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EXHIBIT 10.22
[*] Confidential treatment has been requested for certain portions of this
exhibit.
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This agreement ("Agreement") is entered into as of the 24th day of June, 1998
("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and
Auto-By-Tel Corporation, a California corporation, located at 00000 XxxXxxxxx
Xxxxxxxxx, #000, Xxxxxx, Xxxxxxxxxx 00000-0000 ("Client").
RECITALS
A. Excite has obtained the right to program certain content and sell and
display advertising on the site on the Internet maintained by Netscape
Communications Corporation ("Netscape") located at
xxxx://xxxx.xxxxxxxx.xxx and/or other URLs or locations designated by
Netscape (the "Excite Portion of the Netscape Site") pursuant to an
agreement dated April 29, 1998 ("the Netcenter Agreement"), which, among
other things, allow Netscape's users to search for and access content
and other sites on the Internet.
B. Within the Excite Portion of the Netscape Site, Excite plans to organize
certain content into topical channels (each, a "Channel") and to provide
an Internet search service ("Netscape Search").
C. Client is engaged in the business of, among other things, (i) providing
online information and data to prospective purchasers of motor vehicles
through its Web site located at xxxx://xxx.xxxxxxxxx.xxx (the "Client
Site") and facilitating the acquisition of vehicles through a network of
dealer subscribers; (ii) offering to any such purchaser vehicle
financing and leasing programs, insurance programs and after market
products, and (iii) offering an incentive "rewards" based membership
program featuring a co- branded credit card, roadside assistance and
select retail providers (the "Mobalist" Program).
D. Client wishes to promote its business to Netscape's users through
promotions, content and advertising in the Excite Portion of the
Netscape Site.
Therefore, the parties agree as follows:
1. SPONSORSHIP OF THE AUTOS CHANNEL
(a) Client acknowledges that Excite's right to display promotional
placements on the Excite Portion of the Netscape Site is
conditioned on the Netcenter Agreement remaining in effect.
However, Excite represents that it will, in good faith, perform
all of its obligations under the Netcenter Agreement and do all
other commercially
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reasonable acts necessary to keep such Agreement in place,
subject at all times to Netscape's rights to terminate the
Netcenter Agreement for reasons unrelated to Excite's performance
or breach. Therefore, subject to the Netcenter Agreement
remaining in effect, commencing on the Launch Date (as defined
below), Client will be promoted in the Autos Channel of the
Excite Portion of the Netscape Site:
(i) A link to the Client Site (consistent with the format used
on similar links on the same page) will be displayed in
the Autos Channel home page for the duration of the term
of the Agreement.
(ii) A link to the Client Site (consistent with the format used
on similar links on the same page) will be displayed in
the "Buy A Car Online" department of the Autos Channel (or
a similar portion of the Autos Channel featuring
comparable content) for the duration of the term of the
Agreement.
(iii) A link to the Client Site (consistent with the format used
on similar links on the same page) will be displayed in
the "Take a Test Drive" department of the Autos Channel
(or a similar portion of the Autos Channel featuring
comparable content) for the duration of the term of the
Agreement.
(iv) A link to the Client Site (consistent with the format used
on similar links on the same page) will be displayed in
the "Auto Makers" promotional area in the "SUV," "Truck,"
"Cars" and "Luxury Cars" departments of the Autos Channel
(or a similar portion of the Autos Channel featuring
comparable content) for the duration of the term of the
Agreement.
(b) Client acknowledges that Excite's right to display content on the
Excite Portion of the Netscape Site is conditioned on the
Netcenter Agreement remaining in effect. Therefore, subject to
the Netcenter Agreement remaining in effect, commencing of the
Launch Date (as defined below), motor vehicle related content
supplied by Client ("Client Content") will be promoted in the
Autos Channel of the Excite Portion of the Netscape Site:
(i) Client Content from Bank Rate Monitor, Edmunds,
Auto-By-Tel, and/or AIG (subject to approval by Excite)
will be displayed in the Autos Channel for the duration of
the term of the Agreement. The selection and placement of
Client Content to appear in the Autos Channel will be
subject to Excite's discretion.
(ii) A module containing text and graphics links of less than
6K in file size, the pixel dimensions to be mutually
determined by the parties, featuring Client's "Mobalist"
program which will be displayed in the Autos Channel for
the
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duration of the term of the Agreement. The placement of
the "Mobalist" module in the Autos Channel will be subject
to Excite's discretion and continued positive user
feedback.
(iii) All Client Content will link to the Client Site. The
"Mobalist" module will link to xxxx://xxx.xxxxxxxx.xxx;
unless, upon reasonable notice, Client directs Excite to
link the Mobalist module to an additional or alternative
address.
(iv) Client and Excite will determine mutually agreeable
methods for the transmission and incorporation of updates
to the Client Content and "Mobalist" module. Other than
updates to the Client Content and "Mobalist" module,
Client will not alter the Client Content or "Mobalist"
module without Excite's prior consent.
(v) Netscape and Excite, on the one hand, and Client, on the
other, will cooperate in good faith regarding the "look
and feel" of the "Mobalist" module, but Netscape and
Excite will have final decision authority over of the
"look and feel" of the Client Content, the "Mobalist"
module and the Autos Channel.
(vi) Client will have sole responsibility for providing, at its
expense, the Client Content and "Mobalist" module to
Excite.
2. SWEEPSTAKES
(a) Every twelve (12) months, Client, at its sole expense, will
supply Excite with up to three (3) new motor vehicles to be used
by Excite as sweepstakes prizes offered to Netscape users. The
parties agree that the aggregate suggested manufacturer's retail
price for the vehicle(s) selected by Excite though Client shall
not exceed forty-five thousand dollars ($45,000) in any
twelve-month period.
(b) Client and Excite will cooperate in good faith to identify
appropriate opportunities to promote these sweepstakes and Client
in the Excite Portion of the Netscape Site during the term of the
Agreement.
(c) Other than the motor vehicles supplied by Client, Excite will
assume all expenses involved in administering and promoting these
sweepstakes.
(d) Either party may issue press releases regarding the sweepstakes,
the timing and wording of which will be mutually agreed upon. Any
such press releases will
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identify Excite as the host of the sweepstakes and Client as the
provider of the prize vehicle.
3. ADVERTISING ON THE EXCITE PORTION OF THE NETSCAPE SITE
(a) Client acknowledges that Excite's right to display advertising on
the Excite Portion of the Netscape Site is conditioned on the
Netcenter Agreement remaining in effect. Therefore, subject to
the Netcenter Agreement remaining in effect, commencing of the
Launch Date (as defined below), Excite will display Client's
banner advertising in rotation on the Channels on the Excite
Portion of the Netscape Site for the term of the Agreement.
(b) Subject to the Netcenter Agreement remaining in effect, Excite
guarantees the display of twenty-eight million seven hundred
fifty thousand (28,750,000) of Client's advertising banners,
which shall be distributed evenly and equitably per month, during
the term of the Agreement.
4. EXCLUSIVITY
(a) For the term of the Agreement, Excite will not enter into any
agreement to display and shall not display on the Autos, Arts &
Leisure, Auctions, Education, Games, Lifestyle, Real Estate or
Shopping Channels of the Excite Portion of the Netscape Site
content created by Excite promoting Client's "Competitors,"
content created by Client's Competitors or promotional placements
and/or advertising banners from Client's Competitors.
(b) For the purposes of this Agreement, "Competitors" means those
merchants whose primary business is (i) the online referral of
new motor vehicle purchase and/or leasing requests or the online
referral of used motor vehicle purchase requests to a nationwide
network of automobile dealers, (but does not include Excite's
subsidiary, Classifieds2000, Inc. ("Classifieds2000")), together
with the offering of ancillary motor vehicle products in
connection with any such purchase or lease including financing,
insurance and aftermarket products as well as (ii) the offering
of a rewards-based incentive program targeted to motorists
featuring a co-branded credit card, roadside assistance and
select retail dealers (but does not include any rewards-based
incentive program offered by Excite under the "Excite" brand).
(c) Notwithstanding the foregoing, Excite may display links to
Client's Competitors in Excite's general directory of Web sites
that appears on the Netscape Site, in search results displayed in
"Jango" shopping search services, in Netscape Search results
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pages and in classified advertising listings, subject to any
agreement entered into by Client and Classifieds2000, pursuant to
Section 5 below.
5. RIGHT OF FIRST NEGOTIATION FOR CLASSIFIEDS CHANNEL
(a) Client will have a right of first negotiation with
Classifieds2000 for an exclusive sponsorship of the Classifieds
Channel of the Excite Portion of the Netscape Site.
(b) Excite will not propose, solicit or negotiate offers from
entities other than Client for any exclusive sponsorships of the
Classifieds Channel of the Excite Portion of the Netscape Site by
any of Client's Competitors, if at all, prior to fifteen (15)
business days from the Effective Date.
(c) Classifieds2000 will negotiate with Client in good faith with
respect to the terms and conditions under which Client would
become the exclusive online seller of new motor vehicles
sponsoring the Classifieds Channel of the Excite Portion of the
Netscape Site. If Client and Classifieds2000 have not entered
into a written by close of business on the
fifteenth business day from the Effective Date, Excite and/or
Classifieds2000 may enter into negotiations with any third party
with respect to exclusive sponsorships of the Classifieds Channel
of the Excite Portion of the Netscape Site.
6. LAUNCH DATE AND REPORTING
(a) Client and Excite will use reasonable efforts to implement the
display of the promotional placements, content and advertising
described in the Agreement by July 1, 1998 (the "Launch Date").
The parties recognize that the scheduled Launch Date can be met
only if Client provides final versions of all graphics, text,
keywords, banner advertising, promotional placements, other
promotional media and valid URL links necessary to implement the
promotional placements, content and advertising described in the
Agreement (collectively, "Impression Material") to Excite five
(5) days prior to scheduled Launch Date.
(b) In the event that Client fails to provide the Impression Material
to Excite five (5)days in advance of the scheduled Launch Date,
Excite may, at its sole discretion (i) reschedule the Launch Date
at the earliest practicable date according to the availability of
Excite's engineering resources after delivery of the complete
Impression Material or (ii) commence delivery of Impressions
based on Impression Material in Excite's possession at the time
and/or reasonable placeholders created by Excite.
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(c) Excite will provide Client with monthly reports substantiating
the number of impressions of Client's advertising banners,
content and promotional placements displayed on the Excite
Portion of the Netscape Site.
7. SPONSORSHIP, ADVERTISING AND TRANSACTION FEES
(a) Client will pay Excite sponsorship and advertising fees of two
million four hundred eighty-seven thousand dollars ($2,487,000)
in the first year of the term of the Agreement. These fees will
be paid in equal monthly installments of two hundred seven
thousand two hundred fifty dollars ($207,250). The first monthly
payment will be due upon the display of the first of the
promotional placements and advertising described in the
Agreement. Subsequent installments will be due on a monthly basis
thereafter.
(b) Client will pay Excite sponsorship and advertising fees of four
million one hundred fifty thousand dollars ($4,150,000) in the
second year of the term of the Agreement. These fees will be paid
in equal monthly installments of three hundred forty-five
thousand eight hundred thirty three dollars and thirty-three
cents ($345,833.33). The first monthly payment will be due upon
the first anniversary of the display of the first of the
promotional placements and advertising described in the
Agreement. Subsequent installments will be due on a monthly basis
thereafter.
(c) Separate and apart from the sponsorship and advertising fees,
Client will pay Excite for each "Unique Purchase Request"
completed by users referred to the Client Site from the Excite
Portion of the Netscape Site during the first year of the term of
the Agreement. For the purposes of this Agreement, a "Unique
Purchase Request" shall be a new car purchase request electronic
form with all data fields deemed mandatory by Client completed by
the user, which has been received by Client from Excite, and for
which Client has not, within the previous ninety (90) day period,
received a duplicate new car purchase request from the Excite
Portion of the Netscape Site for the same or similar vehicle, as
determined by the year, make and model; from the same user, as
identified by the same name, zip code and/or the same e-mail
address. Client will pay Excite for each Unique Purchase Request
during the first year of the term of the Agreement as follows:
(i) [*] per Unique Purchase Request up to the first one
hundred fifty thousand (150,000) Unique Purchase Requests;
(ii) [*] per Unique Purchase Request for between one hundred
fifty thousand one (150,001) and two hundred thirty
thousand (230,000) Unique Purchase Requests; and
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(iii) [*] per Unique Purchase Request in excess of two hundred
thirty thousand (230,000) Unique Purchase Requests.
(d) Separate and apart from the sponsorship and advertising fees,
Client will pay Excite for each Unique Purchase Request completed
by users referred to the Client Site from the Excite Portion of
the Netscape Site during the second year of the term of the
Agreement as follows:
(i) [*] per Unique Purchase Request up to the first two
hundred eighteen thousand (218,000) Unique Purchase
Requests;
(ii) [*] per Unique Purchase Request for between two hundred
eighteen thousand one (218,001) and three hundred
thirty-five thousand (335,000) Unique Purchase Requests;
and
(iii) [*] per Unique Purchase Request in excess of three hundred
thirty-five thousand (335,000) Unique Purchase Requests.
(e) The sponsorship fees and transaction payments are net of any
agency commissions to be paid by Client.
(f) Client will provide Excite with monthly reports of the number of
"Unique Purchase Requests." It is currently Client's goal to
provide these reports to Excite on or about the fifth business
day after the close of the preceding month. Client shall pay
Excite the transaction payments within forty-five (45) days after
Excite's receipt of Client's report of the number of "Unique
Purchase Requests" each month. In the event that Client does not
pay the transaction payments within forty-five (45) days after
Excite's receipt of Client's report of the number of "Unique
Purchase Requests" for any month, that month shall be deemed to
be a "Late Payment Month" for the purposes of this Agreement. In
the event that there are two or more Late Payment Months in any
twelve (12) month period during the term of the Agreement, Client
will increase by ten percent (10%) the monthly payment otherwise
due for the second and any other Late Payment Month that occurs
in the twelve (12) period.
(g) Client will provide complete reports to Excite within thirty (30)
days of each month describing the month's transaction activity by
users referred to the Client Site from the Excite Portion of the
Netscape Site including, but not limited to, the total number of
purchase requests submitted and the number of Unique Purchase
Requests completed. Client will make good faith efforts to
develop tracking and reporting capabilities to correlate this
transaction information to the various promotional placements,
content and advertising banners on the Excite Portion of the
Netscape
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Site in order to facilitate optimization of Client's
sponsorship program. Client's reports will be delivered to Excite
in a mutually agreed-upon electronic format to an email address
or URL designated by Excite. In the event that Client does not
provide the required reports to Excite within sixty (60) days
after the end of any month, that month shall be deemed to be a
"Late Reporting Month" for the purposes of this Agreement. In the
event that there are two or more Late Reporting Months in any
twelve (12) month period during the term of the Agreement, Client
will increase by ten percent (10%) the monthly payment otherwise
due for the second and any other Late Reporting Month that occurs
in the twelve (12) month period. To the extent that interim
reports regarding the quality of the performance of Client's
sponsorship program on the Excite Portion of the Netscape Site,
as described in Section 9(b)(i), are available more frequently
than quarterly, Client will make good faith efforts to supply
such interim reports to Excite as soon as reasonably practical.
(h) Client will maintain accurate records with respect to the
calculation of all transaction payments and reporting due under
this Agreement. Once per year, the parties will review these
records to verify the accuracy and appropriate accounting of all
payments made pursuant to the Agreement. In addition, Excite may,
upon no less than thirty (30) days prior written notice to
Client, cause an independent Certified Public Accountant to
inspect the records of Client reasonably related to the
calculation of such payments during Client'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 payments actually owed to
Excite, in which case Client will be responsible for the payment
of the reasonable fees for such inspection.
8. PUBLICITY
Unless required by law, 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, the parties agree to issue an
initial press release regarding the relationship between Excite and
Client, the timing and wording of which will be mutually agreed upon.
9. TERM AND TERMINATION
(a) The term of this Agreement will begin on the Launch Date and will
end at the earlier of June 30, 2000 or the expiration or
termination of the Netcenter Agreement. In the event that the
Netcenter Agreement expires or is terminated prior to June 30,
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2000, Client and Excite will negotiate in good faith to resolve
all outstanding promotional and financial issues.
(b) Despite Excite's performance of its obligations hereunder, Client
may terminate this Agreement under the following limited
conditions:
(i) Client and Excite will meet once per quarter throughout
the term of the Agreement to review the performance of
Client's sponsorship program on the Excite Portion of the
Netscape Site. At the quarterly meeting, refers to the
Client Site generated on the Excite Portion of the
Netscape Site will be evaluated for quality and compared
to an index (the "Performance Index") based on the
performance of refers to the Client Site from the
xxxxxx.xxx Web site (the "Excite Site"). The Parties agree
that the Performance Index shall use June 1998 performance
results of the Excite Site as its baseline, which shall be
deemed "100%" for the purposes of comparison to the Excite
Portion of the Netscape Site. Quality performance will be
monitored and provided by Client's independent auditors
(currently, Xxxxxx Xxxxxxxx).
This information will be shared with Excite at the
quarterly performance meetings.
(ii) In the event that purchase request quality performance
from the Excite Portion of the Netscape Site is materially
below that from the Excite Site during any ninety (90) day
period during the term of the Agreement, Client will
notify Excite in writing of the poor performance. Excite
will undertake commercially reasonable efforts to remedy
the poor performance.
(iii) In the first year of the term of the Agreement only, if
Excite's efforts do not materially improve performance
after a reasonable period of time after receiving Client's
written notice of poor performance pursuant to Section
9(b)(ii), then, no later than forty-five (45) days prior
to the end of the first year of the term of the Agreement,
Client can give written notice to Excite of termination of
the Agreement at the end of the first year due to the
purchase request quality performance from the Excite
Portion of the Netscape Site being materially below that
from the Excite Site. This written termination notice must
include supporting reports or analysis by the accredited
neutral third party. Client may not terminate the
Agreement prior to the end of the first year of the term
of the Agreement under Sections 9(b)(ii) or 9(b)(iii).
(iv) In the event that purchase request quality performance
from the Excite Portion of the Netscape Site is materially
below that from the Excite Site
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during any ninety (90) day period during the second year
of the term of the Agreement and Excite's efforts do not
materially improve performance after a reasonable period
of time after receiving Client's notice of poor
performance then, in any quarterly meeting in the second
year of the term of the Agreement, Client may give notice
to Excite that Excite has sixty (60) days to remedy the
poor performance or the Agreement will be subject to
termination. Should Excite not be able to remedy purchase
request quality performance within the sixty (60) day
period, Client may give Excite written notice that the
Agreement will be terminated in thirty (30) additional
days.
(v) In the event that Client receives less than one hundred
fifty thousand (150,000) Unique Purchase Requests from
users referred to the Client Site from the Excite Portion
of the Netscape Site in the first year of the term of the
Agreement, Client can terminate the Agreement upon written
notice to Excite. Notwithstanding Section 7(c), within
thirty (30) days of any such termination, Client will pay
Excite the difference between (i) three million two
hundred twenty-five thousand dollars ($3,225,000) and (ii)
the amounts previously paid to Excite pursuant to 7(c)(i)
for the Unique Purchase Requests from users referred to
the Client Site from the Excite Portion of the Netscape
Site in the first year of the term of the Agreement under
the 150,000 minimum.
(vi) As soon as it becomes reasonably apparent that Client is
likely to pay Excite ten million two hundred thousand
dollars ($10,200,000) for Unique Purchase Requests from
users referred to the Client Site from the Excite Portion
of the Netscape Site within the next sixty (60) days,
Excite and Client will meet to discuss Client's plans to
continue or terminate the Agreement. After that meeting,
Client may, in its sole discretion, give Excite written
notice terminating the Agreement effective thirty (30)
days after Client has paid to Excite ten million two
hundred thousand dollars ($10,200,000) for Unique Purchase
Requests from users referred to the Client Site from the
Excite Portion of the Netscape Site. Once Client gives
written notice to Excite of its election to terminate the
Agreement under this Section 9(b)(vi), Excite will be free
to commence negotiations for replacement advertising
and/or sponsorships of the Excite Portion of the Netscape
Site with any third party, including Client's Competitors.
(c) 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.
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(d) All undisputed payments that have accrued prior to the
termination or expiration of this Agreement will be payable in
full within thirty (30) days thereof.
(e) The provisions of Section 12 (Confidentiality), Section 13
(Indemnity), Section 14 (Limitation of Liability) and Section 15
(Dispute Resolution) will survive any termination or expiration
of this Agreement.
10. TRADEMARK OWNERSHIP AND LICENSE
(a) Client 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 Client hereunder.
(c) Each party hereby grants to the other a revocable, royalty-free,
nonexclusive, 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.
(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 as the parties may agree in writing.
11. CONTENT OWNERSHIP AND LICENSE
(a) Client will retain all right, title and interest in and to the
Client Site worldwide including, but not limited to, ownership of
all copyrights and other intellectual property rights therein.
(b) Client will retain all right, title and interest in and to the
Client Content and the content of the "Mobalist" module 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, Client hereby grants to Excite
a revocable, royalty-free, non-exclusive, worldwide license to
use, reproduce, distribute, transmit and publicly display the
Client Content and "Mobalist" module in accordance with this
Agreement and to sub-license the Client Content and "Mobalist"
module to Excite's wholly-owned subsidiaries or to joint ventures
in
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which Excite participates for the sole purpose of using,
reproducing, distributing, transmitting and publicly displaying
the Client Content and "Mobalist" module in accordance with this
Agreement
(c) Netscape and Excite will retain all right, title, and interest in
and to the Excite Portion of the Netscape Site worldwide
including, but not limited to, ownership of all copyrights, look
and feel and other intellectual property rights therein.
12. CONFIDENTIALITY AND USER DATA
(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, (iii) the receiving party knew prior to
receiving such information from the disclosing party or (iv) the
receiving party develops independent of any information
originating from the disclosing party.
(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) The usage reports provided by Excite to Client hereunder will be
deemed to be the Confidential Information of Excite. The reports
provided to Excite under Section 7(g) will be deemed to be the
Confidential Information of Client.
(e) The terms and conditions of this Agreement will be deemed to be
Confidential Information and will not be disclosed without the
written consent of the other party.
(f) The parties acknowledge that Client is in the process of
obtaining access to data base marketing capabilities and that it
is Client's current goal to enable such data base marketing
capabilities on or about January 1999. The parties will cooperate
in good
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faith to develop a program whereby Excite may leverage
Client's data base marketing opportunities under the following
guidelines:
(i) Excite will not have direct access to any user data
collected on the Client Site;
(ii) Excite will have the right to market Excite's own services
and/or products to Client's users coming through the
Excite Portion of the Netscape Site, by specifying a
profile of the target audience (e.g., male, 25 - 40 years
old, etc.);
(iii) Excite will deliver any marketing material to Client.
Client will then arrange for delivery of the marketing
material to the target audience;
(iv) Excite will bear all direct expenses in connection with
the creation and delivery of the marketing material.
Client will not charge Excite for usage of Client's user
data;
(v) Excite's marketing plans and the results of Excite's
marketing efforts through Client will be "Confidential
Information" of Excite under this Agreement; and
(vi) Excite will not conduct such marketing through Client on
behalf of Client's Competitors.
(g) Client will not use User Data to directly or indirectly target
for solicitations any Excite users as a unique subset of Client's
user data base (except as specifically provided in this Agreement
or except to encourage the continued use of Client's own products
and/or services) either individually or in the aggregate during
the term of this Agreement and for a period of twelve (12) months
following the expiration or termination of this Agreement (except
to encourage the continued use of Client's own products and/or
services).
(h) Neither party will sell, disclose, transfer or rent any user data
obtained from users referred to the Client Site from the Excite
Portion of the Netscape Site which could reasonably be used to
identify a specific named individual ("Individual Data") to any
third party nor will either party use Individual Data on behalf
of any third party without the express permission of the
individual user. Where user permission for dissemination of
Individual Data to third parties has been obtained, each party
will use commercially reasonable efforts to require the third
party recipients of Individual Data to provide an "unsubscribe"
feature in any email communications generated by, or on behalf
of, the third party recipients of Individual Data.
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(i) Notwithstanding the foregoing, each party may disclose
Confidential Information or user data obtained from users
referred to the Client Site from the Excite Portion of the
Netscape Site (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.
Notwithstanding the foregoing, Excite may disclose Confidential
Information or user data obtained from users referred to the
Client Site from the Excite Portion of the Netscape Site to
Netscape as required under the terms of the Netcenter Agreement.
13. INDEMNITY
(a) Client 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 representation or covenant in this
Agreement; or
(ii) Any claim that Client's Impression Material, the Client
Content or the content of the "Mobalist" module infringe
or violate any third party's copyright, patent, trade
secret, trademark, right of publicity or right of privacy
or contain any defamatory content; or
(iii) Any claim arising from content displayed on the Client
Site.
Excite will promptly notify Client of any and all such claims and
will reasonably cooperate with Client 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.
(b) Excite will indemnify, defend and hold harmless Client, 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 representation or covenant in this
Agreement; or
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(ii) Any claim arising from the Excite Portion of the Netscape
Site other than content or services provided by Client.
Client will promptly notify Excite of any and all such claims and
will reasonably cooperate with Excite 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 Client in any way and such
obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require
Client's written consent (not to be unreasonably withheld or
delayed) and Client may have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
(c) 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.
14. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 13(a) AND 13(b), 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. EXCEPT UNDER
SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER PARTY FOR
DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT
OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED,
THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.
15. DISPUTE RESOLUTION
(a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names,
confidentiality and/or User Data 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 trademarks, 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.
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(b) In the event of 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, confidentiality and/or User Data,
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.
(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, confidentiality and/or User Data,
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.
16. 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 (i) a merger, reorganization or
sale of all, or substantially all, of such party's assets or (ii)
either party's assignment and/or delegation of its rights and
responsibilities hereunder to a wholly-owned subsidiary or joint
venture in which the assigning party holds an interest. 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 Excite or Client.
(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 in this Agreement 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.
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CONFIDENTIAL
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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) Severability. In the event that any of the provisions of this
Agreement are held 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.
(h) Counterparts. This Agreement may be executed in counterparts,
each of which will serve to evidence the parties' binding
agreement.
Auto-By-Tel Corporation Excite, Inc.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxx X. Xxxxxx
------------------------- -------------------------
Name: Xxxx Xxxxxxxxx Name: Xxx X. Xxxxxx
------------------------- -------------------------
Title: Senior V.P., Marketing Title: Dir. Financial Planning
------------------------- -------------------------
Date: June 25, 1998 Date: June 29, 1998
------------------------- -------------------------
00000 XxxXxxxxx Xxxx., #000 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
000-000-0000 (Voice) 000-000-0000 (Voice)
000-000-0000 (Fax) 000-000-0000 (Fax)
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