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EXHIBIT 10.9
[*]= CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS AND ASTERICKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.
AGREEMENT
This document entered into between the Parties as of the 17th day of November,
1999, constitutes a valid and binding agreement between Ford Motor Company, a
Delaware corporation with its principal place of business at Xxx Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Ford") and BOLT, Inc., a Delaware corporation with
its principal place of business at 000 Xxxxxx Xxxxxx, Xxx Xxxx , Xxx Xxxx 00000
("Bolt") (Ford and Bolt herein being referred to as the "Parties"). The Parties
have agreed as follows:
1. Scope
Ford has agreed to purchase media from Bolt on the Xxxx.xxx web site,
which purchase will include: having Bolt create and maintain a
Xxxx.Xxxx.xxx component of Bolt's web site; purchasing from Bolt
certain interactive content and interactive service elements; having
Bolt provide certain exclusive interactive features; and having Bolt
conduct certain market research through Bolt's Business Intelligence
Group.
2. Term
The term of this agreement ("Term") shall commence on January 1, 2000
and will continue through December 31, 2002 unless terminated earlier
pursuant to paragraph 4.(c), below; provided, however, that Ford and
Bolt will both have the option to terminate this agreement (i)
effective December 31, 2000 or (ii) December 31, 2001, by giving the
other party written notice of termination at least 60 days prior to
December 31, 2000 (in the case of (i) above) or at least 60 days prior
to December 31, 2001 (in the case of (ii) above).
3. Exclusivity
During the Term hereof Bolt agrees that Ford [*] and that Bolt [*].
For purposes of this Agreement, the term 'affiliates' shall be deemed
to include any wholly or partially owned subsidiary of Ford as well as
any Ford, Lincoln, Mercury, Volvo, Jaguar, Aston Xxxxxx, Mazda, or
Think! new or used vehicle dealer. Furthermore, Ford shall have
exclusivity within the automotive category on "xxxx.xxx" and its
affiliated websites and Bolt shall
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not accept content and/or advertising from any third parties with
respect to any and all promotion of cars, trucks, or other motor
vehicles; motor vehicle parts and accessories; services for motor
vehicles; credit or financing for motor vehicles; and the sale or
leasing of motor vehicles.
[*].
In addition, for one (1) year following the expiration or termination
of this agreement, Bolt agrees that any automotive website that it is
associated with will not duplicate specific applications developed for
or by Ford, or distinctive elements that are solely and exclusively
used by (for example, the "Build Your Own Dream Car" feature) the
Ford/Bolt Xxxx.Xxxx.xxx website.
4. Payment Terms and Minimum Impressions Guarantee
(a) Ford will pay Bolt the sums set forth below for all media,
services, rights and materials provided by Bolt:
(1) the sum of $[*] within 45 days following the
execution and delivery of this agreement by both
parties,
(2) the sum of $[*] for the calendar year 2000, payable
in equal monthly installments of $[*] to be invoiced
at the end of each month and payable by Ford within
20 business days of receipt of Bolt's invoice,
(3) the sum of $[*] for the calendar year 2001 (provided
this Agreement is not terminated pursuant to Section
2), payable in equal monthly installments of $[*] to
be invoiced at the end of each month and payable by
Ford within 20 business days of receipt of Bolt's
invoice,
(4) the sum of $[*] for the calendar year 2002 (provided
this Agreement is not terminated pursuant to Section
2), payable in equal monthly installments of $[*] to
be invoiced at the end of each month and payable by
Ford within 20 business days of receipt of Bolt's
invoice.
(5)
(b) The payment of all sums by Ford shall be conditioned upon
Bolt meeting certain impression guarantee levels. An
impressions breakdown for calendar year 2000 has been
provided by Ford to Bolt
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and is included in Exhibit A and serves as further definition
to Bolt's Insertion Order in Exhibit B. At least 60 days
before the end of calendar year 2000 Ford shall provide Bolt
with an impressions breakdown for calendar year 2001 and such
impressions breakdown will then become fully incorporated
into this agreement; and at least 60 days before the end of
calendar year 2001 Ford shall provide Bolt with an
impressions breakdown for calendar year 2002 and such
impressions breakdown will then become fully incorporated
into this agreement.
It is understood and agreed that distribution/banner delivery
may not increase or decrease by more than +/- 10% margin
bi-weekly. It is further understood and agreed that no
overages for any two-week period may be applied by Bolt
against a shortfall in any succeeding two-week period and no
shortfalls for any two-week period may be applied by Ford
against an overage in any succeeding two-week period. In the
event impression guarantees are not achieved as determined by
Ford, Bolt will provide Ford with make-goods with a [*]%
bonus or at Ford's option, Ford may take a credit against the
next monthly payment due under 4(a) above; provided, however,
that the calculation of impression guarantees with respect to
Interactive Service Elements and Exclusive Interactive
Features shall be made only after the launch of such elements
and features. Not withstanding the foregoing, the impressions
guaranteed for the first year, as detailed in Exhibit A, are
to be to be delivered prorated on a minimum, cumulative basis
of 15%, 35%, 65% and 100% for each of the quarters ended
March 31, June 30, September 30, and December 31.
(c) It is understood and agreed that all impression guarantees
will be measured against a third party adserver to be
selected by Ford, to track this buy, and measurement by this
third party will be used to conclusively determine if
impression guarantees have been met/ Tracking reports (proof
of performance) must be sent bi-weekly to Xxxx Xxxxxxx at
Ford's media buying agency Ford Motor Media, via fax to
000-000-0000 or e-mailed to xxxx.xxxxxxx@xxxxxxxxxxxxxx.xxx,
with copies of tracking reports to be sent to Xxxxx Xxxxxxx,
Internet & New Media Group, Ford Motor, via fax to
000-000-0000 or e-mailed to xxxxxxx0@xxxx.xxx.
Subject to Section 5(a) herein, Ford reserves the right to
terminate this agreement in its entirety immediately in the
event impression
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guarantees are not met by Bolt for four (4) consecutive
tracking periods, i.e., 8 weeks, such periods of calculation,
as they relate to a particular element or feature set forth
on Exhibit A attached hereto, to commence upon the launch of
such element or feature.
(d) Amounts paid after their due date shall bear interest at the
rate of one and-one half percent (1 1/2%) per month (or the
highest rate permitted by law, if less) until paid in full.
In the event of any failure by Ford to make payment, Ford
will be responsible for all reasonable expenses (including
attorneys' fees) incurred by Bolt in collecting such amounts.
All payment amounts in this Agreement are in U.S. dollars and
are exclusive of any applicable taxes and shall be made free
and clear of, without reduction for, (and Advertiser shall be
responsible for and shall indemnify Bolt against) any
applicable taxes pertaining to the payments under this
Agreement (excluding taxes based upon the net income of
Bolt), provided that Bolt notifies Ford in writing of such
taxes within 6 months after the applicable invoice date.
Ford shall promptly furnish Bolt with tax receipts evidencing
the payment of any taxes referred to in the preceding
sentence.
5. Design, Implementation and and Content of "Xxxx.xxxx.xxx" Website
(a) Creation of the "Xxxx.xxxx.xxx" Website.
Bolt shall be primarily responsible for the creation of the
"Xxxx.xxxx.xxx" website. Bolt agrees that it will consult
with Ford concerning the design, implementation, maintenance
and initial content of the "Xxxx.xxxx.xxx" website; which
shall be subject to approval rights as set forth below, and
will ensure that the "Xxxx.xxxx.xxx" website contains the
general topics set forth in the attached Exhibit A or other
features that the parties may agree upon from time to time.
Notwithstanding and without limiting the foregoing, the
Parties agree that the "Xxxx.xxxx.xxx" website shall (i)
display the "Ford Oval" and/or other trademarks designated by
Ford "above the fold" and in a manner approved by Ford, and
(ii) shall contain privacy related statements and links to
privacy policies mutually agreed upon by the Parties and
consistent with other portions of this Agreement. Further,
Bolt agrees to use its best efforts to ensure that no Bolt
supplied content appearing on the "Xxxx.xxxx.xxx" website
adversely impacts Ford's brand in any material respect. Prior
to the initial launch of, and any modifications to, the
"Xxxx.xxxx.xxx"
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website, Bolt shall place such pages on a non-public server
and provide such individual as is designated by Ford with
notice thereof and access thereto. Ford shall have the right
to notify Bolt of its disapproval of any changes to content
(which shall include, without limitation, links to other
sites) and any material changes to other content which Ford
reasonably believes is harmful or detrimental to Ford or its
brand for a period of two business days (at least 48 hours)
from the time of receipt of notice from Bolt. Upon Bolt's
receipt of any such disapproval notice from Ford, Bolt will
delay the implementation of such disapproved changes until
the Parties resolve the appropriate issues raised in such
disapproval notice.
(b) Interactive Content Elements.
Bolt will develop certain chat rooms, moderated message
boards, and other interactive content in the normal course of
business and as otherwise mutually agreed upon by the
Parties. All such chat rooms, message boards and the like
shall be located on Bolt's servers and Bolt shall retain all
responsibility for maintenance, liability and support
therefore. Bolt expressly acknowledges and agrees that it
will not develop or endorse any message board, chat room,
other interactive element that contains any of Ford's
trademarks in its name (or that uses a trademark which is
likely to be confused with any of Ford's trademarks) or
otherwise undermines Ford's intellectual property rights.
(c) Launch Date
The site will be launched in accordance with the timetable
set forth in Exhibit A.
(d) Consumer Questions and Complaints
Bolt shall be responsible for all customer service relative
to the operation of the Xxxx.xxxx.xxx website (which shall
include handling and resolution of any customer questions or
complaints) which it will perform in a prompt, courteous and
professional manner. Bolt will provide Ford with periodic
summaries of the nature of complaints received.
Notwithstanding the foregoing, any automotive product or
service related issues or concerns shall remain the
responsibility of Ford.
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(e) Availability
The Xxxx.xxxx.xxx website shall be publicly available to
users approximately twenty-four (24) hours each day,
excepting necessary website maintenance and Internet
performance issues outside the reasonable control of Bolt.
(f) Traffic Reporting
Bolt shall provide Ford with aggregate periodic
traffic/website performance reports in a manner mutually
agreed upon by both Parties.
(g) Security
Each Party shall take all reasonable measures to prevent
unauthorized access to consumer data obtained through the
operation of the website, and any databases or other
sensitive material generated from or used in conjunction with
the website. Each Party shall immediately notify the other
Party of any known security breaches, and take all necessary
actions to promptly notify affected consumers and to remedy
such breach.
(h) Website Backup
Xxxx.xxx will provide daily and permanent backups of the
information detailed in this Agreement and housed on its
servers. All data shall be backed up daily to two locations -
network storage and DAT. The DATs shall be stored off-site in
a fire-proofed, secure tape library. The network data shall
be stored for three weeks, and be available for content
replacements. Each Party shall also maintain a development
environment copy of web data for rapid content replacement.
6. Accuracy of Information Published on Xxxx.xxx and Xxxx.Xxxx.xxx
Each Party shall be responsible for the quality and accuracy of
information and content supplied by it contained on Xxxx.xxx and
Xxxx.Xxxx.xxx and any additional related sites or links which may be
created from time to time by Xxxx.xxx. Ford shall use its commercially
reasonable efforts to provide content and advertising media for the
Xxxx.Xxxx.xxx website in order to facilitate the impression guarantees
set
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forth on Exhibit A attached hereto. Ford acknowledges that it will
forfeit its right to terminate the agreement pursuant to Section 4(c)
herein in the event that it fails to provide such content and
advertising media.
7. Information Obtained From Consumers
[*]. Notwithstanding the foregoing, Bolt will not sell, transfer, or
otherwise provide such information to any third parties without the
prior written consent of Ford. All information shall be used only as
authorized by the user that provided the information, and in strict
compliance with Bolt's and Ford's privacy policies, as it may be
amended from time to time. Bolt will provide a link to such policies
governing the protection and use of user data on the "home page" of
the website as well as on those pages of the website where users are
required to provide personally identifying information. Any
non-conforming use of such information by either party shall
constitute a material breach of this Agreement and shall give such
party due cause to terminate this Agreement.
8. Intellectual Property
(a) Bolt Intellectual Property
As between the Parties, Bolt is, and shall remain, the owner
of all right, title and interest in and to the Xxxx.xxx
website and the Xxxx.Xxxx.xxx website (the "Bolt Intellectual
Property"), including, without limitation, all trademarks and
copyrights claimed by Bolt and all software, programs, text,
audio, images, graphics, "look and feel", animation, sound,
video, and other content associated with the Bolt
Intellectual Property, other than the Ford Content (as
defined below).
(b) Ford Intellectual Property
As between the parties, Ford is, and shall remain, the owner
of all right title and interest in and to all materials (such
as research reports) provided to Bolt by Ford in the course
of this Agreement (the "Ford Intellectual Property"),
including without limitation, all custom templates, and all
software, programs, text, images, graphics, "look and feel",
animation, sound, video, and other content associated with
the Ford Intellectual Property (the "Ford Content"). Upon
execution and delivery of this Agreement, Bolt assigns to
Ford all right, title and interest in and to the content
created by Bolt (i.e., its employees, agents, or
contractors), and intellectual property
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rights thereto (but will not be construed to include software
to develop such content) used solely and exclusively in the
Xxxx.Xxxx.xxx channel in the course of this Agreement. Bolt
agrees to execute any and all necessary further documents
that Ford may reasonably request to fully vest any
intellectual property rights created in furtherance of this
Agreement and, if requested, to reasonably assist Ford, at
Ford's expense, to register such rights.
Bolt expressly agrees that any trademarks or applications
developed for use solely in association with the
Xxxx.Xxxx.xxx website (i) will not combine any trademark of
Ford's with and trademark of Bolt (or of any third party),
and (ii) shall be the property of Ford, other than the
Xxxx.Xxxx.xxx trademark (for example, any trademark that is
developed to identify a feature unique to this site and which
is not applicable to other Bolt channels, such as the "Design
Your Own Dream Car" feature).
(c) Trademark Licenses
Each Party grants to the other, during the Term of this
Agreement, a royalty-free, non-exclusive license to use,
reproduce and display the trademarks, service marks, and
design marks listed on the attached Exhibit E (collectively,
the "Marks") in connection with this Agreement. Each Party
may amend the list of trademarks it is licensing to the
other, at any time, upon written notice to the other Party.
Use of all Marks licensed pursuant to this Agreement shall
reflect the licensor's standards of quality. Furthermore, the
Party licensing the Marks shall have the right from
time-to-time, by prior arrangement of the Parties, to assess
the quality of services offered under the Marks and to review
advertising and promotional materials bearing the Marks to
ensure that these quality standards are upheld. Each of Bolt
and Ford expressly acknowledges and agrees that except as
expressly provided herein, no right, title, license or
interest in or to any xxxx owned by the other Party (or the
other party's Affiliates) is intended to be given to or
acquired by the other Party by the execution of or
performance of this Agreement. Each of Bolt and Ford
expressly agrees that it will not use any Xxxx of the other
Party for any purpose or activity except as expressly
authorized or contemplated herein.
9. Representations and Warranties
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Each of Bolt and Ford represents and warrants that: (1) it is a
corporation duly organized and validly existing and in good standing
under the laws of the state of its incorporation, (2) it has the full
power and authority to enter into and perform its obligations under
this Agreement, (3) it has obtained all permits, licenses, and other
governmental authorizations and approvals required for its performance
under this Agreement, and (4) the services to be rendered and the
materials provided by each Party neither infringe nor violate any
patent, copyright, trade secret, trademark, or other proprietary right
of any third party.
10. Provision of Advertising Materials
The content of all Ford advertisements will be supplied, or must be
approved in advance, by Ford. It is further understood and agreed that
no Ford advertisements may appear on any pages with content that in
Ford's judgment is inappropriate or otherwise inconsistent with Ford's
advertising and business policies. Bolt reserves the right to reject
or cancel any advertisement at any time if in Bolt's reasonable
judgment such advertisement may subject Bolt to civil or criminal
liability. In such case Bolt will discuss the matter with Ford and
allow Ford the opportunity to revise or replace the advertisement. All
banners from which minimum guaranteed impressions are calculated shall
be placed "above the scroll" at a screen resolution of 800 x 600 using
the Netscape or MSIE browsers v. 3.0 or better; provided, however,
that Bolt may place additional advertising "below the scroll". The
positioning of advertisements on any and all web pages shall be
mutually agreed upon by Bolt and Ford.
Bolt agrees that in addition to the restrictions set forth in this
agreement, it will not place any advertisements or links for "adult
sites" or advertisements, or sites that are generally considered
offensive, on any page containing a Ford advertisement. If Ford
determines that an advertisement is offensive, Bolt shall remove such
advertisement from such page within 4 hours of receiving notice from
Ford during normal business hours and 24 hours of receiving notice
from Ford at all other times.
11. Additional Bolt Obligations
(a) Xxxx.xxx will place a static front page link to Xxxx.Xxxx.xxx
prominently on the front page of Xxxx.xxx throughout the Term
of this Agreement.
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(b) Bolt will provide Ford with quarterly market research studies
conducted by the BOLT Media, Inc. market research team
working closely with the Ford (or its designated
advertising/buying agency) market research team to ensure
optimum methodology before field work commences; provided,
that Ford will collaborate with Xxxx.xxx on initial approach
and methodology and that such methodology shall require a
minimum sampling of 1,000 online interviews.
(c) Xxxx.xxxx.xxx will place a static link to XxxxxXxxxxxx.xxx or
its designated affiliates as identified by Ford for the
purposes of encouraging participation in drivers education.
(d) Xxxx.xxx will render the disclaimer listed in Exhibit D on a
user's screen prior to any user entering the Design Your Own
Dream Car section of the xxxx.xxxx.xxx channel. The user will
have to accept these terms before they are allowed access to
content in the Design Your Own Dream Car section.
12. Limitation of Liability
In the event that Bolt fails to publish an advertisement in accordance
with this Agreement, in the event that Bolt fails to deliver the
number of guaranteed impressions required herein, or in the event of
any other failure, technical or otherwise of such advertisement to
appear as provided herein, to the extent that such failures are not
due to a breach, directly or indirectly, of the terms herein by Ford,
the sole liability of Bolt and exclusive remedy of Ford shall be
limited to, at Ford's discretion, either the immediate termination of
this agreement, or placement of the advertisement at a later time in a
comparable position, or extension of the Term hereof until the total
impressions are delivered. SUBJECT TO SECTION 14 HEREOF, IN NO EVENT
SHALL BOLT BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL
SPECIAL LOST PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED IN
CONTRACT, TORT OR OTHERWISE, EVEN IF BOLT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BOLT'S AGGREGATE LIABILITY UNDER THIS
AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY BOLT FROM
FORD PURSUANT TO THIS AGREEMENT. NOR SHALL FORD BE LIABLE UNDER THIS
AGREEMENT FOR ANY CONSEQUENTIAL SPECIAL LOST PROFITS, INDIRECT OR
OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF
FORD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FORD'S
AGGREGATE LIABILITY UNDER THIS
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AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAYABLE BY FORD TO
BOLT PURSUANT TO THIS AGREEMENT.
13. Confidentiality
During the Term of this Agreement, and for a period of two years
following any end date, neither party will use or disclose any
Confidential Information of the other party, except as specifically
contemplated herein. The foregoing restriction does not apply to
information that (i) has been independently developed by the receiving
party without access to the other party's Confidential Information;
(ii) has become publicly known through no breach of this Section 11 by
the receiving party, (iii) has been rightfully received from a third
party authorized to make such disclosure, or (iv) is required to be
disclosed by law; provided that the disclosing party shall use its
best efforts to redact from such disclosure all information not
necessary to comply with such law. "Confidential Information" shall
mean (i) advertisements, prior to publication: (ii) the financial
terms of this Agreement and any Bolt statistics marked as
"Confidential" or "Proprietary" that shall be deemed Bolt Confidential
Information; and/or (iii) any information designated in writing or
identified orally at time of disclosure, by the disclosing party as
"confidential" or "proprietary" and confirmed as such by the
furnishing party in a written instrument delivered to the receiving
party within ten (10) working days after such oral delivery (such
confirmatory instrument specifically describing the relevant
Confidential Information and the date of its oral delivery).
14. Indemnification
Bolt and Ford agree to indemnify, defend, and hold harmless the other
Party (and its parents, subsidiaries, affiliates, successors, and
assigns) from and against all losses, liabilities, damages, actions,
claims, expenses and costs (including reasonable attorneys' fees)
which result or arise out of or in connection with any breach of this
Agreement or out of or in connection with any material supplied to the
other in furtherance of this Agreement.
15. Publicity
The Parties agree that no press releases, announcements or statements
of any kind will be made regarding this Agreement without the prior
written consent of the other Party, which consent shall not be
unreasonably withheld.
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16. Dispute Resolution
If a dispute arises between the parties that cannot be resolved
otherwise, the following procedure shall be implemented before either
Party pursues other available remedies except that nothing contained
herein shall prevent either Party from seeking injunctive relief from
a court where appropriate in order to maintain the status quo while
this procedure is being followed or to seek injunctive relief or any
other equitable or judicial remedy, in any applicable forum which
either Party deems necessary to protect its intellectual property
rights:
(a) Initial Meeting
The Parties shall hold a meeting promptly, attended by
persons with decision-making authority regarding the dispute,
to attempt in good faith to negotiate a resolution of the
dispute; provided, however, that no such meeting shall be
deemed to vitiate or reduce the obligations and liabilities
of the Parties hereunder or be deemed a waiver by a Party
hereto of any remedies to which such Party would otherwise be
entitled hereunder.
(b) Mediation
If, within ten (10) business days after such meeting, the
Parties have not succeeded in negotiating a resolution of the
dispute, they agree to submit the dispute to mediation in
accordance with the then-current rules of the Center for
Public Resources ("CPR"). The Parties will jointly appoint a
mutually acceptable mediator, seeking assistance in such
regard from the CPR if they have been unable to agree upon
such appointment within 10 days from the conclusion of the
negotiation period.
(c) Arbitration
The Parties agree to participate in good faith in the
mediation and negotiations related thereto for a period of
ten (10) business days. If the Parties are not successful in
resolving the dispute through the mediation, then the Parties
agree to submit the matter to binding arbitration in
accordance with the then-current commerical rules of the
American Arbitration Association, by a sole arbitrator.
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(d) Procedure
Mediation or arbitration shall take place in Dearborn,
Michigan unless otherwise agreed by the Parties. The
substantive and procedural law of the State of Michigan shall
apply to the proceedings, to the extent not inconsistent with
the then current commercial rules of the American Arbitration
Association. Equitable remedies shall be available in any
arbitration. Punitive damages shall not be awarded. This
clause is subject to the Federal Arbitration Act, 9 U.S.C.A.
Section 1 et seq. and judgment upon the award rendered by the
Arbitrator, if any, may be entered by any court having
jurisdiction thereof.
17. Miscellaneous
(a) No Agency or Partnership Relationship
In no event shall the Parties be deemed to have any agency or
partnership relationship between them as a result of this
Agreement.
(b) Assignment
This Agreement has been executed in consideration of the
Parties involved and therefore may not be assigned or
transferred to a third party without the prior written
consent of the other Party, such approval not be unreasonably
withheld. Notwithstanding the foregoing, Ford may assign this
Agreement without the prior consent of Bolt to any wholly or
partially owned subsidiary of Ford Motor Company.
(c) Entire Agreement, Amendment, Waiver
This Agreement embodies the entire agreement of the Parties
and supersedes any other agreements or understandings between
them, whether oral or written, relating to this subject
matter. No amendment or modification or waiver of a breach of
any term or condition of this Agreement shall be valid unless
in a writing signed by each of the Parties. The failure of
either Party to enforce, or the delay by either of them in
enforcing, any of their respective rights under this
Agreement will not be deemed a continuing waiver or a
modification of any rights hereunder and either Party may,
within the time provided by applicable law and consistent
with the provisions of
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this Agreement, commence appropriate legal proceedings to
enforce any or all of its rights.
(d) Notices
Any notice or other communication hereunder must be given in
writing and either (a) delivered in person, (b) transmitted
by facsimile transmission or other telecommunications
mechanism, (c) sent by nationally recognized overnight
courier service or (d) mailed by certified mail, postage
prepaid, receipt requested as follows:
If to Ford:
Ford Motor Company
Attn: Corporate Secretary
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Bolt:
Bolt, Inc.
Attn: Corporate Secretary
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
All notices personally delivered shall be deemed received on
the date of delivery. Any notice sent via facsimile
transmission shall be deemed received on the date shown on
the confirmation advice. Any notice by certified mail shall
be deemed to have been given on the date of receipt or
refusal thereof. The date of any notice by overnight mail
service shall be the date the airbill is signed by the
recipient. Either Party may change its address for the
receipt of notices by giving notice thereof to the other.
(e) Excusable Delays
Neither Party shall be liable for a failure to perform any of
its obligations hereunder that arise from causes or events
beyond its reasonable control and without its fault or
negligence.
(f) Partial Invalidity
Any provision of this Agreement which is found to be invalid
or unenforceable by any court in any jurisdiction will, as to
that
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jurisdiction, be ineffective to the extent of such invalidity
or unenforceability, and the invalidity or unenforceability
of such provision will not affect the validity or
enforceability of the remaining provisions hereof.
(g) Title and Headings
Titles and headings of articles and sections of this
Agreement are for convenience only and will not affect the
construction of any provision of this Agreement.
(h) Survival
Notwithstanding anything to the contrary contained herein, any
representations and warranties made by the Parties shall
survive the term of this Agreement for a period of six (6)
years.
(i) Counterparts
This Agreement may be executed in counterparts each of which will be
deemed an original, but all of which taken together will
constitute one and the same instrument.
(j) Governing Laws
This Agreement is governed by the internal laws of the State
of Michigan.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
BOLT Media, Inc. FORD MOTOR COMPANY
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxx
---------------------------- ----------------------------
Title: Sr. VP Finance Title: VP-Marketing
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EXHIBIT A
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Bolt Revised
-------- ---------------------------
Guaranteed
Minimum
Launch Page
Section Date CPM Loads Price
------- -------- ---------------------------
($) (M) ($)
XXXX.XXXX.XXX / FRONT PAGE 1/1/2000 $[*] [*] [*]
--------------------------
INTERACTIVE CONTENT ELEMENTS:
-----------------------------
[*] 1/1/2000 $[*] [*] [*]
[*] 7/1/2000 $[*] [*] [*]
[*] 1/1/2000 $[*] [*] [*]
[*] 1/1/2000 $[*] [*] [*]
INTERACTIVE SERVICE ELEMENTS:
-----------------------------
[*] 3/1/2000 $[*] [*] [*]
[*] 3/1/2000 $[*] [*] [*]
[*] 4/1/2000 $[*] [*] [*]
[*] 4/1/2000 $[*] [*] [*]
[*] 3/1/2000 $[*] [*] [*]
[*] 2/1/2000 $[*] [*] [*]
EXCLUSIVE INTERACTIVE FEATURES:
-------------------------------
[*] 5/1/2000 $[*] [*] [*]
[*] 4/1/2000 $[*] [*] [*]
XXXX.XXX TARGETED UNITS:
------------------------
[*] 1/1/2000 $[*] [*] [*]
XXXX.XXX ROS:
-------------
[*] 1/1/2000 $[*] [*] [*]
$[*] [*] [*]
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18
EXHIBIT B
[BOLT LOGO]
INSERTION ORDER
ORDER NUMBER: 99101
BOLT REPRESENTATIVE: Xxxx Xxxx
DATE: 11/1/1999
ADVERTISER
Ford Motor Company
Internet & New Media Group
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxx.xxx
--------------------------------------------------------------------------------
XXXX TO (CHECK ONE)
ADVERTISER: X
AGENCY: _____
IN-HOUSE AGENCY: _____
-----------------------------------------------------------------------------------------------------------------------
END AGENCY REVENUE
START DATE DATE RATE DISCOUNT TOTAL DUE PAYMENT SCHEDULE SHARE
-----------------------------------------------------------------------------------------------------------------------
01/1/2000 12/31/2002 n/a n/a $[*] Please see payment schedule attachment n/a
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
GUARANTEED
LINK TO NUMBER OF
CREATIVE POSITION TEXT OF LINK URL IMPRESSIONS
-----------------------------------------------------------------------------------------------------------------------
Please see creative [*]*
specification and brand
impression impressions,
guarantee attachment [*]**
brand
interactions
-----------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TERMS AND CONDITIONS: This insertion order is subject to the terms and
conditions ("Standard Terms") appearing on both sides of this Insertion Order,
and such Standard Terms are made a part of this insertion order by reference.
The signatory of this Insertion Order represents that he has read and agrees to
such Standard Terms.
AUTHORIZED BY: PHONE: DATE:
------------------------------- ------------------------------ -------------------
PRODUCTION CONTACT: PHONE: DATE:
-------------------------- ------------------------------ -------------------
PLEASE SIGN RETURN WITH DEPOSIT TO BOLT MEDIA, INC., AT 000 XXXXXX XXXXXX, XXX
XXXX, XX 00000
*3 year impression levels are projected over 3 years based on year 1 CPMs (per
11/17/99 agreed terms)
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19
EXHIBIT C
[*]
20
20
EXHIBIT D
I UNDERSTAND AND AGREE THAT WHEN I SUBMIT MY DREAM CAR IDEA THROUGH THE "DESIGN
YOUR OWN DREAM CAR" FEATURE ON XXXX.XXXX.XXX, I AM GIVING UP ALL COPYRIGHT AND
OTHER INTELLECTUAL PROPERTY RIGHT CLAIMS (OTHER THAN PATENT RIGHTS) I MAY HAVE
AGAINST FORD MOTOR COMPANY'S COPYING OR OTHERWISE USING MY DREAM CAR IDEA. I
FURTHER UNDERSTAND AND AGREE THAT FORD MOTOR COMPANY AND ITS SUBSIDIARIES ARE
UNDER NO OBLIGATION TO USE MY IDEA OR TO HOLD IT IN CONFIDENCE.
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21
EXHIBIT E
Ford Trademarks, Service Marks, Design Xxxxx
- Xxxx Oval
- Ford Motor Company Script
- Others to be added and amended as appropriate
