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EXHIBIT 10.23
* Confidential Treatment Requested Under
17 C.F.R. Section 200.80(b)4),
200.83 and 230.406
[MP3 LETTERHEAD]
This ("Agreement") is made and entered into February 18,
1999 ("Effective Date"), by and between Xing Technology, Inc., located at 0000
XxXxxxxx, Xxxxx 000, Xxx Xxxx Xxxxxx, XX 00000 XXX ("Xing") and XX0.xxx, Inc.,
having an address at X.X. Xxx 000000, Xxx Xxxxx, XX 00000-0000 ("XX0.xxx").
XX0.xxx owns and operates the website located at xxx.xx0.xxx (the "Website").
1. Form of Sponsorship. During the term of this Agreement XX0.xxx shall
include the Xing Technology product Audiocatalyst (or other single Xing
product of Xing's choosing) on "The Best" pages for "Encoders", "CD
Rippers" and when a new product is available the "Players" and "All In One"
sections for both Windows and Macintosh users.
2. [***]. The product featuring a screenshot, promotional paragraph and rating
shall appear at the beginning of the "The Best" products listed. [***] In
the event that [***].
3. Sponsor Fees. Xing Technology agrees to pay XX0.xxx, during the term of
this Agreement, as follows: (i) [***] payable on the Effective Date; (ii)
[***] payable on or before one month subsequent to the Effective Date;
(iii) [***] payable on or before two months subsequent to the Effective
Date; (iv) [***] payable on or before three months subsequent to the
Effective Date; (v) [***] payable on or before four months subsequent to
the Effective Date; (vi) [***] payable on or before five months subsequent
to the Effective Date; (vii) [***] payable on or before six months
subsequent to the Effective Date; (viii) [***] payable on or before seven
months subsequent to the Effective Date; (ix) [***] payable on or before
eight months subsequent to the Effective Date; (x) [***] payable on or
before nine months subsequent to the Effective Date; (xi) [***] payable
on or before ten months subsequent to the Effective Date; [***] payable
on or before eleven months subsequent to the Effective Date. Any late
payments under this Agreement will be assessed a service fee of one and
one-half percent (1.5%) per month, to the extent allowed by law.
4. Impressions. XX0.xxx agrees to deliver [***] Impressions during the first
thirty (30) days. Thereafter, the number of impressions delivered will
increase at the rate of [***] impressions per month for the term of this
Agreement. The Impressions shall be delivered at the rate of [***] per
1,000 impressions. An "Impression" is defined as the display of the Xing
banner to a user on the XX0.xxx site.
* CONFIDENTIAL TREATMENT REQUEST(ED)
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5. Impression Fees. Xing Technology agrees to pay XX0.xxx, during the term of
this Agreement, as follows: (i) [***] payable on the Effective Date; (ii)
[***] payable on or before one month subsequent to the Effective Date;
(iii) [***] payable on or before two months subsequent to the Effective
Date; (iv) [***] payable on or before three months subsequent to the
Effective Date; (v) [***] payable on or before four months subsequent to
the Effective Date; (vi) [***] payable on or before five months subsequent
to the Effective Date; (vii) [***] payable on or before six months
subsequent to the Effective Date; (viii) [***] payable on or before seven
months subsequent to the Effective Date; (ix) [***] payable on or before
eight months subsequent to the Effective Date; (x) [***] payable on or
before nine months subsequent to the Effective Date; (xi) [***] payable on
or before ten months subsequent to the Effective Date; [***] payable on or
before eleven months subsequent to the Effective Date; Any late payments
under this Agreement will be assessed a service fee of one and one-half
percent (1.5%) per month, to the extent allowed by law. If XX0.xxx fails to
deliver the required number of Impressions in any given period, Xing has
the option of either receiving additional Impressions in a subsequent
period to make good for the Impressions not delivered or to pay for only
those Impressions delivered.
6. Term and Termination. This Agreement shall commence on the Effective Date
and shall remain in full force and effect until 12 months subsequent to the
Effective Date.
7. Measurement. Upon request Xing shall have access to pertinent statistics
related to Impressions covering the period of this contract. Xing agrees to
accept XX0.xxx's measurement of Impressions according to XX0.xxx's logs and
other tracking devices and/or software XX0.xxx may use.
8. Representations and Warranties. Xing is solely responsible for any legal
liability arising out of or relating to the content of the software or
banner and any material to which users can link through the software or
banner. Xing represents and warrants that the software or banner will not:
(i) infringe of any third party's copyright, patent, trademark, trade
secret or other proprietary rights or rights of publicity or privacy; (ii)
violate any law, statute, ordinance or regulation, including without
limitation any laws regarding unfair competition, antidiscrimination or
false advertising; (iii) be pornographic or obscene; (iv) be defamatory or
trade libelous; or (v) contain viruses other harmful programming routines.
Xing agrees to defend, indemnify and hold harmless XX0.xxx and its
directors, officers, agents and employees for any and all losses, costs,
liabilities or expenses (including without limitation reasonable attorneys'
and expert witnesses' fees) incurred or arising from: (a) any breach of the
foregoing representations or warranties; (b) any claim arising from the
sale of license of Ticket's goods or services; or (c) any other act,
omission or representation by Xing. XX0.xxx may participate in the defense
at its option and expense.
9. No Consequential Damages. Except for claims arising under section 6, in no
event will either party be liable for any special, indirect, incidental or
consequential damages.
* CONFIDENTIAL TREATMENT REQUEST(ED)
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10. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflict of law principles thereof. Any claim arising out of or related to
this Agreement must be brought exclusively in the state or federal courts
located in San Diego County, California, and each party hereby consent to
the jurisdiction thereof. In any action to enforce this Agreement the
prevailing party will be entitled to costs and attorneys' fees. This
Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior discussions,
documents, agreements and prior course of dealing, and shall not be
effective until signed by both parties. This Agreement may not be assigned
by Xing without XX0.xxx's written consent, which shall be promptly granted
or denied and not unreasonably withheld. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is created by this Agreement.
11. Page Targeting. In the event that XX0.xxx implements the ability to target
as to specific pages on the site such as Software, Hardware, Encoders etc.,
[***] under this contract [***], [***].
/s/ XXXX XXXXXX /s/ XXXX XXXXXX
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Representative of XX0.xxx Representative of Xing
XXXX XXXXXX - VP-Sales XXXX XXXXXX, CFO
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Printed Name & Position Printed Name & Position
2-18-99 2-18-99
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Date Date
* Confidential Treatment Requested.
