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CONFIDENTIAL EXHIBIT 10.18
STRATEGIC MARKETING AGREEMENT
Excite@Home, Inc. and OpenSite Technologies, Inc.
This Strategic Marketing Agreement ("Agreement") is entered into as of December
23, 1999 ("Effective Date") by Excite@Home, Inc., a Delaware corporation with
offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, XX 00000 ("E@H") and OpenSite
Technologies, Inc., 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, XX 00000, a Delaware
corporation ("OpenSite") (collectively, the "Parties").
WHEREAS, OpenSite develops and markets software and services to enable branded
Web-based dynamic pricing solutions and is the developer and owner of the
XxxXxxxxx.xxx aggregation site for web-based auctions; and
WHEREAS, E@H (Nasdaq: ATHM) is a global media company, centered around its
narrowband portal, Excite (xxx.xxxxxx.xxx). It also maintains or plans to
maintain business to business portals or sites known as Xxxx.xxx and
Xxxxxxxxxxxxxxxxxx.xxx ("Applicable Sites") that offer content and interactive
services across both narrowband and broadband, and offer advertisers targeted
marketing solutions across all platforms of delivery; and
WHEREAS, E@H and OpenSite desire to set forth in this Agreement certain aspects
of a strategic marketing relationship between OpenSite and E@H, limited to
Applicable Sites whereby (1) OpenSite will license to E@H its "AuctionNow" and
"Dynamic Pricing Toolkit" software, (2) OpenSite will be the preferred provider
of dynamic pricing technology for E@H's Applicable Sites, (3) OpenSite will
purchase Advertising and services from E@H and its subsidiary, MatchLogic, Inc.,
with respect to Applicable Sites and elsewhere; and (4) OpenSite will cooperate
to establish the Co-branded Sites that will link to the Applicable Sites; and
WHEREAS, OpenSite and E@H will share revenue generated from Advertising on the
Co-branded Site, AuctionNow Galleries and participating OpenSite powered auction
sites; and
WHEREAS, OpenSite and E@H will share all revenues generated from OpenSite's
dynamic pricing products and services licensed through the Applicable Sites; and
WHEREAS, OpenSite will commit to certain levels of spending on E@H and
MatchLogic services and on E@H Advertising opportunities.
NOW, THEREFORE, in exchange for valuable and adequate consideration and the
terms set forth below, the Parties agree as follows:
Definitions:
a) ADVERTISING. Non-Matchlogic banner advertising, promotional placements,
sponsorships, links, hyperlinks, graphical links to other sites, and/or
other impressions on the Applicable Sites or on other Excite sites.
OpenSite/E@H
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b) APPLICABLE SITES. Shall be limited to the unique individual domains of
Xxxx.xxx and Xxxxxxxxxxxxxxxxxx.xxx (only as it exists as sub-domain
storefront solution hosted on Xxxx.xxx).
c) CO-BRANDED SITES. Web pages (1) resident an the Xxxxxxxxx.xxx site
that are created by E@H, match the look and feel of an Applicable
Site, are linked to the Applicable Site, display some or all of the
BidStream content, identify BidStream and OpenSite as the content
providers and (2) resident on an Applicable Site that are created by
E@H, match the look and feel of an Applicable Site and offer auction
functionality to visitors of Applicable Sites through the use of the
AuctionNow Software.
d) CONTENT PRESENCE. Content or application based software available
through the Applicable Sites, or links from any of the Dynamic Pricing
Technology Services Providers as defined in Section 2 a) i) to an
Applicable Site.
e) DOCUMENTATION. The written, electronic or recorded work generally
provided by OpenSite to licensed End-Users in connection with the
Software that describes the function and features of said Software.
f) EXCITESTORE BUILDER. The E@H branded business-focused Web-Sites
providing merchant site and storefront enablement.
g) GALLERY. One of several individual auctions pursuant to a single
AuctionNow license grant, that is capable of being administered
directly by E@H or a customer of E@H.
h) SOFTWARE. OpenSite's AuctionNow and Dynamic Pricing Toolkit Software.
i) TERM. As defined in Section 13 hereof.
j) USER DATA. As defined in Section 14(c) hereof.
k) UTILIZATION RATE. The number of impressions successfully targeted
divided by the total number of impressions evaluated to reach said
targets.
1. CO-BRANDED SITES.
a) OpenSite and E@H will work together to link the Co-branded Sites into
the Applicable Sites.
b) E@H will develop, host, and maintain, at its expense, the Applicable
Sites. E@H will have sole control over the "look and feel" of the
Applicable Sites and will be responsible for any hardware or labor or
software and or service technology (including updates thereto)
reasonably necessary to maintain the Applicable Sites as described
herein.
OpenSite/E@H
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c) OpenSite will develop, host, and maintain, at its expense, the
Co-branded Site(s) resident on XxxXxxxxx.xxx in accordance with the
mutually agreed specifications and consistent with OpenSite standards.
E@H will provide creative as needed for the provision of this
Co-branded Site.
d) E@H will develop, host, and maintain, at its expense, the Co-branded
Site(s) resident on the Applicable Sites in accordance with mutually
agreed specifications consistent with E@H standards. OpenSite will
provide creative as needed for the provision of this Co-branded Site.
e) E@H will display links from Applicable Sites to the Co-branded Sites.
E@H will have sole discretion and control over the number, placement
and positioning of such links. Notwithstanding, OpenSite will have an
opportunity to review and comment an such placement and positioning
prior to implementation.
f) Attached hereto as EXHIBIT G s a "Scope of Work" that illustrates the
plan, methodologies, financial and other obligations of the parties in
relation to the Applicable Sites, the Co-branded Sites, Advertisement
serving, AuctionNow offering and AuctionNow hosting.
2. STRATEGIC RELATIONSHIP.
a) E@H grants to OpenSite the right during the Term, to be the preferred
and dominant Dynamic Pricing Technology Services Provider (as defined
below) for the Applicable Sites.
i) "Dynamic Pricing Technology Services Provider" shall mean, in
addition to OpenSite, one or more of the entities named below,
not to exceed five (5) in number (exclusive of OpenSite) at any
given moment. The following companies, with the addition of
OpenSite, are the initial Dynamic Pricing Technology Services
Providers: FairMarket, Moai, WebVision, Trading Dynamics, and
Beyond Solutions. OpenSite may replace company names on the
preceding list not more than once quarterly.
ii) OpenSite, as the "Preferred and Dominant" Dynamic Pricing
Technology Services Provider on the Applicable Sites will have at
least three (3) times the prominence and exposure as any other
Dynamic Pricing Technology Services Provider, as measured by
aggregate number of impressions and number of pixels. E@H may
display ads for E@H's own products and services anywhere in the
E@H Network, and may display ads for Dynamic Pricing Technology
Service Providers in the Applicable Sites.
OpenSite/E@H
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b) At any time during the Term, on 120 days prior written notice,
E@H may permit any other Dynamic Pricing Technology Services
Provider to have a Content Presence on the Applicable Sites. In
such event, OpenSite will have 60 days (from the date of E@H's
written notification to deliver a written notice to E@H
terminating this Agreement. If OpenSite elects to terminate under
this Section 2(b), it will continue to purchase the services and
Advertising provided in Section 2 hereof for the balance of the
E@H 120-day notice period. Upon the expiration of such notice
period OpenSite would have no further monetary obligations
hereunder. Absent such 120 notice to OpenSite from Excite
regarding a proposed Content Presence, in the event that Opensite
delivers a written notice terminating under this Section 2 b),
the cure period described in section 13 b) shall apply.
c) The Parties acknowledge that E@H has formed and will continue to
form relationships with third party Dynamic Pricing Technology
Services Providers related to all sites other than the Applicable
Sites, and these relationships shall have no effect on this
Agreement or any rights and liabilities pursuant to this
Agreement.
2A. INSERTION ORDER.
a) During the Term of this Agreement, OpenSite will purchase Advertising
and other services from MatchLogic as specified in separate Insertion
Orders ("IO"). The actual IOs must be agreed to in writing and signed
by the parties' respective representatives prior to becoming
effective. The IO will be subject to the E&H standard terms and
conditions (attached hereto as EXHIBIT B) as they may be amended for
general use by E@H or Matchlogic from time to time. In the event of
any inconsistencies between this Agreement and the attached Exhibit B,
Exhibit B shall control. The parties expect that changes to the
agreed-upon advertising placements may be desirable at various points
during the term of this advertising commitment. In the event that one
or more of the defined placements or services do not perform to
OpenSite's satisfaction or are no longer available, or the Utilization
Rate falls below 10%, the parties will negotiate in good faith to
develop new target parameters. In addition, the parties will negotiate
in good faith to replace the IO describing such placement or service
with an IO describing a new placement or service of similar value.
OpenSite shall not be charged any penalty fees for such changes.
The parties will not make such changes more than once per calendar
quarter.
Pursuant to the IO(s) (attached in Exhibit B) OpenSite agrees to pay for
Advertising and other services from E@H and Matchlogic in the following
minimum amounts:
(i) From the time of execution hereof through March 31, 2001: $4
million;
(ii) From April 1, 2001 through March 31, 2002: $5 million; and
(iii) From April 1, 2002 through March 31, 2003: $6 million.
OpenSite/E@H
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The parties intend that foregoing spending obligations will be applied
ratably, $8 million to Applicable Sites and $7 million to MatchLogic.
Payments related to the Applicable Sites will be for Advertising
services used approximately ratably throughout the relevant period.
Payments for Matchlogic services (to be mutually agreed upon) will be
made for services, including those targeted specifically to
business-to-business markets, and advertising spending on third party
sites as and when incurred and/or directed by OpenSite, during the
relevant period. All services and Advertising purchased from E@H and
MatchLogic by OpenSite pursuant to this Section shall be at prices for
services and CPMs which are no more than competitive market rates, and
no less favorable than other similar reasonably contemporaneous
services and Advertising arrangements between Xxxx.xxx and MatchLogic,
on the one hand, and entities similarly situated to OpenSite on the
other.
3. CO-MARKETING.
a) E@H will feature the Co-branded Sites prominently throughout the
Applicable Sites, subject to OpenSite's right to review and approve
the specific uses of the OpenSite and BidStream brands, such approval
not to be unreasonably withheld.
b) OpenSite will receive such brand attribution on the Co-branded sites
as the Parties may mutually agree, and as is consistent with E@H
co-brand standards.
c) E@H will use commercially reasonable efforts to feature OpenSite in
relevant public statements including, but not limited to, relevant
press releases, releases regarding OpenSite's participation in E@H's
Applicable Sites launch events, sales promotions, and trade shows at
E@H's discretion, with review approval of OpenSite. Specifically, E@H
and OpenSite will issue a joint press release at or about the time of
execution hereof stating that E@H has chosen OpenSite to be its
preferred Dynamic Pricing Technology Services Provider for the
Applicable Sites. Each party will designate a marketing coordinator
who will serve as the main point of contact for the other party
regarding joint marketing activities. Notwithstanding the foregoing,
the parties agree that there shall be no statements or releases made
by OpenSite regarding any possible or actual equity investments
without the express prior written approval of E@H, and Opensite shall
indemnify E@H against any such OpenSite breach.
4. AUCTIONNOW AVAILABILITY.
a) Subject to the terms of the Services Level Agreement (SLA) between the
parties and attached hereto as Exhibit A, OpenSite will host (arrange
for the placement of the Software on servers at a remote third party
site), and maintain, at E@H expense, the AuctionNow Software as
available through the Applicable Sites in accordance with
specifications to be mutually agreed by the Parties.
OpenSite/E@H
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b) E@H will bear all system operation software and or service technology
costs, hardware costs, Gallery end-user customer service costs and
operation costs incurred in connection with the operation of
AuctionNow as available through the Applicable Sites.
c) Administration of the Software and the use by end-users of the
Galleries will be the responsibility of E@H, which will also be the
sole point of contact for the Gallery end-users.
5. I/MALL TRANSACTION PROCESSING.
The parties will negotiate in good faith to evaluate the use of
"I/Mall" as one of the transaction processing engines to which the
Software is integrated.
6. SALE OF ADVERTISING.
E@H and or Matchlogic shall have the right sell and serve all
Advertising an the Applicable Sites, Co-branded Sites and
participating OpenSite-powered auctions, which shall include but not
be limited to banner advertising and E@H sponsorship module
advertising. OpenSite will work with E@H, and use its commercially
reasonable efforts to accommodate E@H's technical requirements, to
serve targeted banners and sponsorship placement$, and to create and
target additional Advertising positions within the Co-branded Sites
and elsewhere.
7. AUCTIONNOW REVENUE.
E@H will use commercially reasonable efforts to promote the
availability of the Software on the Applicable Sites and to generate
Software-related revenue from making auctions available through the
Applicable Sites using the Software.
8. PAYMENTS.
a) During the term of this Agreement, E@H shall pay to OpenSite
seventy-five percent (75%) of all gross Software-related revenue from
the conduct of auctions on the Applicable Sites and net Advertising
revenue, (net of out-of-costs of sale, not to exceed 17%) derived
from the sale of Advertising on the Co-branded Sites, until such time
as cumulative payments to OpenSite pursuant to all provisions of this
Agreement equal or exceed two million dollars ($2,000,000) prior to
March 31, 2001, or three million dollars ($3,000,000) during the
period from April 1, 2001 through March 31, 2002, or four million
dollars ($4,000,000) during the period from April 1, 2002 through
March 31, 2003. The remaining twenty-five percent (25%) of all gross
Software-related revenue from the conduct of auctions on the
Applicable Sites and net
OpenSite/E@H
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Advertising revenue shall be retained by E@H. Once any threshhold
described, in this Section 8 (a) has been reached, the parties will
thereafter share the revenue described therein equally.
b) Payments of the fees described herein shall be due and payable within
thirty (30) days after the close of the calendar month in which either
party realizes the revenue derived from these transactions. OpenSite's
designated point of contact for billing and fee purposes is Vice
President, Finance at the address listed above, and E@H's designated
point of contact for billing and fee purposes is Controller at the
address listed above. Either party may change the designations in this
subsection by providing written notice to the other.
c) E@H will make commercially reasonable business reports and
documentation available to OpenSite an a periodic basis, not less
frequently than quarterly, that will provide the basis for all revenue
sharing calculations required hereunder. OpenSite will have a right to
audit such calculations during normal business hours through a
nationally recognized accounting firm, not more frequently than once
annually, at its own expense.
9. (REMOVED BY AGREEMENT)
10. TRADEMARK OWNERSHIP.
a) OpenSite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to E@H hereunder.
b) OpenSite will retain all right, title and interest in and to its
OpenSite, XxxXxxxxx.xxx and other proprietary Web sites worldwide
including, but not limited to, ownership of all copyrights, look and
feel and other intellectual property rights therein.
c) E@H will retain all right, title, and interest in and to its
broadband and narrowband sites, including but not limited to the
Xxxx.xxx site, the @Home site, the Excite site, the Webcrawler site,
and the C2000 site worldwide including, but not limited to, ownership
of all copyrights, look and feel and other intellectual property
rights therein.
d) E@H will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to OpenSite hereunder.
OpenSite/E@H
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e) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding such usage
as established from time to time.
f) Upon the expiration or termination of this Agreement, each party will
cease using the software and/or service technologies, trademarks,
service marks and/or trade names of the other except:
i) As the Parties may agree in writing; or
ii) To the extent permitted by applicable law.
11. LICENSE.
a) OpenSite hereby grants to E@H, for the Term of this Agreement, a non-
exclusive license to use the AuctionNow Software and Documentation
(1500 Galleries of up to 1000 items each) in accordance with the terms
and conditions of the OpenSite license agreement attached hereto as
EXHIBIT C at an annual fee of $250,000, payable in advance, plus $125
per Gallery per year for each Gallery used in excess of one thousand
five hundred (1500).
b) OpenSite hereby grants to E@H, for the Term of this Agreement, a non-
exclusive license to use the DYNAMIC PRICING ENGINE TOOLKIT
Software and Documentation in accordance with the terms and conditions
of the OpenSite license agreement attached hereto as EXHIBIT D.
c) E@H acknowledges that OpenSite retains title to and ownership of and
all proprietary rights with respect to the AuctionNow or DYNAMIC
PRICING ENGINE TOOLKIT Software and Documentation. The AuctionNow or
DYNAMIC PRICING ENGINE TOOLKIT Software and Documentation are or may
be protected by patent, copyright, trademark, trade secret and/or
other laws and international treaty provisions. The AuctionNow or
DYNAMIC PRICING ENGINE TOOLKIT Software and Documentation are licensed
and not sold.
12. SUPPORT.
OpenSite will provide telephone and email support for THE DYNAMIC PRICING
ENGINE TOOLKIT Software and Documentation to E@H during the Term pursuant
to the maintenance and support agreement attached hereto as EXHIBIT F.
Further, OpenSite will provide telephone and email support for the
AuctionNow Software and Documentation to E@H during the Term pursuant to
the maintenance and support agreement attached hereto as EXHIBIT E.
OpenSite/E@H
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13. TERM AND TERMINATION.
a) This Agreement will begin on the Effective Date and will continue
until March 31, 2003 (the "Term") unless terminated in accordance with
the provisions of this Agreement.
b) Either party may terminate this Agreement upon written notice to the
other party if the other party materially fails to perform or observe
any of its obligations under this Agreement and such failure cannot be
remedied or, if remediable, is not cured within sixty (60) days after
written notice thereof from the terminating party.
c) Upon the consummation of a merger, acquisition, or similar transaction
(excluding an IPO) through which a change in more than 50% of the
equity ownership of OpenSite occurs, OpenSite shall have 30 days to
terminate this Agreement. In the event of a termination under this
Section 13(c) OpenSite shall pay to E@H an amount equal to five (5)
percent of the balance of its spending commitment hereunder, without
regard to any early termination of this Agreement under Section 13(d)
hereof. Such amount shall be payable ratably over a period of eighteen
(18) months following the notification of termination hereunder. In
the event of such a merger, acquisition or similar transaction, in
which a change of more than 50% of the equity ownership of OpenSite
occurs, if OpenSite does not elect to terminate this Agreement, the
parties agree that the Matchlogic related spending commitment
described in 2A may be reached by OpenSite spending for the benefit of
either a) OpenSite or b) the acquiring or newly controlling company,
subject to Matchlogic's reasonable approval.
d) If aggregate payments to OpenSite pursuant to all provisions of this
Agreement for the period from the Effective Date to March 31, 2002 do
not equal or exceed five million dollars ($5,000,000), either party
shall have the right to terminate the agreement on 60 days written
notice; provided, however, that if Opensite offers Xxxx.xxx (as an
Independent entity) an opportunity to purchase OpenSite Common Stock
and if XXXX.XXX (as an Independent entity) accepts such offer and
makes an investment, and provided Xxxx.xxx (as an independent entity)
does not reduce such investment by selling any portion of the
investment from the time initially made until March 31, 2002, then
neither party shall have any right to terminate under this Section
13(d (this must reference this particular sub section)). The parties
agree that no public statement may be made about this Section 13(d)
without the express prior written consent of both parties and that
failure to acquire express prior written consent of both parties shall
be a material breach of the Agreement.
e) If the quality of the Software or the services provided to the
Gallery end users using the Software are not at least comparable to
other similar service(s) on the Internet, based on ranking by a
cross-section of third party reviewers (to be agreed to by E@H and
OpenSite), in terms of features and functionality
OpenSite/E@H
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including user interface, product services, accessibility and reliability
(the. "Default Standard"), E@H or OpenSite, as the case may be, shall
notify the other in writing, and such other shall use its best efforts to
bring the Software or service to the Default Standard. If the notifying
party determines that the other party has not met the Default Standard
within sixty (60) days following such notification, the notifying party may
terminate this Agreement upon 30 day's written notice.
f) All undisputed payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within thirty
(30) days thereof.
g) The provisions of Section 14 (Confidentiality and User Data), Section
15 (Indemnity), (Limitation of Liability) and Section 16 i) (Dispute
Resolution) will survive any termination or expiration of this
Agreement.
14. CONFIDENTIALITY AND USER DATA.
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
or activities that is proprietary and confidential, which shall
include all business, financial, technical and other information of a
party marked or designated by such party as "confidential or
proprietary" or information which, by the nature of the circumstances
surrounding the disclosure, ought in good faith to be treated as
confidential. This Section 14 imposes no obligation on either party
with respect to Confidential Information which it can clearly
establish (a) was in the possession of or was known by it without an
obligation to maintain its confidentiality prior to its receipt from
the other party; (b) is or becomes generally known to the public
without violation of this Agreement; (c) is obtained from a third
party having the right to disclose it without an obligation of
confidentiality; or (d) was independently developed without
participation of individuals who have had access to the Confidential
or proprietary Information. Either party may disclose Confidential or
proprietary Information to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law provided it gives the other party written notice of the
proposed disclosure with sufficient time to seek relief and that such
disclosure, if made, is made in a fashion to maximize the protection
of the Confidential Information from further disclosure or (ii) on a
"need-to-know" basis under an obligation of confidentiality to its
legal counsel, accountants, banks and other financing sources and
their advisors. Each party shall notify, inform and bind its employees
and contractors to all limitations, duties and obligations regarding
use, access to, and nondisclosure of Confidential or proprietary
Information.
b) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all
Confidential Information of the other party in
OpenSite/E@H
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its possession or control, which will in no event be less than the measures
it uses to maintain the confidentiality of its own information of similar
importance.
c) For the purposes of this Agreement, "User Data" means information
submitted by users of the Applicable Site(s) or the Co-branded Site(s)
during the Term of the Agreement. Both Parties will retain all rights
to make use of any User Data obtained through this Agreement.
d) Neither party will use User Data to specifically target any users of
the other party's sites, as distinct from all users of such party's
sites, for solicitations (except as specifically provided in this
Agreement), either individually or in the aggregate, during the Term
of this Agreement and for a period of twelve (12) months following the
expiration or termination of this Agreement.
e) Neither party will sell, disclose, transfer or rent any User Data
which could reasonably be used to identify a specific named individual
("Individual Data") to any third party nor will either party use
Individual Data on behalf of any third party without the express
permission of the individual user. Where user permission for
dissemination of Individual Data to third Parties has been obtained,
each party will use commercially reasonable efforts to require the
third party recipients of Individual Data to provide an "unsubscribe"
feature in any email communications generated by, or on behalf of, the
third party recipients of Individual Data. Neither party will make any
use of any User or Confidential Data which is adverse to the
competitive interests of the other without the prior written
permission of such other.
15. WARRANTIES, INDEMNITY AND LIMITATION OF LIABILITY.
a) Each party hereby represents and warrants that it is duly organized
and has the unrestricted right to enter into and perform this
Agreement.
b) OpenSite will indemnify, defend and hold harmless E@H, its affiliates,
officers, directors, employees, consultants and agents from any and
all third party claims, liability, damages and/or costs (including,
but not limited to, attorneys fees) arising from:
i) Its breach of any representation or covenant in this Agreement;
or
ii) Any claim arising from the OpenSite Site, or any OpenSite
supplied material, content or services on the Co-Branded site
excluding material, content or services provided by E@H.
c) E@H will promptly notify OpenSite of any and all such claims and will
reasonably cooperate with OpenSite with the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts E@H in any way and such obligation, liability,
prejudice or impact can reasonably be expected to
OpenSite/E@H
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be material, then such settlement shall require E@H'S written consent
(not to be unreasonably withheld or delayed) and E@H may have its own
counsel in attendance at all proceedings and substantive negotiations
relating to such claim.
d) E@H will indemnify, defend and hold harmless OpenSite, its affiliates,
officers, directors, employees, consultants and agents from any and
all third party claims, liability, damages and/or costs (including,
but not limited to, attorneys fees) arising from:
i) Its breach of any representation or covenant in this Agreement;
or
ii) Any claim arising from the E@H Site(s) other than material,
content or services provided by OpenSite.
e) OpenSite will promptly notify E@H of any and all such claims and will
reasonably cooperate with E@H with the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts OpenSite in any way and such obligation,
liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require OpenSite's written
consent (not to be unreasonably withheld or delayed) and OpenSite may
have its own counsel in attendance at all proceedings and substantive
negotiations relating to such claim.
f) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND
HEREBY DISCLAIMS ANY AND ALL WARRANTIES, IMPLIED OR OTHERWISE,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
g) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA OR
OTHER ECONOMIC ADVANTAGE), HOWEVER IT MAY ARISE, WHETHER FOR BREACH OF
THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, OR IN TORT, EVEN IF THAT
PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
LIABILITY FOR SUCH INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGE SHALL BE EXCLUDED EVEN IF THE EXCLUSIVE REMEDIES
PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
OpenSite/E@H
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16. MISCELLANEOUS.
a) FORCE MAJEURE. Any delay in or failure of performance by either party
under this Agreement will not be considered a breach of this
Agreement and will be excused to the extent caused by any occurrence
beyond the reasonable control of such party including, but not limited
to, acts of God, power outages and governmental restrictions, so long
as the party so effected gives prompt notice and makes all reasonable
efforts to perform. Notwithstanding the foregoing, in no case shall
performance be excused for a period in excess of six (6) months.
b) COMPLIANCE WITH APPLICABLE LAW. The Parties agree to comply strictly
with all such laws and regulations applicable to this Agreement.
c) INDEPENDENT CONTRACTORS. The Parties are independent contractors under
this Agreement and no other relationship is intended, including a
partnership, franchise, joint venture, agency or employer/employee
relationship. Neither party shall act in a manner that expresses or
implies a relationship other than that of independent contractor, nor
may either party bind the other party. Neither party makes any
representation to the other of any minimum benefit that may be derived
by a Party hereunder.
d) CONFIDENTIALITY OF TERMS. Pursuant to Section 14, "Confidential
Information and User Data", the terms and conditions of this Agreement
shall be considered Confidential Information of both Parties and may
not be disclosed without the prior written consent of the other party;
provided, however, that either party may describe this Agreement in
any filings with the Securities and Exchange Commission to the extent
it determines is advisable or desirable but may not include a copy of
this Agreement as an exhibit to any such filings without the prior
written consent of the other party.
e) NOTICE. Any notice under this Agreement shall be in writing and
delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed effective upon personal delivery, one
(1) day after deposit with express courier, upon confirmation of
receipt of facsimile or email or five (5) days after deposit in the
mail.
FOR NOTICE TO E@H: General Counsel
Excite@Home, Inc., 000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000 Fax (000) 000-0000
FOR NOTICE TO OPENSITE: Vice President, Business & Legal Affairs
OpenSite Technologies, Inc. 0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000 Fax (000) 000-0000
f) ASSIGNMENT. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably
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CONFIDENTIAL
withheld), except that no such consent will be required in connection
with a merger, reorganization or sale of all, or substantially all,
of such party's capital stock or assets; or (ii) Excite@Home's
assignment of this Agreement to a third party formed for the purpose
of developing, managing and maintaining the Xxxx.xxx Site. Any attempt
to assign this Agreement other than as permitted above will be null
and void.
g) NO WAIVER. Any waiver of any provision of this Agreement, or delay by
either party in the enforcement of any right hereunder, shall neither
be construed as a continuing waiver nor create an expectation of
non-enforcement of that or any other right.
h) SAVINGS. If any term or provision of this Agreement is found to be
invalid under any applicable statute or rule of law, then that
provision notwithstanding, this Agreement shall remain in full force
and effect and only such provision shall be deemed omitted, unless
such an omission would frustrate the intent of the Parties with
respect to any material aspect of the relationship established hereby,
in which case, this Agreement shall terminate.
i) DISPUTE RESOLUTION. The Parties agree that any breach of either of the
Parties' obligations regarding trademarks, service marks or trade
names, confidentiality and/or User Data would result in irreparable
injury for which there is no adequate remedy at law. Therefore, in the
event of any breach or threatened breach of a party's obligations
regarding trademarks, service marks or trade names or confidentiality,
the aggrieved party will be entitled to seek equitable relief in
addition to its other available legal remedies in a court of competent
jurisdiction.
i) Disputes arising between the Parties hereunder regarding
trademarks, service marks or trade names, confidentiality and/or
User Data are subject to the following two requirements: (1)
OpenSite may only commence proceedings regarding trademarks,
service marks or trade names, confidentiality and/or User Data
against E@H in a state or federal court sitting in California,
applying California law without regard to its choice of law
provisions, and (2) E@H may only commence legal proceedings
regarding trademarks, service marks or trade names,
confidentiality and/or User Data against OpenSite in a state or
federal court sitting in North Carolina, applying North Carolina
law, law without regard to its choice of law provisions, provided
that once litigation is initiated by one of the Parties, the
other may assert counterclaims in those proceedings.
ii) In the event of disputes between the Parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names, confidentiality and/or User Data,
the Parties will first attempt to resolve
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CONFIDENTIAL
the dispute(s) through good faith negotiation. Such negotiation
must include at a minimum a meeting, in person, between the
Chief Executive Officers of the parties hereto in an attempt to
resolve the dispute. In the event that the dispute(s) cannot be
resolved through such good faith negotiation, the Parties will
refer the dispute(s) to a mutually acceptable mediator in the
city or county in which the defendant has its principle place of
business.
iii) In the event that disputes between the Parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names, confidentiality and/or User Data,
cannot be resolved through good faith negotiation or mediation,
the Parties will refer the dispute(s) to the American Arbitration
Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration
Association's rules applicable to commercial disputes in the city
or county in which the defendant has its principle place of
business.
j) PAROLE EVIDENCE. This Agreement is the Parties' entire understanding
and agreement with respect to its subject matter. It supersedes all
prior or contemporaneous oral or written communications, proposals,
warranties and representations with respect to its subject
acknowledgment, or similar communication between the Parties during
the term of this Agreement. No modification to this Agreement will be
binding, unless in writing and signed by a duly authorized
representative of each party.
k) COUNTERPARTS. This Agreement may be executed in counterparts, each of
which, when taken together, will serve to evidence the Parties'
binding agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
OpenSite Technologies, Inc. Excite@Home, Inc.
By: /s/ Xxxxxx X. Xxxxxx, III By:
------------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxx, III Name:
------------------------------- ------------------------------
Title: V.P. of Sales & B.P. Title:
------------------------------- ------------------------------
Date: 12/27/99 Date
------------------------------- ------------------------------
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OpenSite Technologies, Inc. Excite@Home, Inc.
By: By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------- ------------------------------
Name: Name: Xxxxxx X. Xxxxxxxxx
------------------------------- ------------------------------
Title: . Title: SVP
------------------------------- ------------------------------
Date: Date 12/27/99
------------------------------- ------------------------------
EXHIBIT A
SERVICES LEVEL AGREEMENT
OpenSite/E@H
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