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TERMS OF AGREEMENT
This to serve as the general Terms of Agreement regarding an integrated
e-commence and advertising business relationship between Xxxxx.xxx, Inc., a
Delaware Corporation located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 and
xxxxxxx.xxx, located at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
00000. Xxxxx.xxx and xxxxxxx.xxx agree to the following:
1. PROGRAM DESCRIPTION
A. xxxxxxx.xxx will have a 116x31 button on the Xxxxx.xxx Home Page
(See attachment A), which will link to a co-branded About Shopping
Channel page as described below in Paragraph 3.
B. xxxxxxx.xxx will be the first shopping service link from all
ShopAbout content navigation links on Xxxxx.xxx as shown in Attachment
B. xxxxxxx.xxx to be the only third-party generalized aggregated
merchant directory shopping service link from all ShopAbout content
navigation links on Xxxxx.xxx as shown in Attachment B. Xxxxx.xxx
agrees to not wrap the horizontal line of links in ShopAbout.
ShopAbout shopping links are located above the fold on individual
GuideSite pages and top-level section pages. ShopNow shopping links
will deliver a minimum of [ ** ] impressions in each year of the
agreement. The [ ** ] minimum impressions shall be delivered
based on a monthly minimum of [ ** ] impressions.
C. xxxxxxx.xxx will have a single tile (as shown in Attachment C) in
Xxxxx.Xxx ShopCenter section in every channel across the Xxxxx.xxx
network. In the Xxxxx.xxx Shopping Channel only, xxxxxxx.xxx will be
the first link in the ShopCenter Section and within the top-third of
all listings in all other ShopCenter channels across the Xxxxx.xxx
network.
D. xxxxxxx.xxx's ShopCenter tile will deliver a minimum of [ ** ]
impressions in each year of the agreement. xxxxxxx.xxx and Xxxxx.xxx
will work together to maximize the targeting and effectiveness of the
message delivered in the ShopCenter tile and all other advertising
locations. A list of the available sections for targeting is shown in
Attachment D. Xxxxx.xxx shall include an in-queue 120X60 banner
button on the About Shopping channel GuideSite pages in either the top
or bottom position. The 120x60 banner buttons have no minimum
delivery but will be served to a maximum of [ ** ] of AboutShopping
channel page views.
E. Xxxxx.xxx will deliver [ ** ] 468x60 pixel sized banners during
each year of this agreement with a minimum of [ ** ] per month.
These banners can be targeted to any of the individual Xxxxx.xxx
sections as shown in Attachment D. The parties agree that xxxxxxx.xxx
may at its discretion adjust the balance of the delivered impressions
described in paragraphs 1E by a factor of 10% while maintaining the
overall delivery guarantee of [ ** ]
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO PORTIONS OF THIS
EXHIBIT.
** CONFIDENTIAL TREATMENT REQUESTED.
[ ** ] impressions per year. The 468 banners cannot exceed [ ** ]
per year. Xxxxx.xxx agrees that the 468 banners can be scheduled at
a rate of [ ** ] per month for the months of September 1999 through
December 1999, and [ ** ] per month for the eight other months of the
first year. Parties agree that 468x60 advertising impressions will be
run and targeted to maximize their effectiveness and that maximum
exposure in any/all targeted GuideSites and Channels will not exceed
[ ** ] of total available inventory.
2. EXCLUSIVITY: xxxxxxx.xxx will be the exclusive third party generalized
aggregated merchant directory shopping service listed in the ShopAbout
navigation links section described in paragraph 1B above. Exclusivity
shall specifically include but not be limited to the third-party
generalized aggregated merchant directory shopping service sites of the
following: Imall, xxxxxxxx.xxx, XxxxXxxx.xxx, DigitalRiver, Xoom, TheGlobe,
Go2Net, InfoSpace, Excite shopping area, Lycos shopping area, Yahoo
shopping area, Microsoft shopping area, Looksmart, Inktomi or their
derivative aggregated merchant directory shopping service sites.
3. CO-BRANDED PAGE: This xxxxxxx.xxx link as described in Sections 1A and 1B,
above will link to a co-branded page which will reside on Xxxxx.xxx's
servers. This page, Attachment E, will include Xxxxx.xxx editorial and
advertising space and xxxxxxx.xxx's top-level directory structure in
approximate proportion as shown on Attachment E. All links to xxxxxxx.xxx
content from this co-branded page will go to xxxxxxx.xxx servers and
xxxxxxx.xxx will retain all advertising impressions on these pages.
Xxxxx.xxx may insert additional vendors to the xxxxxxx.xxx directory during
the term of this agreement.
Both parties agree that the end user experience on their respective sites
and services is paramount to the goals and objectives of this agreement.
Towards that end, both parties agree to use their best efforts to maintain
their sites and services in a manner that exceeds industry standards.
4. CO-BRANDING ON XxxxXxx.xxx: To ensure continuity of the user experience,
xxxxxxx.xxx agrees to display an Xxxxx.xxx logo on all xxxxxxx.xxx's pages
directly accessed by Xxxxx.Xxx users coming from xxxxxxx.xxx links/banners
described in paragraph 1 and 2 above. The Xxxxx.xxx logo will link back to
the referring Xxxxx.xxx URL.
5. SERVICE DESIGN: Xxxxx.xxx reserves the right to redesign its service at any
time, including, but not limited to, the page layout, the presentation of
advertising units and advertisers throughout the service, with the goals of
improving both the user experience and advertising effectiveness; provided
however, that no redesign will be undertaken for the purpose of reducing
xxxxxxx.xxx's exposure on Xxxxx.Xxx pursuant to this agreement. xxxxxxx.xxx
agrees not knowingly to employ any technology on its service that
effectively disables the Back button on the user's browser.
6. SUCCESSION: This agreement supersedes all prior advertising and e-commerce
agreements and obligations between the parties.
7. TERM: The term of this agreement is five years beginning July 1, 1999 and
extending through June 30, 2004. Following the first nine months of the
term, either party may serve notice of termination by providing written
notice of its intention to terminate 90 days prior to the intended date of
effective termination. Additionally, in the event that one of the parties
undergoes a change of control (where new third party owns more than 50% of
new equity), either party may terminate this agreement upon 120 days prior
written notice. Either party can terminate for cause with 15 days notice
(cause is defined as not delivering terms of this agreement and not
correcting problems with 15 days of notification).
** CONFIDENTIAL TREATMENT REQUESTED.
8. REPORTING: Xxxxx.xxx will provide weekly advertising impression reports
from its ad server, currently Doubleclick's DART. Such reports will be
delivered no later than 7 days from the end of each week.
9. CONFIDENTIALITY: The terms of the agreement between xxxxxxx.xxx and
Xxxxx.xxx are strictly confidential and not to be disclosed without prior
approval by the other party. However, either party may disclose terms to
bankers, financial partners, potential investors or as part of financial
due diligence or as required by statute.
10. ANNOUNCEMENTS: No later than July 10, 1999 Xxxxx.xxx and ShopNow agrees to
do a PR announcement after the signing of this agreement by both parties
citing xxxxxxx.xxx as a premiere shopping partner of Xxxxx.xxx and stating
that XxxxXxx.xxx is the exclusive third party aggregated merchant directory
shopping partner on the Xxxxx.xxx shopping channel. Both parties will
mutually approve the announcement of this agreement prior to its release.
Approval will cover the content of the announcement and the timing of its
release.
11. ADVERTISING GUIDELINES: xxxxxxx.xxx agrees to Xxxxx.xxx's Standard
Advertising Terms and Conditions which (see Attachment F) may change from
time to time at Xxxxx.xxx's sole discretion.
12. TRADEMARK AND EXCLUSION: Nothing in this agreement gives either party
ownership rights in the other's operations, intellectual property or
trademarks.
13. INDEMNIFICATION: xxxxxxx.xxx agrees to indemnify, defend and hold Xxxxx.xxx
its successors, officers, directors and employees harmless from any and all
actions, cause of action, claims, demands, costs, liabilities, expenses
(including reasonable attorney's fees) and damages arising out of or in
connection with any claim relating to xxxxxxx.xxx. Xxxxx.xxx agrees to
indemnify, defend and hold xxxxxxx.xxx, its successors, officers, directors
and employees harmless from any and all actions, cause of action, claims,
demands, costs, liabilities, expenses (including reasonable attorney's
fees) and damages arising out of or in connection with any claim relating
to Xxxxx.xxx.
14. ASSIGNMENT: Neither party may assign this agreement without prior written
consent of the other party.
15. COST AND PAYMENT TERMS: The annual cost of this program to xxxxxxx.xxx is
[ ** ] net per year billed monthly at the rate of [ ** ], xxxxxxx.xxx
agrees to remit to Xxxxx.xxx within 30 days of receipt of monthly invoices.
16. AUDITS: Each party may cause an audit to be made, at its expense, of the
applicable records of the other party in order to verify reports rendered
and payments made hereunder. Any such audits shall be conducted (other than
on a contingency fee basis), only by an independent and U.S. nationally
prominent certified public accountant (or other mutually approved
independent auditor) after reasonable prior written notice to the audited
party, and shall be conducted during regular business hours at the audited
party's offices and in such a manner as to unreasonably interfere with the
audited party's normal business activities. In no event shall an audit with
respect to any report commence later than eighteen (18) months from the
date of the report involved, nor shall audits be made hereunder more
frequently than twice annually, nor shall the records supporting any
reports be audited more than once. The results of any such audit shall be
subject to the confidentiality obligations set forth in Paragraph 8. In the
event that an audit hereunder shall have disclosed an undisputed
underpayment or overpayment, then the respective party shall immediately
pay to the other party the amount of such underpayment or overpayment,
whichever the case. If such underpayment or
** CONFIDENTIAL TREATMENT REQUESTED.
overpayment is more than five percent (5%) of the amount owed to the
auditing party, then the other party shall reimburse the auditing party for
the reasonable direct, out-of-pocket costs actually paid by the auditing
party for such audit.
17. DEFAULT: either party may terminate this Agreement if the other party is in
default of any of the provisions in this Agreement and such default is not
cured within fifteen (15) days after written notice of the default is
received.
18. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the parties as to the matters set forth herein. No modification of this
Agreement shall be binding unless such modification shall be in writing and
signed by both parties. If any provision of this Agreement is ever
determined to be not enforceable, the remaining provisions shall remain in
full force and effect.
19. NOTICES: All notices shall be in writing, mailed by certified or registered
mail, return receipt requested, or by an overnight courier service that
provides a receipt, to the parties at the addresses set forth in the first
paragraph of this Agreement. Any party may change its notice address by
written notice to the other party. Copies of all notices given to Xxxxx.xxx
shall be sent to Xxxxx.xxx Inc. 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX, Attention: General Counsel and Frankfurt, Xxxxxx, Xxxxx & Xxxx, P.C.,
000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X.
XxXxxxx, Esq. Copies of all notices given to ShopNow shall be sent to:
21. JURISDICTION AND DISPUTES: This Agreement shall be governed in accordance
with the laws of the State of New York applicable to contracts made and to
be performed fully therein without giving effect to the conflicts of laws
principles thereof. All disputes under this Agreement shall be resolved
exclusively by the state or federal courts located in the New York or
mutually agreeable neutral state. Each party hereby consents to the
jurisdiction of such courts, agrees to accept service of process by mail,
and waives any jurisdictional or venue defenses otherwise available to it.
Agreed and Accepted
xxxxxxx.xxx XXXXX.XXX
Xxxx-Xxxxx Xxxxxx Xx. Xxxx Xxxxx
Executive Vice-President President, Advertising Sales
E-commerce Services And E-Commerce
Sig: /s/ Xxxx-Xxxxx Xxxxxx Sig: /s/ Xxxx Xxxxx
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Date: 7-7-99 Date: July 7, 1999
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