Exhibit 10.8
CONFIDENTIAL
CONTENT LICENSE AREA AGREEMENT
This agreement ("Agreement") is entered into as of the 15th day of April, 1998
("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Internet
Fashion Mall, a Limited Liability corporation, located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 ("Content Provider").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx and owns
and/or manages related Web sites worldwide (collectively, the "Excite
Network") which, among other things, allow its users to search for and
access content and other sites on the Internet.
B. Excite also maintains and/or manages certain Web pages which may be
delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies (collectively, "Broadcast Pages") which may
incorporate content supplied to Excite by third parties for the purpose of
providing value to Excite users and providing access to the content,
products and/or services of such third parties.
C. Content Provider owns or has the right to distribute certain shopping
information and maintains a related site on the Internet at
xxxx://xxx.xxxxxxxxxxx.xxx (the "Content Provider Site").
D. Excite and Content Provider wish to distribute certain portions of Content
Provider's content through the Excite Network and/or Broadcast Pages.
Therefore, the parties agree as follows:
1. CONTENT PROVIDED TO EXCITE
a) Content Provider will provide to Excite the content described in
Exhibit A (the "Content").
b) Content Provider will create co-branded web pages incorporating the
Content (the "Content Pages"). The Content, which will be at least
five (5) pages deep, will be placed on the front page of the Clothes
Department in the Excite Shopping Channel.
c) Excite reserves the right to feature Excite commerce partners in up
to fifty percent (50%) of the Content. Content Provider will work
with Excite to incorporate the Excite commerce partners into the
Content.
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d) Content Pages on the Excite Network will include prominent Content
Provider branding. The exact type and placement of the branding will
be mutually determined by Content Provider and Excite. Excite will
have final approval over the "look and feel" of the Content Pages
including, but not limited to, the display, appearance and placement
of the parties' respective names and/or brands and of advertising
displayed.
e) Content Provider will update the Content at least monthly, excluding
"Hot Deals" which Content Provider will update at least weekly.
f) The Content may be incorporated into certain pages in the Excite
Network and reasonable excerpts or portions of the Content may be
incorporated into Broadcast Pages, at Excite's discretion.
g) Content Provider and Excite will determine mutually agreeable
methods for the transmission and incorporation of updates to the
Content. Other than updates to the Content, Content Provider shall
not alter the Content without Excite's prior consent.
h) Excite will have sole control over of the "look and feel" of the
Excite Network. Excite will have sole control over of the content
composition, "look and feel" and distribution of the Broadcast
Pages. Excite will have sole responsibility for providing, hosting
and maintaining, at its expense the Excite Network and for providing
and delivering the Broadcast Pages.
i) Content Provider will have sole responsibility for providing, at its
expense, the Content to Excite.
2. ADVERTISING
a) Excite will be solely responsible for selling any advertising on the
Excite Network.
b) Excite will pay Content Provider on a quarterly basis thirty percent
(30%) of the "Net Advertising Revenue" that accrues to Excite
during, the term of this Agreement from advertising that appears on
any and all Content Pages. "Net Advertising Revenue" means all
advertising banner revenue that accrues to Excite during the
applicable payment period, minus the lesser of (i) Excite's actual
sales agency discounts and commissions, both internal and external,
paid by Excite during the term of this Agreement for the advertising
displayed on the Content Pages or (ii) twenty percent (20%) of
Excite's actual rates charged for the advertising displayed on the
Content Pages.
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CONFIDENTIAL
c) Payments by Excite to Content Provider will be due within thirty
(30) days of the end of each calendar quarter.
d) With each payment, Excite will provide to Content Provider
documentation reasonably detailing the calculation of the payment.
e) Excite will maintain accurate records with respect to the
calculation of all payments due under this Agreement. Content
Provider may, upon no less than thirty (30) days prior written
notice to Excite, cause an independent Certified Public Accountant
to inspect the records of Excite reasonably related to the
calculation of such payments during Excite's normal business hours.
The fees charged by such Certified Public Accountant in connection
with the inspection will be paid by Content Provider unless the
payments made to Content Provider are determined to have been less
than ninety-five percent (95%) of the payment owed to Content
Provider, in which case Excite will be responsible for the payment
of the reasonable fees, for such inspection.
f) Content Provider shall pay Excite on a quarterly basis twenty five
percent (25%) of the commission earned by Content Provider on the
"Net Sales" of products purchased by users sent to the Content
Provider Site by means of the Content Pages during the term of this
Agreement. "Net Sales" means sales revenues less tax, freight,
returns and chargebacks. As used herein "commission" shall reflect
the difference, as a percentage, between what merchandise is sold
for and what Content Provider pays to its suppliers for the
merchandise, for merchandise sold at the Content Provider Site and
resulting from traffic created by the Content Pages.
g) Payments by Content Provider to Excite will be due within thirty
(30) days of the end of each calendar quarter.
h) With each payment, Content Provider will provide to Excite
documentation reasonably detailing the calculation of the payment.
i) Content Provider will maintain accurate records with respect to the
calculation of all payments due under this Agreement Excite may,
upon no less than thirty (30) days prior written notice to Content
Provider, cause an independent Certified Public Accountant to
inspect the records of Content Provider reasonably related to the
calculation of such payments during Content Provider's normal
business hours. The fees charged by such Certified Public Accountant
in connection with the inspection will be paid by Excite unless the
payments made to Excite are determined to have been less than
ninety-five percent (95%) of the payment owed to Excite, in which
case Content Provider will be responsible for the payment of the
reasonable fees for such inspection.
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CONFIDENTIAL
j) Neither party will make any public statement, press release or other
announcement relating to the terms of or existence of this Agreement
without the prior written approval of the other. Notwithstanding the
foregoing, Content Provider hereby grants to Excite the right to
issue an initial press release, the timing and wording of which will
be subject to Content Providers reasonable approval, regarding the
relationship between Excite and Content Provider.
3. EXCLUSIVITY
Content Provider will not provide the content described as
"Contextual Content" in Exhibit A to Yahoo, Lycos or InfoSeek.
4. CONTENT OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and to
the Content worldwide (including, but not limited to, ownership of
all copyrights and other intellectual property rights therein).
Subject to the terms and conditions of this Agreement, Content
Provider hereby grants to Excite a royalty-free, non-exclusive,
worldwide license to use, reproduce, distribute, transmit and
publicly display the Content in accordance with this Agreement and
to sub-license the Content to Excite's wholly-owned subsidiaries or
to joint ventures in which Excite participates for the sole purpose
of using, reproducing, distributing, transmitting and publicly
displaying the Content in accordance with this Agreement
b) Excite will retain all right, title, and interest in and to the
Excite Network and the Broadcast Pages worldwide (including, but not
limited to, ownership of all copyrights, look and feel and other
intellectual property rights therein).
5. TRADEMARK OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide, subject to
the limited license granted to Excite hereunder.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Content Provider hereunder.
c) Each party hereby grunts to the other a non-exclusive, limited
license to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding
advertising and trademark usage as established from time to time.
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d) Upon the expiration or termination of this Agreement, each party
will cease using the trademarks, service marks and/or trade names of
the other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
6. TERM
The term of the Agreement will be one (1) year. This Agreement will
automatically renew for additional terms of six (6) months each,
unless either party notifies the other in writing at least thirty
(30) days prior to automatic renewal that it does not wish to renew
this Agreement.
7. TERMINATION
a) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following the notice to the
breaching party of the breach, with the following exceptions:
(i) In the event of three or more errors, failures or outages of
the Content in any thirty (30) day period, Excite may elect to
immediately terminate this Agreement upon written notice to
Content Provider and enter into an other arrangements for the
acquisition of similar content; or
(ii) Content Provider will ensure that the Content will at all
times be at least comparable to any other source of similar
topical content available on the Internet in terms of the
following factors, taken as a whole: (i) breadth and depth of
coverage, (ii) timeliness of content updates and (iii)
reputation and ranking based on a cross-section of third party
reviewers in terms of features, functionality, quality and
other qualitative factors. In the event that Content Provider
fails to meet these quality criteria, Excite may terminate
this agreement on thirty (30) days written notice and enter
into an other arrangements for the acquisition of similar
content.
b) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within thirty
(30) days thereof.
c) The provisions of this Section, Section 8 (Confidentiality), Section
9 (Warranty and Indemnity), Section 10 (Limitation of Liability) and
Section 11 (Dispute Resolution) will survive any termination or
expiration of this Agreement.
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CONFIDENTIAL
8. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers')
business or activities that is proprietary and confidential, which
shall include all business, financial, technical and other
information of a party marked or designated by such party as
"confidential" or "proprietary"; or information which, by the nature
of the circumstances surrounding the disclosure, ought in good faith
to be treated as confidential.
b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii)
the receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third party
or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it
will take all reasonable measures to maintain the confidentiality of
all Confidential Information of the other party in its possession or
control, which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as
required by law or (ii) on a "need-to-know" basis under an
obligation of confidentiality to its legal counsel, accountants,
banks and other financing sources and their advisors.
e) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
9. WARRANTY AND INDEMNITY
a) Content Provider warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, any
and all content provided to Excite or made available to third
parties in connection with this Agreement.
b) Content Provider warrants that the Content will comply with the
description and technical specifications as contemplated by this
Agreement, Content Provider warrants that the Content will comply
with
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CONFIDENTIAL
the description and technical specifications as contemplated by this
Agreement.
c) Content Provider will indemnify, defend and hold harmless Excite,
its affiliates, officers, directors, employees, consultants and
agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, attorneys fees) arising
from:
i) The breach of any warranty, representation or covenant in this
Agreement;
ii) Any claim that the Content infringes or violates any third
party's copyright, patent, trade secret, trademark, right of
publicity or right of privacy or contains any defamatory
content; or
(iii) The purchase of any product from the Content Provider Site.
d) Excite will promptly notify Content Provider of any and all such
claims end will reasonably cooperate with Content Provider with the
defense and/or settlement thereof; provided that if any settlement
requires an affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally impacts Excite in any
way and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall
require Excite's written consent (not to be unreasonably withheld
or delayed) and Excite may have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND
HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE REGARDING SUCH SUBJECT MATTER.
10. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 9 (c), IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EXCITE FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER WHETHER IN CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS
ACTUALLY PAID BY CONTENT PROVIDER TO EXCITE HEREUNDER.
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CONFIDENTIAL
11. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality would result in irreparable injury for which
there is no adequate remedy at law. Therefore, in the event of any
breach or threatened breach of a party's obligations regarding
trademark, service marks or trade names or confidentiality, the
aggrieved party will be entitled to seek equitable relief in
addition to its other available legal remedies in a court of
competent jurisdiction. For the purposes of this section only, the
parties consent to venue in either the state courts of the county in
which Excite has its principal place of business or the United
States District Court for the Northern District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject mailer of this Agreement, other
than disputes arising from or concerning trademarks, service marks
or trade names and/or confidentiality, the parties will first
attempt to resolve the dispute(s) through good faith negotiation. In
the event that the dispute(s) cannot be resolved through good faith
negotiation, the parties will refer the dispute(s) to a mutually
acceptable mediator for hearing in the county in which Excite has
its principal place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names and/or confidentiality, cannot be resolved
through good faith negotiation and mediation, the parties will refer
the dispute(s) to the American Arbitration Association for
resolution through binding arbitration by a single arbitrator
pursuant to the American Arbitration Association's rules applicable
to commercial disputes. The arbitration will be held in the county
in which Excite has its principal place of business.
12. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required
in connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets. Any attempt to assign
this Agreement other than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of Content
Provider.
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CONFIDENTIAL
c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail, return
receipt requested, and will be deemed given upon personal delivery,
one (1) day after deposit with express courier, upon confirmation of
receipt of facsimile or email or five (5) days after deposit in the
mail. Notices will be sent to a party at its address set forth below
or such other address as that party may specify in writing pursuant
to this Section.
d) No Agency. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint
venture.
e) Force Majeure. Any delay in or failure of performance by either
party under this Agreement will not be considered a breach of this
Agreement and will be excused to the extent caused by any occurrence
beyond the reasonable control of such party including, but not
limited to, acts of God, power outages and governmental
restrictions.
f) In the event that any of the provisions of this Agreement are held
by to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a written
document executed by both parties.
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Internet Fashion Mall Excite, Inc.
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
-------------------------------- -------------------------------------
Name: Xxx Xxxxxxx Name: Xxxxxx X. Xxxx
------------------------------ -----------------------------------
Title: President Title: EVP-CFO
----------------------------- ----------------------------------
Date: March 24, 1998 Date: 3/24/98
----------------------------- -----------------------------------
000 Xxxxxxx Xxx 000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
(000) 000-0000 (voice) 415.568.6000 (voice)
(000) 000-0000 (fax) 000.000.0000 (fax)
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EXHIBIT A
DESCRIPTION AND TECHNICAL SPECIFICATIONS
FOR THE CONTENT
Content Provider will create the following content on the Content Pages:
o Contextual Content/short content pieces where possible online purchasing
opportunities are integrated into the article
o Hot Deals/deals being offered by clothing sites all over the web
o Designer Profiles
o Runway Coverage
o Contests
o Fashion Magazines
o Any other content mutually agreed upon by parties
/s/ [ILLEGIBLE]
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[LETTERHEAD OF FASHION MALL]
Memo
Phone (000) 000-0000
Fax (000) 000-0000
To: Xxxxxx Xxxxxxxx
Cc: Excite, Inc.
Address: 000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
From: Xxx Xxxxxxx
Comments
This memo shall serve as an addendum to the Excite, Inc. Content License Area
Agreement with Internet Fashion Mall, LLC.
The new "Effective Date" of the contract shall now be the date of the launch
Xxxxxxxxxxx.xxx content on the new ExcIte Shopping Channel currently scheduled
for June 4, 1998, and the term of the contract will commence on that date.
Agreed:
Excite, Inc.
By: /s/ [ILLEGIBLE]
--------------------------------
Title: EVP
-----------------------------
Date: 6/2/98
------------------------------
Internet Fashion Mall, LLC
By: /s/ Xxx Xxxxxxx
--------------------------------
Title: President
-----------------------------
Date: June 1, 1998
------------------------------
