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EXHIBIT 6.l
ADVERTISING AND PROMOTIONS AGREEMENT
THIS ADVERTISING AND PROMOTIONS AGREEMENT (the "Agreement") is made as of: June
___, 2001 (the "Effective Date") by and between eBAY INC., a Delaware
corporation with its principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxx
Xxxx XX 00000 ("eBay"), and Neighborhood Box Office ("Sponsor"), a Delaware
corporation with its principal place of business at 0000 X. Xxxxxxxxxx Xxx.,
Xxxx X, Xxxx Xxxx Xxxx, Xxxx 00000-0000.
1 CERTAIN DEFINITIONS
1.1 "CONTRACT YEAR" means a period of twelve consecutive months,
beginning thirty (30) days after the Effective Date.
1.2 "eBAY CONTENT" means the eBay creative collateral for Promotional
Placements, in any medium, provided by eBay for display by
Sponsor on the Sponsor Site as provided in this Agreement.
1.3 "eBAY MARKS" mean the eBay domain names, trademarks and logos and
other branding elements used in the performance of this
Agreement.
1.4 "eBAY SITE" means the website owned and operated by eBay and
accessible at xxx.xxxx.xxx. "eBay Site" will not include any
current or future domestic co-branded properties or international
properties in which eBay currently participates or may
participate in the future.
1.5 "eBAY USER" means any person who accesses any page on the eBay
Site.
1.6 "MARKS" means the Sponsor Marks or eBay Marks, as applicable.
1.7 "PROMOTIONAL PLACEMENTS" means the promotional placements and
activities specified in Appendix 1 of this Agreement.
1.8 "REFERRED USER" means an eBay User who: (a) links from the eBay
Site to the Transition Page(s), or (b) is referred to Sponsor by
eBay in some other manner that is traceable by Sponsor.
1.9 "SPONSOR CONTENT" means any and all Sponsor-related materials
provided by Sponsor appearing on the eBay Site, including
materials provided on behalf of Sponsor vendors and promotional
content provided to eBay for display on the eBay Site.
1.10 "SPONSOR MARKS" means the Sponsor domain names, trademarks and
logos and other branding elements used in the performance of this
Agreement.
Confidential
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1.11 "SPONSOR PAGE" means the main account that Sponsor will create
under this Agreement and its corresponding AboutMe web page that
will serve as the focal point for all its listings and
promotions.
1.12 "SPONSOR SERVICES" means Sponsor's merchandising, customer care
and fulfillment services.
1.13 "SPONSOR SITE" means the website owned and operated by Sponsor
and accessible at xxx.xxx.xxx.
2. DEVELOPMENT AND IMPLEMENTATION
2.1 SPONSOR PAGE DEVELOPMENT. Within thirty (30) days of the
Effective Date and in accordance with eBay's standards and
policies, Sponsor will develop and launch, as a sub-part of the
eBay Site, an HTML page on the eBay Site (the "Sponsor Page")
that: (i) is specific to Sponsor; (ii) displays Sponsor Content,
including without limitation merchandise information, using
eBay's "about me" page technology, specifications and formats;
and (iii) is subject to eBay's prior review and approval which
may be withheld in its sole discretion. eBay will host the
Sponsor Page and Sponsor will be responsible for all development
and other costs, excluding hosting expenses, associated with the
Sponsor Page. eBay will provide Sponsor reasonable assistance to
format the Sponsor Content for inclusion on the eBay Site.
Subject to the foregoing, Sponsor will have editorial control
regarding the Sponsor Content on Sponsor's Page provided all
Sponsor Content complies with Section 4.5 ("Content Standards").
The parties expressly acknowledge and agree that no third-party
advertising or links will be placed on the Sponsor Page(s),
unless the parties otherwise mutually agree in writing. The
Sponsor Page(s) may not be changed, modified or deleted without
eBay's prior written approval (which will not be unreasonably
withheld or delayed), except for minor error-correction and other
similar updates (such as updating and/or adding merchandise
listings).
2.2 CONTENT AND MERCHANDISE. Sponsor agrees to list items
consistently throughout the term of the agreement. Sponsor
acknowledges and agrees that in its capacity as a seller of items
on the Sponsor Page it will comply with then-current eBay User
Agreement. Sponsor agrees that all information provided by or on
behalf of Sponsor, including without limitation, information
relating to the Sponsor Content, will be complete and accurate.
Sponsor shall be responsible for all merchandise listing,
procurement, authentication, and fulfillment with respect to
merchandise provided by Sponsor within the Sponsor Page in
accordance with the eBay User Agreement.
2.3 BID VERIFICATION. Certain items, such as high profile
memorabilia, may cause users to submit spoof bids. Thus, Sponsor
will, at its sole expense, contact bidders on Sponsor items who
bid amounts that seem out of proportion with other bids promptly
after they place such bids to verify their intent to purchase the
item. Sponsor will
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immediately remove any unverified or illegitimate bids.
Sponsor's item listing shall incorporate the following text:
"Sponsor appreciates the enthusiastic interest in [name of the
item]. To help ensure a smooth process for all participants,
Sponsor will contact bidders via telephone within 24 hours of
their bids to verify any bid of $1,000 or more. Please be
available to receive a phone call at the number associated
with your eBay User ID in order to verify your bid. If Sponsor
cannot verify your intent to bid over the telephone, your bid
will be removed. Contacting high bidders before the end of a
transaction to verify their intent to bid is an extra security
measure many eBay sellers employ, especially those with
high-priced or unique items. Thank you for your support!"
2.4 ADDITIONAL REQUIREMENTS. Unless otherwise directed by eBay, each
of the Sponsor Pages(s) will include eBay-approved messaging
which provides, without limitation, that Sponsor, the Sponsor
Services, Sponsor Content, products and the Sponsor Site are
separate from eBay and not endorsed by eBay.
2.5 NAVIGATIONAL ICONS. When an eBay User clicks on a Promotional
Placement on the eBay Site, the eBay User will be taken to the
Sponsor Page. Sponsor shall not use any interstitial, pop-up
windows, other intermediate steps or any other technology or
content which acts as a barrier to the transition of an eBay User
to the Sponsor Page.
2.6 USER RELATIONS. Sponsor will be solely responsible for providing
all customer support regarding the Sponsor Page(s), including
without limitation responding to all inquiries regarding items
offered for sale on such pages, and eBay may redirect to Sponsor
any associated customer support inquiries. Sponsor will provide
eBay with a toll-free telephone number and email address that
eBay may provide to eBay Users when redirecting such customer
support inquiries to Sponsor. eBay will provide online customer
service for users of the Sponsor Page in a manner equivalent to
that provided to eBay users generally. Sponsor must maintain a
positive feedback rating of at least 95% on the eBay Site during
the Term.
2.7 MARKETING AND TECHNICAL SUPPORT. To facilitate communication and
development support, each party shall designate marketing and
technical support contacts for this relationship and provide the
other party with the names and contact information of these
individuals.
2.8 TRAINING & SUPPORT. In order to facilitate Sponsor's performance
of its obligations under this Agreement, eBay will provide
ongoing support and a training session for selected Sponsor
personnel addressing the necessary tools and services to list,
operate, market, and manage their listings on the Sponsor Page.
Such eBay assistance may include referrals to third-party service
providers who offer auction management tools.
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In addition, eBay will use commercially reasonable efforts to
provide support for charity listings, if needed.
2.9 TRANSACTION FULFILLMENT. Upon the closing of each listing,
Sponsor will take all necessary steps to complete the
transaction.
2.10 USER AGREEMENTS. Sponsor shall have sole control over the user
agreements that governs the Sponsor Service and Sponsor shall
have the sole responsibility for dealing with breaches of such
user agreement. eBay shall have sole control over the user
agreement and privacy policy that govern the eBay Site, including
the Sponsor Page.
3. PROMOTION AND INTEGRATION
3.1 PROMOTION. During the term of this Agreement, eBay will use
commercially reasonable efforts to serve and launch Promotional
Placements as set forth in Appendix 1, provided that Sponsor
complies with the performance and marketing requirements set
forth herein. During the term of this Agreement, Sponsor shall
promote its listings on eBay and the Sponsor Page via offline
marketing and promotions on the Sponsor Site as specified in
Appendix 1.
3.2 DELIVERY REQUIREMENTS. Sponsor will deliver the Sponsor Content
to eBay in a mutually agreeable format and on a mutually
acceptable uploading and refresh schedule. eBay may refuse
delivery of any Sponsor Content delivered in an unsupported
format, and may reject any Sponsor Content that does not conform
to the requirements of eBay's then current policies relating to
content, as such policies are applied to third parties supplying
content to eBay.
3.3 GUIDELINES. Except as otherwise expressly provided in this
Agreement, (a) positioning of advertisements within eBay is at
the sole discretion of eBay, (b) Sponsor acknowledges that eBay
has not made any guarantees with respect to usage statistics or
levels of impressions for any advertisement, and (c) eBay
provides Sponsor with estimated usage statistics only as a
courtesy to Sponsor and shall not be held liable for any claims
relating to said usage statistics. This Agreement will not
restrict eBay's ability or discretion to change or otherwise
modify any of eBay's web sites or pages thereof
3.4 NO ASSIGNMENT OR RESALE OF AD SPACE. Sponsor may not resell,
assign or transfer any of its rights to Promotional Placements
hereunder, and any attempt to resell, assign or transfer such
rights is void and shall, at eBay's election, result in immediate
termination of this contract, without liability to eBay.
3.5 SPONSOR'S REPRESENTATIONS. Sponsor Content is accepted upon the
representation that Sponsor has the right to publish said
content, without infringement of any rights of any third party.
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3.6 RIGHT TO REJECT CONTENT. All Sponsor Content is subject to eBay's
approval. eBay reserves the right to reject or cancel any Sponsor
Content, insertion order, and space reservation or position
commitment at any time. In addition, eBay shall have the absolute
right to reject any URL link embodied within Sponsor Content.
4. LICENSES AND STANDARDS
4.1 CONTENT LICENSE. Subject to the terms of this Agreement, Sponsor
hereby grants to eBay a non-exclusive, license to use, reproduce,
distribute, (only as necessary to promote the Sponsor Services in
a manner consistent with this Agreement), publicly display and
publicly perform (in digital or analog formats) the Sponsor
Content on the eBay Site or otherwise as reasonably appropriate
to advertise and promote the Sponsor Service and the Sponsor
Content. Subject to the terms and conditions hereof, eBay hereby
grants to Sponsor a non-exclusive license to reproduce,
distribute, modify (only as necessary to build, operate and
maintain the Jump Page(s)), publicly perform and publicly display
(in digital or analog formats) the eBay Content in or in
conjunction with the Jump Page.
4.2 TRADEMARKS. Subject to the terms of this Agreement, Sponsor
hereby grants to eBay a non-exclusive, nontransferable, and
non-assignable license to use the Sponsor domain names,
trademarks and logos and other branding elements ("Sponsor
Marks") on the Sponsor Page(s), the eBay Site, as well as in
promotions of the Sponsor Page(s) in a manner consistent with
this Agreement. Subject to the terms of this Agreement, eBay
hereby grants to Sponsor a non-exclusive, nontransferable, and
non-assignable license to use the eBay domain names, trademarks
and logos and other branding elements ("eBay Marks") provided by
eBay to Sponsor to advertise and promote the eBay Site, the Jump
Page, and the Sponsor Page(s) in a manner consistent this
Agreement. However, each Xxxx license is conditioned on the
licensee providing the licensor with a sample of the Xxxx use and
obtaining the licensor's approval of such sample prior its use.
4.3 TRADEMARK RESTRICTIONS. The Xxxx licensor may terminate its
foregoing trademark license if, in the licensor's reasonable
discretion, the licensee's use of licensor's Marks tarnishes,
blurs or dilutes the quality associated with licensor's Marks or
the associated goodwill and such problem is not cured within ten
(10) days of notice of breach; alternatively, instead of
terminating the license in total, the licensor may specify that
certain licensee uses may not contain the Marks. Title to and
ownership of a Xxxx shall remain with the licensor. The licensee
shall use the licensor's Marks exactly in the form provided and
in conformance with any trademark usage policies. The licensee
shall not take any action inconsistent with the licensor's
ownership of the Marks, and any benefits accruing from use of
such Marks shall automatically vest in the licensor. Except as
may be expressly agreed by the parties, the licensee shall not
form any combination marks with the licensor's Marks. Each party
hereby admits
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and recognizes the other's exclusive ownership of the other's
Marks and the renown of the other's Marks worldwide.
4.4 OWNERSHIP. Except as expressly set forth in this Agreement,
neither party grants to the other any rights in or to any
technology, content, customer data, intellectual property or
other rights or property of such party. All rights not expressly
granted hereunder are reserved.
4.5 CONTENT STANDARDS. Sponsor will not provide any Sponsor Content,
that: (i) infringes any third party's U.S. copyright, patent,
trademark, trade secret or other proprietary rights or rights of
publicity or privacy; (ii) violates any law, statute, ordinance
or regulation (including without limitation the laws and
regulations governing export control, unfair competition,
anti-discrimination or false advertising); (iii) is defamatory,
trade libelous, unlawfully threatening or unlawfully harassing;
(iv) is obscene, harmful to minors or child pornographic; (v)
contains any viruses, Trojan horses, worms, time bombs,
cancelbots or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal
information; or (vi) is false, misleading or inaccurate.
5. EXCLUSIVITY. This Agreement is nonexclusive.
6. USER DATA.
6.1 COLLECTION LIMITATIONS. Sponsor agrees that any information that
Sponsor collects from Referred Users ("User Data") or which is
passed from eBay to Sponsor regarding eBay Users and their
trading activities ("Customer Information") will be limited to
information reasonably related to the provision of the Sponsor
Services under the Agreement. Sponsor will neither use (nor
permit any third party to use) User Data or Customer Information
for any purpose other than to provide or market the Sponsor
Service to the Referred Users; provided further that neither
Sponsor, nor any third party, will use User Data or Customer
Information to (i) market any product or service where such
product or service is then currently offered by eBay, or (ii) to
automatically populate any registration form or other form
related to the use of the Sponsor Services. Notwithstanding the
foregoing, Sponsor shall not collect any information (whether
automatically or manually) from eBay Users without their
expressed permission and shall provide an opt-out method for all
eBay Users desiring Sponsor to stop using such Customer
Information.
6.2 USE SUBJECT TO PRIVACY POLICY. Sponsor further agrees to use such
User Data or Customer Information only as authorized by the
Referred User and subject to Sponsor's reasonable privacy policy,
such privacy policy shall be adequately displayed throughout
Sponsor's web site and meet current industry standards.
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Sponsor will neither use User Data or Customer Information to
target communications to the Referred Users (nor facilitate the
same on behalf of third parties) without the express written
consent of eBay and opt-in agreement from the Referred Users.
Sponsor will not solicit or facilitate the solicitation by any
third party of Referred Users as a result of their status as eBay
members, and Sponsor will explicitly not refer to Referred Users
as "eBay Users" or "eBay members" (or any such reference) in any
such promotion.
6.3 eBAY APPROVAL REQUIRED FOR CERTAIN DISCLOSURES. Sponsor agrees
not to sell, rent, lease or otherwise disclose the User Data or
Customer Information without eBay's prior written consent, (such
consent to be in eBay's sole discretion). Notwithstanding the
foregoing, Sponsor may use or disclose User Data in aggregate
form, once stripped of all personal identifiable information, and
incorporated with Sponsor data. This Section [6] shall survive
any expiration or termination of the Agreement.
7 PAYMENT TERMS. All payments pursuant to this Section 7 ("Payments") are
non-refundable. Sponsor agrees to pay to eBay the fees set forth in
Appendix 2 in the amounts and according to the timeframes specified
therein. Further, Sponsor shall collect and pay and indemnify and hold
eBay harmless from, any sales, use, excise, import or export value added
or similar tax or duty associated with this Agreement not based on
eBay's net income, including any penalties and interest, as well as any
costs associated with the collection or withholding thereof, including
reasonable attorneys' fees.
8 REPORTS. Sponsor will provide to eBay the following reports in a
mutually agreeable format: (i) quarterly reports detailing Sponsor's
performance of its promotional obligations set forth in Appendix 1; and
(ii) quarterly usage reports describing the aggregate user traffic for
the Sponsor Page(s) (pertaining to click-throughs to the Sponsor Site).
eBay will provide Sponsor with the following reports: (i) quarterly
reports regarding the number of impressions delivered on the eBay Site.
9 CONFIDENTIALITY.
9.1 CONFIDENTIAL INFORMATION DEFINED. A party's "Confidential
Information" is defined as any confidential or proprietary
information of a party which is disclosed to the other party in a
writing marked confidential or, if disclosed orally, is
identified as confidential at the time of disclosure and is
subsequently reduced to a writing marked confidential and
delivered to the other party within ten (10) days of disclosure.
The terms of this Agreement shall be deemed Confidential
Information.
9.2 MUTUAL OBLIGATIONS. Each party will hold the other party's
Confidential Information in confidence and will not disclose such
Confidential Information to third parties nor use the other
party's Confidential Information for any purpose other than as
required to perform under this Agreement. Such restrictions will
not apply to Confidential Information which (a) is already known
by the recipient, (b) becomes publicly known
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through no act or fault of the recipient, (c) is received by
recipient from a third party without a restriction on disclosure
or use, or (d) is independently developed by recipient without
reference to the Confidential Information. The restriction on
disclosure will not apply to Confidential Information which is
required to be disclosed by a court, government agency,
regulatory requirement, or similar disclosure requirement,
provided that recipient will first notify the disclosing party of
such disclosure requirement or order and use reasonable efforts
to obtain confidential treatment or a protective order. The
parties' respective obligations hereunder will survive the
expiration or early termination of this Agreement for a period of
3 years.
9.3 RETURN OF CONFIDENTIAL INFORMATION UPON TERMINATION. Upon
termination of this Agreement, the receiving party will return to
the disclosing party all Confidential Information of the
disclosing party and all documents or media containing any such
Confidential Information and any and all copies or extracts
thereof.
9.4 CONFIDENTIAL TREATMENT. Without limiting the foregoing, and
subject to compliance with applicable law, each party agrees to
notify the other in the event any element of this Agreement may
need to be disclosed pursuant to any regulatory or other
disclosure requirement, and to further seek confidential
treatment requested by the other with respect to certain
confidential elements of the Agreement and any documents related
thereto (including information relating to fees, payments and
integration) in any governmental or public filings.
10 TERM AND TERMINATION.
10.1 TERM AND TERMINATION. The term of this Agreement shall be for a
period of [**] (the "Term") and includes a one (1) month
"ramp-up" period in which eBay will provide training and support
to Sponsor. The Agreement will be terminable early: (i) if a
party materially breaches this Agreement and does not cure such
breach within thirty (30) days following written notice thereof
from the non-breaching party; (ii) by mutual written agreement;
(iii) by eBay after thirty (30) days written notice to Sponsor if
Sponsor fails to meet the performance criteria described in
Sections [2.6] ("User Relations") and does not cure such failure
within thirty (30) days following written notice thereof; (iv) by
eBay, after five (5) days written notice if Sponsor has failed to
cure any breach of Section 7 ("Payments"); or (v) by eBay for
convenience upon thirty (30) days prior written notice.
10.2 EFFECTS OF TERMINATION. Upon expiration or termination, all
licenses granted hereunder shall terminate unless such licenses
are expressly stated as surviving.
10.3 TERMINATION FOR CHANGE OF CONTROL. By providing written notice,
eBay may elect to terminate this Agreement during a ninety (90)
day period following a Change of Control of Sponsor, by providing
notice during such window and which termination shall be
effective thirty (30) days following the notice. "Change of
Control" means
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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any Ownership Change Event or a series of related Ownership
Change Events (collectively, the "Transaction") wherein Sponsor's
shareholders immediately preceding the Transaction do not retain
immediately after the Transaction, in substantially the same
proportions as their ownership of shares of Sponsor's voting
stock or other voting interests immediately before the
Transaction, direct or indirect beneficial ownership of more than
fifty percent (50%) of the total combined voting power of the
corporation or corporations to which substantially all of
Sponsor's assets or stock were transferred, as the case may be.
An "Ownership Change Event" occurs if any of the following occur:
(a) the direct or indirect sale or exchange in a single series of
related transactions by Sponsor's shareholders or other ownership
interest holders of more than fifty percent (50%) of its voting
stock or other voting interests; (b) a merger or consolidation in
which Sponsor is a party; (c) the sale, exchange or transfer of
all or substantially all of Sponsor's assets; or (d) a
liquidation or dissolution of Sponsor. However, an Ownership
Change Event does not occur as a result of any transaction or
series of transactions that are effected solely in connection
with a (i) re-incorporation, or (ii) a reorganization,
re-capitalization or similar financing not in connection with the
sale of all or substantially all of Sponsor's assets or stock or
other ownership interests.
10.4 SURVIVAL. Sections [1] ("Certain Definitions"); [2.6] ("User
Relations"); [4.4] ("Ownership"); [4.3] ("Trademark
Restrictions") (relating to intellectual property ownership); [6]
("User Data"); Section 7 and APPENDIX 2 ("Payments Terms"); [9]
("Confidentiality"); [10.4] ("Survival"); [11] ("Representations
and Warranties"); [12] ("Indemnification"); and [14]
("Miscellaneous") will survive the expiration or early
termination of this Agreement.
11 REPRESENTATIONS AND WARRANTIES
11.1 PERFORMANCE WARRANTY AND CHARITY WARRANTY. Sponsor represents and
warrants that (i) it has full power and authority to carry out
all its obligations expressed in this Agreement; and (ii) it has
all necessary intellectual property rights, and any other
property and proprietary rights to the content it furnishes to
eBay.
11.2 COMPLIANCE WITH LAWS. At its own expense, Sponsor shall comply
with all applicable laws, regulations, rules, ordinances and
orders regarding the Sponsor Service, Sponsor Content [including
merchandise offered by Sponsor], and Sponsor Pages. Additionally,
Sponsor represents and warrants that: (a) it has all governmental
approval, permits and licenses, and has made all governmental
filings and registrations, necessary or prudent for the marketing
and performance of the Sponsor Service, and (b) eBay is not
required to obtain any governmental approval, permits or licenses
as a result of this Agreement, eBay's performance hereunder or
any payments made by Sponsor hereunder.
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11.3 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED
HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. THE SPONSOR PAGE AND
SERVICES PROVIDED BY EBAY HEREUNDER ARE PROVIDED "AS IS". EBAY
DOES NOT REPRESENT OR WARRANT THAT THE EBAY SITE WILL OPERATE
SECURELY OR WITHOUT INTERRUPTION. Each party acknowledges that it
has not entered into this Agreement in reliance upon any warranty
or representation except those specifically set forth herein.
12 INDEMNIFICATION.
eBay will indemnify Sponsor against any and all claims, losses,
liabilities, costs and expenses, including reasonable attorneys' fees
(collectively, "Claims") which Sponsor may incur as a result of any
third party actions arising from or relating to infringement by any eBay
Xxxx of a U.S. patent, copyright, trademark right or other intellectual
property right of a third party or misappropriation of any third party
trade secret, except where such eBay Marks has been modified without
authorization, and such modification is the basis of the Claim. Such
indemnification will be eBay's sole and exclusive obligation and
Sponsor's sole and exclusive remedy as a result of any third party
actions arising from infringement. In addition, Sponsor will indemnify
eBay against any and all Claims which eBay may incur as a result of any
third parties actions arising from or relating to (i) Sponsor Services,
and (ii) infringement by any Sponsor Xxxx, Sponsor Content or Sponsor
Services of a U.S. patent, copyright, trademark right or other
intellectual property right of a third party or misappropriation of any
third party trade secret, except where such Sponsor Xxxx or Sponsor
Content has been modified without authorization, and such modification
is the basis of the Claim. The foregoing obligations are conditioned on
the indemnified party: (i) giving the indemnifying party notice of the
relevant claim, (ii) cooperating with the indemnifying party, at the
indemnifying party's expense, in the defense of such claim, and (iii)
giving the indemnifying party the right to control the investigation,
defense and settlement of any such claim, except that the indemnifying
party will not enter into any settlement that affects the indemnified
party's rights or interest without the indemnified party's prior written
approval. The indemnified party will have the right to participate in
the defense at its expense.
13 LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF A BREACH OF SECTIONS [6]
("USER DATA"), [11.2] ("COMPLIANCE WITH LAWS"), OR [9]
("CONFIDENTIALITY"), NEITHER PARTY WILL BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING,
INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. EXCEPT WITH RESPECT TO AMOUNTS TO BE PAID BY SPONSOR TO EBAY
HEREUNDER, AND EXCEPT IN THE EVENT OF A BREACH OF SECTIONS [6] ("USER
DATA"), [9] ("CONFIDENTIALITY") OR [11.2]
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("COMPLIANCE WITH LAWS"), A FAILURE TO PAY UNDER APPENDIX 2 ("PAYMENT
TERMS"), OR A CLAIM UNDER SECTION [12] ("INDEMNIFICATION"), IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN
ONE HUNDRED THOUSAND DOLLARS ($100,000). THIS LIMITATION OF EACH PARTY'S
LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN
CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE
SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT
ENLARGE THE LIMIT.
14 GENERAL
14.1 GOVERNING LAW; VENUE. This Agreement will be construed in
accordance with and governed exclusively by the laws of the State
of California applicable to agreements made among California
residents and to be performed wholly within such jurisdiction,
regardless of such parties' actual domiciles. Both parties submit
to personal jurisdiction in California and further agree that any
cause of action arising under this Agreement will be brought
exclusively in a court in Santa Xxxxx County, CA.
14.2 PUBLICITY. Without limiting the provisions of Section [9]
("Confidentiality"), neither party will make any public statement
regarding the terms of this Agreement or any aspect thereof
without the prior written approval of the other party, provided
that to the extent such disclosure is required by law, rule,
regulation, or governmental or court order, the party requesting
disclosure will furnish the counter-party with sufficient time to
address such request with any such governmental agency and seek
confidential treatment.
14.3 PRESS RELEASES. Sponsor shall not issue any press release nor
make any public statement regarding this Agreement (including the
terms and existence thereof) or the relationship of the parties
without eBay's prior written approval which may be withheld in
eBay's sole discretion. Nothing herein shall require eBay to
approve the issuance of a press release nor obligate eBay to
participate in a press release with Sponsor. Provided however,
Sponsor will cooperate in any publicity efforts initiated by
eBay.
14.4 INDEPENDENT CONTRACTORS. This Agreement does not create, and
nothing contained in this Agreement will be deemed to establish a
joint venture between the parties, or the relationship of
employer-employee, partners, principal-agent or the like.
Further, neither party will have the power to bind the other
without the other's prior written consent, nor make any
representation that it has any such power.
14.5 ASSIGNMENT. Subject to Section [10.3] ("Termination for Change of
Control"), neither party may assign its rights nor delegate its
duties hereunder without the other
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party's prior written consent, (other than (a) to a parent
company or any wholly-owned subsidiary of such parent company,
where the assignee agrees to be bound by all obligations and the
assignor guarantees the performance of all obligations or (b) in
connection with a merger or sale of all or substantially all of a
party's assets or securities) and any purported attempt to do so
will be null and void.
14.6 SEVERABILITY; HEADINGS. If any provision herein 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 that most closely approximates the intent
and economic effect of the invalid provision. Headings are for
reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section.
14.7 FORCE MAJEURE. If performance hereunder (other than payment) is
interfered with by any condition beyond a party's reasonable
control, the affected party will be excused from such performance
to the extent of such condition.
14.8 NOTICE. Any notice under this Agreement will be in writing and
delivered by personal delivery, overnight 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 an overnight courier,
five (5) days after deposit in the mail, or upon confirmation of
receipt of facsimile or email. Notices will be sent to a party at
its address set forth above or such other address as that party
may specify in writing pursuant to this Section [14.8]
("Notice").
14.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original and all of
which together will constitute one instrument.
14.10 ENTIRE AGREEMENT; WAIVER. This Agreement, including all documents
referred to herein, sets forth the entire understanding and
agreement of the parties, and supersedes any and all oral or
written agreements or understandings between the parties. This
Agreement may be changed only by a writing signed by both
parties. The waiver of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver of any
other or subsequent breach. In the event of a conflict between
this Agreement and any Appendices attached hereto, the terms in
the Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this Advertising and
Promotions Agreement as of the Effective Date.
EBAY INC. ("EBAY"): NEIGHBORHOOD BOX OFFICE
("SPONSOR"):
By: By:
------------------------------- -----------------------------------
Name: Xxx Xxxxxxx Name:
Title: Vice President Title:
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APPENDIX 1
PERFORMANCE AND PROMOTIONAL OBLIGATIONS
A. PERFORMANCE REQUIREMENTS.
1. GMS REQUIREMENTS. Via the items Sponsor lists on the eBay Site,
Sponsor will generate at least [**] in gross merchandise sales
("GMS") during the first Contract Year and [**] in GMS during
the second Contract Year.
B. MARKETING PLAN.
1.1 IMPRESSION REQUIREMENTS. Provided that Sponsor fulfills the GMS
requirements outlined above, eBay will provide Sponsor six
million impressions during the first Contract Year and twelve
million impressions during the second Contract Year, with the
actual number of impressions to be based on Sponsor's GMS level
as indicated by the table below. In the event that eBay does not
deliver the required number of impressions during the Term (and
Sponsor has fulfilled the GMS requirements), eBay will continue
to deliver make-good impressions until it fulfills its
impression obligations pursuant to this Agreement and any
required licenses will be deemed extended to allow eBay to
complete its promotional obligation.
Potential Total
GMS -- Sold Items Impressions
----------------- ---------------
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
1.2 SPONSOR PAGE. eBay will promote the Sponsor Page via: (i)
potential offline promotions, and (ii) on the eBay Site
throughout the term of this Agreement. Primary placement on the
eBay Site of such Sponsor promotional links will be on relevant
Category Index Pages (such as the Tickets Category Index Page
and the Everything Else Category Index Page); provided, however,
that if eBay deletes or substantially modifies any of such
pages, eBay will provide Sponsor comparable promotion in another
relevant area or areas of the eBay Site. Potential placement of
remaining Sponsor promotional links may include relevant
site-wide promotional efforts, the homepage, the Cool Happenings
page, the Charity
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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Page, targeted and/or run-of site banners, and such other pages
as eBay may decide in its sole discretion. Without limiting the
foregoing, if eBay deletes or substantially modifies any of such
pages, eBay will provide Sponsor comparable promotion in another
relevant area or areas of the eBay Site, or through the use of
targeted emails, as eBay may decide in its sole discretion.
2. SPONSOR OBLIGATIONS.
2.1 PROMOTIONS. During the Term, Sponsor will place and maintain a
link to the Sponsor Page on the homepage of the Sponsor Site.
Subject to eBay's prior approval, Sponsor will promote eBay and
the Sponsor Page via offline initiatives during the term of this
Agreement as follows:
- including pre-approved promotions for eBay and/or the Sponsor
Page in all Sponsor offline promotional publications, (i.e.
NBO publications, newsletters, other promotional
communications);
- promoting the Sponsor Page via a direct marketing campaign to
Sponsor's targeted buyer list; and
- conducting such other promotional efforts as the parties may
mutually agree upon.
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APPENDIX 2
PAYMENT TERMS
The parties agree to the following payment terms for the Term of this Agreement:
1. SPONSOR PAGE. Sponsor will pay eBay's standard fees (as posted on the
eBay Site) for all items listed on the Sponsor Page and/or eBay Site.
eBay's fee schedule is currently posted at
xxxx://xxxxx.xxxx.xxx/xxxx/xxxxxxxxxxx/xxxxxxx-xxxx.xxxx.
2. TERMS. Sponsor agrees to pay all fees on a monthly basis according to
the terms on the eBay Site without an obligation for eBay to provide an
invoice therefore. Payment must be received by eBay within thirty days
after the end of the month in which such fees accrued. Sponsor agrees to
place a credit card number on file which shall be billed in the event
any monthly payment is more than 60 days past due. Any amounts not paid
when due shall bear interest until paid at the lower of one and one half
percent (1.5%) per month or the highest rate allowed by law.
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