LICENSING, CO-BRANDING AND LINKING AGREEMENT
THIS AGREEMENT is made as of the 12 day of November, 1999 by and between Nettaxi
Online Communities, Inc. ("Nettaxi"), a Delaware corporation, with its principal
place of business at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and a URL at
xxxx://xxx.xxxxxxx.xxx (the "Nettaxi Site") and Netword, Inc. ("Company"), a
Delaware corporation, with its principal place of business at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, and a URL at xxxx://xxx.xxxxxxx.xxx (the
"Company Site")
RECITALS
A. Nettaxi owns and operates a Web site at the Nettaxi Site with
information pertaining to various categories of interest;
B. Company owns and operates a Web site at the Company Site for its
Netword System which allows Internet users to enter Networds, instead of URLs to
navigate directly to any Internet site; and
C. The parties wish to enter into the Agreement upon the terms and
conditions described herein.
NOW THEREFORE, in consideration of the Recitals and the mutual promises
and covenants contained herein, the parties agree as follows:
Section 1. Definitions
Unless otherwise specified, the capitalized terms used herein shall
have the following meanings:
Company Content shall mean information and material available on the
Company Site, including but not limited to the Company Slot, Company Links, the
Company logo and the Netword registration process and related text, graphics,
pictures, sound, video, data and other content.
Nettaxi Content shall mean information and material available on the
Nettaxi Site, including but not limited to text, graphics, pictures, sound,
video, data and other content, exclusive of Company Content.
Section 2. The Non-Exclusive License
Company hereby grants Nettaxi a non-exclusive license (the "License")
on the following basis
2.1 Applicability: The License shall apply to the Company Content as it
currently exists, or is hereafter modified or updated on the Company Site.
2.2 Extent of the License: Under the License, Nettaxi shall be entitled
to use, reproduce, distribute, display, transmit, advertise, market, and
demonstrate Company Content from the Nettaxi Site; however, Nettaxi shall have
no rights to (i) edit, modify, or revise Company Content in any manner
whatsoever, and (ii) may not sublicense, lease, use or disseminate Company
Content in a manner inconsistent herewith.
Section 3. Guaranteed Payments; Revenue Sharing
3.1 Guaranteed Payments: During the Initial Term, Company shall pay
Nettaxi $5,000 per month as a guarantee against Nettaxi's share
of Referral Customer Revenues, as defined in Section 3.2 below.
3.2 Revenue Sharing: During the Initial Term, or any Renewal Term,
Company shall pay Nettaxi 30% of revenues received from customers
(collectively "Referral Customers") who visit the Company Site
and open a Company account via a Company link or button on the
Nettaxi Site (collectively a "Company Link") for a period of one
year after each customer opens a Company account and 20% of such
revenues during the second year. Nettaxi's share of such revenues
is herein collectively "Referral Customer Revenues".
3.3 Terms of Payment: Company shall pay Nettaxi its share of Referral
Customer Revenues described in Section 3.2 above received by
Company during each applicable calendar month by the fifteenth
(15th) day of the following month.
3.4 Company Books and Records; Audits: Company shall keep accurate
books and records of all Referral Customers and Referral Customer
Revenues at its principal place of business. Upon reasonable
notice of not less than seven (7) business days, but in no event
more than once each year (unless the immediately preceding audit
showed a material underpayment), Nettaxi shall have the right
subject to suitable confidentiality measures, to cause an
independent certified public accountant to inspect that portions
of Company's books and records relating to Referral Customer
Revenues to confirm that the correct amount owed to Nettaxi
hereunder has been paid. Company shall maintain books and records
to support each monthly statement delivered to Nettaxi hereunder
for two years after the expiration of the Term, or any Renewal
Term, or after Company's final payment to Nettaxi hereunder,
whichever data is last to occur.
Section 4. Company Obligations
4.1 Company shall deliver to Nettaxi such Company Content (including
all updates and enhancements released or issued during the Term
or any Renewal Term) as may be reasonably requested by Nettaxi.
Company shall be deemed in compliance with the said delivery
requirements, if made in a manner consistent with standard and
established modes of delivery for Internet databases. In that
regard, Company shall provide Nettaxi with documented HTML code
to facilitate inclusion of a Company Slot and Company Links to
Netword registration screens an the Nettaxi Site that permit use
and registration of Networds from that site.
4.2 Company shall provide Nettaxi with a free Netword account to be
used to aid navigation and promotion of the Nettaxi Site.
4.3 Company shall utilize its commercially reasonable best efforts to
ensure the uninterrupted availability and operation of the
Company Site and Company Content and the ability of Nettaxi
customers to access and utilize those items.
4.4 Company shall create Networds for user names of all members of
the Nettaxi Site ("Nettaxi Networds").
4.5 Company shall use its commercially reasonable best efforts to
exclude from the Company Site all information and advertising
that is: (i) obscene, defamatory; libelous, or slanderous; (ii)
violates any person's right to privacy, publicity, or
personality; or (iii) likely to result in any injury, damage, or
harm to any person.
4.6 Company shall use its commercially reasonable best efforts to
build the public's awareness of the Netword System, including
widespread distribution of Company's software agent (the "Agent")
through public relations, advertising, and strategic alliances.
4.7 Company shall distribute a press release related to this
Agreement. In addition, Nettaxi shall provide quotable material
from management to assist with Company's marketing efforts.
Section 5. Nettaxi Obligations
5.1 Following delivery to Nettaxi of the Company Content, Nettaxi
shall prominently display it at the Nettaxi Site and facilitate
downloads of the Agent, registrations of Networds, and promotion
of Company Content at that site.
5.2 Nettaxi shall (i) provide sufficient information to Company to
create Nettaxi Networds; and (ii) promote Nettaxi Networds to its
members through newsletters, emails, etc.
5.3 Nettaxi shall distribute a press release describing this
Agreement. Nettaxi shall provide quotable material from
management to assist with Company's marketing efforts.
5.4 Nettaxi shall post a Company Slot and Company Links on its home
page and on its community pages. If Nettaxi elects to remove
Company Links that access Company Content from prominent
positions on Nettaxi community pages, it shall give Company
reasonable notice of such change.
Section 6. Cross-Marketing
6.1 Cross Marketing: The parties shall use their commercially
reasonable best efforts to discuss potential cross-marketing and
promotional activities to increase the use of Company Content.
6.2 Customer Information: All customer information resulting from
Netword registrations originating from the Nettaxi Site shall be
jointly owned by the parties. Either party may use such customer
information, including e-mail addresses for marketing purposes,
subject to such customer permission as Company may request in the
Netword registration process.
Section 7. Term; Termination
7.1 Initial Term: The initial term ("Initial Term") of this Agreement
shall be one year following its execution, unless terminated
under the provisions of Sections 7.3 and 7.4 below.
7.2 Renewal of Term: The Initial Term shall automatically be renewed
for successive one year periods (each a "Renewal Term"), unless
notice of termination is provided by either party at least thirty
(30) days prior to the expiration of the Initial Term, or any
Renewal Term.
7.3 Termination without cause: Either party may terminate this
Agreement at any time for any reason upon thirty (30) days
written notice to the other.
7.4 Termination for Cause: Either party may terminate this Agreement
upon ten (10) days written notice to the other party if any of
the following events occur: (i) a party fails to perform or
comply with any provision of this Agreement; (ii) a party
provides written acknowledgment of insolvency, applies for relief
under any bankruptcy laws, makes an assignment for the benefit of
creditors, has a receiver appointed for any of its properties, or
an involuntary bankruptcy or dissolution action is commenced
against it by a third party. In the event a non-defaulting party
in its discretion elects not to terminate this Agreement, such
election shall not be a waiver of any and all claims of that
party for any of the listed defaults. Further, in the event any
of the foregoing events occur, the non-defaulting party may elect
to leave this Agreement in full force and effect and to institute
legal action against the defaulting party for specific
performance.
7.5 The rights and remedies provided in this Section 7 shall not be
exclusive and shall be in addition to any other rights and
remedies provided herein or at law.
Section 8. Notices
8.1 All notices hereunder shall be in writing and shall be effective
when actually received. Notice by mail shall be deemed actually
received three (3) days after deposited in the United States mail
addressed to the recipients at the following addresses:
To Netword: To Nettaxi:
Netword, Inc. Nettaxi Online Communities Inc.
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx 0000 Xxxx Xxx.
Xxxxxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Either party may change its address by giving the other party
written notice in the manner set forth above.
Section 9. Company Warranties
Company warrants and represents the following to Nettaxi:
9.1 It has all right, power and authority necessary to enter into
this Agreement.
9.2 Its performance hereunder will not violate any agreement or any
obligation to any third party.
9.3 Company Content and any updates, modifications, or enhancements
thereto does not (i) infringe any copyright, trade secret or
any publicity, privacy or patent right of any third party, or
(ii) subject Nettaxi to any liability known to Company for the
violation of any laws, rules or regulations.
9.4 There are no actions threatened or pending against it by any
third party or governmental agency regarding the use of Company
Content.
Section 10. Nettaxi Warranties
Nettaxi warrants and represents the following to Company:
10.1 It has all right, power and authority necessary to enter into
this Agreement.
10.2 Its performance hereunder does not violate any agreement or any
obligation to any third party.
10.3 Nettaxi Content provided to Company and any updates,
modifications, or enhancements thereto does not (i) infringe any
copyright, trade secret or any publicity, privacy or patent right
of any third party, or (ii) subject Company to any liability
known to Nettaxi for the violation of any laws, rules or
regulations.
1O.4 There are no actions threatened or pending against it by any
third party or governmental agency regarding the use of Nettaxi
Content.
Section 11. Indemnification by Company
Upon Nettaxi's request, Company shall, at its expense defend any
third-party claim or action brought against Nettaxi, and its affiliates,
directors, officers, employees, licensees, agents and independent contractors to
the extent it is based upon a claim that, if true, would consititute a breach of
Company's warranty set forth in Section 9 above. Company shall indemnify and
hold Nettaxi harmless from and against any costs, damages and fees reasonably
incurred by Nettaxi, including but not limited to the reasonable fees and costs
of its attorneys and other professionals attributable to such claims. Nettaxi
shall provide Company with reasonably prompt notice in writing of any such
claims or actions and provide reasonable information and assistance, at
Company's expense, to help defend such claims.
Section 12. Indemnification by Nettaxi
Upon Company's request, Nettaxi shall, at its expense defend any
third-party claim or action brought against Company and its affilliates,
directors, officers, employees, licensees, agents and independent contractors to
the extent it is based upon a claim that, if true, would constitute a breach of
Nettaxi's warranty set forth in
Section 10 above. Nettaxi shall indemnify and hold Company harmless from and
against any costs, damages, and fees reasonably incurred by Company, including
but not limited to the reasonable fees and costs of its attorneys and other
professionals attributable to such claims. Company shall provide Nettaxi with
reasonably prompt notice in writing of any such claims or actions and provide
reasonable information and assistance, at Nettaxi's expense, to help defend
such claims.
Section 13. Disclaimer; Limitation of Liability
13.1. EXCEPT AS SET FORTH IN SECTION 9 ABOVE, COMPANY DISCLAIMS ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13.2 EXCEPT AS SET FORTH IN SECTION 10 ABOVE NETTAXI DISCLAIMS ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13.3 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT
OF THE PERFORMANCE, NON-PERFORMANCE, OR BREACH OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF
BUSINESS, OR BUSINESS INTERRUPTION, EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 14. Press Releases
Any press release or communication to the press and/or the public
regarding this Agreement and the parties' relationship shall be made only after
prior consultation between the parties and in conformance with Section 5.3
above. Subsequent press releases and other communications to the press and/or
public regarding the parties' relationship may be made by either party subject
to the confidentiality obligations set forth herein, after prior consultation
with the other party.
Section 15. Retention of Intellectual Property
15.1 Except as set forth herein, Company shall retain all right,
title, and interest in Company Content, and Nettaxi shall retain
all right, title, and interest in Nettaxi Content.
15.2 Except as otherwise provided herein, each party shall retain all
rights, title, and interest including rights of trademark and
copyright in all of its
property, including, but not limited to trade names, trademarks,
service marks, symbols, identifiers, formats, designs, devices,
identifiers or proprietary products, services and information
owned by it.
15.3 No provision herein shall confer any rights of ownership to the
other party's intellectual property rights or confer any implied
licenses or rights to use such rights, except as expressly set
forth herein.
Section 16. Independent Development
This Agreement shall not be construed as restricting either party's
ability to acquire, license, develop, manufacture or distribute for itself, or
have others acquire, license, develop, manufacture or distribute for it, similar
content or technology performing the same or similar functions as the content or
technology contemplated by this Agreement, or to market and distribute such
similar content or technology in addition to, or in lieu of, the content or
technology contemplated by this Agreement.
Section 17. General
17.1 Entire Agreement: This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and
merges all prior and contemporaneous communications. It may not
be modified except by a written agreement dated subsequent to the
date hereof signed by the parties duly authorized
representatives.
17.2 Assignment: This Agreement shall not be assigned by either party
without the other party's consent, except that either party may,
without the consent of the other party, assign it to (i) a
parent, subsidiary, affiliate, division or corporation
controlling, controlled by, or under common control with the
assigning party; (ii) a successor corporation related to the
assigning party by merger consolidation, non-bankruptcy
reorganization, or government action; or (iii) a purchaser of
substantially all of the assigning party's assets. For the
purpose of this Agreement, any sale or transfer of a party's
capital stock or redemption or issuance of additional stock of
any class shall not be deemed an assignment or change of control
of that party. This Agreement shall inure to the benefit of the
parties' successors and lawful assignees.
17.3 Attorneys Fees: In any action or suit to enforce any right or
remedy hereunder, or to interpret any provision hereof, the
prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees.
17.4 Confidentiality: Each party shall hold in strictest confidence,
shall not use or disclose to any third party, and shall take all
necessary precautions to secure any Confidential Information of
the other party. Disclosure of Confidential Information shall be
restricted solely to employees, agents, consultants and
representatives who have been advised of their obligation with
respect thereto. As used herein, Confidential Information shall
mean all non-public information that a party designates as
confidential, or which, under the circumstances of disclosure
ought to be treated as confidential and includes, without
limitation, the terms and conditions hereof, information relating
to released or unreleased products or services, marketing or
promotion of any product or services, business policies or
practices, customers, potential customers or suppliers of
information, trade secrets, source codes, documentation,
formulae, technology, or information received from others that a
party is obligated to treat as confidential. If a party has any
questions as to what comprises Confidential Information, it shall
consult with the other party. However, Confidential Information
shall not include information that was known to a party prior to
the other party's disclosure, or information that becomes
publicly available through no fault of the party.
17.5 Choice of Law; Jurisdiction: This Agreement and any action
related thereto shall be governed, controlled, interpreted and
defined by and under the laws of the State of Delaware applicable
to contracts made and to be performed in that state.
17.6 Severability: If for any reason a court of competent jurisdiction
finds any provision hereof, or portion thereof, to be
unenforceable, that provision shall be enforced to the maximum
extent permissible by law so as to effect the intent of the
parties, and the remainder hereof shall continue in full force
and effect. This Agreement has been negotiated by the parties and
their respective counsel and shall be interpreted fairly in
accordance with its terms and without any strict construction in
favor of or against either party.
17.7 Waiver: No waiver of any breach of any provision hereof 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. Failure by either party to
enforce any provision hereof shall not be deemed a waiver of
future enforcement of that or any other provision.
17.8 Headings: Section headings used herein are intended for
convenience only and shall not be deemed to supersede or modify
any provisions.
17.9 No Offer: This Agreement shall not constitute an offer by either
party to the other and it shall not be effective until executed
by both parties.
17.10 Execution in Counterparts: This Agreement may be executed in any
number of counter parts, each of which when so executed and
delivered shall be deemed an original, and such counterparts
together shall constitute one instrument.
17.11 No Joint Venture: Nothing herein shall create an employer-
employee relationship, partnership, or joint venture between
the parties.
IN WITNESS WHEREOF, the parties have caused a duly constituted officer
to execute it the day and year first above written.
Netword, Inc: Nettaxi Online Communities, Inc.:
Xxxx Xxxxxx Xxx Xxxxxxxx
---------------------------- ----------------------------------
By: Xxxx Xxxxxx, COO and VP By: Xxx Xxxxxxxx, VP Sales & Mktg
Marketing
11-9-99 11-5-99
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Date Date
