EXHIBIT 10.8
Co-Marketing Agreement
This Co-Marketing Agreement ("Agreement") is made and entered into as of the
6th day of the month of July in the year 1999 (the "Effective Date") by and
between XxxxXxxx.xxx Inc., a Delaware corporation ("XxxxXxxx.xxx"); and The
XxxXxx.xxx, Inc., a Delaware corporation ("BigHub").
RECITALS
WHEREAS, XxxxXxxx.xxx offers an Internet-based personal shopping service
(the "Service") known commercially as DealTime. The Service notifies end users
("End Users") of the availability of products and services at End User defined
price and product parameters from a number of Internet merchants, service
providers, auction sites, classifieds and other sources (collectively,
"Merchants"). The Service includes the XxxxXxxx.xxx Web site with product
search, notification and sourcing options, and a desktop notifier client
application ("Desktop Notifier"); and
WHEREAS, among, and in connection with, its other business activities,
BigHub maintains one or more Web sites (collectively, the "BigHub Site"); and
WHEREAS, BigHub and DealTime desire to develop, offer and maintain a co-
branded version of the Service which shall be marketed and accessed on and
through the BigHub Site; and
WHEREAS, in connection with its the maintenance and operation of the co-
branded site, BigHub wishes to host the Service on the BigHub Site.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereby agree as follows:
1. Distribution of Service
1.1. XxxxXxxx.xxx's Responsibilities. No later than thirty (30) days after
signing this Agreement, XxxxXxxx.xxx shall make available to BigHub a
version of the Service (the "Co-Branded Service") which shall be co-
branded with BigHub, and shall offer the Service in its entirety. The
Co-Branded Service shall (a) be primarily branded as The XxxXxxxxxx.xxx
and made available by way of a Web site having the address of such
primary brand (the "Co-Branded Site"), (b) include logos and graphics
designed by BigHub, within boundaries established by XxxxXxxx.xxx and
subject to XxxxXxxx.xxx's prior approval, and (c) be co-branded with
XxxxXxxx.xxx's name or a variation thereof designated by XxxxXxxx.xxx,
and shall contain a logo depicting "Powered by DealTime" or similar
logo. XxxxXxxx.xxx shall also create a co-branded version of the Desktop
Notifier (the "Co-Branded Notifier") which shall (a) be offered and made
available in connection with the Co-Branded Site, (b) include logos and
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graphics designed by BigHub, within boundaries established by
XxxxXxxx.xxx and subject to XxxxXxxx.xxx's prior approval, and (c) be
co-branded with XxxxXxxx.xxx's name or a variation thereof designated by
XxxxXxxx.xxx, and shall contain a logo depicting "Powered by DealTime"
or similar logo. The Co-Branded Notifier will feature both e-commerce
events and BigHub content event announcements. Events delivered via the
Co-Branded Notifier shall be personalized with user-defined products or
content of interest. BigHub shall define and provide all personalization
parameters for all content links related to the Co-Branded Notifier. At
the request of BigHub, XxxxXxxx.xxx shall supply a Java Applet and/or
animated graphic service (which may be changed by XxxxXxxx.xxx from time
to time), with hypertext URL linking to the Co-Branded Service. BigHub
shall not alter in any manner, without the prior written consent of
XxxxXxxx.xxx, the Java Applet or animated graphic service supplied by
XxxxXxxx.xxx.
1.2. Merchants. The Co-Branded Service and the Co-Branded Site shall be
marketed, promoted and accessed on and through the BigHub Site, and will
include all Merchants recruited by XxxxXxxx.xxx. BigHub will have the
right to recruit Merchants in the United States and Canada to be added
to the Co-Branded Service ("BigHub Merchants"), and to accord preferred
status or rights to certain BigHub Merchants (which preferred status or
rights may include, by way of example, but not limitation, the right to
have a graphic logo button appear next to such preferred Merchant's
search results, a right of first refusal on Co-Branded Notifier
advertising, the right to participate in one-click buy options, and
similar rights and benefits). BigHub Merchants will be subject to
approval by XxxxXxxx.xxx, in its reasonable discretion, and, if
approved, shall enter into a Merchant agreement in form reasonably
acceptable to XxxxXxxx.xxx. BigHub shall use its best efforts to recruit
BigHub Merchants to XxxxXxxx.xxx for inclusion in the Service. In
addition, BigHub shall charge fees to Merchants in amounts not less than
those charged by XxxxXxxx.xxx in connection with the Service.
1.3. BigHub's Responsibilites. BigHub will be solely responsible for the
development, operation and maintenance of the BigHub Site and the Co-
Branded Site, and all content on the BigHub Site and the Co-Branded
Site. For example, but not by way of limitation, BigHub will be
responsible for (a) the technical operation of the BigHub Site and the
Co-Branded Site and related equipment; and (b) ensuring that the
contents of the BigHub Site and the Co-Branded Site are not libelous,
indecent or illegal and do not infringe on the rights (for example,
copyrights, trademarks, privacy or other personal or proprietary rights)
of any other person or entity. While this Agreement is in effect, BigHub
will not disparage XxxxXxxx.xxx, the XxxxXxxx.xxx logos, or the Service,
or display any such items in a derogatory or negative manner on the
BigHub Site or the Co-Branded Site, or offer, market or sell any product
or service that directly competes with the Service and/or the Co-Branded
Service without XxxxXxxx.xxx's prior written consent, which may be
withheld in XxxxXxxx.xxx's reasonable discretion. BigHub shall use its
best efforts to monitor statements and so-called "chat" of End Users and
others appearing on the Co-Branded Site, but shall not incur liability
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to XxxxXxxx.xxx in connection with third party statements or chat.
BigHub will comply with the program rules established and furnished to
BigHub by XxxxXxxx.xxx which may be changed by XxxxXxxx.xxx from time to
time, and BigHub will be responsible for all expenses that BigHub incurs
in connection with the performance of BigHub's obligations under this
Agreement or the operation of the BigHub Site and/or the Co-Branded
Site. BigHub will refrain from using XxxxXxxx.xxx's trademarks, service
marks and logos in any manner whatsoever other than as expressly
authorized in this Agreement.
1.4. General. Subject to all of the terms and conditions of this Agreement,
XxxxXxxx.xxx hereby appoints BigHub, and BigHub hereby accepts
appointment, as a non-exclusive promotor of the Service to its End Users
from the BigHub Site, the Co-Branded Site and the Co-Branded Notifier,
and hereby grants to BigHub a nontransferable, limited right and license
to display XxxxXxxx.xxx's logo to End Users from the BigHub Site, the
Co-Branded Site and the Co-Branded Notifier, subject to the terms and
conditions of this Agreement. It is specifically understood and agreed
that no right or license is being granted to install, copy, modify, use,
sublicense or deliver the Service or the Technology (as defined herein).
1.5. Promotion to End Users; Use and Ownership of Information. No later than
fifteen (15) days after the implementation of section 1.1 above, BigHub
and XxxxXxxx.xxx shall promote the Co-Branded Service and the Co-Branded
Site to End Users in a coordinated manner, including, without
limitation, the preparation of jointly approved marketing materials and
mailing lists, the construction of the forum and the provision by BigHub
of prominent links to the Co-Branded Site and the Co-Branded Notifier
application on and through the BigHub Site. In addition, BigHub shall
promote the Service to End Users by featuring the XxxxXxxx.xxx brand on
both the BigHub Site, the Co-Branded Site and the Co-Branded Notifier.
BigHub and XxxxXxxx.xxx shall have equal ownership rights in and to all
End User information obtainable through any End User's use of the Co-
Branded Service. Such rights shall include, without limitation, the
right to retain and utilize all such End User information for all
business purposes, and shall survive any termination of this Agreement.
BigHub shall make best efforts to promote the Co-Branded Service and the
Co-Branded Site through all promotional channels available to it,
including but not limited to print media advertising, and public
relations.
1.6. XxxxXxxx.xxx's Continuing Distribution Rights. Nothing herein shall in
any way limit XxxxXxxx.xxx's ability to promote or make the Service
and/or the Desktop Notifier available, directly or indirectly, in any
manner, to any end-users, distributors, dealers, Merchants, VARs, OEMs
or others in the United States or world wide. The parties are
independent contractors, and nothing in this Agreement shall be
construed to create a joint venture or partnership.
1.7. Limitations. XxxxXxxx.xxx shall have the right, in its reasonable
discretion and without incurring any liability to BigHub, to modify the
Service at any time. Upon any such modifications, BigHub shall, within
fifteen (15) days of receipt of
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instructions from XxxxXxxx.xxx, update the BigHub Site and the Co-
Branded Site, and notify End Users, in accordance with XxxxXxxx.xxx's
instructions. Title to the Service, the Co-Branded Service, the Desktop
Notifier and the Co-Branded Notifier including, without limitation, the
server application and server environment, as well as the underlying
technology of the Service, the Co-Branded Service, the Desktop Notifier
and the Co-Branded Notifier (the "Technology"), and all associated
intellectual property rights therein, are and shall remain in and with
XxxxXxxx.xxx. Any rights not expressly granted hereunder are reserved to
XxxxXxxx.xxx. Except as expressly authorized herein, BigHub shall not,
and shall ensure that its employees, agents or others acting on its
behalf do not: (i) modify, translate, reverse engineer, decompile,
disassemble, create derivative works of the Technology or incorporate
all or any portion of the Technology, the Service, the Co-Branded
Service and/or the Co-Branded Notifier into other software, product or
technology; (ii) copy, distribute, disclose, market, rent, lease or
transfer to any third party the Technology, the Service, the Co-Branded
Service and/or the Co-Branded Notifier; (iii) export the Technology, the
Service, the Co-Branded Service and/or the Co-Branded Notifier in
violation of applicable export administration regulations; or (iv)
remove, alter, or cover any copyright notices, trademarks, or other
proprietary rights notices placed or embedded by XxxxXxxx.xxx on or in
the Technology, the Service, the Co-Branded Service and/or the Co-
Branded Notifier.
2. Revenue Sharing and Payment Terms
2.1. Revenue Sharing for Co-Branded Service. Each of XxxxXxxx.xxx and BigHub
shall pay the other fees in an amount equal to fifty percent (50%) of
all Net Revenues (including, without limitation, any and all preferred
Merchant fees) received by XxxxXxxx.xxx or BigHub, as the case may be,
which are derived from the Co-Branded Service, the Co-Branded Site or
the Co-Branded Notifier. Net Revenues shall mean all revenues received
from or in connection with the Co-Branded Service or the Co-Branded Site
by BigHub or XxxxXxxx.xxx other than revenue which is derived from
advertising on the Co-Branded Site or the Co-Branded Notifier, less any
applicable taxes or duties, as well as amounts refunded to advertisers,
Merchants and other third parties. Net revenue which is derived from
advertising sold by BigHub on the Co-Branded Site or the Co-Branded
Notifier shall be split sixty percent (60%) to BigHub and forty percent
(40%) to XxxxXxxx.xxx. Net revenue which is derived from advertising
sold by XxxxXxxx.xxx on the Co-Branded Site or the Co-Branded Notifier,
if any, shall be split between BigHub and XxxxXxxx.xxx on a negotiated,
case-by-case basis.
2.2. Terms of Payment for Net Advertising Revenue. BigHub shall submit to
XxxxXxxx.xxx, no later than sixty (60) days after the end of each
calendar quarter, a report of payments received from advertisers during
such calendar quarter which is derived from advertising sold by BigHub
on the Co-Branded Site or the Co-Branded Notifier or in connection with
the Co-Branded Service. Such report shall be submitted along with
payment of all amounts due from BigHub to XxxxXxxx.xxx in accordance
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with Section 2.1 above. All payments shall be made in United States
dollars at the address first set forth above or as changed with thirty
(30) days.
2.3. Expenses. Each party shall bear its respective expenses incurred in
completing its responsibilities under this Agreement. Each party shall
have the right, at its expense (except as provided below) to audit the
other party's books and records for the purpose of verifying Net
Revenues and/or other revenues. Such audits shall be made not more than
once per year, on not less than ten (10) days written notice, during
regular business hours, by such party's independent auditors. If the
auditor's figures reflect Net Revenues and/or other revenues higher than
those reported by any party, such party shall immediately pay the
difference in the amount so owed. If the auditor's figures vary more
than 10% from the figures provided by any party, such party shall also
pay the reasonable cost of the audit.
3. Confidentiality.
3.1. Confidential Information. For purposes of this Agreement, "Confidential
Information" means: (i) all information received from the disclosing
party which relates to the disclosing party's nonpublic business
strategy, product plans, research, identity of customers or business
partners, technical data, and software or hardware designs,
specifications, or configurations; (ii) any information designated by
the disclosing party as confidential; (iii) XxxxXxxx.xxx's Technology;
and (iv) the terms and conditions of this Agreement.
3.2. Duty to Keep Confidential. Each party acknowledges that it may have
access to and become acquainted with the Confidential Information of the
other, the unauthorized use or disclosure of which would cause
irreparable harm and significant injury, and agrees to use the same
degree of care and discretion to avoid disclosure or dissemination of
the other party's confidential information to anyone other than those of
its employees with a need to know for purposes of this Agreement as it
uses with its own information that it does not wish to have published,
disclosed or disseminated. The parties shall not use the confidential
information for any purpose other than to further directly the purposes
of this Agreement. Neither party shall disclose the Confidential
Information of the other party to any third party without the other
party's prior written consent.
3.3. Exceptions. Neither party has any obligation to keep confidential any
information that: (i) is or becomes generally known or available by
publication, commercial use or otherwise through no fault of the
receiving party; (ii) is known and has been reduced to tangible form by
the receiving party prior to the time of disclosure and is not subject
to restriction; (iii) is independently developed by the receiving party;
(iv) is lawfully obtained from a third party who has the right to make
such disclosure; or (v) is released for publication by the disclosing
party in writing. Notwithstanding anything to the contrary, the
exclusions set forth above shall not apply to the Technology.
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4. Exculpation/Limitation Of Liability.
4.1. Exculpation. XxxxXxxx.xxx does not represent that the Technology, the
Co-Branded Service and/or the Service are error-free. BigHub shall make
no representation or warranty concerning the Technology, the Co-Branded
Service and/or the Service. except that none of the foregoing infringe
in any material respect any valid and enforceable U.S. patent or trade
secret of which XxxxXxxx.xxx is aware. XXXXXXXX.XXX MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE TECHNOLOGY AND SERVICES EXCEPT
AS CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE, AND XXXXXXXX.XXX
SPECIFICALLY DISCLAIMS ALL WARRANTIES OR CONDITIONS REGARDING THE
TECHNOLOGY AND SERVICES INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR ANY PURPOSE.
4.2. Limitation of Liability. XxxxXxxx.xxx's liability for damages under this
Agreement (whether in contract, tort or otherwise) shall not exceed the
amounts paid by XxxxXxxx.xxx to BigHub during the preceding twelve (12)
months relating to the Technology or the Co-Branded Service as to which
the claim arose. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR
OTHERWISE, IN NO EVENT SHALL XXXXXXXX.XXX BE LIABLE TO BIGHUB FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT WHETHER OR
NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5. Indemnification
5.1. Indemnification by BigHub. BigHub hereby indemnifies and holds
XxxxXxxx.xxx harmless against any and all penalties, damages, costs,
judgments, attorneys' fees or any other expenses incurred in connection
with (a) claims against XxxxXxxx.xxx by any person or entity in
connection with BigHub's promotion of or inability to provide access to
the Technology, the Co-Branded Site or the Co-Branded Service; (b)
claims against XxxxXxxx.xxx by any person or entity in connection with
elements of the BigHub Site, the Co-Branded Site, the data or other data
services, including, without limitation, BigHub's failure to provide
access to the data or the data services in accordance with this
Agreement; (c) BigHub's modification of the Technology or the Co-Branded
Service; and (d) any misrepresentation by BigHub relating to the data,
the Technology, the Co-Branded Site or the Co-Branded Service or any
representation or warranty relating to the Technology, the Co-Branded
Site or the Co-Branded Service which is beyond the scope of the warranty
provided by XxxxXxxx.xxx to BigHub under this Agreement.
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5.2. Indemnification by XxxxXxxx.xxx. XxxxXxxx.xxx hereby indemnifies and
holds BigHub harmless against any and all penalties, damages, costs,
judgments, attorneys' fees or any other expenses incurred by BigHub as a
result of DealTime's breach of the non-infringement warranty contained
in Section 4.1.
6. Initial Term, Renewals and Termination
6.1. Initial Term and Renewals. The initial term of this Agreement shall be
one (1) year from the Effective Date. This Agreement shall be deemed to
have been automatically renewed and extended for additional one (1) year
periods, unless written notice of termination by either party is
received from the other party 60 days prior to the end of the term.
During renewal terms, this Agreement may be terminated by either party
upon sixty (60) days prior written notice.
6.2. Termination. This Agreement may be terminated by either party upon the
material breach by the other party of any of such other party's
obligations hereunder, which breach has not been cured within thirty
(30) days after the breaching party has received written notice thereof.
6.3. Effect of Termination. Notwithstanding the termination of this Agreement
for any reason, (1) the rights and duties of the parties under Sections
3, 4 and 5 shall survive such termination and remain in full force and
effect, as well as any provisions of this Agreement that, in order to
fulfill the purposes of such provisions, need to survive the termination
or expiration of this Agreement; (2) all fees earned through the
termination date in accordance with Section 2 shall be paid within 30
days of the termination date. In the event of termination or expiration
of this Agreement, all rights granted to either party hereunder shall
immediately cease, each party shall immediately return to the other or
destroy such other party's Confidential Information, and BigHub shall
immediately return to XxxxXxxx.xxx all copies (including extracts,
summaries, and adaptations) of the Technology, all associated
documentation, and all other materials or media that contain or are
based on the Technology, the Co-Branded Services, the Services,, and
BigHub shall immediately cease to display the XxxxXxxx.xxx logo, Java
Applet and/or animated graphic service (as furnished pursuant to Section
1.1 above) on its WebSite. Notwithstanding anything herein to the
contrary, XxxxXxxx.xxx shall have the perpetual and unrestricted right
following termination of this Agreement to provide the Service and/or
the Desktop Notifier Service to any Merchant, End-User or other customer
or client obtained under, during the course of or in connection with
this Agreement without any further or additional compensation to BigHub.
7. Miscellaneous.
7.1. Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the undersigned parties and their respective successors and
permitted assigns. BigHub may not sell, transfer, assign, or subcontract
any right or obligation set forth in this Agreement without the prior
written consent of XxxxXxxx.xxx.
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7.2. Force Majeure. Neither party shall be liable or be deemed to be in
default for any delay or failure in performance or interruption
resulting directly or indirectly from any cause or circumstance beyond
its reasonable control, including, without limitations, equipment or
telecommunications failure, labor dispute, civil unrest, war, or failure
of any third party to perform any Agreement that adversely affects such
party's ability to perform its obligations hereunder.
7.3. Compliance with Laws and Regulations. Each party shall, at its own
expense, comply with any governmental law, statute, ordinance,
administrative order, rule, or regulation relating to its duties,
obligations, and performance under this Agreement and shall procure all
governmental licenses and pay all fees and other charges required
thereby.
7.4. Governing Law; Arbitration.. This Agreement shall be governed by the
laws of the State of New York. In the event of a dispute that cannot be
resolved amicably between the parties, the dispute shall be resolved
through binding arbitration, conducted in the State of New York, by a
sole arbitrator in the English language, and in accordance with the
rules and procedures set forth by American Arbitration Association. The
sole arbitrator shall be appointed by agreement of the parties. In the
event the parties fail to agree upon the appointment of the sole
arbitrator within thirty (30) days after a notice of arbitration is
given by either party to the other, then the arbitrator shall be
selected and appointed by the American Arbitration Association. The
arbitration award and/or determination shall be final and binding and
judgment may be entered thereon in any court of competent jurisdiction.
7.5. Notices. All notices under this Agreement shall be in writing and
delivered personally or by facsimile, commercial overnight courier, or
certified or registered mail, return receipt requested, to a party at
its respective address set forth herein. Either party may change its
address by giving notice to the other party stating its desire to so
change its address.
7.6. Severability. If for any reason any provision of this Agreement shall be
deemed to be legally invalid or unenforceable, the validity of the
remainder of this Agreement shall not be affected and such provision
shall be deemed modified to the minimum extent necessary to make such
provision consistent with applicable law, and, in its modified form,
such provision shall then be enforceable and enforced.
7.7. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and
merges and supersedes all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing signed
by the party against whom it is to be enforced. Nothing express or
implied in this Agreement is intended to confer, nor shall anything
herein confer, upon any person other than the parties and the respective
successors or permitted assigns of the parties, any rights, remedies,
obligations or liabilities whatsoever.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of the Effective Date by the undersigned duly authorized persons.
The XxxXxx.xxx: XxxxXxxx.xxx:
XxxxXxxx.xxx Inc.
Name: /s/ XXXXXXX X. XXXXXXX Name: /s/ XXX XXXXXXX
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Title: CEO Title: CEO
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