFILIATE ROYALTIES**
----------------- ---------------------
TYPE TERM PRICE* (10%)
---- ---- ------
STANDARD 1 MTH $59.95 $6.00
(60 CARDS/MTH) 3 MTH 149.95 15.00
12 MTH 549.95 55.00
UNLIMITED 1 MTH 99.95 10.00
3 MTH 249.95 25.00
12 MTH 799.95 80.00
* DRF RESERVES THE RIGHT TO AMEND THE SUBSCRIPTION PRICES IN ITS DISCRETION.
** THE ROYALTY WILL CONTINUE UPON THAT SUBSCRIBER'S RENEWAL, AND BASED ON THAT
PERSON'S SUBSCRIPTION PRICE AT RENEWAL.
5. REPORTS AND PAYMENT SCHEDULE. Each quarter, DRF will e-mail
to the Affiliate a report showing the number of individuals who have purchased a
paid subscription to DRF as a direct result of using one of the Special Links
from the Affiliate Site to DRF, and the number of New DRF Subscribers. DRF will
pay the Affiliate by check on a quarterly basis, within 90 days after the end of
the preceding calendar quarter.
If the amount DRF owes to the Affiliate is less that US $100, DRF may
elect to defer the payment until the succeeding payment period or until this
Agreement is terminated, whichever occurs first, provided that notwithstanding
whether any Referral Payments are made, DRF will provide the quarterly reports.
6. THE AFFILIATE SITE.
a. The Affiliate shall: (i) be responsible for all aspects of the
Affiliate Site, including but not limited to its development, maintenance,
customer service, and content, and all costs associated with the Affiliate Site;
and (ii) maintain the high standards that enabled the Affiliate Site to be
selected for the Program. DRF disclaims any responsibility or liability for the
development, maintenance, customer service, content or cost associated with the
Affiliate Site.
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b. The Affiliate Site may be deemed unacceptable by DRF, in its sole
discretion, at any time and this Agreement may be terminated by DRF
for any of the following reasons or similar reasons, which are
illustrative, should the Affiliate Site:
o contains sexually explicit material; promotes sexually
explicit material; or links to sexually explicit
material;
o contains violent material; promotes violence; or links
to violent material;
o promotes, depicts, or links to material that promotes
or depicts discrimination based on race, sex,
religion, national origin, physical or mental
disability, sexual orientation, or age;
o contains unlawful material, including but not limited
to material that may violate another's intellectual
property rights, or links to a site that contains
unlawful material;
o includes Daily Racing Form Online, Daily Racing Form,
DRF, DRF Online, "the Form," "daily racing" or
variations, abbreviations, acronyms or misspellings
thereof in their domain names;
o contains information on illegal activity; promotes
illegal activity; or links to a site that provides
information on or promotes illegal activity; or
o is or becomes under construction and/or not fully
operational.
7. USE OF DRF MATERIALS: (a) DRF grants the Affiliate a
non-exclusive non-transferable, revocable right to use the DRF Content on an
exclusive basis on the Affiliate Site solely in accordance with this
Agreement and solely to identify the Affiliate Site as a Program participant,
and to use the Intellectual Property solely in furtherance of this Agreement.
The Affiliate may not modify the DRF Content or the Intellectual Property in
any way and must use them AS IS, without additions, deletions, or alterations
thereto. The Affiliate shall create an online environment on the Affiliate
Site that attractively features and draws attention to the DRF Content and
the DRF Entries and Results. However, the Affiliate Site may not copy or
closely resemble DRF Site's look and feel. (b) All rights to the materials
provided by DRF under this Agreement, including but not limited to the
Intellectual Property shall remain the sole property of Daily Racing Form
LLC. These limited rights shall be automatically revoked upon termination of
this Agreement. (c) The Affiliate may not use the DRF content or the
Intellectual Property in any other way or in any other written or online
materials, without first obtaining DRF's express prior written permission in
each instance and for the particular use. This applies to, for example and
not in limitation of the foregoing, press releases, advertising and
promotional materials. The Affiliate shall use the Intellectual Property in
conformance with DRF's trademark usage policies as communicated to the
Affiliate from time to time. DRF may immediately terminate this license for
the use of the Intellectual Property if it believes, in its sole discretion,
that the Affiliate's use of the Intellectual Property dilutes, tarnishes or
blurs the value of its Intellectual Property. The
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Affiliate hereby acknowledges that its use of the Intellectual Property will
not create in the Affiliate, not will the Affiliate represent that it has
any right, title, or interest in or to the Intellectual Property other than
the license granted by DRF in this Agreement. The Affiliate will not
challenge the validity of or attempt to register any Intellectual Property
or its interest therein as a licensee, not will the Affiliate adopt any
derivative or confusingly similar names, brands or marks or create any
combination marks with the Intellectual Property. The Affiliate
acknowledges DRF's ownership and exclusive right to use the Intellectual
Property and agrees that all goodwill arising as a result of the use of the
Intellectual Property shall inure to the benefit of DRF.
8. TECHNICAL SUPPORT. DRF also will provide a reasonable amount of
technical support via e-mail, for questions the Affiliate may have in adding
the graphics or DRF Content to the Affiliate Site.
9. MODIFICATION OF AGREEMENT. DRF may add or modify any term in the
Program or this Agreement, at any time and at DRF's sole discretion, by
posting a change notice or a new Agreement on the DRF Site. IF AT ANY TIME
DRF MAKES A CHANGE THE PROGRAM OR THIS AGREEMENT THAT IS UNACCEPTABLE TO THE
AFFILIATE, THE AFFILIATE'S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT, BY
NOTIFYING DRF AS SPECIFIED BELOW. CONTINUING TO PARTICIPATE IN THE PROGRAM
AFTER DRF HAS NOTIFIED THE AFFILIATE OR POSTED MODIFICATIONS TO THE PROGRAM
OR THIS AGREEMENT CONSTITUTES LEGALLY BINDING ACCEPTANCE OF THE CHANGES AND
MODIFIED AGREEMENT.
9. TERM. (a) The Term of this Agreement (unless earlier terminated
in accordance with Section 10 or 12 hereunder) shall be three (3) years from
the date hereof. (b) Notwithstanding section 11 (a), either party may elect
to extend this Agreement for an additional period of three (3) years by
providing written notice to the remaining party of its intention to so extend
no earlier than 120 days or no later than 90 days prior to the expiration of
the initial term, provided, however, the party receiving the notice of
extension may decline to extend this Agreement by written notice to such
other party no later than thirty (30) days after receipt of the notice of
extension.
10. TERMINATION. DRF shall have the right to terminate this Agreement
at any time without cause upon thirty (30) days written notice in accordance
with Section 13 hereof. Affiliate shall have the right to terminate this
agreement in accordance with Section 10. Each party shall have the right to
terminate this Agreement immediately on notice (a) upon a breach of any
obligation hereunder by the other party, which breach is not remedied within
fifteen (15) days following the date of such notice setting forth in
reasonable detail the elements of such breach; or (b) in the event the other
party becomes insolvent (i.e., unable to pay its debts in the ordinary
course as they come due). Notwithstanding the foregoing, DRF shall have the
right to terminate this Agreement immediately upon written notice in the
event Affiliate breaches subsection 6(b).
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Upon the expiration or termination of this Agreement for any reason: (a)
Affiliate shall: (i) immediately remove and cease to use all DRF Content any
other material DRF has provided or licensed to the Affiliate under this
Agreement, including, without limitation, all Intellectual Property; (ii)
assist DRF in the prompt removal of all links; and (iii) deliver to DRF all
originals and copies of the DRF Content and other materials DRF has provided
or licensed to the Affiliate.
Upon termination, DRF will pay the Affiliate any Referral Payments owed,
at the times otherwise set forth in this Agreement (i.e., within ninety (90)
days of the end of the then-current calendar quarter).
13. NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing and shall be deemed to have been duly
given when delivered in person, by overnight courier or by facsimile to the
respective parties as follows:
If to DRF:
Daily Racing Form, L.L.C.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
If to Affiliate:
Starnet Communications International, Inc.
Starnet Place - Newgate Street
P.O. Box 1589
St. John's Antigua West Indies
Attention: Xx. Xxxx Nyzuk
Facsimile: (000) 000-0000
E-mail address: xxxxx@xxxxxxxxxxxxxx.xxx
or such other address or facsimile number as such party may hereafter
specify for the purpose by written notice to the parties hereto, provided
that DRF reserve the right to send e-mail to the Affiliate for the purpose of
informing the Affiliate of applicable changes or additions to the Program.
Each such notice, request or other communication shall be effective: (i) if
delivered in person, when such delivery is made at the address specified in
this Section 13; (ii) if delivered by overnight courier, the next business
day after such delivery is sent to the address specified in this Section 10;
or (iii) if delivered by facsimile or e-mail (if applicable), when such
facsimile or e-mail is transmitted to the facsimile number or e-mail address
specified in this Section 13 and the appropriate confirmation is received.
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14. RELATIONSHIP. Nothing in this Agreement creates a partnership,
joint venture, agency, franchise, sales representative, or employment
relationship between the Affiliate and DRF. The Affiliate is not authorized
to sell DRF subscriptions directly to customers or otherwise represent DRF.
The Affiliate will not make any statements to the contrary, anywhere,
including but not limited to on the Affiliate Site, in the Affiliate's
promotional materials, or in discussions with any third persons. If the
Affiliate wishes to reference this relationship publicly, the Affiliate is
required to use the approved language provided to DRF upon execution of this
Agreement.
15. LIMITATION ON LIABILITY AND DAMAGES. DRF WILL NOT BE LIABLE TO
THE AFFILIATE OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES, LOSS OF REVENUE, PROFITS OR DATA,, OR OTHER TYPES OF DAMAGES OTHER
THAT DIRECT DAMAGES ARISING IN CONNECTION WITH THIS PROGRAM OR THIS AGREEMENT
OR THE DRF CONTENT, EVEN IF DRF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. DRF'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THE PROGRAM AND
THIS AGREEMENT AND THE DRF CONTENT SHALL NOT EXCEED THE TOTAL OF REFERRAL
PAYMENTS PAID OR PAYABLE TO THE AFFILIATE UNDER THIS AGREEMENT.
16. NO WARRANTIES. DRF PROVIDES THE DRF CONTENT "AS IS" WITHOUT ANY
EXPRESS OR IMPLIED WARRANTIES. DRF DOES NOT WARRANT THE ACCURACY, TIMELINESS,
COMPLETENESS, ADEQUACY, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE OF THE DRF CONTENT OR THE PROGRAM.
17. GOVERNING LAW. This Agreement is governed by the laws of the
United States and the state of
New York, without reference to rules governing
choice of laws. Any action relating to the Program, this Agreement, or the
DRF Content must be brought in a court located within
New York City,
New
York, and the Affiliate irrevocably consents to the personal jurisdiction and
venue of such courts.
18. ASSIGNMENT. None of the rights and obligations of the parties to
this Agreement may be assigned by either party, except (a) to the transferee
of substantially all of the business operations of such party (whether by
asset sale, stock sale, merger or otherwise) or (b) to any other entity that
is controlled by, or is under common control with such party.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and said assigns.
DRF's failure to enforce the Affiliate's strict performance of any term
of this Agreement will not constitute a waiver of DRF's right to subsequently
enforce such term or any other term in this Agreement.
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19. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement between the parties with respect to the subject matter
hereof and supersedes any prior oral or written agreements. Except as
provided in Section 10 herein, this Agreement may not be amended except in
writing signed by both parties. Each party acknowledges and agrees that the
other has not made any representations, warranties or agreements of any kind,
except as expressly set forth herein.
21. INVALIDITY OF PROVISIONS. If any provision of this Agreement is
declared or found to be illegal, unenforceable, or void, in whole or in part,
then the parties will be relieved of all obligations arising under such
provision, but only to the extent that it is illegal, unenforceable, or void,
it being the intent and agreement of the parties that this Agreement be
deemed amended by modifying such provision to the extent necessary to make it
legal and enforceable while preserving its intent or, if that is not
possible, by substituting therefor another provision that is legal and
enforceable and achieves the same objectives.
DAILY RACING FORM, L.L.C.
By:
------------------------------------
Name:
Title:
Date:
STARNET COMMUNICATIONS, INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: President and CEO
Date: April 3, 2000
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