EXHIBIT 10.17
CONTENT DISTRIBUTION AGREEMENT
BETWEEN
XXXXXXXXXXXXXXXX.XXX, INC.
AND
OMNISKY CORPORATION
DATED SEPTEMBER 6, 2000
CONTENT DISTRIBUTION AGREEMENT
This Content Distribution Agreement is entered into effective as of September 6,
2000 (the "Effective Date"), by and between OmniSky Corporation, a Delaware
corporation with its principal place of business at 0000 Xxxxxx Xxxxx, Xxxx
Xxxx, XX 00000, and xxxxxxxxxxxxxxxx.xxx, a Delaware corporation with an office
at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 ("Content
Partner").
1. BACKGROUND:
Content Partner wishes to distribute Content, which is formatted and
optimized for Handheld Devices, through the OmniSky Service, which Content will
originate from (Content Partner select option "a", "b", or "c"):
(a) A Web Clipping Application or similar application ("WCA") to be provided
by Content Partner and distributed by OmniSky via client software distribution
or server software distribution, which will retrieve additional Content from the
Content Partner Site.
(b) The Content Partner Site behind which is pre-formatted Content, in a
manner compatible with Handheld Devices and approved by OmniSky.
(c) The Content Partner Site to be transcoded by OmniSky's servers into a
Handheld Device-optimized format using a template or format to be developed by
OmniSky and approved by Content Partner.
1.1 SCOPE OF AGREEMENT: The parties agree and understand that the
purpose of this Agreement is to distribute Content Partner's Content through the
OmniSky Service as set forth herein. The scope of this Agreement is limited to
Content which is to be distributed through Handheld Devices with displays which
have minimum dimensions of approximately 160 x 160 pixels. In the event the
OmniSky Service subsequently becomes available though other Handheld Devices or
other electronic devices with displays of dimensions of less than approximately
160 x 160 pixels, the parties will enter further negotiations regarding the
distribution of Content through such devices. Content may be distributed
internationally by OmniSky, or its subsidiaries. This Agreement shall not
operate to limit or affect OmniSky's right to enter into co-marketing and/or
private label distribution agreements whereby Content Partner's Content may, at
OmniSky's election and sole discretion, be omitted from distribution.
2. DEFINITIONS:
2.1 "CONFIDENTIAL INFORMATION" means all information of either party
("Disclosing Party") which is disclosed to the other (`Receiving Party"),
whether in oral, written or other tangible form that the Disclosing Party
designates as being confidential or which, under the circumstances surrounding
disclosure, the Receiving Party knows or has reason to know should be treated as
confidential.
2.2 "CONTENT" means any and all content (including, without limitation,
information, data, text, software, music, sound, photographs, graphics, video,
messages or other materials) and services that are accessible through the WCA,
if applicable, and from the Content Partner Site.
2.3 "CONTENT PARTNER SITE" means the WCA supplied by Content Partner and
the world wide web ("WWW") site(s) located at the URL(s) to be mutually agreed
upon by the parties, or any successor or replacement WWW site designated by
Content Partner that contains substantially similar Content. The Content
Partner's Site will be hosted on Content Partner's servers or on the servers of
Content Partner's Internet Service Provider. Content Partner shall be solely
responsible for developing and maintaining the Content Partner Site.
2.4 "END USER" means any party that subscribes to or otherwise accesses
the OmniSky Service.
2.5 "HANDHELD DEVICE" means any device that is a platform for the
OmniSky Service (as designated by OmniSky) that is able to display, collect or
store information, including, but not limited to, devices based on the Palm OS
or Windows CE operating systems, cell phones, pagers and "smart phones" with
minimum display dimensions of approximately 160 x 160 pixels.
2.6 "OMNISKY SERVICE" means the wireless service for Handheld Devices
provided to End Users by OmniSky.
3. LICENSES:
3.1 CONTENT DISTRIBUTION LICENSE. Subject to the terms and conditions of
this Agreement, Content Partner hereby grants OmniSky, and its subsidiaries, a
worldwide non-exclusive, royalty-free license for the Term of this Agreement to
use, access, reproduce (including, without limitation, caching for performance
purposes), publicly perform, display and distribute the Content, solely to
deliver the Content to End Users for use on Handheld Devices as defined herein.
Such license shall include a royalty free right to sublicense the Content by
OmniSky. All right, title and interest in and to the Content shall remain in the
Content Partner.
3.2 TRADEMARK LICENSES:
(a) BY OMNISKY: Subject to the terms and conditions of this Agreement,
OmniSky hereby grants to Content Partner a non-exclusive, non-transferable,
royalty-free license for the Term of the Agreement to use OmniSky's trademarks,
trade names, icons and logos ("OmniSky Trademarks") on Content Partner's WWW
sites and other
promotional vehicles solely to promote its participation in the OmniSky
Service. Content Partner shall comply with any usage guidelines for the
OmniSky Trademarks which may be provided to the Content Partner by OmniSky
from time to time, and upon request by OmniSky, shall furnish OmniSky with
samples of Content Partner's usage of the OmniSky Trademarks for prior
approval by OmniSky. All right, title and interest in and to the OmniSky
Trademarks shall remain in OmniSky. Content Partner shall not challenge
OmniSky's ownership of such OmniSky Trademarks, or use or adopt any
trademarks which are similar to such OmniSky Trademarks.
(b) BY CONTENT PARTNER: Subject to the terms and conditions of this
Agreement, Content Partner hereby grants to OmniSky a non-exclusive,
non-transferable, royalty-free license for the Term of the Agreement to use
Content Partner's trademarks, trade names, icons and logos ("Content Partner
Trademarks"), solely in connection with marketing the OmniSky Service and the
availability of the Content Partner's Content on the OmniSky Service. OmniSky
shall comply with any usage guidelines which may be provided to OmniSky by
Content Partner from time to time, and upon request by Content Partner, shall
furnish Content Partner with samples of OmniSky's usage of the Content Partner
Trademarks for prior approval by Content Partner. All right, title and interest
in and to the Content Partner Trademarks shall remain in Content Partner.
OmniSky shall not challenge Content Partner's ownership of such Content Partner
Trademarks, or use or adopt any trademarks which are similar to such Content
Partner Trademarks.
3.3 NO OTHER LICENSES: Except as otherwise provided in Section 3.1, 3.2
or 3.3, neither OmniSky nor Content Partner grant the other any license, express
or implied, to any copyrights, patents, patent applications, trademarks, or
other proprietary rights.
4. OBLIGATIONS OF CONTENT PARTNER AND OMNISKY:
4.1 CONTENT DEVELOPMENT AND CHANGE: At all times during the Term,
Content Partner shall cause the Content to conform to the description on EXHIBIT
A ("Description of Content"). Once made available to End Users through the
OmniSky Service, Content Partner shall ensure that the Content remains available
through the Content Partner Site throughout the Term and shall make reasonable
efforts to maintain the Content Partner Site at a level at least equal to the
performance and functionality as offered on the Effective Date. At all times
during the Term, Content Partner shall ensure that the Content is at least as
complete and up-to-date as any similar content displayed on all other sites of
Content Partner on the WWW. Content Partner shall provide OmniSky, within a
reasonable period of time, notification in advance of any change in Content that
may affect its formatting compatibility with the OmniSky Service.
4.2 CONTENT PARTNER TRADEMARKS: Content Partner shall provide the
Content Partner Trademarks to OmniSky in an electronic format reasonably
acceptable to OmniSky, as specified in Exhibit A ("OmniSky Specifications for
Content Partner Trademarks"), within fifteen (15) days after the Effective Date
of this Agreement.
4.3 EXPENSES: Content Partner will bear its own expenses with respect to
the fulfillment of its obligations under this Agreement.
4.4 Additional Obligations: Content Partner and OmniSky shall perform
the additional obligations set forth in the following Exhibits, as applicable.
(OmniSky: select all that apply and that are attached as Exhibits:
X Exhibit B ("Co-Marketing Obligations")
X Exhibit C ("Positioning & Transactional Terms")
Exhibit D ("Advertising Terms")
5. RESTRICTIONS:
Except as provided in Section 3 and Section 11, neither party shall have
the right to transfer any of the rights granted to such party in Section 3,
provided, however, that End Users shall have the right to copy and use the
Content on Handheld Devices. OmniSky may, in its sole discretion, restrict or
prevent access to the Content Partner Site if OmniSky believes that all or any
portion thereof (i) promotes or contains any information, including, but not
limited to visual images, that is unlawful, false or misleading or promotes
illegal purposes; (ii) promotes bigotry, racism, hatred, or harm of any kind
against any group or individual; (iii) is or could be in any way harmful to
minors; (iv) is harassing, libelous, invasive of another's privacy, abusive,
threatening, vulgar, obscene, tortious, or otherwise objectionable, or infringes
or may infringe the intellectual property or rights of another; (v) distributes
or allows access to corporate or Intranet information that is not generally made
available for free to users of the WWW; or (vi) is otherwise inappropriate for
inclusion in the OmniSky Service. Content Partner Content will be governed by
Content Partner's current policies with respect to publicity, privacy, libel,
slander, obscenity, and any complaints arising out of or relating to all Content
Partner Content.
6. CONFIDENTIALITY:
6.1 PROPRIETARY AND CONFIDENTIAL INFORMATION: Each party to this
Agreement must not disclose, and must keep confidential, the provisions of this
Agreement. The Receiving Party shall keep in confidence, both during the Term of
this Agreement and thereafter for a period of three (3) years, all of the
Disclosing Party's Confidential Information, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party. Without limiting the
foregoing, the Receiving Party shall use at least the same degree of care which
it uses to prevent the disclosure of its own Confidential Information of like
importance to prevent the disclosure of the Disclosing Party's Confidential
Information. The Receiving Party shall promptly notify the Disclosing Party of
any actual or suspected misuse or unauthorized disclosure of the Disclosing
Party's Confidential Information.
6.2 EXCEPTIONS: Notwithstanding the above, the Receiving Party shall
have no liability to the Disclosing Party with regard to any Confidential
Information that: (a) was in the public domain at the time it was disclosed
or has entered the public domain through no fault of the Receiving Party; (b)
was known to the Receiving Party, without restriction, at the time of
disclosure; (c) was disclosed with the prior written approval of the
Disclosing Party; (d) was independently developed by the Receiving Party
without use of the Disclosing Party's Confidential Information; (e) became
known to the Receiving Party from a third party, without restriction on
disclosure and without violation of Disclosing Party's rights; (f) is
disclosed generally to third parties by the Disclosing Party without
restrictions similar to those contained in this Agreement; or (g) is
disclosed pursuant to the order or requirement of a court, administrative
agency, or other governmental body, provided, however, that the Receiving
Party shall provide prompt notice of such order or requirement to the
Disclosing Party to enable the Disclosing Party to seek a protective order or
otherwise prevent or restrict such a disclosure.
6.3 REMEDIES: Any breach of the restrictions contained in this Section 6
is a breach of this Agreement that may cause irreparable harm to the
non-breaching party. Any such breach shall entitle the non-breaching party to
injunctive relief in addition to all legal remedies.
7. REPRESENTATIONS AND WARRANTIES:
Each party represents and warrants to the other that (a) it possesses full
power and authority to enter into this Agreement and to fulfill its obligations
hereunder, (b) upon execution, this Agreement shall constitute a legal, valid
and binding obligation of such party, enforceable in accordance with its terms,
and (c) the performance of the terms of this Agreement and its obligations
hereunder shall not breach any other agreement by which it is bound.
8. INDEMNIFICATION:
Each party (the "Indemnifying Party") will defend, indemnify, and hold
harmless the other party (the "Indemnified Party"), and the respective
directors, officers, employees and agents of the Indemnified Party, from and
against any and all claims, costs, losses, damages, judgments, obligations,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees) arising out of or in connection with or are related in any way to the
following: Content Partner will indemnify OmniSky, as described above, for: (a)
any third-party claim alleging that the Content, the Content Partner Site, or
the Content Partner Trademarks, or the use and/or distribution thereof as
contemplated herein, infringe or misappropriate any patents, copyrights,
trademarks, trade secrets or any other intellectual property rights of any third
party, (b) any claim brought by any of Content Partner's advertisers, (c) the
accuracy or results of use of the Content or any portion of the Content Partner
Site, (d) any breach by Content Partner of any of its representations or
warranties herein, or (e) any claim that any Content or any part of the Content
Partner Site (i) violates any foreign, international, federal, state or local
law or regulation, or (ii) in any way infringes upon any party's privacy right,
right of publicity, or any other right of any person or entity or is otherwise
unlawful, hateful, harmful, abusive, obscene, threatening, libelous or
defamatory; OmniSky will indemnify Content Partner, as described above, for (a)
any third-party claim alleging that the OmniSky Service or the OmniSky
Trademarks, or the use and/or distribution thereof as contemplated herein,
infringe or misappropriate any patents, copyrights, trademarks, trade secrets or
any other intellectual property rights of any third party, (b) any claim brought
by any of OmniSky's advertisers, or (c) any breach by OmniSky of any of its
representations or warranties herein. These obligations of the Indemnifying
Party, as set forth in this Section 8, are contingent on the Indemnified Party
(i) giving the Indemnifying Party prompt written notice of any such claim; (ii)
allowing the Indemnifying Party to control the defense and related settlement
negotiations (but the Indemnifying Party shall not enter into any agreement
which results in liability to the Indemnified Party without its prior written
consent); and (iii) providing reasonable cooperation, at the Indemnifying
Party's expense, in the defense and all related settlement negotiations.
Notwithstanding the foregoing, should the Indemnifying Party control the defense
and related settlement negotiations, the Indemnified Party shall have the right,
at its own expense, to hire its own legal counsel. OmniSky may, at its sole
option, elect to limit its obligations under this paragraph by terminating this
Agreement upon written notice to Content Partner as set forth herein; PROVIDED
HOWEVER, that such termination shall not affect indemnity obligations arising
prior to termination. THE RIGHTS GRANTED UNDER THIS SECTION 8 SHALL BE EITHER
PARTY'S SOLE AND EXCLUSIVE REMEDY AGAINST THE OTHER FOR ANY ALLEGED INFRINGEMENT
OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9. LIMITATION OF LIABILITY:
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF
DATA, OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, UNDER OR ARISING OUT OF THIS AGREEMENT,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN EACH CASE, WITH RESPECT TO THE
PERFORMANCE OF THE OMNISKY SERVICE, THE CONTENT OR THE CONTENT PARTNER SITE,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
10. TERM AND TERMINATION:
10.1 Term: Unless earlier terminated in accordance with the terms
hereof, the term of this Agreement shall commence on the Effective Date and
shall expire on April 1, 2001 (the "Term"). The Term shall automatically renew,
with the same terms and conditions, upon expiration of this initial term for an
additional one (1) year term, unless either party provides written notice to the
other no less than thirty (30) days prior to the end of the then current Term.
10.2 TERMINATION FOR CONVENIENCE: Either party may, at its option,
terminate this Agreement upon ninety (90) days prior written notice to the other
party.
10.3 TERMINATION FOR CAUSE: Either party may terminate this Agreement
upon written notice of a material breach by the other party, subject to a thirty
(30) day cure period. It is understood that the thirty (30) day cure period is
not applicable to breaches of Sections 6 and 8. If the breaching party has
failed to cure the breach within the cure period (if applicable) after such
notice, the non-breaching party may give a second notice to the breaching party
terminating the Agreement.
10.4 EFFECT OF TERMINATION: Upon expiration of or termination of this
Agreement: 1) the licenses and other provisions of this Agreement shall be
terminated, and 2) the Receiving Party shall promptly return all of the
Disclosing Party's Confidential Information.
10.5 SURVIVAL: Neither the termination nor expiration of this Agreement
shall relieve either party of the obligation to pay the other any sums accrued
hereunder. Sections 6, 8 and 9 shall survive any termination or expiration of
this Agreement.
11. Assignment:
All the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and to their respective
heirs, successors, assigns and legal representatives. Neither party may assign
this Agreement in whole or in part except with the other's prior written
consent. Any assignment by either party shall not result in an increase in the
scope of the licenses granted pursuant to this Agreement unless agreed to in
writing by the other. Both OmniSky and Content Partner shall be entitled to
assign its rights, obligations and privileges hereunder to any subsidiary,
merger partner, successor in business, or acquirer of all or substantially all
of OmniSky's or Content Partner's assets without obtaining any consent to such
assignment from OmniSky or Content Partner.
12. Miscellaneous:
Nothing in this Agreement shall be interpreted as giving either party
the power to enter into agreements which are legally binding upon the other
party without the prior written consent of such party. This Agreement, including
its Exhibits, constitutes the entire agreement between the parties, and
supersedes all prior written agreements and understandings with respect to the
matters covered by this Agreement. Each party agrees that it has not entered
into this Agreement based on any representations other than those contained
herein. This Agreement may be amended by a written agreement signed by both
parties. This Agreement shall in all respects be governed by the laws of the
State of California without reference to its principles of conflicts of laws. If
any of the provisions of this Agreement are held to be invalid under any
applicable statute or rule of law, they are, to that extent, deemed omitted. The
headings of the several sections of this Agreement are intended for the
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
AGREED AND ACCEPTED:
OMNISKY CORPORATION:
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
----------------------------------------
Title: President
---------------------------------------
CONTENT PARTNER:
By: /s/ Xxxx Xxxxx
------------------------------------------
Name: Xxxx Xxxxx
Title: CTO & VP Corporate Development
Company: xxxxxxxxxxxxxxxx.xxx
EXHIBIT A
CONTENT PARTNER TRADEMARKS, CONTACTS AND DESCRIPTION OF CONTENT
1. OMNISKY SPECIFICATIONS FOR CONTENT PARTNER TRADEMARKS: Content Partner will
provide to OmniSky the following items related to Content Partner
Trademarks. OmniSky reserves the right to change or add to specifications
for Content Partner Trademarks at any time, provided that reasonable notice
is given to Content Partner.
a. OmniSky Web Site/Print Specifications:
i. Content Partner logo art should be supplied to OmniSky in all of the
following formats:
1. Illustrator EPS.
2. Photoshop EPS, TIFF, or JPG format, 300 DPI minimum.
b. OmniSky User Interface Specifications:
i. Content Partner icon (to reside to the left hand side of the Content
Partner company name on the OmniSky UI) should be supplied to OmniSky
in all of the following formats:
1. 22 pixels wide x 22 pixels tall, in .BMP format, in black and
white.
2. 32 pixels wide x 29 pixels tall, in .GIF format, using 16 colors
from the 256 color default Windows palette.
ii. 12 character Content Partner company name (to reside on the UI)
iii. 15 character description of content (to reside below the Content
Partner company name on the OmniSky UI). This description may be a
series of links or a tag line.
2. CONTENT PARTNER CONTACTS: Content Partner designates the following people as
primary contacts:
a. Business Contact:
Name: Xxxx Xxxxx
Title: CTO & VP Corporate Development
Work Phone: (000) 000-0000
Cell Phone / Pager: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxxxxxxx.xxx
b. Technical Contact:
Name: Linsen Limsico
Title: Director of Internet Technologies
Work Phone: (000) 000-0000
Cell Phone / Pager: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
3. DESCRIPTION OF CONTENT:
a. Content Partner Content:
i. xxxxxxxxxxxxxxxx.xxx is a one-step web access point for consumers
and professionals who want to explore a broad array of health
topics. Get all the latest health news and information, as well as
access to a drug and herb database, delivered in real-time directly
to your PDA/Handheld, "Anywhere, Anytime."
ii. xxxxxxxxxxxxxxxx.xxx is one of the most comprehensive and easiest-
to-use eHealth resources available for medical consumers,
professionals, and students. xxxxxxxxxxxxxxxx.xxx produces the
definitive suite of information and eHealth tools for medical
professionals and consumers interested in combining the best of
conventional and alternative medicine.
b. No advertising originating from the Content Partner site shall be
delivered via the OmniSky Service unless approved by OmniSky.
c. Specifications:
i. The html and cgi scripts for the graphical user interface and search
results pages for the Content must meet OmniSky's approval and where
applicable, must be created in accordance with the OmniSky Style
Guide, provided by OmniSky from time to time.
d. Milestone Schedule:
i. Final version of Content Partner Content to be made available and
functional to OmniSky by SEPTEMBER 11, 2000.
EXHIBIT B
CO-MARKETING OBLIGATIONS
1. CO-MARKETING OBLIGATIONS OF CONTENT PARTNER: Content Partner shall provide
the following co-marketing to OmniSky. OmniSky shall have an approval right
over all promotional activities of Content Partner which mention OmniSky.
i. Prominently feature OmniSky on the "Anywhere, Anytime" page of
Content Partner's website for the Term of this Agreement. Such
feature will consist of at least an Omnisky logo and description of
availability of Content Partner's Content on the OmniSky Service, and
will have a link to OmniSky's website.
ii. Content Partner shall engage in additional co-marketing promotions
and events, as mutually agreed upon by Content Partner and OmniSky.
2. CO-MARKETING OBLIGATIONS OF OMNISKY: OmniSky shall provide the following
co-marketing to Content Partner. Content Partner shall have an approval
right over all promotional activities of OmniSky which mention Content
Partner.
i. Prominent positioning of, promotion of, and hypertext link to the
Content Partner site via a page within xxx.xxxxxxx.xxx.
ii. Prominent feature of Content Partner in a newsletter to be mailed to
all OmniSky subscribers, announcing the availability of Content
Partner's Content on the OmniSky Service.
iii. OmniSky shall engage in additional co-marketing promotions and
events, as mutually agreed upon by Content Partner and OmniSky.
EXHIBIT C
POSITIONING & TRANSACTIONAL TERMS
1. SLOTTING FEE AND TRANSACTION COMMISSIONS.
1.1 SLOTTING FEE. During the initial term of this Agreement, OmniSky shall
provide Content Partner with the following placement within the OmniSky
Service ("Positioning"). In consideration for such Positioning, Content
Partner shall pay to OmniSky a fee ("Slotting Fee") of $40,000 for the
period ending April 1, 2001.
a. POSITIONING. OmniSky will position Content Partner's Content
in the following OmniSky channels and/or sub-channels.
Sub-Channel Page - First Positioning: Content Partner shall
be the First listing on the Health Sub-Channel Page within
the Living Channel. Such listing shall include the Content
Partner's icon (to be provided by the Content Partner,
pursuant to Exhibit A to this Agreement).
b. UPDATES TO OMNISKY USER INTERFACE. OmniSky reserves the right
to modify the OmniSky user interface ("OmniSky UI"), provided
that OmniSky shall make reasonable efforts to offer equivalent
positioning to that agreed to in Section 1.1(a) of this Exhibit
in any new OmniSky UI that is developed.
1.2 MAJOR FUNCTIONALITY CHANGES RELATED TO TRANSACTION COMMISSIONS. All
major functionality changes to Content Partner's Content, including but
not limited to the addition of transaction-enabled content or services,
shall be reviewed and tested by OmniSky to ensure usability, and are
subject to further negotiations with Omnisky regarding a commission for
transactions originating through the OmniSky Service.
2. PAYMENT TERMS.
2.1 PAYMENT OF SLOTTING FEE. The Slotting Fee shall be payable in full
by fifteen (15) days after the Effective Date of this Agreement. In
no event shall the Slotting Fee be subject to refund for any reason,
it being a guaranteed amount upon execution of this Agreement. In
the event that Content Partner does not make timely payment, OmniSky
reserves the right to remove all Content, links or services provided
by Content Partner, provided that OmniSky timely notifies Content
Partner of such failure and allows Content Partner thirty (30) days
to cure prior to the removal of such Content, links and/or services.
3. TAXES. Content Partner shall be liable for, and shall indemnify and hold
OmniSky harmless from, all export, withholding, federal, state, local, and
non-U.S. taxes, (including, without limitation, sales and excise taxes) and
duties arising out of the transactions contemplated by this Agreement
(including any interest and penalties imposed thereon), excluding only those
taxes based on OmniSky's net income.
