EXHIBIT 10.23
CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the information
CERTAIN PORTIONS OF THIS contained within the "[**]" markings.
DOCUMENT Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission.
eCommerce and Content Agreement
This eCommerce and Content Agreement (this "Agreement") is made as of
January 1, 2000 (the "Effective Date"), by and between XXX.xxx, a division of
Xxxxxxxx.xxx, Inc., a Delaware corporation with principal offices at 000
Xxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 ("Snowball" or
"IGN") and XXXxxxx.xxx, Inc., a Nevada corporation with principal offices
at 000 Xxxxx Xx. Xxxxx X, Xxx Xxxxx, XX 00000 ("XXXxxxx.xxx").
Background
Snowball owns and operates five sites featuring editorial content about
games, movies, tv, science fiction, and entertainment issues for young men (as
further described in Exhibit A, the "IGN Sites"). The IGN Sites connect to a
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network of affiliates sites (the "IGN Affiliate Sites") to provide a greater
breadth and depth of entertainment content. The IGN Sites and the IGN Affiliate
Sites are sometimes referred to, collectively, in this Agreement as the "IGN
Network."
Snowball also owns and operates three other networks: the "ChickClick
Network," targeted at young women (the hub site for which is located at
xxx.XxxxxXxxxx.xxx) and the "PS/IG Network," targeted at college students (the
hub sites for which are located at xxx.Xxxxxxxxxxxxx.xxx and
xxx.XxxxxxXxxxx.xxx). The ChickClick Network and PS/IG Network are referred to,
collectively, as the "Other Snowball Networks."
XXXxxxx.xxx sells computer games for play on a variety of platforms
(including related merchandise, the "Games") and provides content about gaming,
through its World Wide Web site located at xxx.XXXxxxx.xxx (the "XXXxxxx.xxx
Site").
XXXxxxx.xxx wishes to be the exclusive Games retailer on the IGN Sites and
to have links established from the IGN Sites to the XXXxxxx.xxx Site (each, a
"XXXxxxx.xxx Link"). IGN has agreed to establish those links on the IGN Sites
and to establish a program to encourage IGN Affiliates to place similar links on
each of the IGN Affiliates Sites (the "XXXxxxx.xxx Program"), subject to the
terms and conditions of this Agreement.
Now Therefore, the parties agree as follows:
1. Promotion. Subject to the terms and conditions of this Agreement,
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(a) Links and Banner Advertisements. IGN will develop, implement and
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maintain XXXxxxx.xxx logo branded "buy if" links on all IGN site reviews,
previews, and game specific pages. At least two links will appear on each page,
'one above the fold' and one below the content. The XXXxxxx.xxx marketing box
(currently search box) will appear on the hub page for each IGN site at least
[**] of the total display time for each hub page and will be displayed in the
top 30% of the page. The "Gamestore" link will appear on all IGN site pages at
least [**] of the total display time for each page and will be displayed "above
the fold." Participating IGN affiliates will carry XXXxxxx.xxx links on not less
than [**] of available page impressions. Except in the case of "Gamestore" or
"New Games" links found on the navigation bar, each XXXxxxx.xxx link will be
indicated by, and in the form of, one of the logos or other trademarks attached
hereto as Exhibit B (the "XXXxxxx.xxx Marks"). IGN will also implement banner
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advertisement promoting XXXxxxx.xxx that will appear on a rotating basis on the
IGN sites and IGN Affiliate sites. In total, XXXxxxx.xxx will be represented by
the following creative units - marketing boxes, navigational links, "Buy It Now"
buttons, Game Page links, text linked email messages, and banner advertisements.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission.
(b) Opt-In Registration. IGN will establish an "opt-in" feature on the IGN
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Sites, allowing users of the IGN Sites to sign up to receive information and
promotional materials about the Games provided to IGN by XXXxxxx.xxx. Each user
that signs up to receive information as described in this Section is referred to
in this Agreement as a "Registered User;" the data obtained from each Registered
User through the "opt-in" registration process is referred to as the
"Registration Data."
(c) Microsite. IGN will develop and maintain a co-branded content section
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(the "Microsite") that highlights new Games, based on information delivered to
IGN by XXXxxxx.xxx. The Microsite will contain links to the eCommerce Pages
described in Section 3 to allow visitors to purchase the featured Games. IGN
will promote the Microsite through navigational links on the IGN Network. The
navigational links to this section will live below the "Gamestore" links on the
navigational bar and reside on at least [**] of the hub pages.
(d) Email Blasts/Newsletters. IGN will include an XXXxxxx.xxx Link and
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text up to forty words in the newsletter IGN currently sends to its registered
users each business day. In addition, IGN will include an XXXxxxx.xxx Link and
text up to forty words in the newsletters sent to subscribers through
Microsoft's Hotmail service, subject to the terms and conditions of IGN's
related agreement with Microsoft. IGN will also include an XXXxxxx.xxx Link and
text up to forty words in commerce-related email messages sent to the users of
the IGN Sites.
(e) Press Releases. The parties will jointly issue a press release
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describing the relationship established under this Agreement within thirty days
of the Effective Date. IGN may issue other press releases describing the
relationship with XXXxxxx.xxx established under this Agreement, subject to
XXXxxxx.xxx's reasonable approval.
(f) PC Gamer Magazine. XXXxxxx.xxx will be entitled to place one full page
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advertisement monthly in PC Gamer Magazine during the initial term of this
Agreement.
(g) Co-Marketing. If either party ("Originating Party") wishes to engage
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with any third party to sponsor or co-market any promotion or special event
relating to computer games (each, a "Game Promotion"), and where that
promotion or event is open to other sponsors than the Originating Party, then
the Originating Party will first notify the other party ("Proposed Co-
Sponsor") with a description of the proposed Game Promotion. If the Proposed
Co-Sponsor expresses interest in negotiating the terms of its participation
within five days of its receipt of the Originating Party's notice, then the
parties will negotiate in good faith for a period of 72 hours. If a verbal or
written agreement is not reached within the 72 hour period after notification,
the originating party will be free to enter into an agreement with a third
party to sponsor a game promotion.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
(h) Account Manager. IGN will appoint a dedicated account manager to act
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as primary contact for XXXxxxx.xxx and to facilitate any requests for
information or assistance made by XXXxxxx.xxx with respect to the activities
described in this Section. IGN will notify XXXxxxx.xxx of the dedicated account
manager's name and contact information as soon as practicable.
(i) Text and Information. XXXxxxx.xxx will provide IGN with all of the
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text and other information described in this Section in the form and format, and
in accordance with the delivery schedule, requested by IGN.
2. (This needs to be a separate agreement. It should be the insertion order
that was signed)
3. e-Commerce.
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(a) Definitions. "Impression" means each view of a page containing an
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XXXxxxx.xxx Xxxx or XXXxxxx.xxx Link. "Clickthrough" means a link made using an
XXXxxxx.xxx Link from a site on the IGN Network or Other Snowball Networks.
(b) eCommerce Pages. XXXxxxx.xxx will implement and maintain co-branded
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pages on the XXXxxxx.xxx Site (the "eCommerce Pages") where visitors who link to
the eCommerce Pages from any site on the IGN Network or Other Snowball Networks
(each, a "Customer") can purchase Games. XXXxxxx.xxx will be solely responsible
for tracking the volume and number of sales of Games to Customers. XXXxxxx.xxx
will provide IGN with all such information, as well as the names, email
addresses and descriptions of the specific purchases made by each Customer
(collectively, the "Purchasing Data") on a weekly basis. The purchasing data
will only be used by IGN for auditing purposes. The eCommerce Pages will not
link, directly or indirectly, to any other pages through which Customers can
purchase Games, so that any Games purchased from XXXxxxx.xxx by a Customer will
be made through the eCommerce Pages, with the following exception: IGN will be
listed along with other partners on a hyper-linked XXXxxxx.xxx partner list that
may appear on the co-branded home page.
(c) Links to and from IGN Sites. IGN will implement and maintain links
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from the IGN Sites and IGN participating affiliates to the eCommerce Pages
("eCommerce Links") and will promote the eCommerce Pages using banner
advertisements displayed on a rotating basis on the IGN Network and Other
Snowball Network. IGN will provide XXXxxxx.xxx with a report of the number
Clickthroughs from the IGN Network and the Other Snowball Networks to the
eCommerce Pages on a weekly basis. XXXxxxx.xxx will implement and maintain links
from the "check-out" pages of the eCommerce Pages to the IGN Sites, as mutually
agreed by the parties. Each link to the IGN Site will be indicated by, and in
the form of, one of the logos or other trademarks attached hereto as Exhibit B
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(the "IGN Marks").
(d) Orders. XXXxxxx.xxx will be solely responsible for processing orders
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placed by Customers on the eCommerce Pages, including order entry, payment
processing, shipping, cancellations, returns, and related customer service.
XXXxxxx.xxx will establish all prices for the Games, in its discretion.
(e) Account Manager. XXXxxxx.xxx will appoint a dedicated account manager
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to act as primary contact for IGN and to facilitate any requests for information
or assistance made by IGN with respect to the eCommerce Pages. XXXxxxx.xxx will
notify IGN of the dedicated account manager's name and contact information as
soon as practicable.
4. Other Content.
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(a) IGN Content. IGN will provide XXXxxxx.xxx with certain Game reviews,
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previews, news and downloadable product samples (collectively, the "IGN
Content") for inclusion on the XXXxxxx.xxx Site. XXXxxxx.xxx will incorporate
the IGN Content into the XXXxxxx.xxx Site and will indicate such content with
the display of an IGN Xxxx and provide links from that content back to the IGN
site. Content will be in a form mutually agreed on and delivered on a schedule
determined by mutual agreements by both parties.
(b) XXXxxxx.xxx Content. XXXxxxx.xxx will provide IGN with any release
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dates and other release information concerning new Games in XXXxxxx.xxx's
possession for use by IGN on the IGN Sites and related promotional materials.
When displaying release information, IGN will hyperlink each product to the
respective XXXxxxx.xxx product page.
5. Exclusivity. Subject to the terms and conditions of this Agreement, IGN
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will identify XXXxxxx.xxx as IGN's "exclusive electronics games retailer" on
each IGN Site (including, without limitation, the Tour Pages). IGN will not,
during the term of this Agreement, enter into any agreement with respect
Notwithstanding the foregoing, IGN will be free to display advertisements that
promote other companies that distribute computer games. Competitive
advertisements will be limited to [**] or less of the total inventory available
on IGN and IGN Affiliate Properties. The exclusivity described in this Section
applies to the sale of Games only and expressly does not apply to rental of
games, direct delivery of games via electronic means for home use or to
merchandise related to Games generally. In addition,XXXxxxx.xxx acknowledges
that IGN may incorporate or link to an auction function and that the sale of
games by third parties through an auction function will not be a breach of IGN's
obligations under this Section. XXXxxxx.xxx will have right of first refusal
during the initial 21-day period that IGN is considering partners for all game
rental, ESD, auction, and game related merchandise opportunities. Other than the
competitive banner inventory allowed in this section, IGN will not sell or link
advertising or commerce partnerships that will allow users to be within one
click of any electronic game commerce offers as defined in this section.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
merchandise related to Games generally. In addition, XXXxxxx.xxx acknowledges
that IGN may incorporate or link to an auction function and that the sale of
games by third parties through an auction function will not be a breach of IGN's
obligations under this Section.
6. Impressions.
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(a) Delivery. IGN will, through the promotions and other obligations
--------
described in this Agreement, provide to XXXxxxx.xxx the following minimum number
of Impressions on a monthly basis: (1) [**] Impressions on the IGN Network; (2)
[**] Impressions on the PS/IG Network; and (3) [**] Impressions on the
ChickClick Network. These impressions will be in the 468x60 banner format and
will be served 'above the fold.'
(c) Remedy. In the event IGN fails to deliver the minimum number of
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Impressions described in this Section, XXXxxxx.xxx's sole and exclusive remedy,
and IGN's sole and exclusive obligation, shall be to continue to deliver
Impressions until that minimum number of Impressions is meet.
7. XXXxxxx.xxx Program.
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(a) XXXxxxx.xxx Program. Each IGN Affiliate will be offered the
-------------------
opportunity by IGN to participate in the XXXxxxx.xxx Program and to market
XXXxxxx.xxx as its "exclusive games retailer." For each IGN Affiliate that
chooses to participate, IGN and the IGN Affiliate will enter into an agreement
that provides the terms and conditions of the IGN Affiliate's participation.
IGN will make reasonable efforts to maximize the affiliate participation in this
agreement. XXXxxxx.xxx acknowledges that each participating IGN Affiliate will
be free to place links to the XXXxxxx.xxx Site, in its discretion. XXXxxxx.xxx
and IGN agree that there is no limit on the number of IGN Affiliates that may
join the program.
(b) No Solicitation. XXXxxxx.xxx will not, for the term of this Agreement,
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solicit any IGN Affiliate that has chosen to participate in the XXXxxxx.xxx
Program to engage in any kind of business relationship directly with
XXXxxxx.xxx.
8. Payment.
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(a) Flat Fee. XXXxxxx.xxx will pay IGN a flat fee of [**], minus the SEGA
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ASSAULT TOUR dated 10-14-99 [**] XXXxxxx.xxx will pay the fee described in this
Section in equal monthly of [**] installments payable on the first day of each
calendar month during the [**] term of this Agreement.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
(b) Taxes. All amounts payable under this Agreement are exclusive of all
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sales, use, value-added, withholding, and other taxes and duties. XXXxxxx.xxx
will pay all taxes and duties assessed in connection with this Agreement and its
performance by any authority within or outside of the U.S., except for taxes
payable on IGN's net income. IGN will be promptly reimbursed by XXXxxxx.xxx for
any and all taxes or duties that IGN may be required to pay in connection with
this Agreement or its performance.
(c) Records and Audit Rights. XXXxxxx.xxx will keep all records relating
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to all Purchasing Data for a period of three years after such sale/impression
record period. An independent certified public accountant selected by IGN may,
no more than once per year and upon at least twenty-four hours notice, inspect
such records during normal business hours. If, upon performing such audit, it
is determined that XXXxxxx.xxx has underpaid IGN by an amount greater than 5% of
the payments due IGN in the period being audited, XXXxxxx.xxx will bear all
reasonable expenses and costs of such audit in addition to its obligation to
make full payment under this Section.
9. Licenses and Other. Subject to the terms and conditions of this Agreement,
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(a) IGN Content License. Subject to the terms and conditions of this
-------------------
Agreement, IGN hereby grants to XXXxxxx.xxx a non-exclusive, non-transferable
license (without the right to sublicense) to copy and publicly display the IGN
Content solely for the purposes described in Section 4(a). XXXxxxx.xxx may re-
format the IGN Content for the purpose of incorporating it into the XXXxxxx.xxx
Site. XXXxxxx.xxx will not modify, use, copy or distribute the IGN Content,
except as expressly provided in this Agreement.
(b) XXXxxxx.xxx Content License. Subject to the terms and conditions of this
---------------------------
Agreement, XXXxxxx.xxx hereby grants to IGN a non-exclusive, non-transferable
license (without the right to sublicense) to copy and publicly display the
XXXxxxx.xxx Content solely for the purposes described in Section 4(b). IGN may
re-format the XXXxxxx.xxx Content for the purpose of incorporating it into the
IGN Sites. IGN will
not modify, use, copy or distribute the XXXxxxx.xxx Content, except as expressly
provided in this Agreement.
(c) IGN Trademark License. IGN hereby grants the other party a non-
---------------------
exclusive, revocable, worldwide license to use the IGN Marks solely in
conjunction with the links described in Section 3(c) and Section 4(a) of this
Agreement. Any use of the IGN Marks must comply with IGN's trademark guidelines
and will inure to IGN's benefit. Nothing contained in this Agreement gives
XXXxxxx.xxx any right, title or interest in the IGN Marks, except as expressly
provided in this Section and XXXxxxx.xxx shall not take any action inconsistent
with the IGN's ownership rights. XXXxxxx.xxx will cease all use and display of
the IGN Marks upon written notice from IGN and, in any event, upon termination
of this Agreement.
(d) XXXxxxx.xxx Trademark License. XXXxxxx.xxx hereby grants the other
-----------------------------
party a non-exclusive, revocable, worldwide license to use the XXXxxxx.xxx Marks
solely in conjunction with the XXXxxxx.xxx Links and the promotional activities
expressly described in this Agreement. Any use of the XXXxxxx.xxx Marks must
comply with XXXxxxx.xxx's trademark guidelines and will inure to XXXxxxx.xxx's
benefit. Nothing contained in this Agreement gives XXX.xxx any right, title or
interest in the XXXxxxx.xxx Marks, except as expressly provided in this Section
and XXX.xxx shall not take any action inconsistent with the XXXxxxx.xxx's
ownership rights. XXX.xxx will cease all use and display of the XXXxxxx.xxx
Marks upon written notice from XXXxxxx.xxx and, in any event, upon termination
of this Agreement.
(e) Ownership. Subject to the rights expressly granted in this Agreement,
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IGN will retain all right, title and interest in and to the IGN Networks and the
Other Snowball Networks (and all related sites), the IGN Marks and the IGN
Content and XXXxxxx.xxx will retain all right title and interest in and to the
XXXxxxx.xxx Site, the XXXxxxx.xxx Marks and the XXXxxxx.xxx Content.
(f) IGN Discretion. Unless expressly provided in this Agreement, the form,
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format and position of any XXXxxxx.xxx Link or advertisement described in this
Agreement, and date of placement, will be determined by IGN in its discretion.
IGN may, upon written notice to XXXxxxx.xxx, reject any content provided by
XXXxxxx.xxx under this Agreement if it fails to comply with IGN's reasonable
requirements or is otherwise inappropriate for the users of the IGN Sites.
Nothing in this Agreement will be construed to limit IGN's right to modify any
of the content or any aspect of structure of the IGN Sites, or to rename or
reposition the IGN Sites, in its discretion; provided that, in the event any
such change affects IGN's ability to perform any obligation described in this
Agreement, IGN will provide reasonable alternative performance.
(g) XXXxxxx.xxx Site Information. XXXxxxx.xxx will provide IGN with any
----------------------------
information reasonably required to implement the XXXxxxx.xxx Links. XXXxxxx.xxx
will give IGN reasonable advance notice in the event XXXxxxx.xxx changes its
universal record locator (URL) for the XXXxxxx.xxx Site.
10. Confidential Information.
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(a) Obligations. Each party ("Receiving Party") agrees to treat as
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confidential all proprietary information disclosed to it by the other party
("Disclosing Party") including marketing information, customer data, any data
described in Section 3.1 above and the terms of this Agreement ("Confidential
Information"). Receiving Party agrees not to publish or disclose the Disclosing
Party's Confidential Information to others except to those employees and
subcontractors to whom disclosure is necessary in order to carry out the
purposes of this Agreement. All tangible materials embodying such Confidential
Information will remain the sole property of Disclosing Party and will be
delivered to Disclosing Party by Receiving Party upon Disclosing Party's
request. Receiving Party will inform all its employees and subcontractors who
receive Confidential Information of the confidential nature of such Confidential
information and of their obligation to keep same confidential and not to use it
other than as permitted hereunder.
(b) Exceptions. Neither party will have any obligation with respect to any
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Confidential Information which: (1) was rightfully known to Receiving Party
prior to receipt of such Confidential Information from Disclosing Party; (2) is
lawfully obtained by Receiving Party from a third party under no obligation of
confidentiality; (3) is or becomes generally known or available without any act
or failure to act by Receiving Party; (d) is developed independently by
Receiving Party. Either party may disclose the Confidential Information of the
Disclosing Party if required by court order or legal requirement and the party
subject to the order has given the other party a reasonable opportunity (and has
cooperated fully) to contest or limit the scope of such required disclosure
(including application for a protective order).
11. User Data.
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(a) Ownership. Subject to the restrictions in this Section and any rights
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to use the applicable data granted under this Agreement, IGN will own the
Registration Data and XXXxxxx.xxx will own the Purchasing Data.
(b) Treatment of Individually Identifiable User Data. Neither party shall
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sell, disclose, transfer, or rent any user data obtained by it from the other
party which data identifies, or can be used to identify, a specific individual
("Individually Identifiable User Data") to any third party or use any
Individually Identifiable User Data on behalf of any third party, without the
express permission of the applicable user specifically approving such use. Each
of IGN and XXXxxxx.xxx will only use Individually Identifiable User Data in
accordance with the Terms of Service and Privacy Policy posted on the IGN and
XXXxxxx.xxx sites, as such may be amended from time to time by IGN and
XXXxxxx.xxx. In those cases where permission for disclosure of Individually
Identifiable User Data has been obtained from the applicable user, each party
shall use all reasonable efforts to implement an "opt out" feature on its own
behalf, and an include and enforce through its agreements with third parties a
requirement for the inclusion of an "opt out" feature in all e-mail
communications generated by, or on behalf of, third party users of the
Individually Identifiable User Data.
(c) Aggregate Data. Notwithstanding the restrictions above, the parties
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retain the right to use, sell, disclose, transfer, or rent any user data as long
as such user data is in an aggregate form that does not include any Individually
Identifiable User Data.
12. Term and Termination.
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(a) Term. This Agreement will commence on the Effective Date and remain in
----
effect until [**] (the "Initial Term"), unless terminated earlier under this
Section 12. If so requested by either party by written notice to the other party
within thirty (30) days of the end of the Initial Term, the parties will
negotiate in good faith to renew the term of this Agreement, subject to any
changes to the terms and conditions of this Agreement agreed to by the parties.
(b) Termination for Breach or Insolvency. Either party may terminate this
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Agreement at any time prior to the expiration of its stated term in the event
that: the other party breaches any term or condition of this Agreement and
fails to cure such breach within thirty (30) days of written notice; or either
party becomes the subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors; or either party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
(c) Effect of Termination. XXXxxxx.xxx's payment obligations hereunder, as
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well as the provisions of this Section and the following Sections will survive
any termination of this Agreement: Section 8 (Payment), Section 9(e)
(Ownership), Section 10 (Confidential Information), Section 11 (User Data),
Section 13 (Limitation of Liability), Section 14 (Indemnification) and Section
15 (General).
13. Limitation of Liability. EXCEPT WITH RESPECT TO ITS OBLIGATIONS UNDER
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SECTION 10 AND SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR REVENUE, PROFITS,
OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Indemnification.
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(a) IGN Obligations. IGN hereby agrees to defend, indemnify and hold
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harmless XXXxxxx.xxx, and its directors, officers and employees against any and
all claims, actions, losses, damages, costs, and expenses (including reasonable
attorneys' fees, "Losses") arising out of or based on any claim related to the
IGN Content or the IGN Network and Other Snowball Networks other than those
claims described in Section 14(b) below. IGN's obligations under this Section
are hereby expressly conditioned on the following: (1) XXXxxxx.xxx provides IGN
with prompt notice of any such claim; (2)
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
XXXxxxx.xxx permits IGN to assume and control the defense of such action, with
counsel chosen by IGN (who will be reasonably acceptable to XXXxxxx.xxx); and
(3) XXXxxxx.xxx provides IGN with any information or assistance requested by
IGN, at IGN's expense.
(b) XXXxxxx.xxx's Obligations. XXXxxxx.xxx hereby agrees to defend,
-------------------------
indemnify and hold harmless IGN, and its directors, officers and employees
against any and all Losses arising out of or based on any claim related to the
XXXxxxx.xxx Site, the Games, XXXxxxx.xxx's activities (or omissions) with
respect to any Customer or any content, information or other materials provided
to IGN under this Agreement. XXXxxxx.xxx's obligations under this Section are
hereby expressly conditioned on the following: (1) IGN provides XXXxxxx.xxx with
prompt notice of any such claim; (2) IGN permits XXXxxxx.xxx to assume and
control the defense of such action, with counsel chosen by XXXxxxx.xxx (who will
be reasonably acceptable to IGN); and (3) IGN provides XXXxxxx.xxx with any
information or assistance requested by XXXxxxx.xxx, at XXXxxxx.xxx's expense.
15. General.
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(a) Waivers/Modifications. Any waiver modification or amendment to any
---------------------
provision of this Agreement will be effective only if in writing and executed by
both parties. The waiver by either party of any default or breach of this
Agreement will not constitute a waiver of any other or subsequent default or
breach.
(b) Notices. All notices required to be given under this Agreement will be
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deemed given when delivered personally or sent by confirmed facsimile or U.S.
certified mail, return receipt requested, to the address shown in the preamble
above, or as may otherwise be specified by either party to the other in writing.
(c) Severability. If any provision of this Agreement is found illegal or
------------
unenforceable, it will be enforced to the maximum extent permissible, and the
legality and enforceability of the other provisions of this Agreement will
remain in full force and effect.
(d) Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of California applicable to agreements
entered into, and to be performed entirely, within California between California
residents.
(e) No Partnership. The relationship of the parties hereto is solely that
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of independent contractors, and not partners, joint venturers or agents.
Neither party has any authority to bind the other in connection with this
Agreement.
(f) Entire Agreement. This Agreement, including any exhibits attached
----------------
hereto, is the complete and exclusive agreement between the parties with respect
to the subject matter hereof, and supersedes and replaces any and all prior or
contemporaneous agreements regarding such subject matter. The parties agree
that the letter agreement,
dated as of January 28, 1999, between the parties is hereby terminated and
replaced in its entirety by this Agreement.
(g) No Assignment. Neither party may assign this Agreement without the
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other party's written consent except in the event of a reorganization, merger,
consolidation or sale of all or substantially all of its assets. Any assignment
in violation of this Section will be null and void.
In Witness Whereof, the parties have entered into this Agreement as of the
Effective Date.
XXXXXXX.XXX. SNOWBALL, INC.
By: /s/ XXXX X. XXXX By: /S/ XXXXX X. XXXXXXX
----------------------- ---------------------------
Name: XXXX X. XXXX Name: XXXXX X. XXXXXXX
--------------------- -------------------------
Title: President Title: COO/ CFO
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12/17/99
EXHIBIT A
IGN SITES
xxxx://xxxxx.xxx.xxx
xxxx://xxxxxxxxxxxx.xxx.xxx
xxxx://xxxxxxxx.xxx.xxx
xxxx://xxxxxx.xxx.xxx
xxxx://xx.xxx.xxx
