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Neither party shall be bound by any agreement in whole or in part unless and
until this document is executed and delivered by both parties. This
document is otherwise intended for discussion purposes only.
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:CAT-TM- ORCHESTRATION-TM-
PRINT PUBLISHING AGREEMENT
(SHORT-FORM AGREEMENT)
PARTIES:
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DCI: DIGITAL CONVERGENCE.:COM INC. LICENSEE (USE FORMAL COMPANY NAME):
Forbes Inc.
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ADDRESS: 000 X. Xx. Xxxx, Xxx. 000 ADDRESS: 00 0xx Xxxxxx
Xxxxxx, Xxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
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E-MAIL ADDRESS: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx E-MAIL ADDRESS: xxxxxxx@xxxxxx.xxx
xxxxxxxx@xxxxxx.xxx
xxxxxxxx@xxxxxx.xxx
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PHONE NUMBER: 000 000 0000 PHONE NUMBER: 000 000 0000
FAX NUMBER: 000 000 0000 FAX NUMBER: 000 000 0000
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PRINCIPAL CONTACT: Xxx Xxxxx PRINCIPAL CONTACT: Xxx Xxxxxx,
Xxxx X. Xxxxxx Xxx Xxxxxxx, Xxxx Xxxxxxx
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PRINCIPAL TERMS
This :CAT-TM- Orchestration-TM- License Agreement (the "AGREEMENT") between DCI
and Licensee (the "PARTIES") is dated as of January 13, 2000 and, upon execution
by both Parties, shall bind them in accordance with the terms and conditions of
these Principal Terms and the General Terms that are annexed below and made a
part of this Agreement. Capitalized terms not defined in the Principal Terms are
defined in the General Terms.
As used in this AGREEMENT:
(i) "TERM" means the period from September 1, 2000, through August 31, 2001
(ii) "PUBLICATION" means the print publication magazines known as FORBES, BEST
OF THE WEB, ASAP and FYI (collectively, "PUBLICATIONS").
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(iii) "ORCHESTRATION" means use of DCI's proprietary device to read a
striated graphic image ("GRAPHIC") by passing the device (":CAT") over the
image and to enable a user's personal computer programmed with DCI's
proprietary player software (the ":CAT SOFTWARE") with access to the World
Wide Web (a "PROGRAMMED COMPUTER") to link automatically with a designated
web site or data file (the "LINKED SITE"). Such Orchestration shall relate to
one of the following: (i) non-commercial creative or editorial content within
a Publication (a "CONTENT ORCHESTRATION") or (ii) advertising material within
a Publication respecting any service or product (an "ADVERTISING
ORCHESTRATION"). The Graphic will be obtained by Licensee as needed from
DCI's server in accordance with directions to be furnished by DCI to
Licensee. At the time Licensee requests from DCI the Graphic, Licensee will
provide to DCI the address of the web site to be linked with the Graphic in a
form designated by DCI. Subject to the terms hereof, DCI shall enable
Orchestrations incorporated into Publications by Licensee hereunder during
the Term to link with associated Linked Sites throughout the Term and for
sixty (60) days thereafter; and Licensee shall ensure that each Linked Site
remains relevant, accurate, current, operational, and accessible to users
(e.g., who may store the address and return there) for at least sixty (60)
days following the insertion of each associated Orchestration into a
Publication.
(iv) "PERMITTED NUMBER OF ORCHESTRATIONS" means the maximum number of
Orchestrations to be incorporated into Publications during the Term, as
follows: an unlimited number of ADVERTISING ORCHESTRATIONS per issue of each
Publication; and an unlimited number of CONTENT ORCHESTRATIONS per issue of
each Publication.
A. FEE. As a condition to performance of DCI's obligations under this
Agreement, Licensee shall pay DCI the following "FEE": For Content
Orchestrations in all Publications, a flat fee ("BLANKET FEE") regardless of
the number of Content Orchestrations used during the Term of $25,000, payable
January 10, 2001 and for Advertising Orchestrations, $100 per each such
Orchestration incorporated in each issue of each Publication between January
1, 2001 and August 31, 2001 only; provided that there will be no charge for
Advertising Orchestrations in any Publications published in the entire year
2000 of the Term.
B. MINIMUM PROMOTIONAL REQUIREMENTS BY LICENSEE. Licensee will mail to every
FORBES subscriber a box containing one (1) :CAT, one (1) CD-ROM giving
instruction on the use of the :CAT and incorporating the Concerto software
(capable of being downloaded to a user's personal computer) and one (1) set
of printed instructions on the use of the :CAT, at least one month before the
printing of the September 13, 2000, issue of FORBES ("INAUGURAL ISSUE"). DCI
will be responsible for all costs of manufacturing and shipping to Licensee
the :CATS ,the CD-ROMs and the text (e.g. in electronic form) for the printed
instructions ("INSTRUCTIONS") to consumers on how to use the :CATs and
related software. Licensee will be responsible for all other costs related to
manufacturing, printing (including without limitation, the Instructions) and
shipping the boxes and their contents (except DC's costs as provided above)
to its subscribers. In addition, after February 1, 2000, Licensee will use
reasonable commercial efforts to promote the launch of the Orchestrations in
the Publications ("LAUNCH") by print advertising and public relations
activities, which may include purchasing advertising in and engaging in
public relations with THE WALL STREET JOURNAL, THE
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NEW YORK TIMES, AD AGE, and AD WEEK and other appropriate trade advertising
publications. Licensee will use its best efforts to sell Advertising
Orchestrations in the Publications during the Term; and DCI will provide
Licensee with a Power Point presentation/demo to assist Licensee in this
regard. During the first week of September 2000, Licensee will hold customary
and reasonable press events on the Forbes yacht, "Highlander" and at the
Forbes building in Silicon Valley for the primary purpose of promoting the
Launch. On two (2) to three (3) issues immediately preceding the Inaugural
Issue, Licensee will place a "bellyband" or wrapper around each of the
Publications announcing exclusively the Launch; and in each such issue,
Licensee will run a full page, four (4) color ad announcing the Launch.
Licensee will include DCI's Concerto and :CAT technology as part the Forbes
Technology tour during the Term.
C. EXCLUSIVITY. DCI will not provide :CATS to FORTUNE, BUSINESS WEEK, BARONS,
WORTH, FAST COMPANY, RED XXXXXXX, SMART BUSINESS, SMART MONEY, KIPLINGERS, or
INDUSTRY STANDARD before and during the Term or to TIME, NEWSWEEK, or US NEWS
before, and from the beginning of, the Term through December 31, 2000.
D. DCI'S PROVIDING :CATS. DCI will provide Licensee free of charge a number
of the :CATS equal to the number of FORBES subscribers anticipated in
September 2000 (currently approximately 750,000) reasonably in advance of the
time necessary for Licensee to include the :CATS in the boxes it is shipping
to subscribers as provided above.
BY SIGNING BELOW, THE PARTIES HERETO AGREE TO BE BOUND BY THE TERMS
AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE PRINCIPAL TERMS AND THE
GENERAL TERMS, UNTIL SUCH TIME IF ANY THAT A MORE FORMAL DOCUMENT IS EXECUTED
BY BOTH PARTIES.
DIGITALCONVERGENCE.:COM INC. FORBES INC.
By: /s/ By: /s/
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Title: Vice President Media Group Title: President - Forbes Magazine
Date: February 10, 2000 Date: February 5, 2000
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GENERAL TERMS
:CAT-TM- ORCHESTRATION-TM- LICENSE AGREEMENT
1. GRANT OF RIGHTS. DCI hereby grants to Licensee during solely the
Term the non-exclusive (except as specifically provided above),
non-transferable license to incorporate Orchestrations within
Publications, and advertising matter therein, owned or controlled by
Licensee, up to the Permitted Number of Orchestrations authorized
herein, subject to all the terms and conditions of this Agreement
2. USE OF ORCHESTRATIONS: CONTENT OF LINKED SITES. Except as provided
in paragraph 7 below respecting "make goods," Licensee shall not
exceed the Permitted Number of Orchestrations set forth in the
Principal Terms at any time. Licensee agrees that (i) for so long as
each Linked Site remains accessible, it shall be accurate, relevant
and current (for example, time-sensitive data like a weather report
at a Linked Site shall be periodically updated so that a viewer
visiting a stored address days after the transmission of the
Orchestration always will find accurate and timely information);
(ii) at least 75% of the visible area of each screen accessible at
each page of each Linked Site, and all auditory material, shag
relate explicitly and exclusively to the non-commercial content or
advertising matter (as applicable) with which the Linked Site is
associated ("RELEVANT MATERIAL"); (iii) no Linked Site shall contain
X-rated or illegal content or links thereto or advertising or
promotion thereof, (iv) no Linked Site shall redirect viewers
automatically (directly or indirectly) to any material that is not
Relevant Material by "meta-refreshing" or by any other means; (v) no
Linked Site shall contain "pop ups" or employ any other means or
device that directly or indirectly coerces or compels redirection or
otherwise that frustrates or impedes a viewer's ability to choose
his/her next destination; (vi) no Linked Site associated with any
Content Orchestration shall redirect viewers automatically (directly
or indirectly) to any commercial, advertising and/or sponsored
material; and (vii) each Linked Site associated with any Advertising
Orchestration shall relate predominantly to the advertising matter
in the Publication, and not redirect viewers automatically (directly
or indirectly) to any other commercial, advertising and/or sponsored
material. Subject to subsections (ii) - (vii) of this paragraph,
nothing in this paragraph shall be construed to forbid standard
banner advertising, signage, requests for information, or
Licensee-related announcements, which may be included (in the
discretion of Licensee) on each page of each Linked Site.
3. REPORTS AND ACCOUNTINGS. Licensee shall furnish written reports to
DCI within ten (10) days following each sixty (60) day period of the
Term, setting forth the number of Content Orchestrations and
Advertising Orchestrations it has incorporated into Publications
during the applicable period, including, without limitation, the
dates of each issue and a description of each Content Orchestration
and each Advertising Orchestration in such issue. In addition to the
foregoing reports, Licensee shall send to DCI copies of
representative Publications showing use of the Graphic as reasonably
requested by DCI. Licensee shall render to DCI accountings monthly
within thirty (30) days following the dose of each month showing the
amounts due under this Agreement to DCI and accompany each
accounting with payment of the amount due. DCI may audit Licensee's
books and records (and make copies thereof) annually on at least
twenty (20) days notice during normal business hours. The
obligations of Licensee in this paragraph 3 are of the essence.
4. OWNERSHIP/LIMITS OF USE OF DCI PROPERTY. Licensee shall not add to
or otherwise alter or edit any Graphic or other material, electronic
or physical, received from DCI. All right, title and interest in and
to the Orchestrations (including, without limitation, the Graphics),
:CAT Software, any other software furnished to Licensee or third
parties hereunder (the "DCI SOFTWARE"), any other hardware or other
materials furnished to licensee or others (including without
limitation the :CAT reading devices) hereunder (the "DCI HARDWARE")
DCI's service marks and trademarks, (the "DCI MARKS" which,
collectively with the DCI Software and DCI Hardware, shall be
referred to as the "DCI PROPERTY"), including, without limitation,
all rights under copyright, patent, trademark, trade dress, trade
secret and all other intellectual property rights, are and shall
remain the sole property of DCI. All uses by Licensee of the DCI
Marks shall inure to the benefit of DCI and shall not create any
right, title or interest in such DCI Marks for Licensee. Except as
provided for herein, Licensee shall
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make no other use whatsoever of the DCI Property. Without limiting
the foregoing, Licensee shall not reverse assemble, reverse compile,
reverse engineer, or disassemble, the DCI Software or DCI Hardware;
or rent, lease, modify, merge, create derivative works from,
incorporate within any other software, copy or transfer copies of,
the DCI Property, or license or sublicense the DCI Property, in
whole or in part to any third party. In all uses of the DCI
Property, Licensee shall display any copyright, trademark or other
notices directed by DCI, and shall conform to all criteria of use
furnished by DCI.
5. PRESS RELEASES/PROMOTION/CONFIDENTIALITY. Any and all press releases
or announcements referring to Orchestrations, the business
relationship between DCI and Licensee or the subject matter of this
Agreement, shall be subject to the prior approval in writing of DCI
and DCI must obtain Licensee's written approval regarding any such
announcements or press releases that refer to or mention FORBES or
licensee. Without limiting the forgoing, any use by Licensee of the
Orchestrations or the DCI Property not specifically authorized
herein, must be approved in writing in advance by DCI. Licensee
shall keep the terms of this Agreement and all DCI technology not
known to the general public confidential and not disclose them to
any third party without the prior consent in writing of DCI.
6. REPRESENTATIONS AND WARRANTIES/INDEMNITIES. DCI and Licensee each
represent and warrant that it has the right to enter into this
Agreement and grant the rights herein granted, and that the person
executing this Agreement is duly authorized to do so. Licensee
warrants and represents that the Orchestrations and all DCI Property
will be used by Licensee solely in accordance with the terms and
conditions of the Agreement, and will not be used in a way that
reflects negatively on DCI or the DCI Marks or that violates any
third party rights or any state, local or federal laws or other laws
or regulations, including without I'unitation any FCC or FTC
regulations. Licensee further warrants and represents that the DCI
Property shall not be adapted, reproduced, distributed or disclosed
to any third party without the prior consent in writing of DCI,
except as provided herein. As between Licensee and DCI, Licensee
shall be solely responsible for (i) the Linked Site(s), including,
without limitation, the accuracy of all addresses thereof; and (ii)
the integrity and non-infringement of content at the Linked Site(s)
and any sites linked thereto and in Licensee's publications
(including, without limitation, all non-commercial, editorial and
advertising content). DCI shall be solely responsible for the
non-infringement of the :CATs, the :CAT software or any other
hardware or software provided by DCI to Licensee under this
Agreement Each party shall indemnify and hold the other harmless
from and against any claims, suits or proceedings brought by or on
behalf of any third party unaffiliated with the indemnified party,
arising out of or relating to any breach of any representation,
warranty or agreement by the indemnifying party herein including,
without limitation all damages, losses, civil and criminal penalties
and fines, costs and expenses including reasonable outside
attorneys' fees incurred as a result of any such claims, suits or
proceedings. This obligation shall survive the expiration or
termination of this Agreement.
7. LIMITED WARRANTIES. Notwithstanding anything to the contrary herein,
the DCI Software, the DCI Hardware, all Graphics, all
Orchestrations, and the services and materials being furnished by
DCI hereunder are furnished by DCI under this Agreement "AS IS"
without any warranties of any kind, whatsoever, provided that if DCI
is unable to deliver any Orchestration to which Licensee is entitled
hereunder, DCI shall authorize one substitute "make-good"
Orchestration during the Term for each such undelivered
Orchestration or, at DCI's election, provide a pro rata reduction of
the Fee, and the foregoing shall be DCI's sole obligation and
Licensee's sole and exclusive remedy for undelivered Orchestrations.
In no event shall DCI be liable for damages or the Licensee entitled
to a refund in such event. Except as explicitly provided above in
this paragraph 7: LICENSEE ASSUMES TOTAL RESPONSIBILITY AND RISK FOR
ITS USE OF THE DCI SOFTWARE AND DCI HARDWARE, AND WITH RESPECT TO
THE OBTAINING AND USE OF ORCHESTRATIONS; DCI DOES NOT MAKE, AND
EXPRESSLY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF
ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL DCI BE LIABLE FOR (a) LOST PROFITS OR ANY INCIDENTAL,
CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF THE USE OF OR
INABILITY TO USE THE DCI
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SOFTWARE, DCI HARDWARE, GRAPHICS AND/OR ORCHESTRATIONS; OR (b) ANY
CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN
THE GRAPHICS, DCI SOFTWARE OR DCI HARDWARE. UNDER NO CIRCUMSTANCES
SHALL LICENSEE BE ENTITLED TO SPECIFIC PERFORMANCE, INJUNCTIVE
RELIEF OR OTHER EQUITABLE REMEDY ARISING OUT OF, OR RELATED TO THE
SUBJECT MATTER OF, THIS AGREEMENT AND LICENSEE HEREBY WAIVES ALL
RIGHTS THERETO.
8. TERMINATION/EXPIRATION. Without limiting any rights or remedies of
DCI, DCI shall have the right to terminate this Agreement upon
written notice to Licensee: (i) in the event Licensee breaches any
of the material terms and conditions set forth herein, including,
without limitation, a failure of Licensee to submit timely reports
and/or payment to DCI; (ii) in the event there is a change of
ownership of Licensee or if Licensee should become insolvent; or
(iii) to avoid claims of infringement from third parties or other
exposure to liability as determined in good faith by DCI in its sole
discretion. Upon termination, Licensee shall within ten (10) days
remit to DCI as monies due and owing, including without limitation,
any unpaid balance of the Fee. Upon such termination (without
limitation), and upon expiration of the Term, all rights in the DCI
Property hereunder granted to Licensee shall immediately terminate
and revert to DCI and, at DCI's discretion, return or destroy (and
furnish an affidavit evidencing such destruction) all copies of the
Software and other materials or other property in Licensee's
possession furnished by DCI hereunder. DCI reserves the right to
direct the public, commencing with the earlier of termination of
this Agreement or the sixtieth (60th) day following expiration of
the Term a notice of non-availability.
9. FORCE MAJEURE. The performance of the parties shall be suspended
during any event of force majeure, as such term is commonly
understood, except that (i) DCI shall have the right to terminate
this Agreement in the event any event of force majeure lasts longer
than ninety (90) days; and (ii) there shall be no extension of the
Term hereof if such extension would conflict with any obligation or
agreement of DCI or otherwise infringe the rights of any third party.
10. MISCELLANEOUS. To the extent there is any inconsistency between
these General Terms and the Principal Terms, the Principal Terms
shall govern. Licensee shall be responsible for any and all taxes
(except for DCI's income taxes based upon payments of fees hereunder
to DCI) incurred in connection with the grant of rights hereunder,
including, without limitation, the exercise by Licensee of rights
granted hereunder. Licensee and DCI are independent contractors
under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture or agency relationship between
Licensee and DCI. Licensee has no authority to enter into agreements
of any kind on behalf of DCI. Licensee may not assign this Agreement
or any of its rights or delegate any of its duties hereunder, except
to its affiliates, without the prior consent in writing of DCI and
any purported assignment or delegation without such required consent
shall be null and void. This Agreement shall be construed in
accordance with the laws of the State of New York. Any and all
disputes, differences or controversies arising out of, under or in
connection with this Agreement, or the breach or alleged breach
thereof, shall be submitted to arbitration to be held in New York,
New York under the rules and regulations of the American Arbitration
Association before a single arbitrator, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof;
except any claim (including defenses thereto) which potentially
concerns the validity, enforceability or infringement of
intellectual property owned or controlled by DCI shall not be
resolved by arbitration without the prior approval in writing of
DCI, and instead shall be resolved exclusively in a court of
competent jurisdiction located in New York, New York, and both
parties waive any objections to jurisdiction or venue with respect
thereto. All notices, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given: (i)
if mailed by certified mail, postage prepaid, on the date three (3)
days following the date of mailing, (ii) if delivered by overnight
courier, when received by the addressee or (iii) if sent by
confirmed telecommunication, one business day following receipt by
the addressee at the address set forth at the beginning of this
Agreement, or such other address as either party may specify in
writing. The termination or expiration of this Agreement, howsoever
occasioned, shah not affect any of the provisions of this Agreement
that are expressly or by implication to
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come into or continue in force after such termination or expiration.
This Agreement may be executed in one or more counterpart copies,
each of which shall be considered an original, and all of which when
taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of a signature page by telecopier shall
be as effective as delivery of an original manually executed
counterpart. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or
subsequent breach of the same or any other provisions hereof, and no
waiver shall be effective unless made in writing and signed by an
authorized representative of the waiving party. In the event any
provision of this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the remaining
provisions shall remain in full force and effect. In resolving any
dispute or construing any provision hereunder, there shall be no
presumptions made or inferences drawn (i) because the attorneys for
one of the parties drafted the agreement; (ii) because of the
drafting history of the agreement; or (iii) because of the inclusion
of a provision not contained in a prior draft, or the deletion of a
provision contained in a prior draft. Section headings are for
convenience only and are not a part of this Agreement. This
Agreement contains the entire understanding of the parties hereto
with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements between DCI and Licensee
concerning the subject matter, and cannot be amended except by a
writing signed by both parties. No party hereto has relied on any
statement, representation or promise of any other party or with any
other officer, agent, employee or attorney for the other party in
executing this Agreement except as expressly stated herein.
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