Exhibit 10.3
AT HOME CORPORATION AND XXXXXX INTERACTIVE INC.
UNIQUE NAME AGREEMENT
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THIS UNIQUE NAME LICENSE AGREEMENT (the "Agreement") is made as of
October 1, 1999 (the "Effective Date"), by and between At Home Corporation, a
Delaware corporation ("ATHM"), with an address at 00000 Xxxxxx Xxxxx Xxxx.,
Xxxxxxxxxxx, Xxxxxxxx 00000, and Xxxxxx Interactive Inc., a Delaware corporation
("HI"), with an address at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000-0000.
In consideration of the foregoing premises the mutual covenants
contained herein, the parties agree as follows:
1. DEFINITIONS: Unless otherwise specified herein, all capitalized terms
used in this Agreement shall have the meaning set forth below:
1.1 ACTIVELY OPTED-IN: means that a consumer, in response to relevant
questions, has affirmatively expressed a desire allow to HI to use his or her
email communication information for Research Purposes with specific reference to
the Xxxxxx Poll Online(TM).
1.2 PASSIVELY OPTED-IN: means that a consumer, in response to relevant
questions, has not affirmatively expressed a desire to have his or her email
communication information excluded from use by HI for Research with specific
reference to the Xxxxxx Poll Online(TM).
1.3 UNIQUE NAME(S): means information collected by ATHM about an
individual who (i) is over eighteen (18) years of age or who is not known to be
under the age of eighteen (18) at the time of registration as a Unique Name,
(ii) has a valid deliverable email address, (iii) is not already a Unique Name
not already in the Xxxxxx Poll Online(TM) database, and (iv) has either Actively
Opted-In or Passively Opted-in. Unique Names includes all Completed Names but
also includes names which have Passively Opted-in or which have less than three
of the required demographics, but does not include Unqualified Limited Names.
1.4 COMPLETED NAME(S): means a Unique Name that has Actively Opted-in
STATUS and has at least three (3) of the following six (6) Data elements: age,
gender, education, income, marital status and occupation.
1.5 LIMITED NAMES: means names obtained by ATHM through programs
co-branded or run jointly with third parties, that would be Unique Names but
for the fact that ATHM does not have rights to transfer exclusive ownership
for Research Purposes to HI due to its third party agreements.
1.6 QUALIFIED LIMITED NAMES: means Limited Names that (i) do not
constitute [Confidential Information. Intentionally omitted and filed separately
with the Securities and Exchange Commission] as the case may be, derived by ATHM
from a particular source or arrangement and delivered to HI hereunder, measured
cumulatively from the date of this Agreement, and (ii) are derived from a source
or provider that has not offered the Unique Name an active or passive opt-in for
use by a person or entity, other than HI, primarily for Research Purposes (it
being understood that opt-ins for research directly related to the product or
service offered in connection with the opt-in is not an opt-in for use primarily
for Research Purposes).
1.7 UNQUALIFIED LIMITED NAMES: means all Limited Names that are not
Qualified Limited Names.
1.8 DATA means the data elements collected through the online data
collection activities of ATHM, including behavioral data derived from
transaction log files.
1.9 PROMOTIONAL PURPOSES: means use of the Unique Names, or part of
them, for the primary purpose of advertising, marketing or promoting any good or
service, including, without limitation, advertising delivery, measurement and
targeting, profiling of audiences, lead generation, cooperative marketing
programs, list rental for purposes of advertising and promotional activities,
client database enhancement and development, and the sale of branded merchandise
associated with the ATHM and its Affiliate's brand names.
1.10 RESEARCH PURPOSES: means use of the Unique Names, or part of them,
by recontacting the relevant individuals for the purpose of additional data
collection and data analysis conducted to provide research studies, including
without limitation conducting customer satisfaction and loyalty retention
studies, creating research studies and reports (including studies on assessments
of advertising effectiveness and copy testing), and conducting and providing
analysis of surveys an polls (including among others the Xxxxxx Poll
Online(TM)).
1.11 CONFIDENTIAL INFORMATION: has the meaning described in Section 13
of this Agreement.
1.12 AFFILIATE: means any person or entity which directly or
indirectly, or through one or more intermediaries, controls or is controlled by
or is under common control with the applicable person or entity.
2. GRANT TO HI. Subject to the terms and conditions of this Agreement,
ATHM hereby grants HI exclusive ownership rights, for Research Purposes only, in
the Unique Names and Data; provided that such exclusivity with respect to
Limited Names is limited to the extent, and only to the extent, that ATHM's
rights in that respect are limited by its third party arrangement involved in
generation of the Unique Names. ATHM expressly retains all ownership and other
rights except for Research Purposes in the Unique Names and Data. ATHM shall not
use, and shall neither transfer nor license the Unique Names and Data to any
third party, in any manner inconsistent with the exclusive Research Purposes
rights granted to HI hereunder. The transfer of
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ownership rights to HI hereunder shall become irrevocable at such time as HI
pays the Fee related to each Unique Name. HI owns all rights, for Research
Purposes only, to the Unique Names in perpetuity, and these Unique Names or any
interest therein cannot be transferred from ATHM to any third party for Research
Purposes.
3. RESTRICTIONS. Neither the Unique Names, nor the Data, nor any portion
thereof may be made accessible, copied, downloaded, stored in a retrieval
system, published, transmitted or otherwise reproduced, transferred, stored,
disseminated or used in any form or any means except in a manner consistent with
the limited ownership rights granted by ATHM in Section 2. HI shall not sell,
transfer, assign, publish, distribute, disseminate, or convey any of the Unique
Names or Data, or any portion thereof, or otherwise, to any third party, in any
manner inconsistent with the limited Research Purpose ownership rights granted
to HI hereunder.
4. OBLIGATIONS OF ATHM. In consideration for the Fee paid by HI, ATHM
will do the following:
4.1 ATHM will deliver to HI all Unique Names held or generated by ATHM
and/or MatchLogic (whether Actively Opted-in or Passively Opted-in and with or
without demographics) during the term of this agreement, with a minimum
guaranteed delivery of [Confidential Information. Intentionally omitted and
filed separately with the Securities and Exchange Commission.] Unique Names per
calendar quarter. ATHM will advise HI as to the restrictions applicable to
Qualified Names delivered to HI, and also will advise HI as to Unqualified
Limited Names held or generated by ATHM and/or MatchLogic with a description of
the respective restrictions applicable thereto. HI may elect to receive such
Unqualified Limited Names, and if it so elects, they will count toward the
minimum guaranteed delivery.
4.2 Included in the minimum [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange Commission.] names
delivered to HI, ATHM will deliver to HI a minimum of [Confidential Information.
Intentionally omitted and filed separately with the Securities and Exchange
Commission.] Completed Names per calendar quarter. Unique Names will be sent to
HI pursuant to Section 4.1, but only Unique Names that are Completed Names count
toward the minimum delivery of this Section 4.2. If ATHM sends a particular
Unique Name with no additional Data elements or without an Active Opt-In to HI
in one quarter, then ATHM may, in a future quarter, re-send such Unique Name
records with the required three (3) Data elements and Active Opt-In as part of
the [Confidential Information. Intentionally omitted and filed separately with
the Securities and Exchange Commission.] Completed Names per quarterly quota.
4.3 To the extent there is a cumulative shortfall (in other words if
ATHM has met or is ahead of the [Confidential Information. Intentionally omitted
and filed separately with the Securities and Exchange Commission.] Completed
Names quota for prior quarters and then, in a particular quarter the number of
Unique Names
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delivered falls below the cumulative total due HI) then ATHM will not be in
breach of the Agreement if ATHM makes up the cumulative shortfall in addition to
the current required deliveries during the quarter immediately following the
quarter in which the shortfall occurs. As long as cumulatively the quota is met,
a shortfall in a specific quarter shall not be considered a breach of the
Agreement.
4.4 ATHM will include the HI Opt-In on all new user and membership
pages sponsored exclusively by Xxxxxx.xxx.
4.5 ATHM will use commercially reasonable efforts to deliver Unique
Names to HI semi-monthly on the 15th, and last day of the month, but in no event
less frequently than twice per month on average.
5. OBLIGATIONS OF HI. HI will use commercially reasonable efforts to send
ATHM a confirmation report ("Report") (or make the Report available via FTP)
within ten (10) business days after each delivery of Unique Names in order to
notify ATHM of any discrepancies in the amount of Unique Names delivered, but in
no event less frequently than twice per month on average. If ATHM does not
receive a Report, or the Report is not available, within twenty (20) business
days then HI will be deemed to have accepted the amount of Unique Names sent as
specified by ATHM. HI may not reject a Unique Name if it contains a valid
deliverable email address after HI has successfully delivered a message to the
subject of the Unique Name.
6. OWNERSHIP:
6.1 ATHM will retain exclusive ownership of all Unique Names and Data
provided to HI hereunder for all purposes except for the exclusive ownership
rights for Research purposes granted to HI in Section 2. Notwithstanding the
foregoing, ATHM acknowledges that if the Unique Names and Data have been made
available to HI prior to, and independent from, delivery to HI by ATHM, such
Unique Names and Data shall not be deemed proprietary or confidential
information of ATHM in their independently derived form.
6.2 ATHM will retain exclusive ownership of (i) the techniques,
methods, processes, systems, strategies and technology, including but not
limited to software and hardware applications that were Confidential Information
of ATHM and its Affiliates on the date of this Agreement, and (ii) all ATHM
trademarks trade names, and brands, including the GOBOSHTM trademark. HI will
retain exclusive ownership of (i) the techniques, methods, processes, systems,
strategies and technology, including but not limited to software and hardware
applications that were Confidential Information of HI and its Affiliates on the
date of this Agreement, and (ii) all HI trademarks trade names, and brands,
including the Xxxxxx Poll Online trademark.
6.3 During the term of this Agreement and thereafter, with respect to
the Unique Names, ATHM shall have the exclusive rights to income and revenues of
every
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nature derived from the Unique Names for all purposes other than Research
Purposes. During the term of this Agreement and thereafter, with respect to the
Unique Names delivered to HI hereunder, HI shall have the exclusive rights to
income and revenues of every nature derived from the Unique Names for all
Research Purposes.
7. FEES; PAYMENT TERMS: As consideration for the delivery and license of
the Unique Names to HI, during the term of this Agreement, HI agrees to pay ATHM
[Confidential Information. Intentionally omitted and filed separately with the
Securities and Exchange Commission] per month ("Fee"). HI agrees to pay ATHM an
initial Fee of [Confidential Information. Intentionally omitted and filed
separately with the Securities and Exchange Commission] within five days after
the Effective Date, and thereafter, HI will pay ATHM the Fee by the first day of
each month during the term of the Agreement. If at any time a cumulative
shortfall has occurred as of the end of any quarter, HI may withhold a
proportionate share of the Fee for the following month(s) equal to at a rate
[Confidential Information. Intentionally omitted and filed separately with the
Securities and Exchange Commission] per Completed Name shortfall and
[Confidential Information. Intentionally omitted and filed separately with the
Securities and Exchange Commission] per Unique Name shortfall, provided that the
withheld Fee shall be due with the first monthly payment due after the shortfall
is cured. HI's rights to withhold a portion of the Fee shall not affect ATHM's
obligations to deliver names as required by this agreement.
8. TERM AND TERMINATION:
8.1 The initial term of the Agreement will begin on the Effective Date,
continue for three (3) years, and automatically renew for succeeding one (1)
year terms; provided that (i) HI may terminate this Agreement effective March
31, 2000 by giving written notice to Excite@Home on or before March 31, 2000 in
the event that HI has not completed an initial public offering of its shares on
or before March 20, 2000, and (ii) after the initial three (3) year term either
party may terminate this Agreement without cause by giving the other at least
one hundred twenty (120) days prior written notice of its intention to
terminate. If termination occurs due to failure to complete a public offering,
or during any annual renewal term, the Unique and Completed Names to be provided
and the Fee to be paid shall be pro rated based upon the portion of the year
during which this Agreement remains in effect.
8.2 The parties may terminate the Agreement as follows: (i) either
party may terminate this Agreement upon the (a) material breach of the other
party, if such breach remains uncured for thirty (30) days following written
notice to the breaching party, (b) dissolution or liquidation of the other
party, or (c) bankruptcy or other proceeding for the relief of debts by the
other party that is not dismissed within thirty (30) days, (ii) ATHM may
terminate this Agreement upon the failure by HI to provide monthly payments due
to ATHM pursuant to Section 4.2 within two (2) weeks after receipt of written
notice that such payment is past due, and (iii) HI may terminate this Agreement
upon the failure by ATHM to provide HI with the required number of Unique Names
and
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Completed Names pursuant to Section 4. In addition to termination, the
terminating party shall be entitled to any other remedy available at law and
equity (subject to the provisions of Sections 11, 13.2 and 13.3), it being
understood that damages may not be a sufficient remedy because of the unique
nature of the benefits to be derived under this agreement, and injunctive and
other equitable relief may be appropriate. A party shall not be required to
terminate this Agreement prior to seeking to enforce its legal and equitable
rights hereunder.
8.3 All sections of this Agreement which, by their nature should
survive termination of this Agreement, shall survive, including, without
limitation, Sections 1, 2, 3, 6.1, 6.2, 6.3, and 8 through and including 14. The
ownership rights as to Unique and Completed Names, for which the Fee has been
paid, granted to HI in Sections 2 and 6, are perpetual and shall survive
termination or expiration of this Agreement.
8.4 Upon any termination of this Agreement, each party shall promptly
return to the other party any Confidential Information (and all copies thereof)
of such other party in its possession or control, provided that HI shall be
entitled to retain Unique Names and Data owned by it hereunder.
9. WARRANTY DISCLAIMERS. HI acknowledges that any collection and
compilation of data entails the likelihood of inaccuracies and losses, including
inadvertent loss of data or damage to media, that may give rise to loss or
damage. ATHM will use reasonable commercial efforts to minimize such
inaccuracies. THE UNIQUE NAMES ARE PROVIDED "AS IS"; AND ATHM MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THEIR ACCURACY, COMPLETENESS, OR
CURRENTNESS; OR THE ACCURACY OR GENUINENESS OF ANY UNIQUE NAMES OR DATA
(provided, however, that ATHM's obligations to deliver names which are within
the definitions of Unique Names and Completed Names are not affected by this
warranty disclaimer). ATHM SPECIFICALLY DISCLAIM ANY OTHER WARRANTY, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. EACH PARTY AGREES THAT IN NO EVENT WILL THE OTHER PARTY BE
LIABLE FOR THE RESULTS OF ITS OR ANY OF ITS CUSTOMER'S USE OF THE UNIQUE NAMES
OR DATA CONTAINED THEREIN.
10. INDEMNITY: Notwithstanding any other provision contained in this
Agreement, each party shall defend the other party hereto, and shall pay all
reasonable costs, expenses and damages that a court finally awards, or
settlements approved by the indemnifying party, based upon a third party claim
arising from (i) any intentional misrepresentation, fraud, or unlawful activity
of the indemnifying party related to this Agreement, or (ii) the breach of any
of the indemnifying party's obligations hereunder; provided that the party to be
indemnified under this Section promptly notifies the indemnifying party in
writing of the claim, allows the indemnifying party to control the defense or
any related settlement negotiations and cooperates with the indemnifying party
in such defense or settlement negotiations.
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11. COMPLIANCE WITH LAWS AND REGULATIONS: Each party shall, at its own
expense, comply with any governmental law, statute, ordinance, administrative
order, rule, or regulation relating to its duties, obligations, and performance
under this Agreement, including, but not limited to, the use of any Unique Names
or Data, and shall procure all governmental licenses and pay all fees and other
charges required thereby. Each party agrees to respect all consumer preferences
in its use of any Unique Names or Data.
12. LIMITATIONS ON LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO DAMAGES FOR BREACH OF CONTRACT OR WARRANTY OR FOR NEGLIGENCE OR
STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS OR LOST DATA, ARISING OUT
OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
(OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED
IN SECTION 14.4, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED
HEREUNDER DURING THE PRECEDING EIGHTEEN (18) MONTH PERIOD.
13. CONFIDENTIAL INFORMATION:
13.1 During the course of the Agreement, the parties may exchange
information, materials, and knowledge about their respective businesses,
products, programming and other techniques, methods, pricing, ideas,
experimental and other work, plans, systems, customers, clients and suppliers.
The parties agree that all such knowledge, information and materials acquired,
including but not limited to the Unique Names, ATHM user information and Data
and HI customer information, are and will be the trade secrets and confidential
and proprietary information of the party (collectively, "Confidential
Information") whether or not explicitly designated as "confidential" or
"proprietary" by the parties.
13.2 Confidential Information will not include information that: (i) is
in or enters the public domain without breach of this Agreement, (ii) either
party lawfully receives from a third party without restriction on disclosure and
without breach of a nondisclosure obligation, (iii) either party knew prior to
receiving such information form the other, or (iv) either party develops or
discovers independently of any information received from the other.
13.3 Each party agrees (i) that it will not disclose any third party or
use any Confidential Information except as expressly permitted in the Agreement,
and (ii) that it will maintain the confidentiality of all Confidential
Information in its possession or control by the measures it uses to maintain the
confidentiality of its own information of similar importance but in no event
shall the measures be less than reasonable.
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13.4 Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by law, or
(ii) on a "need-to-know" basis under an obligation of confidentiality to its
legal counsel, accountants, potential investors or acquirers, banks and other
financing sources and their advisors.
14. GENERAL PROVISIONS:
14.1 GOVERNING LAW: This Agreement will be governed and construed in
accordance with the laws of the State of Colorado without giving effect to
principles of conflict of laws.
14.2 DISPUTES. Any dispute arising under or relating to this Agreement
or between the parties hereto shall be settled exclusively by arbitration to be
held in Denver, Colorado. Such arbitration shall be conducted in accordance with
the Rules of the American Arbitration Association ("AAA"). The arbitration shall
be before a mutually acceptable single arbitrator, except that in the event the
amount in controversy exceeds $100,000, the arbitration shall be before three
(3) arbitrators, the decision of any two of the arbitrators shall be binding.
The arbitrators shall be selected from a list, prepared by the AAA, of persons
having expertise in the subject matter of this Agreement. One arbitrator shall
be selected by ATHM, one by HI and a third by the arbitrators selected by the
parties. Judgment upon the award may be entered in any court having jurisdiction
thereof. This provision is self-executing, and in the event that either party
fails to appear at any properly noticed arbitration proceeding, an award may be
entered against such party notwithstanding said failure to appear.
14.3 INJUNCTIVE RELIEF. Notwithstanding anything in this Agreement to
the contrary, the parties hereto acknowledge that a breach of any of its
obligations relating to the restrictions on use of the Unique Names, each
party's intellectual property or Confidential Information will cause the
non-breaching party irreparable harm, and therefore the non-breaching party will
be entitled to equitable relief in addition to all other remedies provided in
this Agreement or available at law or in equity.
14.4 MISUSE. If either party is determined by the Expedited Review
Process described below to have willfully used the Unique Names in contradiction
to the rights granted to it hereunder (each such use hereinafter referred to as
a "Misuse") two or more times during any one-year period, the other party may
request that any further use by the misusing party be monitored and approved, by
a neutral third party to be agreed on by the parties, under a mutually
acceptable procedure which provides a mechanism for approvals in a reasonably
timely manner so as not to unreasonably disrupt the business of the misusing
party. If, thereafter, Misuse (which shall not include any use approved by the
neutral third party) occurs three (3) times in any one-year period, then the
misusing party shall pay to the other party the [Confidential Information.
Intentionally omitted and filed separately with the Securities and Exchange
Commission] of (i) an amount equal to [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange Commission] or
(ii) the total cumulative amount of [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange Commission]
hereunder. The foregoing remedies are in addition to all other remedies
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provided in this Agreement or available at law or in equity. The parties
acknowledge and agree that the actual damages incurred by either party due to
the other party's Misuse of the Unique Names will be difficult, if not
impossible, to ascertain and that the liquidated damages payable pursuant to
this section represent the reasonable and likely amount of such damages and not
a penalty. If a party believes that the other has engaged in a Misuse, promptly
after discovery of the Misuse the accusing party shall give notice of the same
to the other party. Within ten business days the parties shall agree upon a
mutually acceptable arbitrator to review as expeditiously as possible whether a
Misuse has occurred. If agreement as to a mutually acceptable arbitrator is not
reached within such ten business day period, within such time each party shall
designate an arbitrator and within five business days thereafter the two
arbitrators shall select a third arbitrator, with a decision of a majority of
the arbitrators being binding.
14.5 SEVERABILITY; WAIVER: If any provision of the Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision, which
most closely approximates the intent and economic effect of the invalid
provision. The waiver by either party of a breach of any provision of the
Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
14.6 HEADINGS: Headings used in the Agreement are for reference
purposes only and in no way define, limit, construe or describe the scope or
extent of such section, or in any way affect the Agreement.
14.7 SUCCESSORS AND ASSIGNS: The Agreement, and the rights (other than
ownership rights granted or retained under this Agreement ) and obligations
herein, may not be assigned without the other partys' prior written consent;
except that either party may assign this Agreement, without consent of the other
party, to any entity that is merged or consolidated with a party or acquires all
or substantially all of the assigning party's assets; provided, however, that
neither party may assign this Agreement, or the rights and obligations herein,
without the prior consent of the other, to any direct competitor of the
non-assigning party. The parties' rights and obligations will bind and inure to
the benefit of their respective successors, heirs, executors and administrators
and permitted assigns. Either party may subcontract all or a portion of its
responsibilities hereunder to any affiliate of the party, provided that any
subcontractor shall be bound by the confidentiality and other provisions of this
Agreement.
14.8 ATTORNEYS' FEES: If any legal action is brought to construe or
enforce any provision of the Agreement, the prevailing party shall be entitled
to receive its reasonable attorneys' fees and court costs in addition to any
other relief it may receive.
14.9 FORCE MAJEURE: If the performance of the Agreement, or any
obligation hereunder, is prevented, restricted or interfered with by any act or
condition whatsoever
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beyond the reasonable control of the affected party, the party so affected, upon
giving prompt notice to the other party, shall be excused from such performance
to the extent of such prevention, restriction or interference, provided,
however, that the obligation to make any payment hereunder shall not be excused
for a period of more than five business days.
14.10 INDEPENDENT CONTRACTORS: The parties to the Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by the Agreement.
14.11 NOTICE: Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified below or at such other
address as the party shall specify in writing. Such notice shall be deemed
given: upon personal delivery or delivery by nationally recognized overnight
courier; if sent by telephone facsimile, upon confirmation of receipt; if sent
by electronic mail, upon confirmation of delivery; or if sent by certified or
registered mail, postage prepaid, five (5) days after the date of mailing.
14.12 COUNTERPARTS: The Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be on instrument.
14.13 ENTIRE AGREEMENT: The Agreement sets forth the entire
understanding and agreement of the parties as to the subject matter of the
Agreement and supersedes any and all oral or written agreements or
understandings between the parties related to the subject matter hereof. The
agreement may be changed only by a written amendment signed by both parties.
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IN WITNESS WHEREOF, each of the parties hereto have executed the
Agreement as of the date first written above.
AT HOME CORPORATION: XXXXXX INTERACTIVE INC.:
By: /s/ Xxxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Black
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Name: Xxxxxxxxx X. Xxxxxx Name: Xxxxxx X. Black
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Title: V.P. Finance Title: Chief Executive Officer
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Address: 0000 Xxxxxx Xxxxx Xxxx. Address: 135 Corporate Xxxxx
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Xxxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
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Fax: (000) 000-0000 Fax: (000) 000-0000
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E-Mail: E-Mail: xxxxxxx@xxxxxxxxxxxxxxxxx.xxx
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