EXHIBIT 10.33
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ASK JEEVES TRADEMARK LICENSE
This Ask Jeeves Trademark License (the "Agreement") is entered into as of (the
"Effective Date") between the parties below:
Heartsoft, Inc. ("Licensee")
0000 X. Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Signature: /s/ Xxxxxxx X. Xxxx
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Print Name: Xxxxxxx X. Xxxx
Title: Vice President, Sales and Marketing
ASK JEEVES, INC. ("Ask Jeeves")
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Signature: /s/ Xxxxxxx Xxxxxxxxx
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Print Name: Xxxxxxx Xxxxxxxxx
Title: General Counsel
Date: September 8, 2000
TERM: Twelve months.
Ask Jeeves desires to permit Licensee to use certain Ask Jeeves trademarks,
logos or service marks listed on attached Authorized Use Forms ("Marks"). The
Marks and the permitted uses of the Marks will be as set forth in those
Authorized Use Forms which are signed by Ask Jeeves.
PROCESS.
LICENSEE REQUEST. Licensee may request Ask Jeeves' permission to use Marks for
certain specified purposes. Licensee's request will include specifics about the
requested Xxxx(s) and the specific media in which Licensee desires to use the
Xxxx.
ASK JEEVES APPROVAL. Following each Licensee request, Ask Jeeves will determine
in its sole discretion if it approves the proposed use, and if it approves the
use then Ask Jeeves will complete and executive an Authorized Use Form (in the
form attached to this Agreement) showing the Xxxx which Licensee may use and
describing the nature of the permitted use.
APPROVAL OF PROOFS. Prior to Licensee's use of the Marks as permitted under the
executed Authorized Use Form, Licensee will submit to Ask Jeeves a proof showing
the use of the Xxxx. Ask Jeeves shall have the right to approve the use and
quality of reproduction, and request additional information related to
Licensee's use of the Xxxx. Licensee shall comply with Ask Jeeves' requests for
changes to the Mark's use.
LICENSEE USE. After Ask Jeeves approves a use of the Marks under the above
subsections, Licensee may use the Marks in that manner. Licensee may continue to
use the Marks in that manner (for instance, if use in a print advertisement was
approved, Licensee may continue to use the Marks in that advertisement in
additional publications) while this Agreement is in effect. Additional uses
require additional signed Authorized Use Forms.
RESTRICTIONS. Licensee agrees it will not use the Marks (a) in association with
any material that is pornographic, obscene, defamatory, violent, or otherwise
objectionable (including without limitation using the Marks on any advertisement
which contains this type of material or use of the Marks in any publication or
web page or site which contains this type of material); or (b) in any manner
which reflects poorly on or may damage the goodwill associated with or
reputation of Ask Jeeves, the Marks, or Ask Jeeves' products or services.
LICENSE. Subject to Licensee's compliance with the terms of this Agreement, Ask
Jeeves grants License a limited, non-exclusive, non-transferable right to use
the Marks as described in Authorized Use Forms signed by Ask Jeeves.
OWNERSHIP. Ask Jeeves owns, and will retain ownership of, all Marks and no
ownership interest is transferred by this Agreement or otherwise. All goodwill
in and to the Marks shall inure to Ask Jeeves' benefit.
TERM AND TERMINATION. This Agreement remains in effect until the expiration of
the term listed above or until terminated under this Section 5. Either party may
terminate this Agreement at any time, for any reason, by giving the other party
thirty days written notice. Ask Jeeves may terminate this Agreement immediately
if it determines in its sole discretion that Licensee's use of the Marks would
result in any damage to the reputation or goodwill associated with the Marks,
Ask Jeeves, or Ask Jeeves' products or services. Following termination, Sections
4, 6, 7, and 8 will survive.
WARRANTY DISCLAIMER. ASK JEEVES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF
ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE
MARKS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. EXCEPT FOR LICENSEE'S BREACH OF SECTIONS 1 THROUGH 4,
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST
PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ASK JEEVES' LIABILITY TO
LICENSEE EXCEED TEN THOUSAND DOLLARS. THE EXISTENCE OF ONE OR MORE CLAIMS WILL
NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT (A) THIS SECTION
IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC
TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT, (B) THAT THIS SECTION
IS SEVERABLE FROM THE AGREEMENT, AND (C) THAT THIS SECTION WILL SURVIVE ANY
TERMINATION OF THIS AGREEMENT.
MISCELLANEOUS. Each party hereto is an independent contractor of the other and
neither is an employee, agent, contractor or joint venturer of the other.
Neither party shall make any commitment, by contract or otherwise, binding upon
the other or represent that it has any authority to do so. This Agreement is not
assignable or transferable by Licensee without the prior written consent of Ask
Jeeves and any attempt to do so shall be void. Any notice, report, approval or
consent required or permitted under this Agreement shall be in writing to the
address specified above. Any waiver by either party of any breach of this
Agreement, whether express or implied, shall not constitute a waiver of any
other or subsequent breach. No provision of the Agreement will be waived by any
act, omission or knowledge of a party or its agents or employees except by an
instrument in writing expressly waiving such provision and signed by a duly
authorized officer of the waiving party. If any provision of this Agreement is
adjudged by any court of competent jurisdiction to be unenforceable or invalid,
that provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. This
Agreement shall be deemed to have been made in, and shall be construed pursuant
to the laws of the State of California and the United States without regard to
conflicts of laws provisions thereof. Any suit or proceeding arising out of or
relating to this Agreement
shall be commenced in a federal court in the Northern District of California or
in state court in Alameda County, California, and each party irrevocably submits
to the jurisdiction and venue of such courts. Any waivers or amendments shall be
effective only if made in writing signed by an officer of the respective parties
authorized to bind the parties. Both parties agree that this Agreement is the
complete and exclusive statement of the mutual understanding of the parties, and
supersedes and cancels all previous written and oral agreements and
communications relating to the subject matter of this Agreement.
AUTHORIZED USE FORM - TRADEMARK LICENSE
This Authorized Use Form is a part of the Ask Jeeves Trademark License to which
it is attached.
LICENSEE: Heartsoft
MARKS APPROVED FOR USE:
Heartsoft is permitted to use the AJKids logo and Ask Jeeve's Xxxxxx character
("Jeeves") in conjunction with Licensee's character, Xxxxxx, on a page on the
web site as specified below.
MANNER OF USE:
Heartsoft is permitted to use the AJKids logo and Jeeves in conjunction with
Licensee's character Xxxxxx, on a page on the web site , in a format similar to
the attached Exhibit A dated 8/28/00 (the "Draft Exhibit"). Upon the written
approval, from Ask Jeeves, of the final design and layout, Licensee may display
the approved design on the web page and the Draft Exhibit will be replaced with
the approved design and layout and thereafter referenced under this Agreement as
Exhibit A. Licensee may not display the Draft Exhibit or any other unapproved
design on the web page.
Changes required to be made to the Draft Exhibit include, but may not be limited
to:
The Ask Jeeves Xxxxxx Character ("Jeeves") may not be redrawn or modified in any
way and must have the appearance represented on the attached Exhibit B. Jeeves
must be shown as saying "May I ask what you're searching for, Sydney?", rather
than as shown in the Draft Exhibit.
Sydney must refer to "Ask Jeeves for Kids" - not just "Ask Jeeves"
"Search the Web" must be replaced with "Have a Question? Just type it in and
click Ask!" AJKids logo needs to appear larger.
TERMINATION: Ask Jeeves may terminate this License at any time for any
reason by providing Licensee written notice of any such
termination. Upon termination, Licensee shall remove all Ask
Jeeves logos, trademarks, service marks or any other markings
that are the property of Ask Jeeves and are included in the
design represented by Exhibit A.
AGREED
Heartsoft ("Licensee")
0000 X. Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Signature: /s/ Xxxxxxx X. Xxxx
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Print Name: Xxxxxxx X. Xxxx
Title: Vice President, Sales and Marketing
Ask Jeeves, Inc. ("Ask Jeeves")
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Signature: /s/ Xxxxxxx Xxxxxxxxx
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Print Name: Xxxxxxx Xxxxxxxxx
Title: General Counsel
Date: September 8, 2000
