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EXHIBIT 10.12
This agreement ("Agreement") is entered into as of the 30 day of March, 1998
("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and
CyberSource Corporation, a California corporation, located at 0000 Xxxxx Xxx,
Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, (also known as "xxxxxxxx.xxx" and
referred to herein as "Client").
RECITALS
A. Excite maintains a site on the internet at xxxx://xxx.xxxxxx.xxx (the
"Excite Site") and owns, manages or is authorized to place advertising on
affiliated Web sites worldwide (collectively, the "Excite Network") which,
among other things, allow its users to search for and access content and
other sites on the Internet.
B. Within the Excite Site, Excite currently organizes certain content into
topical channels (the "Channels").
C. Excite also makes available to its users a number of community and
communications services, including chat and email.
D. Client is engaged in the business of the retail sale of computer software
at its Web site located at xxxx://xxx.xxxxxxxx.xxx (the "Client Site").
E. Client wishes to promote its business to Excite's users through promotions
and advertising in various portions of the Excite Site as set forth herein.
Therefore, the parties agree as follows:
1. SPONSORSHIP OF THE EXCITE COMPUTERS & INTERNET CHANNEL AND THE EXCITE
SHOPPING CHANNEL
a) A link to the Client Site (consistent with the format used on similar
links on the same page and as mutually determined by Client and
Excite) will be displayed on the home page of the Excite Computers &
Internet Channel in the "Today in the Computers & Internet Channel"
promotional area being developed by Excite (or in an equivalent
promotional area mutually determined by Client and Excite) when
launched, guaranteed to be displayed in at least [*] during each year
of the term of the Agreement, as mutually scheduled by the parties in
Exhibit A. Excite guarantees the display of [*] of this link in the
first year of the term of the Agreement. Excite estimates, but does
not guarantee, the display of [*] of this link in the
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second year of the term of the Agreement and [*] of this link in the third
year of the term of the Agreement. For the purposes of this Agreement, an
"Impression" is any text and/or graphic link to the Client Site, any banner
advertisement linked to the Client Site, any other promotional placement
linked to the Client Site or any other hypertext link to the Client Site
served by Excite on the Excite Site, subject to the following: while the
parties acknowledge that Excite may serve multiple Impressions on a single
page, no more than three (3) different Impressions on a single page in the
areas specified by the terms of this Agreement may be counted toward
Excite's satisfaction of its Impression guarantees hereunder,
notwithstanding the total number of links, banner advertisements,
promotional placements or hypertext links that are located on such page.
b) Links to the Client Site (consistent with the format used on similar links
on the same page and as mutually determined by Client and Excite) will be
displayed on the home page of the Software department of the Excite
Computers & Internet Channel in the "Top 10 Downloads" promotional area
being developed by Excite (or in an equivalent promotional area mutually
determined by Client and Excite) when launched and for the duration of the
term of the Agreement. Excite estimates, but does not guarantee, the
display of [*] of this link in the first year of the term of the Agreement,
[*] of this link in the second year of the term of the Agreement and [*] of
this link in the third year of the term of the Agreement.
c) Links to the Client Site (consistent with the format used on similar links
on the same page and as mutually determined by Client and Excite) will be
displayed in the "Product Zone" and "Reviews" sections of the Software
department of the Excite Computers & Internet Channel in a location such
as the xxxx bar that appears above the fold but below the top advertising
banner (or in an equivalent promotional area mutually determined by Client
and Excite) for the duration of the term of the Agreement. A link to the
Client Site (in either a text or graphic format to be mutually determined
by Client and Excite following testing for the maximum effectiveness of
the link) will be displayed in the "Product Zone" and "Reviews" sections
of the Software department of the Excite Computers & Internet Channel in
the left-hand side of each such page for the duration of the term of the
Agreement. Excite estimates, but does not guarantee, the display of [*] of
this link in the first year of the term of the Agreement, [*] Impressions
of this link in the second year of the term of the Agreement and
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[*] of this link in the third year of the term of the Agreement.
d) A link to the Client Site (consistent with the format used on similar links
on the same page and as mutually determined by Client and Excite) will be
displayed in the Software department of the Excite Computers & Internet
Channel in a "Shareware" page or promotional area being developed by Excite
(or in an equivalent promotional area mutually determined by Client and
Excite) when launched and for the duration of the term of the Agreement.
Excite estimates, but does not guarantee, the display of [*] of this link
in the first year of the term of the Agreement, [*] of this link in the
second year of the term of the Agreement and [*] Impressions of this link
in the third year of the term of the Agreement.
e) Excite will display a text and/or graphic link to the Client Site on the
"Sponsorship Strip" (consistent with the format used on similar links on
the same strip and as mutually determined by Client and Excite) in all
pages in the Software department of the Excite Computers & Internet Channel
in which the Sponsorship Strip is displayed for the term of the Agreement.
Excite may display a text and/or graphic link to the Client Site on the
Sponsorship Strip (consistent with the format used on similar links on the
same strip and as mutually determined by Client and Excite) in other pages
in the Excite Computers & Internet Channel in which the Sponsorship Strip
is displayed for the term of the Agreement as mutually determined by Client
and Excite. Excite estimates, but does not guarantee, the display of [*] of
this link in the first year of the term of the Agreement, [*] of this link
in the second year of the term of the Agreement and [*] Impressions of this
link in the third year of the term of the Agreement.
f) Links to the Client Site (consistent with the format used on similar links
on the same page and as mutually determined by Client and Excite) will be
displayed in all Software "Web Directory" pages in the Excite Computers &
Internet Channel in a promotional area in the left sidebar of these pages
being developed by Excite (or in an equivalent promotional area mutually
determined by Client and Excite) when launched and for the duration of the
term of the Agreement. Excite estimates, but does not guarantee, the
display of [*]
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[*] Impressions of this link in the third year of the term of the
Agreement.
g) Links to the Client Site (consistent with the format used on similar
links on the same page and as mutually determined by Client and Excite)
will be displayed in the Excite Computers & Internet Channel, in the
Software area of the Shopping department of the Excite Computers &
Internet Channel and in the Computers & Software department of the
Excite Shopping Channel in a promotional/content module being developed
by Excite (or in an equivalent promotional area mutually determined by
Client and Excite) when launched and for the duration of the term of the
Agreement. Excite estimates, but does not guarantee, the display of [*]
Impressions of this link in the first year of the term of the Agreement,
[*] Impressions of this link in the second year of the term of the
Agreement and [*] Impressions of this link in the third year of the term
of the Agreement.
h) In the event that Excite develops product search categories for the
"Excite Shopping Search powered by Jango" service displayed on the
Excite Site ("Jango") which correspond to products available through the
Client Site, Excite will make reasonable commercial efforts to program
Jango to display links to the Client Site in response to user searches
for the products available through the Client Site. The development,
maintenance, modification and/or deletion of Jango product search
categories is within Excite's sole discretion. Client will reasonably
cooperate with Excite in providing information and access to the Client
Site in order to allow Excite to complete any necessary Jango
programming.
i) Set forth on Exhibit B hereto are copies of screenshots which are
illustrative of the placement of the links in the areas contemplated by
Sections 1(a) - (g). For the term of the Agreement, Excite will make
reasonable commercial efforts to maintain the aggregate prominence and
exposure of each of Client's links, advertising banners and promotional
placements as separately described in Sections 1(a) - (g) on a placement
by placement basis at a level equal to or better than the examples
displayed in Exhibit B.
2. SPONSORSHIP OF THE EXCITE SMALL BUSINESS AREA
a) The parties recognize that Excite is currently in the process of
developing a Small Business Area and that although related sponsorship,
promotional and advertising opportunities may vary over time, Client
shall be provided with the links, promotions, Impressions and other
benefits as set forth in this Section 2.
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b) Links to the Client Site (consistent with the format used on similar
links on the same page and as mutually determined by Client and Excite)
will be displayed in the Software department of the Excite Small
Business Area in a promotional/content module being developed by Excite,
in the Sponsorship Strip, in text links and/or equivalent promotional
areas (mutually determined by Client and Excite) when launched and for
the duration of the term of the Agreement. Excite estimates, but does
not guarantee, the display of [*] of these links in the first year of
the term of the Agreement, [*] of these links in the second year of the
term of the Agreement and [*] Impressions of these links in the third
year of the term of the Agreement.
3. ADVERTISING ON THE EXCITE SITE
a) Excite will display Client's banner advertising (which will link to the
Client Site) in general rotation on the Excite Computer & Internet
Channel for the duration of the Agreement. Excite guarantees the display
of [*] of these banners in the first year of the term of the Agreement,
[*] Impressions of these banners in the second year of the term of the
Agreement and [*] of these banners in the third year of the term of the
Agreement.
b) Excite will display Client's banner advertising (which will link to the
Client Site) on Excite Search results pages in response to the following
keyword packages and keywords: General Computer Package, Computer
Hardware Package, Computer Software Package and the keyword "antivirus".
When keyphrase advertising becomes available on the Excite Site, Excite
will display Client's banner advertising on Excite Search results pages
in response to the mutually determined keyphrases, subject to
availability. Excite guarantees the display of [*] Impressions under the
General Computer Package, [*] Impressions under the Computer Hardware
Package, [*] under the Computer Software Package, [*] under the
Connectivity Package, [*] under the keyword "antivirus" and [*]
Impressions of these banners in the first year of the term of the
Agreement. Excite guarantees the display of [*] Impressions of these
banners in the second year of the term of the Agreement, with the
allocation of Impressions between the keyword packages and keywords to
be determined in good faith by the parties prior to start of the second
year. Excite guarantees the display of
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[*] Impressions of these banners in the third year of the term of the
Agreement, with the allocation of Impressions between the keyword
packages and keywords to be determined in good faith by the parties
prior to start of the third year.
c) Excite will display Client's banner advertising (which will link to
the Client Site) in general rotation on the MailExcite service. Excite
guarantees the display of [*] Impressions of these banners in the
first year of the term of the Agreement, [*] Impressions of these
banners in the second year of the term of the Agreement and [*]
Impressions of these banners in the third year of the term of the
Agreement.
4. EMAIL CAMPAIGNS
a) Excite and Client will cooperate in developing customized email
campaigns for Client featuring Client's merchandise during the term of
the Agreement. All email marketing campaigns will comply with Excite's
then-current user data and privacy policies.
b) Excite guarantees that it will deliver [*] Impressions of the email
messages described in this Section 4 during the term of the Agreement.
For the purposes of this Section 4 only, each email message will count
as one (1) Impression.
5. IMPRESSION GUARANTEES
a) Excite guarantees the display of [*] Impressions of the links,
promotional placements, advertising banners and emails described in
Sections 1 - 4 in the first year of the term of the Agreement
pursuant to the schedule stated in Exhibit C. Excite guarantees that,
out of these [*] guaranteed Impressions in the first year of the term
of the Agreement, a total of [*] Impressions will consist of the
Impressions on the home page of the Software department of the Excite
Computers & Internet Channel described in Section 1(b), the "Product
Zone" and "Reviews" pages of the Computers & Internet Channel
described in Section 1(c), the "Shareware" page of the Software
department of the Excite Computers & Internet Channel described in
Section 1(f), the Software area of the Shopping department of the
Excite Computers & Internet Channel and in the Computers & Software
department of the Excite Shopping Channel described in Section 1(g)
and the keyword banners described in Section 3(b).
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b) Excite guarantees the display of [*] Impressions of the links,
promotional placements, advertising banners and emails described in
Sections 1 - 4 in the second year of the term of the Agreement
pursuant to the schedule stated in Exhibit C.
c) Excite guarantees the display of [*] Impressions of the links,
promotional placements, advertising banners and emails described in
Sections 1 - 4 in the third year of the term of the Agreement pursuant
to the schedule stated in Exhibit C.
6. EXCLUSIVITY
a) [*]
b) [*]
c) [*]
d) Notwithstanding the foregoing, Excite may display banner advertising
for Client's Competitors on the Excite Site in areas other than those
areas
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described in Section 6(b) and may display links to Client's Competitors
in Excite Search results pages in response to user queries, in Excite's
general directory of Web sites and in search results displayed in the
"Excite Shopping Service powered by Jango".
e) In the event the Excite creates any new Channels or other areas which
reasonably relate to the sale of software, Client, at its option, may
request inclusion in such Channels or other areas. In such event, the
parties shall negotiate in good faith a modification to this Agreement
whereby Client relinquishes certain of the links and promotions set
forth herein in exchange for inclusion of comparable value in such new
Channels or other areas.
7. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING
a) Client and Excite will use reasonable efforts to implement and put in
operation the display of the links, promotional placements and
advertising described in the Agreement by April 15, 1998 (the actual
date of such implementation to be referred to herein as the "Launch
Date"), except to the extent that different launch dates are described
in Sections 1-4.
b) 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 and
advertising described in the Agreement (collectively, "Impression
Material") to Excite fourteen (14) days prior to scheduled Launch Date.
c) [*]
d) Excite will have sole responsibility for providing, hosting and
maintaining, at its expense, the Excite Network. Except as limited by
the terms of this Agreement, Excite will have sole control over of the
"look and feel" of the Excite Network including, but not limited to,
the display, and placement of the parties' respective names and/or
brands and the promotional links, but excluding the content and
appearance of all advertising banners of Client appearing on the Excite
Site, which shall be controlled by Client, and excluding the content of
all links and promotional placements of Client
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appearing on the Excite Site, which shall be created by Client but
subject to Excite's generally-applicable advertising and promotion
standards.
e) Excite will maintain accurate records with respect to the number of
Impressions of Client's links, advertising banners and promotional
placements displayed on the Excite Site and will provide Client with
monthly reports substantiating the number of such Impressions. Client
has the right to audit such records once every twelve months during
the term of this Agreement. The terms and conditions of Section 8(h)
shall apply to such audit rights mutatis mutandis.
8. SPONSORSHIP, ADVERTISING AND TRANSACTION FEES
a) Client will pay Excite sponsorship and advertising fees of [*] for the
first year of the term of the Agreement. These fees will be paid in
equal monthly installments of [*] The first monthly payment will be
due only after 80% or more of the Impressions contemplated by Section
1 hereof are in place and operating and the advertising contemplated
by Section 3 hereof has substantially commenced ("First Payment
Date"). Subsequent installments will be due on a monthly basis
thereafter.
b) Client will pay Excite sponsorship and advertising fees of [*] for the
second year of the term of the Agreement. These fees will be paid in
equal monthly installments of [*] The first monthly payment will be
due upon the first anniversary of the First Payment Date. Subsequent
installments will be due on a monthly basis thereafter.
c) Client will pay Excite sponsorship and advertising fees of [*] for the
third year of the term of the Agreement. These fees will be paid in
equal monthly installments of [*] The first monthly payment will be
due upon the second anniversary of First Payment Date. Subsequent
installments will be due on a monthly basis thereafter.
d) [*]
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[*]
e) [*]
f) Client will pay Excite its share of Net Margins within thirty (30) days
after the close of the financial quarter in which Client recognizes the
revenue derived from these transactions.
g) The sponsorship fees and transaction payments are net of any agency
commissions to be paid by Client.
h) Client will maintain accurate records with respect to the calculation of
all transaction payments 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 (and no more than once per year), 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.
such Certified Public Accountant shall only be provided access to such
records after it has executed a nondisclosure agreement in a form
acceptable to Client. 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 [*] of the
payments actually owed to Excite, in which case Client will be responsible
for the payment of the reasonable fees for such inspection.
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i) Excite shall be obligated to deliver the Impressions referred to in
Section 10(a) at the times and in the manner as set forth on Exhibit C
hereto. In the event that Excite shall fail to timely deliver all of
the Impressions required during any six month period, Excite shall
have thirty (30) days to deliver the shortfall of such Impressions. In
the event such shortfall is not delivered within such thirty (30) day
period, Client shall cease making any of the monthly payments
contemplated by Sections 8(a), (b) or (c) until such shortfall is
delivered. Until such shortfall is delivered, no Impressions will be
deemed delivered for the next six month period.
9. 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.
10. TERM AND TERMINATION
a) Except as otherwise set forth herein, the term of this Agreement will
begin on the Launch Date and will not end until Excite displays of a
total of [*] of Client's advertising banners and promotional
placements on the Excite Site. Except as otherwise set forth herein,
regardless of Excite's actual delivery of Impressions, the term of
this Agreement will not be shorter than three (3) years after the
Launch Date.
b) 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.
c) 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.
d) The provisions of Section 11(a), (b) and (c) (Trademark Ownership and
License), Section 12 (Content Ownership), Section 13 (Confidentiality
and User Data), Section 14 (Indemnity), Section 15 (Limitation of
Liability) and Section 16 (Dispute Resolution) will survive any
termination or expiration of this Agreement.
11. TRADEMARK OWNERSHIP AND LICENSE
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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 non-exclusive, 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 part will
cease using the trademarks, service marks and/or trade names of the
other except;
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
12. CONTENT OF OWNERSHIP
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) Excite will retain all right, title, and interest in and to the
Excite Network worldwide including, but no limited to, ownership of
all copyrights, look and feel and other intellectual property rights
therein.
13. 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
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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.
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) For the purposes of this Agreement, "User Data" means all information
submitted by users referred to the Client Site from the Excite Site
during the term of the Agreement. The parties acknowledge that any
individual user of the Internet could be a user of Excite and/or Client
through activities unrelated to this Agreement and that user data
gathered independent of this Agreement, even from individuals who are
users of both parties' services, will not be deemed to be "User Data"
for the purposes of this Agreement.
g) Both parties will retain all rights to make use of any User Data
obtained through this Agreement, subject to the limitations and other
terms of this Agreement.
h) Client will provide to Excite all User Data collected by Client within
thirty (30) days following the end of each calendar month during the
term of this Agreement in a mutually-determined electronic format.
i) Excite will not use User Data collected by Client and delivered to
Excite to directly or indirectly solicit any such users either
individually or in the aggregate during the term of this Agreement and
at any time following the expiration or termination of this Agreement.
j) Client will not use User Data collected by Client to directly or
indirectly solicit Excite users on behalf of any of Excite's direct
competitors either individually or in the aggregate during the term of
this Agreement (except as provided for elsewhere in the Agreement) and
at any time following the expiration or termination of this Agreement.
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k) Neither party will sell, disclose, transfer or rent any User Data 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.
l) Notwithstanding the foregoing, each party may disclose Confidential
Information or User Data (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.
14. 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 advertising banners 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:
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i) The breach of any representation or covenant in this
Agrement; or
ii) Any claim arising from the Excite Network 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.
15. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 14(a) AND 14(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. 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, [*]
16. 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 of 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
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL
addition to its other available legal remedies in a court of competent
jurisdiction.
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 within thirty days of notice by one party to the other of
its desire to seek the resolution of such a dispute, 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 within thirty (30) days
of the engagement of a mutually acceptable mediator, 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; provided, however, that the Federal Rules of
Evidence shall apply in toto to any such dispute, and, subject to the
arbitrator's discretion to limit the item and scope of discovery, the
Federal Rules of Civil Procedure shall apply with respect to
discovery.
17. 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
16
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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. 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 and the Exhibits hereto are 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.
CyberSource Corporation Excite, Inc.
By: /s/ XXXX XXXXXXX By: /s/ XXXXXX X. XXXX
Name: Xxxx Xxxxxxx Name: Xxxxxx X. Xxxx
Title: EVP Title: EVP-CFO
Date: 3/30/98 Date: 3-31-98
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000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
650.568.6000 (voice)
000.000.0000 (fax)
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EXHIBIT A
"TODAY IN THE COMPUTERS & INTERNET CHANNEL"
ROTATION SCHEDULE
Week 1 Week 2 Week 3 Week 4 Notes
April
May
June Quarter end &
July Win 98
August
September [*] Quarter end
October [*]
November
December Quarter end &
January Christmas
February
March Tax season &
April Quarter end
-------------------------------------------------------------
TOTALS [*]
-------------------------------------------------------------
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EXHIBIT B
ILLUSTRATIVE SCREEN SHOTS
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MOCKUP OF C&I HOME PAGE FOR SOFTWARE NET (PLACEMENT 1a)
C&I Home Page
o 26 weeks - rotating according to schedule
o program out one line during rotation
22
EXCITE COMPUTERS & INTERNET
C&I Software Home Page
o "Top 10 Ticket" is permanent
o Placement will rotate between "561-Tech Headlines" and "Get Free Software"
50/50 or 256 weeks each
23
PRODUCT ZONE PAGE MOCKUP FOR XXXXXXXX.XXX (PLACEMENT 1c)
Product Zone and Product Review Page
o Permanent Link with 30-35 Characters avail. for programming, similar to "get
the best deal on software"
o Permanent text or graphic
24
MOCKUP OF SHARWARE PAGE (PLACEMENT 1d)
Shareware Page
o Permanent Placement
25
MOCKUP OF "SPONSORSHIP STRIP" (PLACEMENT 1e)
26
MOCKUP OF SOFTWARE WEB DIRECTORY PAGE (PLACEMENT 1f)
WEB DIRECTORY
- PERMANENT LINK WITH
30-35 CHARACTERS AVAIL.
FOR PROGRAMMING SIMILAR
TO "DOWNLOAD SHAREWARE"
- PERMANENT PROMO BOX
BELOW THE SEARCH BOX
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SHOPPING/SOFTWARE
SMALL BUSINESS/SHOP/SOFTWARE
C&I/SHOP/SOFTWARE
o Permanent placement in "Hot Product" module -- specific deal offering
o Permanent placement in "Shop There First" but rotation within 3 spots
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SHOPPING HOME PAGE
o Permanent link under Computer Software Department link
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EXHIBIT C
IMPRESSION DELIVERY SCHEDULE
YEAR 1 IMPRESSIONS
[*] [*]
YEAR 2
[*] [*]
YEAR 3
[*] [*]
Contract Total [*]
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