CNET CO-BRANDED SITE AGREEMENT
CNET, Inc. ("CNET") operates Internet sites through which users will be able to
access technology job information and related tools provided by Xxxxxxx.xxx
("Content Provider"). Content Provider operates a technology job web site at
xxxx://xxx.xxxxxxx.xxx (the "Content Provider Site"). Content Provider desires
to be listed on the CNET Sites, including the CNET Tech Jobs site at
xxxx://xxxx.xxxx.xxx and any other site launched by CNET that is primarily
devoted to information technology (collectively, the "CNET Sites"), on the terms
and subject to the conditions set forth in this Agreement. Accordingly, CNET and
Content Provider hereby agree as follows:
1. CO-BRANDED SITE.
1.1. DEVELOPMENT. Within a reasonable time after the execution of
this Agreement, the parties will use commercially reasonable
efforts to create and develop a co-branded version of the
Content Provider Site (the "Co-Branded Site") with the
intention of making such site available to CNET's general user
base on January 1, 2000 (the "Launch Date"). The parties will
cooperate in good faith to determine a mutually agreed upon
beta and testing period that will occur prior to the Launch
Date. The Co-Branded Site will include a career development
center with the following functions and features: job listings
search, career management resource content authored by the
Content Provider, registration to the Content Provider's
services through the Co-Branded Site, and ability to browse
profiles of Content Provider's clients. The Co-Branded Site
will also include a "Post your Jobs" feature, a "Company of
the Day or Week" function, and a "Job of the Day or Week"
function, the latter two features which shall be reasonably
determined by Content Provider and selected from Content
Provider's client base. Without limiting the foregoing, unless
otherwise determined by CNET, the Co-Branded Site will provide
all of the information, content, features and functionality,
and will perform in a manner substantially similar to the
Content Provider Site, as the Content Provider Site may be
updated and enhanced from time to time. Unless otherwise
agreed by the parties, CNET will not include any reasonably
deemed competitive job or career-related functionality within
the Co-Branded Site. Each party will designate a contact to
whom questions about the production of the Co-Branded Site
shall be directed.
1.2. HOSTING. Unless otherwise mutually agreed by the parties, the
Content Provider will host the Co-Branded Site on its servers
(or on servers within its control) and will provide all
computer hardware, software and personnel necessary to operate
and maintain such Co-Branded Site as functional pages
accessible to users of the World Wide Web. Notwithstanding
that the Co-Branded Site is hosted by the Content Provider,
the Content Provider agrees to use commercially reasonable
efforts to ensure that that each page on the Co-Branded Site
will be IP masked so that the URL displayed in a Co-Branded
User's browser ends in XXXX.xxx. The parties agree that CNET
will receive credit for all page views for Media Metrix
and other reporting purposes. In the event that CNET
reasonably determines that Content Provider is technologically
unable to include a XXXX.xxx URL on the registration page,
CNET agrees that such registration page only may appear under
the Xxxxxxx.xxx URL, provided that (a) the look and feel of
such registration page is substantially similar to the look
and feel of the Co-Branded Site, and (b) no advertising or
other promotions appear on the registration page. The parties
will work together in good faith to determine the most
efficient and effective method to provide the Co-Branded Site
to users, and may move some Co-Branded pages to CNET's servers
as mutually agreed upon.
1.3. DESIGN; LOOK AND FEEL. CNET will design the user interface and
all aspects of the look and feel of the Co-Branded Site in
consultation with the Content Provider. The design, text and
graphics of the Co-Branded Site created by CNET will be
provided to Content Provider at least 30 days prior to the
Launch Date. Each page on the Co-Branded Site will include
primary branding for CNET and may include hyperlinks to CNET
or to third parties, as determined at CNET's discretion
subject to the terms of Section 2.7 below. Content Provider
will receive branding on the Co-Branded Site in the form of
(a) a logo of equal size to the CNET logo which appears above
the fold on the Co-Branded Site, and (b) a text statement
indicating that the Co-Branded Site is "Powered by
xxxxxxx.xxx" directly adjacent to the CNET logo.
1.4. TECHNICAL STANDARDS. The Co-Branded Site will comply with the
functional, technical and editorial specifications and
standards set forth in Exhibit A.
1.5. ADVERTISING. CNET or its third party designee will be solely
responsible for creating and pricing advertising units, as
well as selling and serving all advertising on the Co-Branded
Site. Content Provider will use commercially reasonable
efforts to ensure that the hardware and software associated
with the Co-Branded Site are compatible with the ad serving
software of CNET or its third-party ad server existing as of
the Effective Date of this Agreement.
1.6. DATA COLLECTION.
1.6.1. CO-BRANDED USERS. Members of the Content Provider's
service registering from the Co-Branded Site will be
directed back to the Co-Branded Site for services and
information offered by the Content Provider,
including to browse company profiles in response to a
JobNote (as defined in Section 2.6).
1.6.2. DELIVERY BY CONTENT PROVIDER TO CNET. Content
Provider will own all user registration data
generated through the Co-branded Site. Content
Provider will supply CNET with the Co-Branded Site
user registration data in both summary and detailed
form, for usage as defined in Section 1.6.3 below.
This data will be shared in real time if commercially
and technologically feasible, so that, for example,
CNET could customize its site content and advertising
for that user. If real time data sharing is not
2
available, the data shall be provided to CNET no less
frequently than bi-weekly. Content Provider shall
provide CNET with all information it collects on the
Co-Branded Site including, without limitation, data
regarding visits, number of searches, page views and
unique users.
1.6.3. PERMITTED USE. During the Term and after termination
of this Agreement, CNET will not use the registration
data to target advertising or promotions to
registered users for a service that is competitive
with the products or services provided by the Content
Provider at the date of the execution of this
Agreement (e.g., career and recruiting services).
During the Term and after termination of this
Agreement, Content Provider may use the registration
data to deliver a reasonable amount of information
regarding Content Provider's services, provided that
(a) such information will not be specifically
targeted at users that registered through the
Co-Branded Site, (b) such information will not refer
to CNET or any CNET property without CNET's prior
written consent, and (c) such registration data may
be provided to third parties only if (i) the user has
affirmatively "opted-in" to allow such data to be
disclosed, and (ii) such third party is not a CNET
competitor, defined as a company whose primary
business involves Internet-based news, information,
reviews, e-commerce solutions, auctions, price
comparisons or software downloads. All use of Content
Provider's proprietary data will be consistent with
Content Provider's and CNET's reasonable privacy
policies. This clause will survive the termination of
the Agreement. Except for the restrictions placed on
use of the registration data provided above, nothing
herein shall restrict a party from offering products
or services in competition with the other.
1.6.4. DELIVERY BY CNET TO CONTENT PROVIDER. CNET shall
provide Content Provider with any information it
collects on the Co-Branded Site, such as page views,
unique users, and clickthroughs to the registration
tool. Such data may be shared in the aggregate by
Content Provider solely for marketing purposes,
provided that the accuracy and representation of such
data in marketing materials is approved in advance by
CNET and that such data is not provided to any CNET
competitor.
1.7. MESSAGES. All hyperlinks and URLs included within any messages
sent to users of the Co-Branded Site, including but not
limited to JobNotes, shall link to the appropriate page on the
Co-Branded Site; provided, however, that if pursuant to
Section 1.1 CNET has elected to not include certain content of
the Content Provider Site and such content is referenced in
the message, then any hyperlinks directly related to that
content may link to the appropriate page of the Content
Provider Site.
2. PROMOTIONS ON THE CNET SITES.
2.1. PROMOTIONS. Content Provider agrees to purchase standard
rate-card advertising promotions on the CNET Sites and CNET TV
("Promotions") totaling at least
3
$3,000,000 (net of all discounts) during the Term ("Minimum
Media Buy Amount"). Unless otherwise mutually agreed,
Content Provider will pay for the Promotions at the rate of
$83,333 per month during the first year following the
Launch Date, and $166,667 per month during the second year
following the Launch Date. Pricing of such Promotions will
be based on a [****] discount off CNET's standard Net
Advertising Card Rates (as defined below) in effect at the
time of execution of this Agreement. For the purposes of
this Paragraph, "Net Advertising Card Rates" means full,
standard advertising card rates minus a 15% advertising
agency commission. Such Promotions will be designed to
promote the CNET Tech Jobs channel and will include the
phrase "Powered by Xxxxxxx.xxx" wherever appropriate or
mutually agreed.
2.2. DELIVERY AND DESIGN. The Promotions will be delivered
substantially in accordance with the Media Plan set forth on
EXHIBIT B, as may be changed from time to time by mutual
agreement of the parties. Notwithstanding the foregoing,
within 30 days following the execution of this Agreement, CNET
and Content Provider will work together in good faith to
determine what changes, if any, should be made to EXHIBIT B
with respect to the Promotions, and shall amend EXHIBIT B to
reflect all mutually agreed upon changes. For any changes to
the EXHIBIT B, CNET and Content Provider will work together in
good faith to determine the timing, type, content, number and
placement of such changed Promotions on the CNET Sites. CNET
will design any graphics and other materials required for the
Promotions, in reasonable consultation with the Content
Provider. Unless otherwise agreed by the parties, all
Promotions will be linked to the Co-Branded Site.
2.3. CNET PROMOTION REPORT. Within thirty (30) days following the
end of each month during the Term, CNET will provide a report
to Content Provider describing the number of Promotions
delivered during the previous month ("CNET Promotion Report")
and in addition will provide access to tracking and reporting
information in the manner generally available to other
advertisers on the CNET Sites.
2.4. LINKS AND SITE INTEGRATION. CNET will place links to the
Co-Branded Site in relevant areas within the CNET Sites, as
defined in Exhibit C. Additional links may be placed within
the CNET Sites at CNET's sole discretion. Without limiting the
foregoing, CNET will place a link to the Co-Branded Site off
the front door of XXXX.xxx and in the navigation bar appearing
at the top of each page on the CNET Sites; provided that CNET
may change the look and feel, design, functionality and
features of the CNET Sites at CNET's sole discretion. If any
change to the CNET Sites requires that CNET remove links to
the Co-Branded Site, CNET will use good faith efforts to
provide such links in a substitute location; provided that
CNET will use commercially reasonable efforts to ensure that a
link to the Co-Branded Site remain on the front door of
XXXX.xxx, and will provide a link of substantially similar
prominence if such front door link is removed.
4
[****] Confidential portion omitted and filed separately with the Commission.
2.5. DISPATCH AND CNET REGISTRATION. During the Term, CNET will use
commercially reasonable efforts to include an announcement
regarding the availability of the CNET Tech Jobs site in one
CNET Dispatch at no charge to Content Provider. CNET will
draft such announcement, subject to the reasonable approval of
Content Provider, which will not be unreasonably withheld or
delayed. In addition, CNET will include a link to the
Co-Branded Site within each career-oriented newsletter, if
any, that may be created by CNET after the Effective Date.
Further, if CNET develops a universal CNET registration page
on which a user can register for all services on the CNET
Sites, CNET may include the Co-Branded Site within such
registration page, at CNET's option; provided that CNET will
use commercially reasonable efforts to include an "opt-in" box
on such registration page though which users may request
registration information related to the Co-Branded Site.
2.6. JOBNOTES. For the purposes of this Agreement, "JobNote" means
an email dispatch from Content Provider, known as a JobNote
(or its successor), that describes a job listed on the Content
Provider Site. At CNET's discretion, CNET may include a link
to a JobNotes sign-up page on the CNET Dispatch registration
page. The JobNotes sign-up page will initiate the registration
process, and will include reference to the Content Provider.
In all JobNotes delivered to members of the Co-Branded Site,
Content Provider will include mutually agreed-upon co-branding
in the "Subject" field and heading of the email, which will
include, at a minimum, the CNET name before the name of
Content Provider. Further, such JobNote will point the user to
the Co-Branded Site to review the profile of the respective
Content Provider's client, and will not contain advertising
unless mutually agreed by the parties.
2.7. EXCLUSIVITY.
2.7.1. During the Term, CNET will not include any
third-party content within the CNET Sites from any
company that is in the primary business of career
placement or recruiting in the information technology
industry.
2.7.2. CNET will not include advertising or promotions on
the Co-Branded Site from any company listed on
Exhibit D, as may be changed not more than
semi-annually by mutual agreement of the parties.
Notwithstanding the foregoing, if any company with
which CNET has an existing contractual relationship
is added to Exhibit D, then CNET may fulfill its
existing contract with such company, provided that
such contract may not be extended or renewed by CNET.
2.7.3. Content Provider acknowledges that CNET currently
operates co-branded sites that offer job listings,
including the co-branded CNET/iNiku site accessible
from various locations on the CNET Sites. Content
Provider acknowledges and agrees that CNET may
continue to offer and promote such co-branded sites
and create new co-branded sites that are not directly
competitive with the Content Provider as described in
Section 2.7.1;
5
provided, however, that CNET will not endorse any
third-party job area (including iNiku) as the
official provider of job and career information on
the CNET Sites.
2.7.4. Notwithstanding any other provision of this
Agreement, Content Provider acknowledges that CNET
produces co-branded editions of CNET Sites for
various resellers, distributors and other licensees
(collectively the "Distributors"). In some cases,
such Distributors are entitled to replace CNET's
default content with other content within their own
co-branded editions of the CNET Site. Notwithstanding
the other provisions of this Agreement, if any such
Distributor has exercised its right to replace
Content Provider's content with other content, then
CNET will not be required to display Content
Provider's content within such Distributor's
co-branded edition of the CNET Site, and the
exclusivity described herein shall not apply to such
Distributor's co-branded edition. CNET agrees that it
will not create any co-branded edition of a CNET Site
for any company that is in the primary business of
career placement or recruiting in the information
technology industry, provided that the foregoing will
not restrict CNET from licensing CNET content to such
companies. Further, CNET acknowledges that unless
otherwise agreed by CNET and Content Provider,
Content Provider will not be under any obligation to
create a separate multi-branded site for CNET and any
Distributor.
2.7.5. CNET is creating several international editions of
the CNET Sites to reflect appropriate localized and
local partner content ("International Editions"). The
parties acknowledge that the terms of this Agreement
do not extend to such International Editions. If CNET
desires to add information technology career and
recruiting content to future International Editions
created for CNET, CNET will negotiate in good faith
with Content Provider regarding the terms and
conditions on which Content Provider's content may be
included on such International Edition, provided that
the foregoing will not obligate either party to enter
into an agreement related to such International
Editions.
3. PROMOTIONS ON THE CONTENT PROVIDER SITE.
3.1. CONTENT PROVIDER PROMOTIONS. CNET agrees to purchase standard
rate-card advertising promotions on the Content Provider Site
("Content Provider Promotions") totaling at least $500,000
(net of all discounts) during the Term. Pricing of such
Content Provider Promotions will be based on a [****] discount
off Content Provider's standard Net Advertising Card Rates (as
defined below) in effect at the time of execution of this
Agreement. For the purposes of this Paragraph, "Net
Advertising Card Rates" means full, standard advertising card
rates minus a 15% advertising agency commission. Content
Provider agrees that CNET will receive a promotional presence
as mutually agreed by the parties.
6
[****] Confidential portion omitted and filed separately with the Commission.
3.2. DELIVERY AND DESIGN. The Content Provider Promotions will be
delivered as mutually agreed by the parties. Content Provider
will work in good faith to accommodate CNET's requests with
respect to the Content Provider Promotions, and Content
Provider and CNET will work together to determine the timing,
type, content, number and placement of all Content Provider
Promotions on the Content Provider Site. CNET will design any
graphics and other materials required for the Promotions. All
Content Promotions will be linked to a CNET Site as directed
by CNET.
3.3. CONTENT PROVIDER PROMOTION REPORT. Within thirty (30) days
following the end of each month during the Term, Content
Provider will provide a report to CNET describing the number
of Content Provider Promotions delivered during the previous
month.
4. LICENSE.
4.1. LICENSE BY CNET. CNET hereby grants to Content Provider a
non-exclusive, worldwide, royalty-free license, effective
throughout the Term, to use, publish, publicly perform,
publicly display, and digitally perform the CNET trademarks,
service marks, logos and brands on the Co-Branded Site and
within the Content Provider Promotions, to the extent
necessary to fulfill its obligations hereunder.
4.2. LICENSE BY CONTENT PROVIDER. Content Provider hereby grants
CNET a non-exclusive, worldwide, royalty-free license,
effective throughout the Term, to use, publish, publicly
perform, publicly display, digitally perform the Content
Provider's trademarks, service marks, logos and brands needed
solely for the Promotions undertaken by CNET for Content
Provider and for the Co-Branded Site.
4.3. OWNERSHIP. Each party acknowledges and agrees that it does not
have any claim, right, title or interest in or to the other
party's content or trademarks, except as explicitly provided
herein. Further, each party acknowledges and agrees that it
shall use the other party's content and trademarks solely as
expressly permitted under this Agreement and in a manner
consistent with the terms and conditions of this Agreement.
Nothing contained in this Agreement will give either party any
right, title or interest in or to any trademarks, trade names,
logos or other intellectual property of the other party,
except for the limited rights expressly granted hereunder.
Each party acknowledges and agrees that the other party has
complete authority to control the use of its content and
trademarks.
5. PAYMENTS.
5.1. SLOTTING FEE. Content Provider will pay to CNET a slotting fee
totaling $7,000,000 for placement and integration on the CNET
Sites as described herein, payable at the rate of $3,000,000
during the first year of this Agreement, and $4,000,000 during
the second year of this Agreement. Beginning on the Launch
7
Date, such payments will be made in equal quarterly
installments, in advance, at the beginning of each quarter
during the respective year during the Term.
5.2. PROMOTIONAL FEE. Content Provider will pay CNET $2,500,000 for
the Promotions described in Section 2.1, with payment terms
defined in the "Terms and Conditions" attached hereto. The
remaining $500,000 in Promotions will be paid for in barter as
provided in Section 5.4 below and the "Terms and Conditions."
5.3. ADVERTISING REVENUE SPLIT. CNET and Content Provider will
share all Net Advertising Revenue (as defined below) from
the Co-Branded Site at the rate of [****] each. For
purposes of this Section, "Net Advertising Revenue" means
revenue derived from advertising on the Co-Branded Site
minus reasonable ad serving costs. For purposes of
determining amounts due to Content Provider, Net
Advertising Revenue shall not be less that [****] of revenue
derived from advertising within the Co-Branded Site.
5.4. CONTENT PROVIDER PROMOTIONS. The Content Provider Promotions
described in Section 3 will be delivered as payment for the
$500,000 of Promotions delivered on the CNET Sites for Content
Provider, as further described in the "Terms and Conditions."
6. TERM. The term of this Agreement (the "Term") will commence on the signing of
this Agreement and will continue for a period of two years after the Launch
Date, unless otherwise terminated as provided in the Terms and Conditions
attached hereto.
7. TERMINATION. The parties acknowledge that they are contemplating an equity
agreement in which CNET will invest in Content Provider. If such equity
agreement is not signed within five business days following the signing of this
Agreement, then either party may terminate this Agreement immediately upon
written notice to the other.
8. PUBLICITY. The parties agree to work together to issue a joint press release
concerning their relationship, the CNET Tech Jobs site, and other mutually
agreed-upon matters. Each party shall have an opportunity to review and approve
such press release prior to its publication. Neither party shall issue any other
press release concerning the business relationship set forth herein without the
prior written consent of the other party; provided, however, that the foregoing
will not restrict either party from making press releases about their respective
products and services which do not include a reference to the other.
8
[****] Confidential portion omitted and filed separately with the Commission.
9. TERMS AND CONDITIONS. All other terms and conditions governing this Agreement
are attached hereto and are incorporated herein by this reference. If there is
any apparent conflict or inconsistency between this Co-Branded Site Agreement
and the attached Terms and Conditions, this Co-Branded Site Agreement shall
control unless the parties expressly agrees otherwise in writing.
AGREED AND ACCEPTED the 9th day of November 1999.
CONTENT PROVIDER CNET
BY: /s/ Xxxxx Xxxxxxx BY: /s/ Xxxx Xxxxxxx
-------------------------------------- ----------------------------
TITLE: Vice President, Business Develop. TITLE: CFO
9
TERMS AND CONDITIONS
This document sets forth additional Terms and Conditions under which CNET will
provide Promotions and Content Provider Links to the Content Provider in
fulfillment of the attached Co-Branded Site Agreement (the "Content Provider
Agreement").
1. TERMS OF PAYMENT. Unless otherwise mutually agreed, Content Provider shall
purchase Promotions at the rate of $83,333 per month during the first year
following the Launch Date, and $166,667 per month during the second year
following the Launch Date; provided, however, that the last quarter's
payments of the first year shall be replaced by $250,000 in Content
Provider Promotions delivered during the first year, and one-half of the
last quarter's payments of the second year shall be replaced by $250,000 in
Content Provider Promotions delivered during the second year. CNET shall
invoice Content Provider on a monthly basis for the Promotions provided in
the previous month. All payments will be due 30 days after receipt of the
invoice and CNET Promotion Report by Content Provider. If Content Provider
fails to make any payment due hereunder, Content Provider will be
responsible for all reasonable expenses (including attorneys' fees)
incurred by CNET in collecting such amounts. Content Provider shall be
responsible for all taxes associated with the payments required hereunder
(except for taxes based on CNET's net income). Failure by the Content
Provider to make the payments required will be deemed a material breach of
this Content Provider Agreement and CNET shall have the option to remove
the Content Provider from any or all CNET Sites and may pursue other
remedies at CNET's sole discretion. If CNET does not deliver the Promotions
because of Content Provider's action or inaction and not because of any
fault of CNET (e.g., Content Provider fails to place acceptable orders,
Content Provider fails to deliver creative materials on schedule, etc.),
Content Provider agrees that it shall pay the Minimum Media Buy Amount, as
applicable, described in Section 2.1 of the Content Provider Agreement,
provided it receives the agreed-upon number of Promotions at the time of
payment.
2. PROMOTION POSITIONING, STYLE AND RATES. Except as otherwise expressly
agreed by the parties, positioning of Promotions within the CNET Sites or
on any page is at the sole discretion of CNET. Notwithstanding the
forgoing, Promotions will be placed in a prominent location above the fold
on the page they appear. These promotions shall be at least the same size
as other Promotions for similar offerings. CNET may in its sole discretion
label any advertisement as a "Promotion" for clarification.
3. LIMITATION OF LIABILITY. EXCEPT FOR PAYMENTS REQUIRED UNDER SECTION 4, IN
NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THESE TERMS
AND CONDITIONS, THE CONTENT PROVIDER AGREEMENT, OR ANY INSERTION ORDER IN
EFFECT BETWEEN CNET AND CONTENT PROVIDER FROM TIME TO TIME, WHETHER BASED
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS,
INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES ARISING UNDER SECTION 4
OR 13, IN NO EVENT WILL EITHER PARTY'S LIABILITY FOR MONETARY DAMAGES UNDER
THIS CONTENT PROVIDER AGREEMENT EXCEED THE AMOUNT PAID BY CONTENT PROVIDER
TO CNET FOR THE PROGRAM WHICH IS THE BASIS OF LIABILITY. NEITHER PARTY WILL
BE LIABLE FOR ANY INTERNET OR TELECOMMUNICATIONS FAILURE, COMPUTER VIRUS,
THIRD PARTY INTERFERENCE OR OTHER THIRD PARTY SOFTWARE OR HARDWARE THAT MAY
INTERRUPT OR DELAY ACCESS TO ANY INTERNET SITE OR CAUSE OTHER PROBLEMS OR
LOSSES (COLLECTIVELY, A "NETWORK FAILURE"). NEITHER PARTY WILL BE LIABLE
FOR ANY DELAY OR FAILURE TO FULFILL ITS OBLIGATIONS HEREUNDER THAT RESULTS
FROM AN ACT OF GOD, WAR, CIVIL DISTURBANCE, COURT ORDER, LEGISLATIVE OR
10
REGULATORY ACTION, CATASTROPHIC WEATHER CONDITION, EARTHQUAKE, FAILURE OR
FLUCTUATION IN ELECTRICAL POWER OR OTHER UTILITY SERVICES, NETWORK FAILURE
OR OTHER CAUSE BEYOND ITS REASONABLE CONTROL.
4. WARRANTY; INDEMNITY. Each party to this Content Provider Agreement
represents and warrants to the other party that (i) such party has all
necessary right, power and authority to enter into this Content Provider
Agreement and to perform the acts required of it hereunder, and (ii) the
entry into this Content Provider Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not
and will not violate any agreement of such party or by which such party is
bound. Content Provider represents and warrants to CNET that the content
provided by Content Provider on the Co-Branded Site (i) does not knowingly
infringe any intellectual property, publicity or privacy rights of any
third party, (ii) to its knowledge is not defamatory, (iii) to its
knowledge is not lewd, pornographic or obscene, (iv) to its knowledge is in
compliance with all applicable laws, and (v) does not violate any laws
regarding unfair competition, antidiscrimination or false advertising and
(vi) does not to its knowledge contain any virus, worm, "trojan horse",
time bomb or similar contaminating or destructive feature. CNET may review
Content Provider's content and, in CNET's sole discretion, may remove any
content at any time that fails to comply with the above requirements.
Content Provider agrees to indemnify and hold harmless CNET and its
affiliates, and their respective officers, agents and employees, from and
against any and all loss, liability and expense (including reasonable
attorneys' fees) suffered or incurred by reason of any claims, proceedings
or suits based on or arising out of any claim that the Content Provider's
content, data, information or service (i) infringes any intellectual
property, publicity or privacy rights of a third party, including without
limitation claims for defamation, violation of rights of publicity and/or
privacy, copyright infringement, and trademark infringement., (ii) is
defamatory, (iii) is lewd, pornographic or obscene, (iv) is not in
compliance with all applicable laws, and (v) violates any laws regarding
unfair competition, antidiscrimination or false advertising, (vi) contains
any virus, worm, "trojan horse", time bomb or similar contaminating or
destructive feature, or (vii) otherwise breaches or allegedly breaches the
foregoing representations and warranties. CNET agrees to indemnify and hold
harmless Content Provider and its affiliates, and their respective
officers, agents and employees, from and against any and all loss,
liability and expense (including reasonable attorneys' fees) suffered or
incurred by reason of any third party claims, proceedings or suits based on
or arising out of any claim that the content created by CNET and displayed
on the Co-Branded Site, or Promotions created by CNET, (i) infringes any
intellectual property, publicity or privacy rights of a third party,
including without limitation claims for defamation, violation of rights of
publicity and/or privacy, copyright infringement, and trademark
infringement., (ii) is defamatory, (iii) is lewd, pornographic or obscene,
(iv) is not in compliance with all applicable laws, and (v) violates any
laws regarding unfair competition, antidiscrimination or false advertising,
(vi) contains any virus, worm, "trojan horse", time bomb or similar
contaminating or destructive feature, or (vii) otherwise breaches or
allegedly breaches the foregoing representations and warranties. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE
OTHER HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
CONTENT PROVIDERABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. RESPONSIBILITY FOR PRODUCTS AND SERVICES. The parties acknowledge and agree
that, as between them, each party will be solely responsible for any claims
or other losses associated with or resulting from the content or other
products and/or services provided by such party, including without
limitation any warranty, return or support obligations related to such
products and/or services. Content Provider agrees to offer its products and
services to users of the Content Provider Site on the terms described on
the Content Provider Site. Content Provider acknowledges and agrees that
CNET does not intend to, and will not be required to, edit or review any
Content Provider content. CNET is not authorized to make, and agrees not to
make, any representations or warranties concerning the Content Provider,
except to the extent (if any) contained within the information and Content
Provider content posted on the Co-Branded Site
11
or delivered to CNET by Content Provider. The foregoing restriction will
not limit CNET's ability to make editorial statements regarding Content
Provider.
6. ADVERTISING GUIDELINES. At CNET's reasonable request, Content Provider will
be responsible for delivering to CNET various materials for the Promotions
in accordance with CNET's policies and standard advertising specifications
("Advertising Specifications"), as may be amended from time to time. A copy
of CNET's Advertising Specifications can be obtained upon written request
to CNET.
7. REPORTS AND STATISTICS FROM CNET. CNET will provide Content Provider with
various reports and statistics in a format reasonably determined by CNET,
including without limitation the CNET Promotion Report. Content Provider
shall treat all such reports and the terms of this Agreement as
Confidential Information hereunder and may not distribute or disclose such
reports, statistics or terms to any third party without CNET's prior
written consent. CNET makes no guarantees regarding the accuracy,
reliability or completeness of any reports or statistics provided to
Content Provider. Content Provider acknowledges that the statistics
provided on the CNET Promotion Report are the official, definitive
measurement of CNET's performance on any delivery obligations described in
the Content Provider Agreement. No other measurements or usage statistics
(including those of Content Provider or a third-party advertisement server)
shall be accepted by CNET or have bearing on this Content Provider
Agreement.
8. DELAY. In the event Content Provider is unable to launch a Promotion
through no fault or delay of CNET on such Promotion's designated start
date, the term of the Promotion will be shortened by each day of delay.
Content Provider will be allowed to extend the Promotion beyond the
original term by the number of days of delay, provided Content Provider
pays a fee of twenty-five percent (25%) of the daily media value of the
Promotion for each day in addition to the media value of the Promotion for
the additional days. After a Promotion is received from Content Provider,
CNET will use commercially reasonable efforts to launch the Promotion on
such Promotion's designated start date as required herein.
9. CONTENT PROVIDER SITE. Content Provider will be responsible for ensuring
that each URL used in a Promotion takes the User to the appropriate area
within the Co-Branded Site. Content Provider shall provide to Users coming
to the Co-Branded Site at least the same level of service as is offered to
Users coming directly to the Content Provider Site. If Content Provider
publishes pricing information for its services on the Co-Branded Site, then
Content Provider agrees to ensure that such information remains accurate.
Content Provider will also use commercially reasonable efforts to maintain
a professional image to Users, as reasonably determined by CNET. If any of
the standards set forth above are not met by Content Provider, or if
Content Provider fails to maintain a reasonably professional image (as
determined by CNET), then CNET may immediately remove any or all links to
the Content Provider Site, at CNET's sole discretion, until Content
Provider adequately demonstrates to CNET that the Content Provider's
business practices and/or the Content Provider Site is in full compliance
and can maintain a professional image; provided, however, that Content
Provider's failure to remedy such problem within 30 days shall be deemed a
material breach of this Agreement. Further, if the Content Provider Site
fails to operate fully and functionally in any material respect for any
period of four or more consecutive hours, even if otherwise in compliance
with the performance standards, CNET may immediately remove any or all
links to the Content Provider Site at CNET's sole discretion until such
time as Content Provider notifies CNET that such Content Provider Site has
resumed acceptable operation. These remedies are for CNET's editorial
purposes and in no way limit CNET's ability to terminate this contract or
pursue any other remedies hereunder in the event the performance standards
set forth herein are not met.
10. ASSIGNMENT. Content Provider may not resell, assign or transfer any of its
rights hereunder without CNET's prior written consent, which will not be
unreasonably withheld. CNET may not resell, assign or transfer any of its
rights hereunder without Content Provider's prior written consent, except
to any affiliate or subsidiary of CNET that operates a CNET Site.
11. TERMINATION. If either party commits a material breach of its obligations
hereunder that is not cured within 30 days after notice thereof from the
non-breaching party, such non-breaching party
12
may terminate this Content Provider Agreement at any time by giving
written notice of termination to the breaching party and except for any
confidentiality obligations and the obligations contained in Paragraphs
4 and 13 of these Terms and Conditions, both parties shall be relieved
of all other obligations hereunder.
12. INTELLECTUAL PROPERTY. During the Term Content Provider hereby grants CNET
access to the Content Provider content for the sole purposes of linking to
and distributing such Content Provider content on the Co-Branded Sites as
contemplated hereby. Further, during the Term Content Provider hereby
grants CNET the right to publicly display Content Provider's intellectual
property that may be delivered by Content Provider to CNET expressly for
use on the CNET Sites (the "Content Provider Marks"), solely in connection
with marketing and operating the CNET Sites as contemplated hereby.
13. CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to retain in
confidence the terms of this Agreement and all other non-public information
and know-how of the other party disclosed or acquired by the Receiving
Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that
each party may disclose the terms and conditions of this Agreement to its
immediate legal and financial consultants in the ordinary course of its
business. Each party agrees to use reasonable best efforts to protect
Confidential Information of the other party, and in any event, to take
precautions at least as great as those taken to protect its own
confidential information of a similar nature. The foregoing restrictions
shall not apply to any information that: (a) was known by the Receiving
Party prior to disclosure thereof by the other party; (b) was in or entered
the public domain through no fault of the Receiving Party; (c) is disclosed
to the Receiving Party by a third party legally entitled to make such
disclosure without violation of any obligation of confidentiality; (d) is
required to be disclosed by applicable laws or regulations (but in such
event, only to the extent required to be disclosed); or (e) is
independently developed by the Receiving Party without reference to any
Confidential Information of the other party. Upon request of the other
party, or in any event upon any termination or expiration of the Term, each
party shall return to the other all materials, in any medium, which
contain, embody, reflect or reference all or any part of any Confidential
Information of the other party. Each party acknowledges that breach of this
provision by it would result in irreparable harm to the other party, for
which money damages would be an insufficient remedy, and therefore that the
other party shall be entitled to seek injunctive relief to enforce the
provisions of this Section.
14. ENTIRE AGREEMENT. This Agreement (including the attached Content Provider
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. If there is any apparent conflict or
inconsistency between these Terms and Conditions and the Content Provider
Agreement, the Content Provider Agreement shall control unless the parties
expressly agree otherwise in writing. This Content Provider Agreement and
these Terms and Conditions may not be amended except in writing signed by
both parties. Nothing in the Content Provider Agreement will be deemed to
constitute either party as the other's partner, joint venturer,
representative, agent or employee for any purpose.
15. APPLICABLE LAW. This Content Provider Agreement will be construed in
accordance with and governed by the laws of the State of California,
without regard to principles of conflicts of law.
13
EXHIBIT A
TECHNICAL AND EDITORIAL SPECIFICATIONS
The Co-Branded Site and the Content Provider's related operations must comply
with the following performance standards throughout the Term:
1. The Co-Branded Site will be operational and fully functional
in all material respects (i.e. capable of displaying
information and conducting transactions as contemplated in the
ordinary course of business) at least 97% of the time during
any 30 day period, provided that Content Provider shall not be
responsible for access problem to the Co-Branded Site caused
by Internet/ISP outages.
2. The average time required to start displaying the HTML on a
page of the Co-Branded Site after a link from a CNET Site
shall not exceed a daily average of five seconds, and the
average time required to deliver an entire page of the
Co-Branded Site over the open Internet shall not exceed a
daily average of fifteen seconds. For measurements required in
this Section, the Content Provider may assume a stable,
standard T1 connection to the Internet.
3. Without limiting the effect of Sections 1 and 2 above, the
Content Provider shall provide to Users coming to the
Co-Branded Site from a CNET Site at least the same level of
service as is offered to users coming directly to the
Co-Branded Site.
4. Each page of the Co-Branded Site will comply the same
standards with respect to language, nudity and excessive
violence applicable to similar types of content and sites
operated by CNET or its affiliates
5. The Content Provider will ensure that, with respect to content
provided for the Co-Branded Site, Content Provider will
maintain editorial neutrality and avoid conflicts of interest,
and will comply in all aspects with CNET's editorial
guidelines as posted on CNET's web site with respect to
content provided for the Co-Branded Site.
6. The Co-Branded Site shall not, to the best of the Content
Provider's knowledge: (a) contain defamatory or libelous
material or material which discloses private or personal
matters concerning any person, without such person's consent;
(b) permit to appear or be uploaded any messages, data, images
or programs which are illegal, contain nudity or sexually
explicit content or are, by law, obscene, profane or
pornographic; or (c) permit to appear or be uploaded any
messages, data, images or programs that would knowingly or
intentionally (which includes imputed intent) violate the
property rights of others, including unauthorized copyrighted
text, images or programs, trade secrets or other confidential
proprietary information, or trademarks or service marks used
in an infringing fashion.
14
7. If any of the performance standards set forth above are not
met by the Content Provider, CNET shall notify the Content
Provider, and the Content Provider will use its best efforts
to cure such violation within four hours. If the Content
Provider does not cure such violation within four hours, CNET
may immediately remove any or all links to the Co-Branded
Site, at CNET's reasonable discretion. If the Co-Branded Site
fails to operate fully and functionally in any material
respect for any period of five or more consecutive hours, even
if otherwise in compliance with the performance standards,
CNET may immediately remove any or all links to the Co-Branded
Site, at CNET's sole discretion, until such time as the
Content Provider notifies CNET that the Co-Branded Site has
resumed acceptable operation. These remedies are for CNET's
editorial purposes and in no way limit CNET's ability to
terminate this contract or pursue any other remedies hereunder
in the event the performance standards set forth herein are
not met.
15
EXHIBIT B
MEDIA PLAN
[****]
[****] Confidential portion omitted and filed separately with the Commission.
EXHIBIT C
SITE INTEGRATION PLAN
1. Link to Tech Jobs from the CNET Front door.
2. `Link to Tech Jobs from the Top Navigation bar
3. Link to Tech Jobs from the Page footer
4. Career Newsletter jointly developed by Xxxxxxx.xxx and CNET included
with registration for CNET newsletters.
5. Graphic promotions on the CNET front door. (Based on availability, 2-3
times per month)
6. Promotion in CNET dispatches
7. Company of the day promotion, (place and timing TBD)
8. Job of the day, (placement and timing TBD)
9. Creation of Career related Message Boards
EXHIBIT D
COMPANY COMPETITORS
CNET will not include advertising or promotions on the Co-Branded Site for any
of the following five company competitors. The following list may be changed
semi-annually by the parties, provided that the number of competitors shall not
be more than five at any time.
1. [****]
2. [****]
3. [****]
4. [****]
5. [****]
[****] Confidential portion omitted and filed separately with the Commission.
