EXHIBIT 10.33
[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
EXCITE SERVICES DISTRIBUTION AND CO-BRANDED AREA AGREEMENT
This agreement ("Agreement") is entered into as of the 20th day of January, 1998
("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Prodigy
Services Corporation, a Delaware corporation, located at 00 X. Xxxxxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000 ("Distributor").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the "Excite
Site'") and owns and/or manages related Web sites worldwide (collectively,
the "Excite Network") which, among other things, allows 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 ("Excite Channels"), including a personalized Internet
information service known as "My Channel".
C. Distributor provides interactive information, communication and transaction
services through, among other delivery platforms, the Prodigy Internet
service ("Prodigy Internet"), an Internet-based service, and the Prodigy
Service ("Prodigy Classic"), an online service, for use by any individual,
business, or entity now or hereafter authorized by Distributor to use Prodigy
Internet or Prodigy Classic or both ("Prodigy Internet Subscribers" or
"Prodigy Classic Subscribers," as applicable, and together referred to as
"Distributor's Subscribers"). For purposes of this Agreement, unless
otherwise stated, Prodigy Internet Subscribers and Distributor's Subscribers
do not include Non-Excite Subscribers, as defined in Section 3(c) below.
D. Excite and Distributor wish to promote Excite's Internet search, navigation
and content services to certain of Distributor's Subscribers. Excite and
Distributor desire that Excite design, maintain and operate co-branded
versions of its search, navigation and content aggregation services, to
promote such co-branded services to certain of Distributor's Subscribers and
to share revenue derived from their use.
Therefore, the parties agree as follows:
1. CO-BRANDED EXCITE SERVICES
a) Excite will design and create Web pages ("Co-Branded Pages" or,
collectively, the "Co-Branded Area") for Excite Search, Excite Channels
and My Channel services which will prominently display the name and/or
brands of both Distributor and Excite.
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b) Excite and Distributor will collaborate and mutually agree upon the
appearance, content and user interface of the Co-Branded Pages.
c) The Co-Branded Pages will conform to the product description attached
hereto as Exhibit A. This product description may be changed by the
mutual agreement of the parties.
d) The Co-Branded Area will reside and be hosted on Excite's servers,
similar to those used for Excite's generally available services on the
Excite Site. Excite will have sole responsibility for providing and
maintaining at its expense, the Excite Site, the Co-Branded Area and
Excite's servers.
e) Distributor may request reasonable revisions to the Co-Branded Pages.
Excite will use reasonable efforts to accommodate Distributor's
requested changes within three (3) days, but in no event later than
fifteen (15) days, after receipt of Distributor's request.
f) Distributor will have the right to replace individual top-level. Excite
Channels with channels specified by Distributor if;
i) Excite Channel content is not among the top three "best of breed"
choices. To be among the best of breed choices requires that Excite
content will at all times be at least comparable to any other source
of similar topical content available on the Internet in terms of the
following factors, taken as a whole; (i) breadth and depth of
coverage; (ii) timeliness of content updates; and (iii) reputation
and ranking based on a cross-section of third-party reviewers in
terms of features, functionality, quality and other qualitative
factors. In the event that an Excite Channel fails to meet these
quality criteria, Distributor may request that Excite remedy the
deficient factor(s) within forty-five (45) days or, if Excite is
unable or unwilling to provide remedy, that Excite supplement the
Excite Channel with another channel containing content designated by
Distributor (a "Non-Excite Channel") on forty-five (45) days' written
notice to Excite; and
ii) Excite maintains a minimum of eighty percent (80%) of its existing
channel structure after the inclusion of any Non-Excite Channel. The
existing channel structure is defined as the selection of main
channel links located on the start page of the Excite Site.
g) Distributor may select up to two (2) subchannels containing content
designated by Distributor (a "Non-Excite Subchannel") for inclusion on
any top-level Co-Branded Channel Pages upon mutual agreement so long as
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[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
the Distributor selection is not in conflict with then existing Excite
relationships. Examples of conflicts include, but are not limited to,
cases where Excite has contractual agreements to provide exclusive or
premier placement for certain content.
h) Excite agrees that it will not sell, lease, barter, or give away to third
parties the name, telephone number, email address, residential address,
office address, and/or fax number of any of Distributor's Subscribers
without Distributor's written consent. Excite further agrees that it will
not send unsolicited email messages or other unsolicited communications
to Distributor's Subscribers without Distributor's written consent.
i) Excite will make reasonable commercial efforts to provide a co-branded
version of the MailExcite free email service ("Co-Branded Mail") to
Distributor's Subscribers of the Co-Branded Area. Prodigy Internet
Subscribers who register for Co-Branded Mail will be given an email
address which uses the domain name of "prodigyweb", or other domain name
specified by Distributor prior to the launch of the Co-Branded Mail. The
selection of a domain name other than "prodigyweb" will be subject to
prior approval by Excite, such approval not to be unreasonably withheld.
j) Excite will provide Distributor with five additional versions of the top-
level page of the Co-Branded My Channel ("OEM Pages"), as specified in
Exhibit A at no expense to the Distributor. At Distributor's request,
Excite will provide additional OEM Pages to Distributor at a cost of [**]
per OEM Page.
2. COMMUNITY SERVICES AND APPLICATIONS
a) Excite will create up to fifty chat rooms to be made available as needed
for the use of Distributor's Subscribers on topics to be specified by
Distributor ("New Chat").
b) Excite will create up to one hundred message boards on topics to be
specified by Distributor ("New Boards").
c) Excite will maintain and monitor the New Chat and New Boards referred to
in Sections 2(a) and 2(b), above, at a level of service comparable to
that provided on the Excite Site at the Effective Date of this Agreement.
d) Excite will create co-branded versions of the following applications
("the Co-Branded Applications") for use by Prodigy Internet Subscribers:
(i) Excite PAL "buddy list" and (ii) client and Java versions of Excite's
chat application.
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3. LINKS TO THE CO-BRANDED EXCITE SERVICES
a) Distributor will incorporate the Co-Branded My Channel service as the
default home page for Prodigy Internet Subscribers, except as provided in
Section 3(f) below.
b) Distributor will be free to distribute versions of Prodigy Internet with
OEM or affinity partners which do not include the Co-Branded My Channel
service ("Non-Excite Versions") should such partner so desire, subject to
Section 3(d), below.
c) Subscribers to Non-Excite Versions ("Non-Excite Subscribers") will not be
classified as Prodigy Internet Subscribers.
d) At the end of any calendar month, Non-Excite Subscribers will not account
for more than 25% of the sum of: (i) total Prodigy Internet Subscribers
and (ii) Non-Excite Subscribers.
e) The co-branded version of Excite Search will be the exclusive Internet
search service promoted by Distributor to Distributor's Subscribers.
f) At Distributor's option, Distributor may provide a default start page for
Prodigy Internet Subscribers which is not a Co-Branded Page, provided
that Distributor will incorporate the Co-Branded Area as the exclusive
personalized service and Internet search and navigation service
applications provided to Prodigy Internet Subscribers in the following
manner:
i) Distributor will display links to the co-branded versions of Excite
Search, Excite Channels and My Channel services "above the fold" on
the home page of Prodigy Internet. Any such home page(s) will exist
or be maintained at Distributor's sole discretion. For purposes of
the Agreement, "above the fold" means the area visible to a user
viewing the default home page of Prodigy Internet using a standard
Web browser without having to scroll up or down, or to the right or
left, while viewing a standard screen size (e.g., a VGA display of
640 x 480 pixels) on a standard computer monitor.
ii) If such change in presentation requires engineering or design
changes by Excite, Distributor will use best efforts to provide as
much advance notice of the required change in presentation as is
practicable.
iii) If, pursuant to Subsection (f) above, Distributor provides a default
start page for Prodigy Internet Subscribers which is not a Co-
Branded Page, and fewer than fifty percent (50%) of Prodigy Internet
Prodigy Confidential
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[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
Subscribers regularly access My Channel within three (3) months
following such implementation, Excite will have the right to
terminate the Agreement.
iv) Excite may request reasonable revisions to the link(s) to the
CoBranded Area. Distributor will use reasonable efforts to
accommodate Excite's requested changes within fifteen (15) days of
receipt of Excite's request.
4. IMPLEMENTATION
a) Distributor and Excite will implement a test version of the Co-Branded
Area and links to the Co-Branded Area as specified under Phase I in
Exhibit A by February 13, 1998, and implement a final version by
February 27, 1998 (the "Phase I Implementation Date").
b) Distributor and Excite will make best efforts to implement a test version
of the additional product features specified under Phase II in Exhibit A
by March 13, 1998, but in no event later than March 20, 1998.
Distributor and Excite will make best efforts to implement a final
version of additional product features specified under Phase II in
Exhibit A by March 17, 1998, but in no event later than April 3, 1998
(the "Phase II Implementation Date").
5. ADVERTISING AND REVENUE SHARING
a) Excite will be solely responsible for selling advertising on the Co-
Branded Pages and the Excite Site, except for Non-Excite Channels and
Non-Excite Subchannels.
b) Within thirty (30) days of the end of each calendar month during the term
of the Agreement, Excite will make payment to Distributor (the
"Distributor Payment") resulting from advertising on the Co-Branded
Pages. For each calendar month, the Distributor Payment will be
calculated as [**] during the calendar month and [**] during the calendar
month.
c) Total Net Ad Revenue will be calculated as total revenue generated from
banner advertising sales on the Excite Network less: (i) Excite's sales
agency discounts and commissions both internal and external and (ii) [**]
of total revenue generated from banner advertising sales on the Excite
Network (the "Content Expense"). Such sales agency discounts
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[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
and commissions will in no event exceed [**] of total revenue generated
from banner advertising sales on the Excite Network.
d) The Distributor Portion for a given calendar month will be defined as the
product of: (i) 0.5 ("the Split") and (ii) total page views generated on
the Co-Branded Area, excluding page views generated in conjunction with
the Co-Branded Applications and Co-Branded Mail, for a given month
divided by total page views generated on the Excite Network during the
same month, including the Co-Branded Area but excluding page views
generated in conjunction with Excite PAL, chat applications and
MailExcite. (For purposes of illustration, see Exhibit D attached
hereto.)
e) Excite will calculate the Distributor Payment for each calendar month
during the term of the Agreement and make payment to Distributor within
thirty (30) days of the end of each calendar month.
f) With each payment, Excite will provide to Distributor documentation
reasonably detailing the calculation of the payment,
g) Excite will maintain accurate records with respect to the calculation of
payments due under the Agreement. Distributor may, upon no less than
thirty (30) days prior written notice to Excite, cause an independent
certified public accountant to inspect the records of Excite reasonably
related to the calculation of such payments during Excite's normal
business hours. The fees charged by such certified public accountant in
connection with the inspection will be paid by Distributor, unless the
payments made to Distributor are determined to have been less than ninety
percent (90%) of the payment owed to Distributor, in which case Excite
will be responsible for the payment of the reasonable fees for such
inspection. In addition, if the audit reveals any underpayment between
the amount owed and the amount actually paid by Excite during the audited
period, Excite will correct the underpayment by paying Distributor the
amount of such underpayment.
h) Excite will make reasonable commercial efforts to exclude advertising
from the Co-Branded Pages and the Co-Branded Applications from up to ten
(10) advertisers as specified by Distributor in Exhibit E. [**].
Not more than four times per calendar year, Distributor may update this
list of advertisers. Within two (2) business days of receiving
Distributor's written update, Excite will remove any advertising from
such advertisers from the Co-Branded Pages and Co-Branded Applications.
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[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
i) Nothing herein shall be deemed to prohibit Excite from promoting its own
services via banner advertising in the Co-Branded Pages, except in
connection with promotions of any advertiser listed in Exhibit E.
6. PROMOTION OF THE CO-BRANDED AREA AND EXCITE SERVICES
a) Excite will provide Distributor with the greater of: (i) [**] advertising
banner impressions per quarter on the Excite Site, excluding the
Co-Branded Area or (ii) [**] advertising banner for every [**] on the
Co-Branded Area during the term of the Agreement. These banner
advertisements will be used to promote Prodigy Internet at no cost to
Distributor.
b) At its discretion, Distributor will promote the Co-Branded Area in
certain promotions which feature Prodigy Internet.
c) Distributor will promote the following Excite services on Prodigy
Internet.
i) Excite Search will be the exclusive Internet search and navigation
search on all Web pages controlled by Distributor and provided to
Prodigy Internet Subscribers in which Distributor displays links to
internet search and navigation services. Distributor will not
display any "above the fold" or graphic links to any of Excite's
competitors, including, but not limited to, Alta Vista, HotBot,
InfoSeek, Lycos, Xxxxxx.xxx, Snap! or Yahoo!, or any other Web site
promoting itself as a provider of internet search and navigation
services.
ii) Excite NewsTracker will be the exclusive personalized Internet news
clipping service on all web pages controlled by Distributor and
provided to Prodigy Internet Subscribers in which Distributor
displays links to a personalized internet news clipping service
("Personalized Internet News Clipping Service"). Distributor will
not display any "above the fold" or graphic links to any of
Excite's competitors including, but not limited to, Alta Vista,
HotBot, InfoSeek, Lycos, Xxxxxx.xxx, Snap! or Yahoo!, or any other
Web site promoting itself as a provider of a Personalized Internet
News Clipping Service. For the purposes of this Agreement, a
Personalized Internet News Clipping Service is an Internet search
service which provides summaries of news articles from publicly
available Web pages.
iii) Distributor will create a Web page or pages promoting the
distribution of the Co-Branded Excite PAL application to Prodigy
Internet Subscribers. The promotional page or pages will be linked
to Excite's FTP server to allow downloads of Excite PAL to Prodigy
Internet Subscribers. Excite and Distributor will collaborate on the
"look and
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feel" of the Excite PAL promotional page or pages. Unless a
generally accepted standard emerges, Distributor will not promote
buddy list applications other than Excite PAL, other than paid
advertisements from other vendors and/or distributors of buddy list
applications, to Prodigy Internet Subscribers.
iv) Distributor will create a Web page or pages for Prodigy Internet
Subscribers promoting registration for Co-Branded Mail to Prodigy
Internet Subscribers. The promotional page or pages will be linked
to a co-branded registration page for Co-Branded Mail. Excite and
Distributor will collaborate on the "look and feel" of the Co-
Branded Mail promotional page or pages. Other than paid
advertisements from other vendors and/or distributors of free email
services, Distributor will not promote free email services other
than Co-Branded Mail to Prodigy Internet Subscribers.
v) Excite Shopping Search will be the exclusive internet shopping
search tool on all Web pages controlled by Distributor and provided
to Prodigy Internet Subscribers in which Distributor displays links
to Internet search shopping services. For the purpose of this
Agreement a Internet shopping search tool is an Internet search
service which provides internet-based shopping search services
across a broad range of product categories and product providers.
7. REDISTRIBUTION
With Excite's prior approval, Distributor will have the right to
redistribute the Co-Branded Area to third-party marketing partners. Any
affiliate partnerships among the Distributor, Excite and such third-party
marketing partners which involve separate development or maintenance work
may involve incremental costs to Distributor or such third party, such
terms to be mutually agreed prior to the signing of any redistribution
agreement.
8. USAGE REPORTS
Excite will provide Distributor monthly standard usage reports via email,
samples of which are contained in Exhibit C. At Distributor's request,
Excite will make commercially reasonable efforts to provide Distributor
with additional usage data.
9. SUPPORT
a) Because the Co-Branded Area is based directly on the corresponding
current, generally available Excite services, Excite will support,
maintain and respond to any problems with the Co-Branded Area in exactly
the
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same manner and with the same timeliness that it supports, maintains and
responds to any problems with the corresponding current, generally
available Excite services.
b) Upon signing of the Agreement, Excite will work with Distributor to
implement a customer service plan for Distributors Subscribers.
10. TRADEMARK OWNERSHIP AND LICENSE; USAGE APPROVAL
a) Distributor 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 Distributor hereunder.
c) Each party hereby grants to the other a non-exclusive, limited license to
use its trademarks, service marks and or trade names ("Trademarks") 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) Each party shall provide the other for review all promotional,
advertising and other materials using or displaying the other party's
Trademarks, and shall not distribute or otherwise use `them without the
other party's prior written approval, which shall not be unreasonably
withheld or denied. If, however, the party from whom approval is sought
does not respond to the other party's request for approval within live
(5) days of receipt of the materials using or displaying the other
party's Trademarks, approval shall be deemed to have been given. In
addition, the requirement for prior approval shall not apply to the use,
distribution and/or duplication as permitted hereunder of any materials
that the party which owns the Trademarks provides to the other party for
such use, distribution and/or duplication.
e) Upon the expiration or termination of the Agreement, each party 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.
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[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
11. TERM AND TERMINATION
a) The term of the Agreement will begin on the Effective Date and, unless
terminated pursuant to this Section or Section 3(f)(iii) above or renewed
in accordance with this Section, will end three (3) years thereafter (the
"Initial Term"). At the end of the Initial Term, the Agreement shall
automatically be renewed for successive one-year terms (each, being a
"Renewal Term") upon the same terms and conditions as set forth in this
Agreement, unless Excite notifies Distributor in writing that it does not
want to renew the Agreement at least six (6) months prior to the end of
the Initial Term or Renewal Term, as applicable.
b) Distributor may terminate the Agreement upon sixty (60) days' prior
written notice to Excite. In the event that the Agreement is terminated
as provided under this Section 11(B) earlier than six (6) months from the
Effective Date, Distributor acknowledges that Excite may be subjected to
damages. lost profits and lost business opportunities and that the amount
of any such damages, lost profits and lost business opportunities will be
difficult to ascertain with certainty. The parties agree that fair
compensation in lieu of such damages, lost profits and lost business
opportunities will be for Distributor to pay Excite [**].
c) Either party may terminate the 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.
d) All payments that have accrued prior to the termination or expiration of
the Agreement will be payable in full within thirty (30) days thereof.
e) To compensate Excite for its costs of developing and initiating access to
the Co-Branded Area, Distributor agrees to pay Excite [**] unless
Excite's share of advertising revenue from page views in the Co-Branded
Area exceeds this amount within six (6) months from the date at which the
My Channel is provided as the default start page for Prodigy Internet
Subscribers (the "Launch Date") or the date Distributor provides a
default start page for Prodigy Internet Subscribers pursuant to Section 3
(f), above. This amount is due eight (8) months from the Launch Date or
the date Distributor provides a default start page for Prodigy Internet
Subscribers pursuant to Section 3 (f), above, or upon termination of the
Agreement, whichever occurs first.
f) Ninety (90) days prior to the expiration of the Agreement, Excite will
provide Distributor with all relevant account information related to
Prodigy internet Subscribers, including but not limited to: (i)
personalization data
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related to Prodigy Internet Subscribers' My Channel accounts (ii)
subscribers' stock portfolio information related to Prodigy Internet
Subscribers' My Channel accounts and (iii) addresses and contents of
all Co-Branded Mail accounts.
g) Following either: (i) a notice of termination under Section 11(a) or
Section 11(b) or (ii) the date of termination under Section 11(c),
above, Excite will provide Distributor with information listed in
Section 11(f), above. Excite will make best efforts to provide such
information to Distributor within thirty (30) days of the date of a
termination notice under Section 11 (a) or Section 11(b) or the date of
termination under Section 11(c).
h) The provisions of Section 1 (h) (Co-Branded Excite Services), (Section
12 (Confidentiality), Section 13 (Representations and Warranties).
Section 14 (Indemnity). Section 15 (Limitation of Liability), Section
16 (Dispute Resolution) and Section 17 (General) will survive any
termination or expiration of this Agreement.
12. CONFIDENTIALITY
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 if disclosed orally or visually only, is defined as confidential or
proprietary at the time of disclosure and is promptly thereafter
summarized in a non-confidential memorandum to the receiving party.
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 or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently without
access to Confidential Information.
c) Each party agrees that (i) 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) 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.
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d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of com
petent
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.
e) The information contained in the usage reports and advertising payment
calculations provided by Excite hereunder will be deemed to be the
Confidential Information of Excite.
f) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
13. REPRESENTATIONS AND WARRANTIES: OWNERSHIP AND PROPERTY RIGHTS
a) Each party represents and warrants to the other that this Agreement has
been duly executed and delivered and constitutes a Icxxxx - valid and
binding obligation enforceable against it - in accordance with the
Agreement's terms.
b) Excite represents and warrants that (i) the Excite Search and Excite
navigation services do not and will not infringe or violate any patent,
copyright, trademark, rights of privacy and publicity or any other
intellectual property right of and will not cause injury to any third
party; (ii) Excite will be fully responsible for the content which is
authored or programmed by Excite on the Co-Branded Area, which will
include, all text, graphics, software, information, and other content
viewable or obtainable in or through the Co-Branded Area, including,
but not limited to, any databases, multimedia material (whether or not
interactive), and any other information and materials, but excluding
information obtained by Distributor's Subscribers from publicly
available Web sites where Excite's sole contribution is to provide the
tools whereby Distributor's Subscribers can access such information
(the "Excite Content"); (iii) the Excite Content is Excite's own and
original creation, except for Information validly licensed to Excite
for use by others or that is in the public domain; (iv) the Excite
Content will not constitute a libel or defamation or infringe or
violate any copyright, trademark, rights of privacy and publicity and
will not cause injury to any third party; (v) it has full ownership of
all intellectual property required to operate and promote the Co-
Branded Area (other than ,the Prodigy Trademarks licensed hereunder);
(vi) the Excite Content is legal and conforms to all applicable laws
and regulations; and (vii) the Excite Trademarks licensed to
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Distributor for use hereunder are owned by Excite, or are validly
licensed to Excite, and Excite has the right to license such Excite
Trademarks hereunder and they do not infringe or violate any patent,
trademark, trade secret, copyright or other proprietary right of any
third party.
c) Distributor represents and warrants that the Distributor's Trademarks
licensed to Excite for use hereunder are owned by Distributor, or are
validly licensed to Distributor for use hereunder, and Distributor has
the right to license such Distributor Trademarks hereunder.
14. INDEMNITY
a) Each party (the "Indemnifying Party") will indemnify, defend and hold
harmless the other party (the "Indemnified Party"), its successors and
assigns and any of its and their affiliates, officers, directors,
employees, consultants and agents from and against - and all claims,
liability, damages and/or costs, including, but not limited to,
reasonable attorneys' fees and disbursements incurred by the
Indemnified Party in any action or proceeding between Indemnifying
Party and the Indemnified Party or between the Indemnified Party and
any third party or otherwise arising from (i) the breach of any
warranty or representation in this Agreement by the Indemnifying Party;
(ii) a failure by the Indemnifying Party to comply in any material
respect with any governmental law, statute, ordinance, administrative
order, rule or regulation: or (iii) a statement of the Indemnifying
Party containing misleading or inaccurate references to the Indemnified
Party or its products or services in any of the Indemnifying Party's
advertising or promotional materials of which the Indemnified Party for
which written approval was required and not obtained.
b) The Indemnified Party will promptly notify the Indemnifying Party of
any and all such threats, claims and will reasonably assist the
Indemnifying Party 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 the
Indemnified Party in any way and such obligation, liability, prejudice
or impact can reasonably be expected to be material, then such
settlement shall require the Indemnified Party's written consent (not
to be unreasonably withheld or delayed) and the Indemnified Party 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
xxxxxxxx0 Prodigy Confidential
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OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH
SUBJECT MATTER.
15. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 14(a), 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.
16. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties' obligations
regarding trademarks, service marks, trade names and/or confidentiality
would result in irreparable injury for which there is no adequate
remedy at law. Therefore, in the event of any breach or threatened
breach of a party's obligations regarding trademarks, service marks,
trade names and/or confidentiality, the aggrieved party will be
entitled to seek equitable relief in addition to its other available
legal remedies in a court of competent jurisdiction. For the purposes
of this section only, the parties consent to venue in either the state
courts of the county in which the initial defendant to the action has
its principal place of business or the United States District Court for
the district in which the initial defendant to the action has its
principal place of business.
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, trade names
and/or confidentiality, 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, the
parties will refer the dispute(s) to a mutually acceptable mediator for
hearing in the county in which the party against whom the action is
initially brought has its principal place of business.
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,
trade names and/or confidentiality, cannot be resolved through good
faith negotiation and mediation, 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. The arbitration
will be held in the county in which
14
the party against whom the action is initially brought has its
principal place of business.
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 a merger, reorganization or sale of all, or
substantially all, of such party's assets. 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 New York, notwithstanding the
actual state or country of residence or incorporation of either party.
c) Notice. Any notice under this Agreement will be in writing and
------
delivered by personal delivery, express courier, certified or
registered mail, return receipt requested, and will be deemed given
upon personal delivery, one (1) day after deposit with express courier
or three (3) days after sent, with proper postage and address, via
certified or registered mail. Notices will be sent to a party at its
address set forth below (and if to Distributor, to the attention of
Vice President - Business Development and to the attention of its
General Counsel, with a courtesy copy to xxxxxxx@xxxxxxx.xxx 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) Entire Agreement. This Agreement is 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.
f) Severability. In the event that any of the provisions of this Agreement
------------
are held by to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
g) 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
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reasonable control of such party including, but not limited to, acts of
God, power outages and governmental restrictions.
Prodigy Services Corporation Excite, Inc.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxx
Name: XXXXX XXXXXXX Name: XXXXXX X. XXXX
Title: VICE PRESIDENT Title: EVP-CFO
Date: 1/22/98 Date: 1/21/98
[SEAL APPEARS HERE]
xxxxxxxx0 Prodigy Confidential
16
EXHIBIT A
PRODUCT SPECIFICATIONS
PHASE I
-------
Timing
Excite will implement Phase I as described in this Exhibit A by the
Phase I Implementation Date, as defined in Section 4, above.
General
a) Advertising banners are allowed on all Co-Branded Pages and all pages
of the Excite Site, as specified in Section 5, above.
b) The presence of advertising in the Co-Branded Area will be consistent
with that of similar pages on the Excite Site.
My Channel
a) The co-branded version of My Channel will be co-branded so that the
Distributor logo and Distributor signature are present on the My Channel
start page. This logo and signature will link to xxx.xxxxxxx.xxx.
b) Advertising banners may be displayed on the co-branded My Channel start
page.
c) The co-branded My Channel will contain links to Excite Channels which will
not be co-branded.
d) The start page of the co-branded My Channel will include the following:
An area containing up to six (6) text links of up to thirty (30)
characters in length to be programmed by Distributor which may include,
inter alia, the following: (i) a link to the Prodigy Help Center and
(ii) links to content produced by either Distributor and/or third
parties.
A content module which may display up to five (5) promotional messages
or communications to Prodigy Internet Subscribers and links to web
pages set up and maintained by Distributor or third parties. It is
Distributor's responsibility to provide content for this module.
xxxxxxxx0 Prodigy Confidential
17
e) Five (5) OEM Pages as described in Section 1 (j), above. The OEM Pages will
be identical to the co-branded version of My Channel with the exception of
the elements described in Section (d), above, of this Exhibit A.
Excite Search
The Excite Search service will be co-branded so that the Distributor's
logo and signature are present on the top level (entry page) and all
pages that return search results. This logo and signature will link to
xxx.xxxxxxx.xxx.
PHASE II
--------
TIMING
Excite will implement Phase II as described in this Exhibit A by the
Phase II Implementation Date, as defined in Section 4, above.
General I
a) All pages of the Co-Branded Area will be co-branded so that the
Distributor logo and Distributor signature are present as on the My
Channel start page. This logo and signature will link to
xxxx.xxxxxxx.xxx.
b) Phase II will incorporate all of the elements of Phase I, with the
following exceptions:
i) Excite Channels
Excite will provide a co-branded version of all Excite Channels as
part of the Co-Branded Area.
Co-branded versions of the Excite Channels will contain modules on
their top-level pages to be programmed by Distributor to contain
up to two (2) subchannels at Distributor's option in accordance
with Section 1(g), above.
ii) My Channel
Links to Excite Channels from the Co-Branded My Channel will be
replaced with links to co-branded versions of Excite Channels.
iii) Excite PAL and Chat
Excite will provide the Co-Branded Applications for use by Prodigy
Internet Subscribers.
xxxxxxxx0 Priodigy Confidential
18
iv) Co-Branded Mail
Excite will make reasonable commercial efforts to provide Co-
Branded Mail, as described in Section 1(i), above.
xxxxxxxx0 Prodigy Confidential
19
EXHIBIT B
IMPLEMENTATION SCHEDULE
a) No later than two (2) weeks after the signing of the Agreement. Excite will
deliver to Distributor a mock-up template of the Co-Branded Pages based on
Excite's product specification, as defined at time the Agreement is signed.
b) No later than one (1) week after delivery of the initial mock-up,
Distributor must respond to the mock-up template with comments or waive any
changes to the mock-up template.
c) Further changes to the mock-up template will be made an as-needed basis.
However, the final version of the mock-up template must be completed and
approved fourteen (14) days prior to scheduled implementation date. Failure
to have final approval fourteen (14) days in advance of the scheduled
implementation date may result in a delayed implementation date. Delayed
implementation dates will be rescheduled solely according to the
availability of Excite's engineering resources.
xxxxxxxx0 Prodigy Confidential
20
EXHIBIT C
SAMPLE STANDARD USAGE REPORTS
[TO BE PROVIDED]
Prodigy Confidential
21
[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
EXHIBIT D
SAMPLE CALCULATION OF DISTRIBUTOR PAYMENT
Excite,Inc.
Revenue Sharing Calculation Worksheet
Prodigy
Prodigy
Total Total Cobranded Total Portion of
Network Prodigy Banner Gross [**] [**] Revenue
Month Pageviews Pageviews % revenue Revenue Agency Fee Content Fees Share
1-98 [**] [**] [**] [**] [**] [**] [**] [**]
------------------------------------------------------------------------------------------------------------------------------------
Cumulative
totals [**] [**] [**] [**] [**] [**] [**]
------------------------------------------------------------------------------------------------------------------------------------
Prodigy
--------------------------------------------------------------
Payment Net Floor Amount
Ratio Amount [**] Due
[**] [**] [**] [**]
-------------------------------------------------------------------------------------------------
Cumulative
totals $ [**] [**] [**]
-------------------------------------------------------------------------------------------------
As Communities Pageview
As revenues from indicated ISP's, if applicable
Less Communities Revenues
contract 17 Prodigy Confidential
22
EXHIBIT E
EXCLUDED ADVERTISERS
1. America Online/CompuServe
2. AT&T WorldNet
3. EarthLink
4. MindSpring
5. Erols
6. MCI Internet
7. Sprint Passport
8. Xxxx Atlantic Internet Services
9. BellSouth Internet Services
10. MSN
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