Exhibit 10.19
PHONE SITE SERVICE AGREEMENT
THIS AGREEMENT, dated as of March 30, 2000 (the "Effective Date"), is made by
and between XxxxXxxxx.xxx. Inc., a Delaware corporation. ("InfoSpace"), with
offices at 00000 XX 00xx Xxxxxx, Xxxxxxx, XX 00000, and Freei Networks, Inc.
("Company"), with offices at 0000 X. 000xx Xxxxxx, Xxxxx 000, Xxxxxxx Xxx, XX
00000.
RECITALS
This Agreement is entered into with reference to the following facts:
A. InfoSpace has developed and provides a mechanism for delivering content
to portable and non-portable computing devices, including mobile phones,
and InfoSpace maintains on certain locations of its Web Sites (as defined
below) and makes available to Internet users certain content, resources,
archives, indices, catalogs and collections of information (collectively,
such materials are identified in Exhibit A and referred to herein as the
"Content"). Company desires that it and its customers have access to the
InfoSpace Content.
B. InfoSpace wishes to grant certain rights and licenses to Company with
respect to access to the Content and certain other matters, and Company
wishes to grant certain rights and licenses to InfoSpace with respect to
the Company Materials (as defined below) and certain other matters, as set
forth in this Agreement.
AGREEMENT
The parties agree as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms have the following defined meanings:
"CO-BRANDED PAGES" means the HDML Pages hosted on the InfoSpace Web Sites that
comprise the Phone Site.
"COMMERCIAL SERVICE DATE" means the date on which the Company Wireless/Web
Services are made available to the public or the date of July 1, 2000,
whichever occurs first.
"COMPANY MARKS" means those Trademarks of Company set forth on Exhibit B
hereto and such other Trademarks (if any) as Company may from time to time
notify InfoSpace in writing to be "Company Marks" within the meaning of this
Agreement.
"COMPANY MATERIALS" means the Company Marks and any other graphical or other
content or materials supplied by Company to InfoSpace for inclusion on the
Phone Site.
"COMPANY WIRELESS/WEB SERVICES" means the packages of service offered by
Company that enable customers of Company to access the Phone Site and other
integrated services on the web, on mobile phones, and on other devices
supported by Company.
"CONTENT" means the content, applications and services made available by
InfoSpace for the Phone Site as described in Exhibit A, subject to third party
content provider arrangements and display constraints (e.g. required
formatting for display on an information appliance).
"HDML PAGES" means web pages that are prepared using HDML and intended for
presentation to users using mobile/wireless phones as their terminal/display
device.
"INFOSPACE MARKS" means those Trademarks of InfoSpace set forth on Exhibit B
hereto and such other Trademarks (if any) as InfoSpace may from time to time
notify Company in writing to be "InfoSpace Marks" within the meaning of this
Agreement.
"INFOSPACE WEB SITES" means, collectively: (a) the Web Site the primary
home page of which is located at xxxx://xxx.xxxxxxxxx.xxx; and (b) other
Web Sites maintained by InfoSpace and its affiliates, other than the Phone
Site.
"IMPRESSION" means a user's viewing of any discrete screen of a page on the
Phone Site.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, copyright, rights in
Trademarks, trade secret rights, and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
"PHONE SITE" means the new Web Site (and all modifications, upgrades and
revisions thereto) that will be created for Company by InfoSpace in HDML
pursuant to this Agreement, which will contain or implement a graphical user
interface with branding, graphics, navigation, content or other
characteristics or features such that it will have the look and feel as
specified by the Company, and a user reasonably conclude that such new
Web Site is part of the Company's existing Web Sites, and which will serve as
the location and mechanism through which the Content will be delivered to
Subscribers, all as set forth in this Agreement, and pursuant to the
specifications of Exhibit A.
"PERSON" means any natural person, corporation, partnership, limited liability
company or other entity.
"SUBSCRIBER" means a customer of the Company that uses the Company
Wireless/Web Services.
"TECHNOLOGY" means any know-how, graphics, techniques, methods, formulae,
drawings, designs, source code, concepts, ideas, documentation, or any
improvement or upgrade thereto, whether or not patentable or copyrightable
and whether or not reduced to practice related to InfoSpace's web-based
Content delivery mechanism that is used to create and populate the Phone Site
with InfoSpace-specific Content but does not include the Phone Site itself.
"TRADEMARKS" means any trademarks, service marks, trade dress, trade names,
corporate names, proprietary logos or indicia and other source or business
identifiers.
"WEB SITE" means any point of presence maintained on the Internet or on any
other public data network. With respect to any Web Site maintained on the
World Wide Web, such Web Site includes all HTML and HDML pages (or similar
unit of information presented in any relevant data protocol) that either are
identified by the same second-level domain (such as xxxxxxxxx.xxx) or by the
same equivalent level identifier in any relevant address scheme.
2. CERTAIN RIGHTS GRANTED.
2.2 INFOSPACE GRANT. Subject to the terms and conditions of this
Agreement, InfoSpace hereby grants to Company the following rights:
(a) During the Term (as defined in Section 6.1) the right to enable
persons who are employees or customers of Company to access the
available Content on the Phone Site on wireless phones, devices
and appliances via wireless network access;
(b) During the Term the right to include on the Phone Site
hypertext links (whether on graphical, text or other format)
which enable "point and click" access to the locations on the
InfoSpace Web Sites specified by InfoSpace (and subject to
change by InfoSpace from time to time); and
(c) During the Term the right to include on the Phone Site
hypertext links (whether graphical, text or other format) that
enable "point and click" access to the locations on the Freei
Web Sites and, subject to any necessary third-party consents,
Web Sites of third-party content providers.
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2.2 COMPANY GRANT. Subject to the terms and conditions of this Agreement,
Company hereby grants InfoSpace the following rights:
(a) the right to include the Company Materials on the Phone Site;
(b) the right to include on the InfoSpace Web Sites hypertext links
(whether in graphical, text or other format) which enable "point and
click" access to locations of the Phone Site specified by Company
(and subject to change by Company from time to time) for the purpose
of integrating Content into the Phone Site;
(c) the right to sell and serve Banner Advertisements directly on the
Phone Site, subject to the limitations on such advertising set forth
elsewhere in this Agreement; and
(d) the right to track the number of Impressions.
2.3 LIMITATIONS.
(a) Company and its affiliates shall have no right to reproduce or
sub-license, re-sell or otherwise distribute all or any portion of
the Content to any Person via the Internet (including the World Wide
Web) or any successor public or private data network, other than
providing access to the Content to users of the Phone Site. This
Agreement and delivery of the Content or any portion hereunder to
Company shall not cause InfoSpace to be in violation of any law of
any jurisdiction or third party agreement, and InfoSpace may at any
time modify its grant of rights to the extent necessary to ensure
compliance. InfoSpace may from time to time issue additional
guidelines with respect to use or display of any of the Content, or
issue requirements based upon InfoSpace's obligations to third party
Content providers. Company shall allow InfoSpace to implement and/or
cooperate with InfoSpace in its implementation of any bug fixes,
updates, and minimum build requirements for any Content supplied by
InfoSpace upon request. In addition, Company shall not have any
right to (a) remove, obscure, or alter any legal notices, including
notices of Intellectual Property Rights present on or in the Content
provided hereunder or any other materials provided by InfoSpace; or
(b) "frame" Content unless expressly allowed by InfoSpace.
(b) InfoSpace and its affiliates shall have no right to reproduce or
sub-license, re-sell or otherwise distribute all or any portion of
the Company Materials to any Person via the Internet (including the
World Wide Web) or any successor public or private data network,
other than providing access to the Company Materials to users of the
Phone Site.
(c) Each party shall comply with all then-current laws, rules,
regulations and policies related to privacy.
2.4 COMPANY MARKS LICENSE. Subject to Section 2.6, Company hereby grants
InfoSpace the right to use, reproduce, publish, perform and display the
Company Marks; (a) on the InfoSpace Web Sites in connection with the posting
of hyperlinks to the Phone Site for the purpose of serving Content with the
Company brand onto or through the Phone Site; (b) in and in connection with
the development, use, reproduction, modification, adaptation, publication,
display and performance of the Phone Site for the purpose of serving Content
with the Company brand onto or through the Phone Site.; and (c) with the
prior written approval of Company and subject to the provisions of this
Agreement relating to publicity, in promotional and marketing materials,
content directories and indices, and electronic and printed advertising,
publicity, newsletters and mailings about InfoSpace and its relationship with
Company and the Phone Site.
2.5 INFOSPACE MARKS LICENSE. Subject to Section 2.6, InfoSpace hereby grants
the right to use, reproduce, publish, perform and display the InfoSpace
Marks: (a) on the Phone Site in connection with the posting of hyperlinks to
the Content; and (b) with the prior written approval of InfoSpace and subject
to the provisions of
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this Agreement relating to publicity, in and in connection with the
development, use, reproduction in promotional and marketing materials,
content directories and indices, and electronic and printed advertising,
publicity, newsletters and mailings about Company and its relationship with
InfoSpace.
2.6 USE OF TRADEMARKS. Prior to the first use of any of the other
party's Trademarks in the manner permitted herein, the party using such
Trademarks shall submit a sample of such proposed use to the other party for
its prior written approval, which shall not be unreasonably withheld or
delayed. Without limiting the generality of the foregoing, each party shall
strictly comply with all standards with respect to the other party's
Trademarks which may be furnished by such party from time to time, and all
uses of the other party's Trademarks in proximity to the trade name,
trademark, service name or service xxxx of any other person shall be
consistent with the standards furnished by the other party from time to time.
Further, neither party shall create a combination xxxx consisting of one or
more Trademarks of each party. All uses of the other party's Trademarks shall
inure to the benefit of the party owning such Xxxx. Each party hereby
acknowledges and agrees that, as between the parties hereto, the other party
is the owner of the Trademarks identified as its Trademarks on the applicable
attachment to the Agreement. Either party may update or change the list of
Trademarks usable by the other party hereunder at any time by written notice
to the other party.
2.7 NONEXCLUSIVITY. Each party acknowledges and agrees that the
rights granted to the other party in this Agreement are non-exclusive, and
that, without limiting the generality of the foregoing, nothing in this
Agreement shall be deemed or construed to prohibit either party from
participating in similar business arrangements as those described herein.
3. CERTAIN OBLIGATIONS OF THE PARTIES.
3.1 PHONE SITE. Company and InfoSpace will cooperate to design, and
InfoSpace will implement in accordance with Exhibit A, the user-perceptible
elements of the graphical use interface for the Phone Site, with the goals
of: (a) conforming the graphical user interface with branding, graphics,
navigation, content or other characteristics or features of the display
output of the "look and feel" of the Phone Site to that associated with the
applicable existing Company Web Sites; (b) integrating content and commerce
services from third parties according to terms of this Agreement; (c)
maximizing the commercial effectiveness thereof; and (d) optimizing the
presentation of the relevant Content for access from mobile phones. Following
agreement by the parties upon the design specifications thereof, InfoSpace
will use commercially reasonable efforts to develop the graphical user
interface and to implement the same on Co-branded Pages.
3.2 COMPANY OBLIGATIONS. Company shall integrate the
acknowledgement "Powered by InfoSpace" or equivalent attribution at the
bottom of a single prominent page of the Phone Site in a manner mutually
agreeable to both parties.
3.3 IMPRESSION INFORMATION. InfoSpace shall track and allow the
Company to remotely access in electronic form information maintained by
InfoSpace concerning the number of Impressions.
3.4 PUBLICITY. The parties may work together to issue publicity
and general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall
have any obligation to do so. In addition, neither party shall issue any such
publicity and general marketing communications concerning their relationship
without the prior written consent of the other party (not to be unreasonably
withheld).
3.5 [*]
4. REVENUE SHARE.
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[*] = Confidential Treatment Requested
4.1 FEES AND REVENUE SHARE. In addition to the terms and conditions otherwise
set forth in this Agreement, Setup/Integration Fees, Subscriber Fee, and
Transaction Revenue Share shall be governed by the terms and conditions set
forth on Exhibit C.
4.2 REMUNERATION; COLLECTION. Each party will pay to the other party the
amounts as set forth on Exhibit C. Any undisputed amounts not paid when due,
or as invoiced, will be subject to a finance charge equal to one and one-half
percent (1.5%) per month from the date due until the date paid. Payment of
such finance charges will not excuse or cure any breach or default for late
payment. Each party may accept any check or payment without prejudice to its
rights to recover the balance due or to pursue any other right or remedy. No
endorsement or statement on any check or payment or letter accompanying any
check or payment or elsewhere will be construed as an accord or satisfaction.
Unless explicitly stated on Exhibit C, all amounts payable under this
Agreement are denominated in United States dollars and each party will pay
all amounts payable under this Agreement in lawful money of the United
States. Other than as explicitly stated on Exhibit C, InfoSpace shall have no
obligation to share with, allow Company to sell, or account to Company
regarding, any sums received by InfoSpace or any of its affiliates from any
advertisements or promotions on any of the InfoSpace Web Sites (including,
without limitation, any of the Co-branded Pages). In the event Company fails
to make timely payment, InfoSpace shall have the right, in addition to all
other remedies, to remove all links, content, or services provided by
InfoSpace under the Agreement. Company and InfoSpace will be responsible for
all reasonable expenses (including attorney fees) incurred by the other
party in collecting such amounts due under the terms of this Agreement.
4.3 RECORDS AND AUDIT. During the Term, each party shall maintain accurate
records of Transaction Revenues or Subscriber Fees received and calculations
of the fees payable to the other party pursuant to this Agreement. Either
party, at its expense, and upon ten (10) days' advance notice to the other
party, shall have the right no more than twice during the Term to examine or
audit such records in order to verify the figures reported in any quarterly
report and the amounts owned to such party under this Agreement. Any such
audit shall be conducted, to the extent possible, in a manner that does not
interfere with the ordinary business operations of the audited party. In the
event that any audit shall reveal an underpayment of more than ten percent
(10%) of the amounts due to the auditing party for any quarter, the other
party will reimburse such party for the reasonable cost of such audit.
5. WARRANTIES, INDEMNIFICATION AND LIMITATION OF DIRECT LIABIITY.
5.1 WARRANTIES
Each party to this Agreement represents and warrants to the other party
that:
a) it has the full corporate right, power and authority to enter into
this Agreement and to perform the acts required of it hereunder;
b) its execution of this Agreement by such party and performance of
its obligations hereunder, do not and will not violate any agreement to
which it is a party or by which it is bound;
c) when executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of such party, enforceable against
it in accordance with its terms; and
d) all Content or other content or materials served or submitted by
it to or through the Phone Site, as the case may be, will not contain
any material that is obscene, libelous or defamatory, or infringing of
any Intellectual Property Rights or other rights of any third party.
5.2 INDEMNIFICATION. Each party (the "Indemnifying Party") will defend,
indemnify and hold harmless the other party (the "Indemnified Party"), and the
respective directors, officers, employees and agent of the Indemnified Party,
from and against any and all claims, costs, losses, damages, judgements and
expenses
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(including reasonable attorney's fees) arising out of or in connection with
any third-party claim alleging any breach of such part's representations or
warranties or covenants set forth in this Agreement or alleging that any
Content, Banner Advertisements or other content or materials served or
submitted by such party or through the Phone Site, as the case may be,
contains any material that is obscene, libelous or defamatory, or infringing
of any Intellectual Property Rights or other rights of any third party. The
Indemnified Party agrees that the Indemnifying Party shall have sole and
exclusive control over the defense and settlement of any such third party
claim. However, the Indemnifying Party shall not acquiesce to any judgment or
enter into any settlement that adversely affects the Indemnified Party's
rights or interests without prior written consent of the Indemnified Party.
The Indemnified Party shall promptly notify the Indemnifying Party of any
such claim of which it becomes aware and shall: (a) at the Indemnifying
Party's expense, provide reasonable cooperation to the Indemnifying Party in
connection with the defense or settlement of any such claim; and (b) at the
Indemnified Party's expense, be entitled to participate in the defense of any
such claim.
5.3 LIMITATION OF LIABILITY; DISCLAIMER.
(a) Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NEITHER
INFOSPACE'S NOR COMPANY'S LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR
OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE
OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF SUCH PARTY) UNDER THIS
AGREEMENT OR WITH REGARD TO ANY OF THE PRODUCTS OR SERVICES RENDERED BY
EITHER PARTY UNDER THIS AGREEMENT (INCLUDING ANY SERVERS OR OTHER HARDWARE,
SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY INFOSPACE OR ANY THIRD
PARTIES IN CONNECTION WITH HOSTING THE PHONE SITE), THE INFOSPACE WEB SITES,
THE CONTENT AND ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT
WILL IN NO EVENT EXCEED THE COMPENSATION PAID OR PAYABLE BY COMPANY TO
INFOSPACE UNDER THIS AGREEMENT.
(b) No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), AND EACH PARTY
HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN
EACH CASE, REGARDING THEIR WEB SITES, ANY PRODUCTS OR SERVICES DESCRIBED
THEREON, OR ANY OTHER ITEMS, SOFTWARE OR SERVICES PROVIDED UNDER THIS
AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INFOSPACE AND
COMPANY ACKNOWLEDGES THAT BOTH THE INFOSPACE AND COMPANY WEB SITES, THE
TECHNOLOGY AND THE CONTENT (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE
AND ANY OTHER ITEMS USED OR PROVIDED BY INFOSPACE, COMPANY OR ANY THIRD
PARTIES IN CONNECTION WITH HOSTING THE INFOSPACE OR COMPANY WEB SITES OR THE
CONTENT OR PERFORMANCE OF ANY SERVICES HEREUNDER) ARE PROVIDED "AS IS"
WITHOUT ANY WARRANTIES OF ANY KIND. COMPANY AND INFOSPACE ACKNOWLEDGE THAT
INFOSPACE AND COMPANY MAKE NO WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS
WEB SITES OR OFFER THE CONTENT IN ITS CURRENT FORM, THAT ITS WEB SITES OR THE
CONTENT WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE SITES OR THE
CONTENT WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF THE OTHER PARTY, OR
THAT THE CONTENT, SOFTWARE OR ANY OTHER MATERIALS ON ITS WEB SITES OR THE
SERVERS AND SOFTWARE THAT MAKES ITS WEB SITES AVAILABLE ARE FREE FROM ERRORS,
DEFECTS, DESIGN FLAWS OR OMISSIONS.
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6. TERMS AND TERMINATION.
6.1 TERM. The term of this Agreement shall commence on the Effective
Date and, unless earlier terminated as provided below, shall end on the
second anniversary of the Commercial Service Date (the "Term").
6.2 TERMINATION. Either party may terminate this Agreement upon not less
than thirty (30) days' prior written notice to the other party of any
material breach hereof by such other party, provided that such other
party has not cured such material breach within such thirty (30) day
period.
6.3 EFFECT OF TERMINATION. Upon termination of this Agreement or
expiration of the Term for any reason, all rights and obligations of the
parties under this Agreement shall be extinguished, except that: (a) all
accrued payment obligations hereunder shall survive such termination or
expiration; and (b) the rights and obligations of the parties under
Sections 4, 5, 6, 7 and 8 shall survive such termination or expiration.
7. INTELLECTUAL PROPERTY.
7.1 COMPANY. As between the parties, Company retains all right, title
and interest in and to the Phone Site (including, without limitation,
any and all content, data, URLs, domain names, technology, software,
code, user interfaces, "look and feel", Trademarks and other items
posted thereon or used in connection or associated therewith; but
excluding any Content supplied by InfoSpace and excluding the underlying
Technology used to create the Phone Site or to populate it with
InfoSpace's specific Content) and the Company Marks, and Company
Material, along with all Intellectual Property Rights associated with
any of the foregoing.
7.2 INFOSPACE. As between Company and InfoSpace, InfoSpace reserves and
retains all right, title and interest, including but not limited to all
Intellectual Property Rights in the Technology utilized under this
Agreement and no license or title to nor ownership of any of the
Technology is granted or otherwise transferred to Company or any other
Person under this Agreement. As between the parties, InfoSpace retains
all right, title and interest in and to the Content and the InfoSpace
Web Sites (including, without limitation, any and all content, data,
URLs, domain names, technology, software, code, user interfaces, "look
and feel", Trademarks and other items posted thereon or used in
connection or associated therewith; but excluding any items supplied by
Company) and the InfoSpace Marks, along with all Intellectual Property
Rights associated with any of the foregoing. Company obtains no right to
use InfoSpace Intellectual Property Rights beyond the Term of this
Agreement.
7.3 COPYRIGHT NOTICES.
Attribution will take place on the HDML Pages as specified in Section
3.2. InfoSpace and Company acknowledge that the Phone Site pages may
also contain copyright and patent notices of copyrighted or
copyrightable works, including those of InfoSpace, Content providers,
and of Company.
7.4 OTHER TRADEMARKS. InfoSpace shall not register or attempt to
register any of the Company Marks or any Trademarks that Company
reasonably deems to be confusingly similar to any of the Company Marks.
Company shall not register or attempt to register any of the InfoSpace
Marks or any Trademarks that InfoSpace reasonably deems to be
confusingly similar to any of the InfoSpace Marks.
7.5 FURTHER ASSURANCES. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of
affidavits or other documents) as the other party may reasonably request
to effect, perfect or confirm such other party's ownership interests and
other rights as set forth above in this Section 7.
8. GENERAL PROVISIONS
8.1 CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement, the Technology, 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
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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 commercially reasonable 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, 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 8.1.
8.2 INDEPENDENT CONTRACTORS. Company and InfoSpace are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Company and InfoSpace. Neither party has any authority to enter into
agreements of any kind on behalf of the other party.
8.3 ASSIGNMENT; MERGER. Neither party may assign this Agreement or
any of its rights or delegate any of its duties under this Agreement without
the proper written consent of the other party, not to be unreasonably
withheld. Notwithstanding the foregoing, either party may assign this
Agreement, without the other party's consent, (i) to any parent, subsidiary,
or affiliate entity, or (ii) to any purchase of all or substantially all of
such party's assets or to any successor by way of merger, consolidation or
similar transaction. Subject to the foregoing, this Agreement will be binding
upon, enforceable by, and inure to the benefit of the parties and their
respective successors and assigns.
8.4 CHOICE OF LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Washington without
reference to its choice of law rules. Company hereby irrevocably consents to
exclusive personal jurisdiction and venue in the state and federal courts
located in King County, Washington with respect to any actions, claims or
proceedings arising out of or in connection with this Agreement, and agrees
not to commence or prosecute any such action, claim or proceeding other than
in the aforementioned courts.
8.5 NONWAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the waiving party.
8.6 FORCE MAJEURE. Neither party shall be deemed to be in default
of or to have breached any provision of this Agreement as a result of any
delay, failure in performance or interruption of service, resulting directly
or indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, failure of equipment and/or software, other
catastrophes or any other occurrences which are beyond such party's reasonable
control.
8.7 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be given in writing and delivered in
person, mailed via confirmed facsimile or e-mail, or delivered by recognized
courier service, properly addressed and stamped with the required postage, to
the applicable party at its address specified below and shall be deemed
effective upon receipt. Either party may from time to time change the
individual to receive notices or its address by giving the other party notice
of the change in accordance with this section.
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To Company: To InfoSpace:
Freei Networks, Inc.____ XxxxXxxxx.xxx, Inc.
0000 X. 000xx Xxxxxx, Xxxxx 000 00000 XX 90th Street
Federal Way, WA 98003 Xxxxxxx, XX 00000
Attn: Xxx XxXxxxxxxx Attn: Xxxxxxx Xxxxxx
In addition, a copy of any notice of change of address, or of termination or
any alleged breach of this Agreement, shall be thus sent to the applicable
party at the following address:
To Company: To InfoSpace:
Freei Networks, Inc. XxxxXxxxx.xxx, Inc.
0000 X. 000xx Xxxxxx, Xxxxx 000 00000 XX 90th Street
Federal Way, WA 98003 Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx Attention: General Counsel
8.8 SAVINGS. In the event any provision of this Agreement shall for any
reason by held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. If any provision
of this Agreement shall, for any reason, be determined by a court of
competent jurisdiction to be excessively broad or unreasonable as to
scope or subject, such provision shall be enforced to the extent necessary
to be reasonable under the circumstances and consistent with applicable law
while reflecting as closely as possible the intent of the parties as
expressed herein.
8.9 INTEGRATION. This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements or negotiations between InfoSpace
and Company concerning the subject matter hereof, and cannot be amended
except by a writing signed by both parties.
8.10 COUNTERPARTS; ELECTRONIC SIGNATURE. This Agreement may be executed in
counterparts, each of which will be deemed an original, and all of which
together constitute one and the same instrument. To expedite the process of
entering into this Agreement, the parties acknowledge that Transmitted Copies
of the Agreement will be equivalent to original documents until such time as
original documents are completely executed and delivered. "Transmitted
Copies" will mean copies that are reproduced or transmitted via photocopy,
facsimile or other process of complete and accurate reproduction and
transmission.
-9-
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
FREEI NETWORKS, INC. XXXXXXXXX.XXX, INC.
("COMPANY") ("INFOSPACE")
By (signature) /s/ XXX XxXXXXXXXX By (signature) /s/ Xxxxxx Xxxx
----------------------------------- -----------------------------------
Name Xxx XxXxxxxxxx Name Xxxxxx Xxxx
----------------------------------- -----------------------------------
Title CEO Title CEO
----------------------------------- -----------------------------------
-11-
EXHIBIT A
DELIVERABLES
InfoSpace will, in cooperation with the Company, develop and maintain
the Phone Site, consisting of HDML pages. InfoSpace will be responsible for
implementing the graphical user interface and related design elements for the
Phone Site that displays the Content. Company will design and supply the
graphical content to be used in the Phone Site. in order to insure that the
display output conforms to the Company's "look and feel". InfoSpace shall make
the Content listed below available to Company on the Phone Site. These
services shall be made available at a mutually agreed upon date. All
categories of Content shall be used by Company at its discretion.
i) BASIC CONTENT: The following Basic Content categories will be
made available to the Company on the Phone site:
---------------------------------------
FOR PHONE (HDML) ACCESS
---------------------------------------
-- Yellow Page
-- White Page
-- Directions
-- City Guide
-- Finance
-- News
-- Sports
-- E-Shopping
-- Entertainment
-- ActiveShopper
---------------------------------------
If a fee is assessed by content provider to InfoSpace on a per
Subscriber or per-query basis to access this additional content via wireless
medium, an [*] may be required. Company shall be notified and approve in
writing of any [*] prior to incurring such Fee. These fees will be determined
on a case by case basis.
ii) PERSONALIZED CONTENT: The following personalized content shall be
made available to Company on the Phone Site:
---------------------------------------
PERSONALIZED ON PHONE SITE VIA
FEATURE HDML
---------------------------------------
MyNews:
User specifies X
which categories
and number of
headlines
---------------------------------------
MyPortfolio:
User specifies X
which stock quotes
to include
---------------------------------------
MyWeather:
User specifies zip X
code
---------------------------------------
[*] = Confidential Treatment Requested
-----------------------------------------------------------------
PERSONALIZED ON PHONE SITE VIA
FEATURE HDML
-----------------------------------------------------------------
MySports: X
User selects league
and team to receive
scores
-----------------------------------------------------------------
MyHoroscope: X
User specifies birth
date
-----------------------------------------------------------------
MyLottery: X
user specifies state of
interest
-----------------------------------------------------------------
Bookmarks: X
User specifies url
addresses and site names
-----------------------------------------------------------------
local Information: X
User specifies zip code,
home, work address
-----------------------------------------------------------------
iii) PIM SERVICE: InfoSpace will provide Company the following services on
the Phone Site:
- Web Based Email with POP3 access
- Calendar
- Address Book
- Synchronization capability with MS Outlook on the desktop
iv) LOCALIZATION SERVICE: InfoSpace will provide Company, as an integrated
part of the Phone Site, the ability for users to find points of interest based
on proximity to their home or work address.
v) INTEGRATION WITH COMPANY CONTENT AND SERVICES: InfoSpace will integrate
links to designated Company services and content (e.g. customer care, billing,
etc.) as specified by Company.
vi) INTEGRATION OF THIRD PARTY CONTENT AND SERVICES: InfoSpace will
provide a mutually agreeable content integration program to Company as
specified in Exhibit D and will coordinate the integration of links to third
party content and services. [*]
vii) ACTIVE SHOPPER AND SINGLE-CLICK PURCHASING: InfoSpace shall provide
Company, at Company's request, the ActiveShopper comparison shopping tool.
Additionally, InfoSpace shall provide Company with "e-wallet" technology that
will enable Subscribers to complete single-click purchases for products and
services based on the Subscriber's stored transaction profile on terms to be
mutually agreed upon by the parties.
viii) InfoSpace shall provide Company, at Company's request, with timing to
be mutually agreed, the Instant Messaging solution at no incremental cost to
Company. The functionality shall include, at a minimum, the ability to set up
group lists, device lists, and to send and receive messages from a
browser-enabled mobile Phone to Phone, Phone to PC).
-12-
[*] = Confidential Treatment Requested
EXHIBIT B
TRADEMARKS
INFOSPACE MARKS
---------------
INFOSPACE
XXXXXXXXX.XXX
[graphic]
POWERED BY INFOSPACE
POWERED BY XXXXXXXXX.XXX
THE ULTIMATE DIRECTORY
ACTIVESHOPPER
PAGEEXPRESS
SEARCH ENGINE FOR THE REAL WORLD
THE STUFF THAT PORTALS ARE MADE OF
PERSONAL DESKTOP PORTAL
THE BRAND THAT'S BUILDING THE INTERNET
COMPANY MARKS
-------------
-13-
EXHIBIT C
TERMS
TERMS
1. DEFINITIONS. As used in this Agreement, the following terms have the
following defined meanings:
"ACTIVE SUBSCRIBER" means, for any month of the Term, any Subscriber that
effects at least [*] queries on the Phone Site during such month. The
number of Active Subscribers shall be measured on the last day of each month.
"BASIC CONTENT" means the services described in Section (i) of Exhibit A.
"COMMERCE PARTNER" means any Person that provides services involving a
commercial transaction to InfoSpace or Company.
"SERVICE AND MAINTENANCE FEE" means a monthly nonrefundable sum in the amount
of [*]. This fee is a minimum monthly fee, and shall be paid to InfoSpace on
or before the first day of each month during the first year of the Term.
"SETUP/INTEGRATION FEE" means a sum in the amount of [*] for the setup and
integration effort undertaken by InfoSpace to configure and provide services
to Company.
"SUBSCRIBER FEES" means the amount of $[*] payable per Active Subscriber for
each calendar month of the [*] of the Term.
"TRANSACTION REVENUE" means the net revenue (i.e., gross revenues less any
taxes, commissions and any required fees payable to third parties) received
from merchants as a commission on transactions completed by users of the
Company Wireless/Web Services. Any and all deductions from gross revenue
(e.g. taxes, commission and fees payable to third parties) shall not exceed
[*] of the gross revenue.
2. SETUP/INTEGRATION FEE. The Company will pay to InfoSpace the
Setup/Integration Fee as follows:
The Setup/Integration Fee is payable on the Effective Date. InfoSpace
will commence the setup effort for the Phone Site upon, but not prior to,
receipt of this portion of the Setup/Integration Fee. This fee is
non-refundable.
3. SERVICE AND MAINTENANCE FEE; SUBSCRIBER FEES. The initial Service and
Maintenance Fee is payable on the Commercial Service Date on a pro-rata basis
from the Commercial Service Date through the end of such calendar month.
Thereafter, Service and Maintenance Fees are due on the first day of each
calendar month of the Term. At the end of each calendar quarter of the
[*] of the Term, an assessment shall be made of Subscriber Fees due.
If Subscriber Fees due are less than Service and Maintenance Fees paid or
payable for that calendar quarter, then no additional payment is due for
Subscriber Fees. If the Subscriber Fees due are greater than the Service and
Maintenance Fees paid or payable for that calendar quarter, then Company
shall remit payment for the difference between the Subscriber Fees due and
the Service and Maintenance Fees paid or payable (the "Incremental Subscriber
Fee"). InfoSpace will send an invoice to Company for the Incremental
Subscriber Fees when they become due. The Incremental Subscriber Fees will be
payable by Company thirty (30) days from the date of invoice.
5. TRANSACTION REVENUE SHARE. Company and InfoSpace shall share Transaction
Revenue as follows:
(a) INFOSPACE BRINGS COMMERCE PARTNER. In the event that InfoSpace
brings a Commerce Partner to the Phone Site from which Transaction Revenue
results, InfoSpace shall remit [*] of such Transaction Revenue to Company.
-14-
[*] = Confidential Treatment Requested
(b) COMPANY BRINGS COMMERCE PARTNER AND INFOSPACE PROVIDES TRANSACTION
CAPABILITY. In the event that Company brings a Commerce Partner to the Phone
Site from which Transaction Revenue results, and InfoSpace provides the
transaction capabilities for completing transactions with that partner,
Company shall remit [*] of Transaction Revenue to InfoSpace.
(c) COMPANY BRINGS COMMERCE PARTNER AND INFOSPACE DOES NOT PROVIDE
TRANSACTION CAPABILITY. In the event that Company brings a Commerce Partner
from which Transaction Revenue results, and InfoSpace merely provides a link
on the Phone Site to access such Commerce Partner, Company shall not be
obligated in sharing Transaction Revenues in this event. However, InfoSpace
may charge Company a one time flat fee to include such Commerce Partner's
link on the Phone Site. One-time flat fee to include the Commerce Partner's
link on the Phone site shall not exceed what is commercially reasonable for
similar services.
(d) TRANSACTION REVENUE PAYMENTS. Transaction Revenue share payments
will be reconciled and paid within thirty (30) days following the calendar
quarter in which the applicable revenues are received by the party that
brings the Commerce Party to the Phone Site (the "Selling Party"). The
Selling Party will provide with each such payment a report setting forth
Transaction Revenues received by it for such quarter and the percentage
thereof payable to the other party.
6. CUSTOMIZATION. InfoSpace may require additional Setup/Integration Fees
for any customization necessary to enable the delivery of the Phone Site to
different wireless platforms (e.g., WAP, GSM, TDMA, CDMA, etc.) or specific
phone models. Company shall consent to any additional fees contemplated
under the provision in writing prior to incurring any liability for such
changes.
-15-
[*] = Confidential Treatment Requested
