EXHIBIT 10.11
REPRESENTATION AGREEMENT
REPRESENTATION AGREEMENT, dated as of June 18, 1998, by and among
ESPN/Starwave Partners, a New York General Partnership ("Venture"), Starwave
Corporation, a Washington corporation ("Representative") and Infoseek
Corporation, a Delaware corporation ("Infoseek"); provided that, subject to the
earlier termination of this Agreement pursuant to the provisions of Section 11.2
hereof, this Agreement shall only become effective upon the Effective Time (as
defined in and pursuant to that certain Agreement and Plan of Reorganization
(the "Merger Agreement"), of even date herewith, by and among Infoseek
Corporation, a California corporation, Infoseek, Representative, and Disney
Enterprises, Inc., a Delaware corporation) and shall cease and be of no further
force and effect in the event that the Effective Time does not occur; and
provided further that, except as earlier terminated pursuant to Section 11.2
each of the parties hereto agrees not to terminate, amend or otherwise alter
this Agreement, or waive any of its rights hereunder, at any time prior to
immediately following the Effective Time; provided that, notwithstanding the
foregoing, the provisions of Section 11.2 hereof shall be in full force and
effect as of the date hereof and through to the Effective Time.
WHEREAS, Venture owns and operates an Internet service known as XXXX.xxx
and operates other Internet services such as XXX.xxx, XXX.xxx and XXXXXX.xxx
(collectively, and including all additional Internet services that may be owned
and/or operated by the Venture during the term of this Agreement, the "Internet
Services"), which provide a variety of sports programming and information on the
Internet; and
WHEREAS, Representative is engaged, among other things, in the business of
operating Internet sites; and
WHEREAS, Venture desires to engage Representative to provide Venture with
Services (as defined below) associated with sales of available ad inventory on
the Internet Services and related products and services, and Representative is
willing to provide such representation, on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the parties hereto covenant and agree as follows:
ARTICLE 1
SERVICES
Section 1.1. PROVISION OF SERVICES.
(a) DESCRIPTION. Venture hereby engages Representative, as an
independent contractor, and Representative hereby accepts such engagement, on
the terms and subject to the conditions set forth in this Agreement, to
represent Venture on an exclusive basis in the sale of advertising and other
items as designated or approved by Venture related to the Internet Services, and
to provide additional services, if any, as Venture may request in
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writing from time to time on terms mutually satisfactory to the parties hereto
(all of the foregoing collectively, the "Services"). Activities with respect to
the sale of advertising on the Internet Services and other related items include
without limitation, the negotiation, execution, renewal, amendment, modification
or termination of advertising and other related contracts. The parties hereto
acknowledge that Representative is being engaged to provide the Services
principally due to its expertise in such matters.
(b) MANNER. The Services shall be performed by Representative with
such care as a prudent manager would use in the conduct of his company's
affairs, and Representative shall accord the Internet Services the same priority
as Representative accords its own operations and the operations of internet
services that are managed, represented and afforded the most favorable treatment
by Representative or its affiliates, taking into consideration the size and
complexity of the Internet Services as compared with Representative's own
internet services for purposes of determining personnel assignments and head
count. In providing the Services, Representative shall use the best efforts it
would use if it were providing the Services on its own behalf to (i) promote the
Internet Services as an advertising medium, (ii) seek to preserve and maximize
the long-term value of the Internet Services, including the ESPN tradenames and
goodwill and (iii) comply with the standards and practices for the ESPN Service
attached as Exhibit A. Representative shall, at Representative's expense,
furnish to Venture the services of such full-time and part-time employees of
Representative, including, without limitation, marketing and sales personnel and
such other personnel as may be reasonably required properly to render the
Services. Representative hereby undertakes, on the terms set forth in the first
sentence of this Section 1.1(b), to cause the Services to be provided such that
Venture complies in all material respects with all applicable laws, rules and
regulations.
(c) CONSULTATION. Venture and Representative will consult with each
other from time to time as requested by either party with respect to the
Services, the Internet Services and the performance of their respective
obligations hereunder and under the other agreements contemplated hereby;
provided, however, that nothing in this subsection shall be deemed to in any way
limit Venture's exclusive control over the manner and use of its Marks (as
defined below) as provided for in this Agreement and the Trademark License
Agreement entered into between the parties as of the date hereof.
Section 1.2. REPORTS; ACCESS TO INFORMATION.
(a) NOTICE. Representative shall notify Venture as promptly as
practicable after the occurrence of any of the following:
(i) receipt by Representative of (A) any notice or inquiry from any
governmental authority with respect to or arising out of the Services
contemplated by this Agreement or the other agreements contemplated hereby
or (B) any written notice from any governmental authority or third party of
any claim or legal process or notification that, in the reasonable opinion
of Representative, is or is likely to become material to the Internet
Services; or
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(ii) any other development that, in the reasonable opinion of
Representative, materially affects or is likely to materially affect the
Internet Services or the ability of Representative to fulfill its
obligations under this Agreement.
(b) REQUESTS FOR INFORMATION. Representative promptly shall provide to
Venture such information (including financial information) concerning the
Services provided hereunder as Venture reasonably may request from time to time,
including, without limitation, monthly advertising sales reports, which reports
shall set forth total ad avails sold, average CPM, average revenue per page
view, ad avails per page, sellout rate, breakdown of costs incurred, list of
advertisers and revenue sold per advertiser.
(c) ACCESS. Representative shall maintain and make available for
inspection by Venture or its representatives, during normal business hours,
Representative's complete and accurate books of account relating to the Internet
Services, and all other records, books and other information received, compiled
or otherwise maintained by Representative with respect to the Internet Services,
and all other documents reasonably requested by Venture and its officers,
managerial employees, counsel and auditors.
(d) ADVERTISING INFORMATION. Without limiting the foregoing provisions of
this Section 1.2, during the last six months of the Term (as defined in Section
2.1), in order to facilitate Venture's determination of whether to seek to
extend the term of this Agreement or take other actions with respect to the
Internet Services upon expiration of the Term, Representative shall make or
cause to be made available to Venture and its Representatives such information
as Venture reasonably requests relating to the historical advertising revenues
of the Internet Services during the Term and the booked advertising sales
relating to the Internet Services.
Section 1.3. TITLE. Representative acknowledges that it will acquire no
right, title or interest in any property or assets of Venture, including,
without limitation, any trade names, trademarks or service marks owned or
licensed by Venture, by reason of this Agreement or Representative's provision
of the Services hereunder. Representative further acknowledges that all records,
books and other information received, compiled or otherwise maintained by
Representative with respect to the Internet Services in connection with
Representative's provision of the Services hereunder are solely the property of
Venture and shall be returned to Venture promptly upon the expiration or earlier
termination of the Term; provided, however, that Venture shall, upon reasonable
request of Representative and at reasonable times, and subject to such
confidentiality arrangements as Venture reasonably requests, permit
Representative to make reasonable examination of such books, records and other
information and permit Representative to make copies of the relevant portions of
such books, records and other information.
Section 1.4. POWER OF ATTORNEY. Subject to the provisions of Sections 6.1
(Trademark License Agreement), 6.2 (Programming Decisions), 6.3 (Use of Names)
and
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7.1 (Venture Approval Matters),Venture appoints Representative its attorney-in-
fact for the Internet Services for the Term, solely in performance of the
Services, and authorizes Representative, in the name and on behalf of the
Internet Services, to make, execute, deliver, acknowledge, swear to, file and
record all documents as may be necessary, in the discretion of Representative,
in connection with the performance of the Services hereunder. Representative
shall be required to notify Venture before entering into any agreement of any
nature and shall deliver copies of all agreements, invoices and similar
materials to Venture immediately upon completion.
Section 1.5. APPOINTMENT OF ADDITIONAL REPRESENTATIVES. Representative may
appoint other entities to sell advertising inventory for the Internet Services
with the prior written approval of the Venture. Additionally, upon request from
the Venture, Representative will sell ad avail inventory to an Affiliate of the
Venture for sale by such Affiliate which sale shall be at least, at the Minimum
Revenue Rate under Section 3.4. In any circumstance, responsibility for
collection of revenue and payment of minimums to the Venture resides with the
Representative.
ARTICLE 2
TERM
Section 2.1. TERM. The term during which the Services shall be provided
(the "Term") shall be the period from the Effective Time until the Termination
Date (as defined in Section 11.1).
ARTICLE 3
GUARANTEED MINIMUMS AND PAYMENTS
Section 3.1. GUARANTEED MINIMUM. Representative shall guarantee to the
Venture a minimum quarterly payment equal to (i) the number of projected page
views, multiplied by 80%, multiplied by (ii) the Minimum Revenue Rate (the
"Guaranteed Minimum Payment").
Section 3.2. INITIAL PROJECTED PAGE VIEWS. The initial projected number
of page views per quarter will be established by mutual agreement of the
Representative and Venture. In the event that the parties cannot agree upon an
initial number of page views, then such minimum shall be based on the actual
average quarterly number of page views over the previous two quarters.
Section 3.3. SUBSEQUENT PROJECTED PAGE VIEWS. In subsequent quarters, the
projected number of page views will be established for each quarter by mutual
agreement of the Representative and Venture; provided, however that should the
parties fail to agree on the projected number of page views for any quarter,
then the projected page views for
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such quarter shall be based on the actual number of page views for the
corresponding quarter of the prior year ("Prior Quarter") multiplied by 50% of
the actual year-over-year growth rate (i.e., compared with the same quarter from
the prior year) for the preceding 4 quarters.
Section 3.4. MINIMUM REVENUE RATE. The guaranteed minimum ad revenue rate
(the "Minimum Revenue Rate") per page view paid to the Venture will be based on
the average ad revenue rate per page view of publicly traded Internet companies
involved in activities comparable to those of the Venture. If a mutually
agreeable rate can not be determined, then the rate will be based on the
Venture's 12 month trailing average.
Section 3.5. GUARANTEED DELIVERY. Venture guarantees to deliver 80% of
the projected page views each quarter. In the event that Venture fails to
deliver such minimum number of page views, Representative will be entitled to a
proportional reduction in its Guaranteed Minimum Payment.
Section 3.6. REPRESENTATION RIGHTS FEES. Representative shall pay to
Venture for the right to render Services under this Agreement the greater of (i)
the Guaranteed Minimum Payment or (ii) actual ad revenues billed to third
parties in the performance of the Services, in each case less only
Representative's actual and reasonably allocated costs of providing the Services
and a profit margin of five percent (5%) of such costs (either amount, the
"Representation Rights Fee"). The Representation Rights Fee shall be payable
quarterly during the Term.
Section 3.7. UNCONDITIONAL OBLIGATIONS. Except as otherwise set forth
herein, the obligations of Representative to pay the Representation Rights Fee
are unconditional. Representative is required to pay the Venture the
Representation Rights Fees on or before the 20th day of the end of each quarter
of each month, regardless of whether Representative is able to collect the
related outstanding receivables.
ARTICLE 4
EXPENSES
Section 4.1. OPERATING EXPENSES. From and after the Effective Time, all
expenses of performing the Services shall be the responsibility of, and shall be
borne by, Representative subject only to recoupment thereof pursuant to Section
3.6 above.
ARTICLE 5
INTENTIONALLY OMITTED
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ARTICLE 6
VENTURE AGREEMENTS
Section 6.1. TRADEMARK LICENSE AGREEMENT. On the Effective Time, Venture and
Representative shall enter into a Trademark License Agreement in the form
attached hereto as Exhibit A (the "Trademark License Agreement") pursuant to
which Venture shall grant to Representative a non-exclusive, royalty-free
license to use the xxxx "ESPN" solely in connection with Representative's
performance of the Services during the Term. Notwithstanding the foregoing or
any provisions herein or in the Trademark License Agreement, Venture shall have
the exclusive control over the manner and use of any trade names, trademarks,
service marks, logos, copyrights and other intellectual property (the "Marks")
owned by Venture, including "XXXX.xxx." Representative acknowledges that the
License granted by the Trademark License Agreement is non-exclusive and, as
such, Venture is free to use, or license others to use the marks in any manner
whatsoever, other than for the purpose of selling advertising on the Internet
Services during the Term, except as provided in Section 1.5 above.
Section 6.2. PROGRAMMING DECISIONS. (i) During the Term, Venture shall have
the sole power, to make all decisions (other than decisions with respect to the
Services, except as provided herein) concerning the programming and content of
the Internet Services, including decisions relating to the execution, renewal,
amendment, modification or termination of all Agreements related thereto.
Section 6.3. USE OF NAMES. The Representative shall not have the right to
use the name, likeness or voice of Xxxx Disney, the words, "Disney," "ABC,"
"ESPN," (other than as part of "XXXX.xxx") or any Disney animated character or
any other trademark, tradename or logo of Disney for any manner whatsoever
without the prior consent of Disney or ABC, as appropriate.
ARTICLE 7
VENTURE APPROVAL MATTERS
Section 7.1. VENTURE APPROVAL MATTERS. Notwithstanding anything to the
contrary contained herein, Representative shall not, without the prior written
approval of the General Manager of Ventures (i) institute any legal proceedings
on behalf of the Internet Services (other than ordinary course collection
matters instituted by Representative following not less than thirty (30) days'
prior written notice to Venture).
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES
Section 8.1. REPRESENTATIONS AND WARRANTIES OF VENTUre. Venture hereby
represents and warrants that:
(a) ORGANIZATION AND STANDING. Venture is a general partnership duly
formed, validly existing and in good standing under the laws of the State of New
York, and has all necessary corporate power and authority to carry on the
business of the Internet Services and to perform its obligations hereunder.
(b) AUTHORIZATION AND BINDING OBLIGATION. Venture has all necessary
power and authority to enter into and perform this Agreement and the Trademark
License Agreement and the transactions contemplated hereby and thereby, and
Venture's execution, delivery and performance of this Agreement and the
Trademark License Agreement have been duly and validly authorized by all
necessary action on its part. This Agreement has been, and upon execution and
delivery thereof on the Effective Time of the Trademark License Agreement will
have been duly executed and delivered by Venture and constitutes and will
constitute its valid and binding obligations enforceable against Venture in
accordance with their respective terms.
(c) ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. The
execution, delivery and performance of this Agreement and the Trademark License
Agreement, by Venture: (i) do not and will not violate any provision of
Venture's organizational documents; (ii) do not and will not require the consent
of or any filing with any third party or governmental authority; (iii) do not
and will not violate any applicable law, judgment, order, injunction, decree,
rule, regulation or ruling of any governmental authority; and (iv) do not and
will not, either alone or with the giving of notice or the passage of time, or
both, conflict with, constitute grounds for termination or acceleration of or
result in a breach of the terms, conditions or provisions of, or constitute a
default under any agreement, lease, instrument, license or permit to which
Venture is now subject.
(d) ABSENCE OF PROCEEDINGS. There is no action, suit or proceeding, at
law or an equity, by or before any court, tribunal or governmental authority
pending or, to the knowledge of Venture, threatened, which, if adversely
determined, would materially and adversely affect Venture's ability to perform
its obligations hereunder or under the Trademark License Agreement or the
validity or enforceability of this Agreement or the Trademark License Agreement.
Section 8.2. REPRESENTATIONS AND WARRANTIES OF REPRESENTATIVE.
Representative hereby represents and warrants that:
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(a) ORGANIZATION AND STANDING. Representative is a corporation duly
formed, validly existing and in good standing under the laws of the State of
Washington and has all necessary corporate power and authority to perform its
obligations hereunder.
(b) AUTHORIZATION AND BINDING OBLIGATION. Representative has all
necessary power and authority to enter into and perform this Agreement and the
Trademark License Agreement, and the transactions contemplated hereby and
thereby, and Representative's execution, delivery and performance of this
Agreement have been duly and validly authorized by all necessary action on its
part. This Agreement has been, and upon execution and delivery thereof the
Trademark License Agreement will have been duly executed and delivered by
Representative and constitutes and will constitute its valid and binding
obligations enforceable against Representative in accordance with their
respective terms.
(c) ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. The
execution, delivery and performance of this Agreement and the Trademark License
Agreement by Representative: (i) do not and will not violate any provision of
Representative's organizational documents; (ii) do not and will not require the
consent of or any filing with any third party or governmental authority; (iii)
do not and will not violate any applicable law, judgment, order, injunction,
decree, rule, regulation or ruling of any governmental authority; and (iv) do
not and will not, either alone or with the giving of notice or the passage of
time, or both, conflict with, constitute grounds for termination or acceleration
of or result in a breach of the terms, conditions or provisions of, or
constitute a default under any agreement, lease, instrument, license or permit
to which Representative is now subject.
(d) ABSENCE OF PROCEEDINGS. There is no action, suit or proceeding, at
law or an equity, by or before any court, tribunal or governmental authority
pending or, to the knowledge of Representative, threatened, which, if adversely
determined, would materially and adversely affect Representative's ability to
perform its obligations hereunder or under this Agreement or the Trademark
License Agreement or the validity or enforceability of this Agreement or the
Trademark License Agreement.
ARTICLE 9
INDEMNIFICATION
Section 9.1. INDEMNIFICATION.
(a) INDEMNIFICATION OF REPRESENTATIVE BY VENTURE. From and after the
Effective Time, Venture shall indemnify and hold Representative, its affiliates
and their respective directors, officers, affiliates, employees and agents, and
the successors and assigns of any of them, harmless from and against any and all
actions, claims, damages and liabilities (and all actions in respect thereof and
any legal or other expenses in giving
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testimony or furnishing documents in response to a subpoena or otherwise and
whether or not a party thereto), whether or not arising out of third party
claims, including reasonable legal fees and expenses in connection with, and
other costs of, investigating, preparing or defending any such action or claim,
whether or not in connection with litigation in which such person is a party,
and as and when incurred (collectively, "Losses"), caused by, relating to, based
upon or arising out of (directly or indirectly) (i) any liabilities, obligations
or commitments of Venture (whether absolute, accrued, contingent or otherwise)
(A) existing as of or prior to the Effective Time or arising out of facts and
circumstances existing as of or prior thereto, which were not expressly assumed
by Representative hereunder or (B) arising after the Effective Date which are
not related to the Services; (ii) any breach of, or inaccuracy in, any
representation or warranty of Venture in this Agreement or the Trademark License
Agreement, or any certificate or other documents delivered pursuant hereto or
thereto or in connection herewith or therewith; and (iii) any breach of any
covenant or agreement of Venture contained in this Agreement or the Trademark
License Agreement.
(b) INDEMNIFICATION OF VENTURE BY REPRESENTATIVE. From and after the
Effective Time, Representative shall indemnify and hold Venture, its affiliates
and their respective directors, officers, affiliates, employees and agents, and
the successors and assigns of any of them, harmless from and against any and all
Losses caused by, relating to, based upon or arising out of (directly or
indirectly) (i) any liabilities, obligations or commitments (whether absolute,
accrued, contingent or otherwise) assumed by Representative hereunder or
Representative's performance of the Services through the Termination Date hereof
(except to the extent caused by, relating to, based upon or arising out of
(directly or indirectly) the matters described in clauses (ii) and (iii) of
Section 9.1(a)); (ii) any breach of, or inaccuracy in, any representation or
warranty of Representative in this Agreement or the Trademark License Agreement,
or any certificate or other document delivered pursuant hereto or thereto or in
connection herewith or therewith; and (iii) any breach of any covenant or
agreement of Representative contained in this Agreement or the Trademark License
Agreement.
Section 9.2. PROCEDURE FOR INDEMNIFICATION.
(a) NOTICE OF CLAIMS. In the event of a claim for breach of the
representations and warranties contained in this Agreement or for failure to
fulfill a covenant or agreement, the party asserting such breach or failure
shall provide a written notice to the other party which shall state specifically
the representation, warranty, covenant or agreement with respect to which the
claim is made, the facts giving rise to an alleged basis for the claim and the
amount of liability asserted against the other party by reason of the claim.
(b) PROCEDURES THIRD PARTY CLAIMS. If any suit, action, proceeding or
investigation shall be commenced or any claim or demand shall be asserted by any
third party (a "Third Party Claim") in respect of which indemnification may be
sought by any party or parties from any other party or parties under the
provisions of this Article 9, the
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party or parties seeking indemnification (collectively, the "Indemnitee") shall
promptly provide written notice to the party or parties from which
indemnification is sought (collectively, the "Indemnitor"); provided, however,
that any failure by Indemnitee to so notify an Indemnitor will not relieve the
Indemnitor from its obligations hereunder, except to the extent that such
failure shall have prejudiced the defense of such Third Party Claim. The
Indemnitor shall have the right to control (except where an insurance carrier
has the right to control or where an insurance policy or applicable law
prohibits the Indemnitor from taking control of) the defense of any Third Party
Claim; provided, however, that the Indemnitee may participate in any such
proceeding with counsel of its choice and at its own expense unless there exists
a conflict between the Indemnitor and the Indemnitee as to their respective
legal defenses, in which case the fees and expenses of any such counsel shall be
reimbursed by the Indemnitor. Except as otherwise set forth herein, the
Indemnitee shall have the right to participate in (but not control) the defense
of any Third Party Claim and to retain its own counsel in connection therewith,
but the fees and expenses of any such counsel for the Indemnitee shall be borne
by the Indemnitee. The Indemnitor shall not, without the prior written consent
of the Indemnitee, effect any settlement of any pending or threatened proceeding
in respect of which such Indemnitee is, or with reasonable foreseeability could
have been, a party and indemnity could have been sought to be collected from the
Indemnitor, unless such settlement includes an unconditional release of such
Indemnitee from all liability arising out of such proceeding (provided, however,
that, whether or not such a release is required to be obtained, the Indemnitor
shall remain liable to such Indemnitee in accordance with Section 9.1
(Indemnification) in the event that a Third Party Claim is subsequently brought
against or sought to be collected from such Indemnitee). The Indemnitor shall be
liable for all Losses arising out of any settlement of any Third Party Claim;
provided, however, that the Indemnitor shall not be liable for any settlement of
any Third Party Claim brought against or sought to be collected from an
Indemnitee, the settlement of which is effected by such Indemnitee without such
Indemnitor's written consent, but if settled with such Indemnitor's written
consent, or if there is a final judgment for the plaintiff in any such Third
Party Claim, such Indemnitor shall (to the extent stated above) indemnify the
Indemnitee from and against any Losses in connection with such Third Party
Claim. The indemnification required by Section 9.1 (Indemnification) shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Losses are incurred.
Section 9.3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties contained in this Agreement or the Trademark
License Agreement, or any certificate, document or instrument delivered pursuant
hereto or thereto shall survive for a period of six (6) months following the
termination of this Agreement (the "Survival Period"). No claim may be brought
under this Agreement unless the requisite written notice is given on or prior to
the termination of the Survival Period. In any event such notice is given prior
to the termination of the Survival Period, the right to indemnification with
respect thereto shall survive until such claim is finally resolved and any
obligations thereto are fully satisfied. Any investigation by or on behalf
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of any party thereto shall not constitute a waiver as to enforcement of any
representation or warranty contained herein.
ARTICLE 10
Section 10.1. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS EXHIBITS FOR ANY LOSS
OF PROFIT OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE
OR OTHER INDIRECT DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING WITHOUT
LIMITATION THE BREACH OF THIS AGREEMENT OR ITS EXHIBITS EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING PARAGRAPH SHALL
NOT OPERATE TO LIMIT THE INDEMNITY OBLIGATIONS EXPRESSLY ASSUMED IN THIS
AGREEMENT.
ARTICLE 11
TERMINATION
Section 11.1. TERMINATION. This Agreement shall automatically terminate
upon the date (the "Termination Date") of termination in accordance with its
terms or expiration of the Amended and Restated Partnership Agreement dated as
of the date hereof among the parties thereto (the "Partnership Agreement")
Section 11.2. Early Termination. In the event that Infoseek would not,
immediately following the Effective Time, be entitled to properly report, in
accordance with generally accepted accounting principles, the activities of
itself and its subsidiaries under this Agreement, including the gross sales of
advertising and related products and services by Representative, as revenue in
Infoseek's publicly disclosed consolidated financial statements, at any time up
to the Effective Time, Infoseek shall have the unilateral right, exercisable in
its sole discretion, to terminate this Agreement, in which case this Agreement
shall be of no further force or effect.
Section 11.3. CERTAIN MATTERS UPON TERMINATION.
(a) RELEASE OF RIGHTS; PAYMENT. If this Agreement expires or is terminated
for any reason in accordance herewith: (i) Representative shall cease providing
the Services and, following such expiration or termination, shall cooperate with
Venture in connection with the resumption by Venture of overall management of
the Internet Services; (ii) In the case of earlier termination, Representative
shall pay to Venture, by wire transfer of immediately available funds, not later
than sixty (60) days following the termination date, all amounts in respect of
the Representation Rights Fee accrued or which will accrue with respect to
Services rendered through the termination date, together with interest thereon
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from and including the next scheduled date of payment through but excluding the
actual date of payment; and (iii) the Trademark License Agreement and
Representative's engagement and all rights hereunder shall immediately cease.
(b) INDEMNIFICATION RIGHTS SURVIVE. No expiration or termination of this
Agreement shall terminate the obligation of any party to indemnify the other
under Section 9.1 (Indemnification) or limit or impair any party's rights to
receive payments due and owing or which accrued hereunder on or before the date
of such termination.
ARTICLE 12
CONFIDENTIALITY
Section 12.1. CONFIDENTIALITY. Representative shall treat confidentially
all records, books and other information of any type received or compiled for
the benefit of Venture hereunder in connection with this Agreement.
Representative agrees not to disclose any such records, books and information to
any third party (other than directors, officers, partners, employees or outside
advisors of such party and other than expressly in the performance of such
party's obligations hereunder) without the prior written consent of Venture.
Representative will take all commercially reasonable steps to protect all
confidential information of the Venture using methods at least substantially
equivalent to the steps it takes to protect its own proprietary information.
The foregoing shall not be applicable to any information that is (i) publicly
available when provided or that thereafter becomes publicly available other than
through a breach by such party of its agreements hereunder, (ii) required to be
disclosed by Representative by judicial or administrative process in connection
with any action, suit, proceeding or claim or otherwise by applicable law or
(iii) known by Representative on the date of this Agreement, not otherwise
primarily related to the business of the Internet Services or any Network Office
and not otherwise subject to a confidentiality agreement with or other
obligation of secrecy to Venture or any other party. Information shall be deemed
"publicly available" and not subject to Representative's agreement hereunder if
such information becomes a matter of public knowledge or is contained in
materials available to the public or is obtained by Representative from any
source other than Venture (or its directors, officers, partners, employees or
outside advisors), provided that such source has not to Representative's actual
knowledge entered into a confidentiality agreement with Venture with respect to
such information.
ARTICLE 13
MISCELLANEOUS
Section 13.1. NO PARTNERSHIP OR JOINT VENTURE. This Agreement is not
intended to be and shall not be construed as a partnership or joint venture
agreement between the
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parties. Except as otherwise specifically provided in this Agreement, no party
to this Agreement shall be authorized to act as agent of or otherwise represent
the other party to this Agreement.
Section 13.2. ENTIRE AGREEMENT; SCHEDULES; AMENDMENT; WAIVER. Except as set
forth in the subsequent sentence, this Agreement and the Trademark License
Agreement and the exhibits and schedules hereto and thereto, embody the entire
agreement and understanding of the parties hereto and supersede any and all
prior agreements, arrangements and understandings relating to the matters
provided for herein. Notwithstanding anything to the contrary contained in this
Agreement, each and every term or provision contained in the Partnership
Agreement and the related Amended and Restated Management and Services Agreement
dated as of the date hereof among the parties thereto (the "Management and
Service Agreement") shall govern in the event of any conflict with any term or
provision in this Agreement, without limitation. Any ambiguities in any such
determination should be resolved in favor of the reading of the Partnership
Agreement and the Management and Services Agreement. No amendment, waiver of
compliance with any provision or condition hereof, or consent pursuant to this
Agreement, shall be effective unless evidenced by an instrument in writing
signed by the party against whom enforcement of any amendment, waiver or consent
is sought. No failure or delay on the part of Venture or Representative in
exercising any right or power under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the parties to this Agreement are
cumulative and are not exclusive of any right or remedies which either may
otherwise have.
Section 13.3. FURTHER ASSURANCES. Each of Venture and Representative agrees
to execute and deliver such instruments and take such other actions as may
reasonably be required to carry out the intent of this Agreement.
Section 13.4. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Neither Representative nor Venture may assign its rights
or obligations under this Agreement except that either party may assign this
Agreement to its parent corporation or any entity of which its parent owns at
least 80% of the voting equity.
Section 13.5. HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
Section 13.6. GOVERNING LAW. The construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its principles of conflict of laws.
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Section 13.7. NOTICES. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing, and addressed as follows:
If to Venture: Starwave Corporation
00000 XX Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Representative: Starwave Corporation
00000 XX Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Infoseek: Infoseek Corporation
0000 Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice, request, demand or communication shall be deemed to have been
duly delivered and received (a) upon hand delivery thereof during business
hours, (b) upon the earlier of receipt of three (3) days after posting by
registered mail or certified mail, return receipt requested, (c) on the next
business day following delivery to a reliable or recognized air freight delivery
service, and (d) on the date of transmission, if sent by facsimile during normal
business hours (but only if a hard copy is also send by overnight courier), but
in each case only if sent in the same manner to all persons entitled to receive
notice or a copy. Any party may, with written notice to the other, change the
place for which all further notices to such party shall be sent. All costs and
expenses for the delivery of notices hereunder shall be borne and paid for by
the delivering party.
Section 13.8. SEVERABILITY. If any of the provisions of this Agreement
shall be held unenforceable, then the remaining provisions shall be construed as
if such unenforceable provisions were not contained herein. Any provision of
this Agreement which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof, and any such unenforceability in
any jurisdiction shall not invalidate or render
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unenforceable such provisions in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto hereby waive any provision of law now or
hereafter in effect which renders any provisions hereof unenforceable in any
respect.
Section 13.9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Representation Agreement
as of the date first above written.
STARWAVE CORPORATION
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Sr. Vice President
ESPN/STARWAVE PARTNERS
by: ESPN Online Investments, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
INFOSEEK CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
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