Exhibit 10.33
CONFIDENTIAL TREATMENT **Confidential treatment has been requested with
HAS BEEN REQUESTED FOR respect to the information contained within the
CERTAIN PORTIONS OF THIS "[**]" markings. Such marked portions have been
DOCUMENT omitted from this filing and have been filed
separately with the Securities and Exchange
Commission.
eCommerce Agreement
Between
Xxxxxxxx.xxx and XxxXxxxxx.xxx
This eCommerce and Content Agreement (this "Agreement") is made as of
February 29, 2000 (the "Effective Date"), by and between Xxxxxxxx.xxx, Inc., a
Delaware corporation with principal offices at 000 Xxxxxxxxx Xxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 ("Snowball") and XxxXxxxxx.xxx, Inc., a
Delaware corporation with principal offices at 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX
00000 ("JobDirect").
Background
Snowball owns and operates four networks of interrelated web sites: the
"IGN Network," featuring editorial content about games, movies, tv, science
fiction, and entertainment issues for young men (the hub site for which is
located at xxx.xxx.xxx), the "ChickClick Network," featuring editorial content
targeted at young women (the hub site for which is located at
xxx.XxxxxXxxxx.xxx), the "Power Students Network," and the "Inside Guide
Network," two networks featuring content targeted at college students (the hub
sites for which are located at xxx.Xxxxxxxxxxxxx.xxx and xxx.XxxxxxXxxxx.xxx).
The IGN, ChickClick, Power Students, and Inside Guide Networks are collectively
referred to in this Agreement as the "Snowball Network(s)." The Snowball Network
sites offer links to a number of affiliated sites that provide related content
(the "Snowball Affiliate Sites").
JobDirect provides content and services designed to help college students
and recent graduates find internships, part time jobs, and full time positions,
including a resume and job posting search engine that helps link job seekers
with JobDirect's list of hiring companies and organizations. JobDirect's content
and services are accessible through its World Wide Web site located at
xxx.XxxXxxxxx.xxx (the "XxxXxxxxx.xxx Site").
JobDirect wishes to be the exclusive job search/listings partner on the
Snowball Networks and to have links established from the Snowball Network hub
sites to the XxxXxxxxx.xxx Site. Snowball has agreed to establish those links
and co-branded pages on the Snowball Network hub sites and to jointly develop
with JobDirect and implement a co-branded career section available from each of
the Snowball Network hub sites (the "Career Center").
Now Therefore, the parties agree as follows:
1. Exclusivity. Subject to the terms and conditions of this Agreement,
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Snowball will identify JobDirect as Snowball's exclusive provider of job
search/listings on all of the Snowball Networks, provided, however, that (1)
Snowball may continue meeting any contractual obligations to advertisers,
sponsors, partners, and
affiliates that it has undertaken prior to the Effective Date, including
obligations to any job listings affiliates, for the term of any such contracts,
provided that Snowball has disclosed the terms and effective dates of any such
contractual obligations in writing to XxxXxxxxx.xxx prior to the Effective Date
of this Agreement and (2) that nothing in this Agreement will prevent Snowball
from accepting additional career related affiliates so long as those affiliates
are not among the entities listed on Schedule A attached hereto, or from placing
banner and button advertisements and sponsorships from competing career and job
listings sites on the Snowball Networks so long as the total number of monthly
impressions from any one such competing career and job listing sites for such
banner and button advertisements and sponsorships does not exceed [**] of the
total number of monthly impressions delivered for XxxXxxxxx.xxx. Said total is
defined as the aggregate of monthly banner impressions, button impressions and
portal link impressions delivered under the Agreement. No such competing button
or banner advertisements will appear in the co-branded Career Center. The
exclusivity obligation set forth in this section will not apply to Snowball
Affiliate Sites.
2. Promotion and eCommerce. Subject to the terms and conditions of this
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Agreement, the parties will use commercially reasonable efforts to cooperate and
work together to bring each of the elements of the promotional program set forth
in this Section 2 on line on their respective web sites by March 15, 2000 (the
"Launch Date"). The parties acknowledge that despite their commercially
reasonable efforts, some elements of the program set forth in this Section 2 may
not be on line by the Launch Date, and agree that if both parties have used
commercially reasonable efforts to meet the Launch Date, it will not be a breach
of this Agreement that not every element is on line by the Launch Date. The
parties further agree that after the Launch Date the parties will continue to
use commercially reasonably efforts to bring each remaining element on line as
soon as practicable thereafter.
2.1 Registration.
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(a) New Registrations. Snowball will make available to each user
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who is no less than 20 years old registering with a Snowball Network the
simultaneous opportunity of an "opt out" registration for XxxXxxxxx.xxx. For
purposes of this paragraph, "opt out" registration means an automatic
functionality for dual registration of the user on both the Snowball Network and
on XxxXxxxxx.xxx unless the user opts, using an offered functional indicator,
not to register with XxxXxxxxx.xxx.
(b) Existing Registered Users. Within the first month after the
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Career Section goes live on line, Snowball will send each Snowball Network user
who is no less than 20 years old and registered as of the Effective Date
(estimated at 900,000) an email message describing XxxXxxxxx.xxx's various
offers and services, as well as informing them of the relationship between
Snowball and XxxXxxxxx.xxx under this Agreement. Such email message will include
a link allowing users to add their email addresses to the XxxXxxxxx.xxx database
of Snowball Network users.
(c) Registrant: As used herein, a "Registrant" means any user of
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XxxXxxxxx.xxx who satisfies each of the following conditions: (i) user is not
less than 20 years of age, (ii) such user is not already a registered user with
XxxXxxxxx.xxx, (iii) such user accesses XxxXxxxxx.xxx through any link or
registration process on a Snowball Network site, as set forth in Section 2.1 (a)
and (b) above, and (iv) such user registers with XxxXxxxxx.xxx in a manner
consistent with XxxXxxxxx.xxx business practice, such registration to include
the user's name, address, email address, age, graduation date, school and
academic major.
**Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission.
(d) Reporting. Snowball will provide to JobDirect a monthly report
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of all registration data for each Snowball Network user who registers in that
month with JobDirect through the "opt out" registration described above.
2.2 "My Page" Integration.
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(a) New Users. Snowball will integrate content and/or links, the
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extent and placement of which Snowball shall determine at its sole discretion,
from the Career Center into Snowball's customizable "My Page" sections developed
for new users. Snowball will work with JobDirect to find ways to provide custom
content from JobDirect to Snowball Network users through their customized "My
Page" sections.
(b) Existing Users. For existing registered Snowball Network users,
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Snowball will include a XxxXxxxxx.xxx listing in the "My Page" profile update
page, permitting users to choose to receive content and/or links from the Career
Center on their custom "My Page" sections within Xxxxxxxx.xxx.
2.3 Co-Branded Career Center. Snowball and JobDirect will work together
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to develop a co-branded Career Center to be hosted and served by Snowball and
linked from each of the Snowball Networks. The Career Center will be promoted
throughout the Snowball Networks by navigational links placed prominently in
each Snowball Network site, enabling users to access the Career Center through
each such link. JobDirect's job search engine will be prominently linked to each
page within the Career Center. The Career Center will include content to be
provided by both Snowball and XxxXxxxxx.xxx, including descriptions of the
various career, resume, and job posting services offered by XxxXxxxxx.xxx, and
will include links out from the Career Center to the XxxXxxxxx.xxx Site, through
which users will be able to access additional JobDirect content and services.
Snowball Network users accessing XxxXxxxxx.xxx through links from the Snowball
Networks will be followed throughout each session by a co-branded navigation bar
and frame. The look and feel, as well as the specific functionalities of the
Career Center, will be developed jointly by the parties and subject to the
agreement of both parties, which agreement will not be unreasonably withheld.
Subject to the limitations set forth in Section 1, Snowball will have sole
control over all advertising, banners, and other promotional placements
appearing in the co-branded Career Center and anywhere within the Snowball
Networks, and will retain all revenue generated from any such advertising,
banners, and other promotional placements. XxxXxxxxx.xxx agrees to continue
working with Snowball throughout the term of this Agreement to develop and
provide new and updated content and services for the Career Center. Pursuant to
this Section, XxxXxxxxx.xxx shall only be obligated to use commercially
reasonable efforts to provide (i) the job search application currently present
in the Xxxxxxxxx.xxx site, (ii) content, and (iii) advisory services.
XxxXxxxxx.xxx shall not be obligated to provide for or reimburse Snowball for
any third-party expenses relating to such development. Snowball will provide
XxxXxxxxx.xxx with statistics pertaining to the use of the "Career Poll" feature
of the Career Center.
2.4 Snowball Network Advertising, Links, and e-Mail Promotions.
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(a) Banner Impressions. Snowball will guarantee [**] banner
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impressions promoting XxxXxxxxx.xxx on Snowball Network pages each month during
**Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission.
the term of this Agreement, with such impressions to have a configuration of 468
x 60 pixels.
(b) Button Impressions. Snowball will guarantee [**] button
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impressions promoting XxxXxxxxx.xxx on Snowball Network pages each month during
the term of this Agreement, with each such impression to have a configuration of
144 x 50 pixels or 120 x 60 pixels.
(c) Portal Link. During the term of this Agreement, Snowball will
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provide a link to the Career Center on Snowball's "Affiliate Commerce Portal."
Snowball will use commercially reasonable efforts to encourage Snowball
affiliates to place on their Snowball Affiliate Sites (guaranteed to provide
[**] impressions per month).
(d) Navigation Bar Link Impressions. Snowball will incorporate a
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button or link promoting the Career Center into the navigation bar on Snowball
Network hub site pages (estimated to deliver [**] impressions per month).
(e) Snowball e-Mail Promotions. XxxXxxxxx.xxx will receive a
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standard size (315 text based characters including the URL on ChickClick; 8
lines or less including the URL on PowerStudents; 30 to 50 words including the
URL on IGN.) advertisement in e-mails sent by Snowball each month to users
registered on the Snowball Network hub sites and Affiliates and through their
relationship with Hotmail, which Snowball will guarantee to deliver at least
[**] emails per month across all Snowball Network hub sites combined.
(f) Career Polls. Snowball will develop and promote a career-oriented
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opinion poll [**]. These career polls will focus on current events affecting
Snowball users. These career polls, which will be called "XxxXxxxxx.xxx Career
Polls," will appear within the Career Center. The polls will provide immediate
feedback after a vote has been submitted, allowing users to see where their
opinions fall within the greater community. The XxxXxxxxx.xxx logo will be
placed within the top area of each career poll.
(g) Sole Remedy for any Deficiency. For those impressions for which a
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set number of impressions are guaranteed to be delivered each month ("Guaranteed
Impressions"), if in any given month that number of impressions is not
delivered, then Snowball's sole obligation and XxxXxxxxx.xxx's sole and
exclusive remedy will be for Snowball to deliver any deficiency by no later than
forty-five (45) days after this Agreement terminates in accordance with Section
9.1.
2.5 JobDirect Links to Xxxxxxxx.xxx. XxxXxxxxx.xxx will include buttons
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and or links on its pages accessed through the Snowball Network enabling
visitors to the XxxXxxxxx.xxx Site who accessed that site through a link from a
Snowball Network site to link back to the page on the Snowball Network site from
which they accessed the XxxXxxxxx.xxx Site.
**Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission.
3. Additional Marketing Opportunities.
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3.1 Snowball Promotions. During the term of this agreement, with respect to
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any proposed Snowball on-line and off-line career placement and job
search/listing related marketing programs and promotional events, Snowball will
provide XxxXxxxxx.xxx with a right of first negotiation such that (a)
XxxXxxxxx.xxx will be provided with reasonable advanced notice of its intent to
develop any such program or event (such notice not to be less than thirty (30)
days in advance of the introduction of such program or event and such notice to
be delivered to XxxXxxxxx.xxx prior to delivery of any such notice to any other
person or entity) and (b) Snowball will negotiate in good faith exclusively with
XxxXxxxxx.xxx for career placement and job search/listings participation in such
event for a period of 15 days following delivery of such notice to allow
XxxXxxxxx.xxx a reasonable opportunity to participate in such program or event
as the exclusive career placement and job search/listings service provider on
commercially reasonable terms.
3.2 JobDirect Promotions. During the term of this agreement, with respect
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to any proposed JobDirect on-line and off-line career related marketing programs
and promotional events, XxxXxxxxx.xxx will provide Snowball with reasonable
advance notice of its intent to develop any such program or event and will
negotiate in good faith with Snowball to allow Snowball an opportunity to
participate in such program or event in the same manner of services as provided
herein on commercially reasonable terms.
3.3 Xxxxxxxx.xxx Press Releases. Snowball agrees to submit to JobDirect
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all press releases, disclosures, filings, notices and other matters ("Publicity
Matters") wherein XxxXxxxxx.xxx's name or proprietary marks are mentioned, or
where language is used from which the relationship between Snowball and
XxxXxxxxx.xxx could be inferred, and further agrees not to publish or use any
such Publicity Matter without XxxXxxxxx.xxx's prior written consent. Subject to
the foregoing, within thirty (30) days of the Effective Date, Snowball will
distribute a press release announcing the relationship between Snowball and
JobDirect and not any other Snowball activities.
3.4 XxxXxxxxx.xxx Press Releases. XxxXxxxxx.xxx agrees to submit to
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Snowball all Publicity Matters wherein Snowball's name or proprietary marks are
mentioned, or where language is used from which the relationship between
XxxXxxxxx.xxx and Snowball could be inferred, and further agrees not to publish
or use any such publicity without Snowball's prior written consent. Subject to
the foregoing, within thirty (30) days of the Effective Date, JobDirect will
distribute a press release announcing the relationship between XxxXxxxxx.xxx and
Snowball.
4. Organizational Support. Snowball will allocate resources and use
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commercially reasonable efforts to provide competent and effective
administrative and technical support to encourage Snowball Network users to
receive XxxXxxxxx.xxx content and services. Snowball will assign a dedicated
account team.
Such account team will include at least one full time Snowball employee
(dedicated solely to the matters described herein), an account manager and
coordinator (one of which may be such full time employee). Such persons will (i)
monitor the viewing and use of XxxXxxxxx.xxx content and services through the
career center and links from Snowball Network Sites, and (ii) attend monthly
meetings and quarterly reviews, to be mutually scheduled by the parties, to
discuss the effectiveness of the relationship established by this Agreement.
5. Compensation.
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5.1 Participation Fee. XxxXxxxxx.xxx will pay Snowball a one-time, non-
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refundable participation fee of [**], which shall be due and payable as follows:
[**] after the Launch Date (as defined in Section 2), due and payable in [**]
installments payable on the dates and in the amounts set forth in the attached
Schedule B; and [**] period, due and payable in [**] monthly payments payable on
the dates and in the amounts set forth on the attached Schedule B. XxxXxxxxx.xxx
will not be obligated to pay the [**] fee for the [**] period if it properly
exercises its right to termination under Section 9.2. Payments will be made in
U.S. Dollars. Payments not made when due will bear interest at the rate of [**]
per month on the unpaid balance, or the highest rate permitted by applicable
laws, whichever is lower.
5.2 Qualified Registrant Bounty Fee. XxxXxxxxx.xxx will pay Snowball a
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new qualified registrant bounty fee, due and payable within thirty (30) days of
the [**] of the Launch Date, which shall be calculated as set forth in Exhibit
A. Payments will be made in U.S. Dollars. Payments not made when due will bear
interest at the rate of [**] per month on the unpaid balance, or the highest
rate permitted by applicable laws, whichever is lower.
5.3 Records and Audit Rights. XxxXxxxxx.xxx will keep records of all new
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registrants who register with XxxXxxxxx.xxx upon linking through to
XxxXxxxxx.xxx from the Career Center or any Snowball Network site for a period
of three (3) years after such registration. At Snowball's expense, an
independent certified public accountant selected by Snowball and reasonably
acceptable to XxxXxxxxx.xxx may, no more than twice per year and upon at least
twenty-four (24) hours notice, inspect such records during normal business
hours.
5.4 Reporting. During the term of this Agreement, XxxXxxxxx.xxx will,
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within ten (10) days of the end of each month, provide monthly reports to
Snowball setting forth all relevant data regarding the number of visitors who
(1) access XxxXxxxxx.xxx through links in the Career Center or on any Snowball
Network site, and (2) who "register with" XxxXxxxxx.xxx either through the "opt
out" registration procedure described in Section 2.1 of this Agreement or after
accessing XxxXxxxxx.xxx through any such links. For
** Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and exchange
Commission.
purposes of this agreement, a visitor will be deemed to have "registered with"
XxxXxxxxx.xxx if that person completes a XxxXxxxxx.xxx user profile, either
through the "opt out" registration or after linking from a Snowball Network
site, and provides XxxXxxxxx.xxx accurate data in the following categories
(the "Registration Data"):
Name:
Address:
e-mail:
Age:
Graduation Date:
Major:
School:
Snowball will provide JobDirect with monthly reports, verified, at
XxxXxxxxx.xxx's request, through an independent verification system mutually
acceptable to the parties (i.e., NetGravity), within ten (10) days of the end
of each month setting forth all relevant data regarding the number of visitors
to the Career Center, other data Snowball regularly collects concerning user
activity within the Career Center, and the number of users registering with
XxxXxxxxx.xxx through the "opt out" registration described in Section 2.1 of
this Agreement.
6. Licenses, Other Proprietary Rights and Related Matters. Subject to the
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terms and conditions of this Agreement:
6.1 XxxXxxxxx.xxx Content License. JobDirect hereby grants to Snowball a
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nonexclusive, nontransferable license (without the right to sublicense) to copy
and publicly display on the Snowball Networks content provided by
XxxXxxxxx.xxx ("XxxXxxxxx.xxx Content") solely to promote XxxXxxxxx.xxx and
its site and otherwise perform this Agreement. Snowball may reformat the
XxxXxxxxx.xxx Content for the purpose of incorporating it into the Snowball
Network sites (but will not acquire any ownership of such reformatted
XxxXxxxxx.xxx Content). Snowball will not modify, use, copy or distribute the
XxxXxxxxx.xxx Content, except as expressly provided in this Agreement.
Snowball will at all times use the XxxXxxxxx.xxx Content in a manner that is
of the quality and standards approved by XxxXxxxxx.xxx. Snowball agrees that
it will not use the XxxXxxxxx.xxx Content in any manner which reflects
negatively on or adversely affects XxxXxxxxx.xxx. Snowball shall notify
XxxXxxxxx.xxx in writing of any observed failure to maintain the quality
associated with the XxxXxxxxx.xxx Content.
6.2 Snowball Trademark License. Snowball hereby grants JobDirect a
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nonexclusive, revocable, worldwide license to use any Snowball trademarks,
service marks and logos that are provided to it by Snowball ("Snowball Marks")
solely in conjunction with the links, navigation bars, frames, and co-branded
environment described in this Agreement. Any use of the Snowball Marks must
comply with Snowball's approvals, requirements and any trademark guidelines
communicated by Snowball. Any such use will inure to Snowball's benefit.
Nothing contained in this Agreement gives XxxXxxxxx.xxx any right, title or
interest in the Snowball Marks or goodwill therein and thereto, except as
expressly provided in this section. JobDirect will not take any action
inconsistent with the Snowball's ownership rights. JobDirect will cease all
use and display of the Snowball Marks upon written notice from Snowball and,
in any event, upon termination of this Agreement.
6.3 XxxXxxxxx.xxx Trademark License. JobDirect hereby grants Snowball a
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nonexclusive, revocable, worldwide license to use JobDirect's trademarks,
service marks and logos that are provided to it by Snowball ("XxxXxxxxx.xxx
Marks") solely in conjunction
with the links, navigation bars, frames, and co-branded environment described in
this Agreement. Any use of the XxxXxxxxx.xxx Marks must comply with
XxxXxxxxx.xxx's approvals, requirements and any trademark guidelines
communicated by XxxXxxxxx.xxx. Any such use and will inure to JobDirect's
benefit. Nothing contained in this Agreement gives Snowball any right, title or
interest in the XxxXxxxxx.xxx Marks or goodwill therein and thereto, except as
expressly provided in this section. Snowball will not take any action
inconsistent with XxxXxxxxx.xxx's ownership rights. Snowball will cease all use
and display of the XxxXxxxxx.xxx Marks upon written notice from XxxXxxxxx.xxx
and, in any event, upon termination of this Agreement. Snowball agrees that it
will not use the XxxXxxxxx.xxx Marks in a manner which reflects negatively on or
adversely affects XxxXxxxxx.xxx. Snowball shall notify XxxXxxxxx.xxx in writing
of any observed failure to maintain the quality associated with the
XxxXxxxxx.xxx Marks.
6.4 Ownership. Subject to the rights expressly granted in this Agreement,
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Snowball will retain all right, title and interest in and to the Snowball
Networks and (and all related sites), the Snowball Marks and any content created
by Snowball for display in the Career Center ("Snowball Property").
XxxXxxxxx.xxx will retain all right title and interest in and to the
XxxXxxxxx.xxx Site, the XxxXxxxxx.xxx Marks and the XxxXxxxxx.xxx Content, any
content created by XxxXxxxxx.xxx for display in the Career Center and any Career
Center intellectual property (other than Snowball Property) stored on the
XxxXxxxxx.xxx server. Notwithstanding anything contained in this Section 6.4 to
the contrary, XxxXxxxxx.xxx shall be given unlimited access to all data
collected pursuant to the "JobDirect Career Survey" feature of the Career Center
(or any similar feature of the Career Center), XxxXxxxxx.xxx shall have an
unrestricted license to use such data in any manner, except as limited elsewhere
in this Agreement and XxxXxxxxx.xxx shall have an unrestricted right to provide
links from any XxxXxxxxx.xxx site to such data and such feature.
6.5 Snowball Discretion. Unless expressly provided in this Agreement, the
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form, format and position of any XxxXxxxxx.xxx link or advertisement described
in this Agreement, and date of placement, will be determined by Snowball in its
discretion. Snowball may, upon written notice to XxxXxxxxx.xxx, reject any
content provided by JobDirect under this Agreement if it fails to comply with
Snowball's reasonable requirements or is otherwise inappropriate for the users
of the Snowball Network sites. Nothing in this Agreement will be construed to
limit Snowball's right to modify any of the content or any aspect of structure
of the Snowball Network sites, or to rename or reposition the Snowball Network
sites, in its discretion; provided that, in the event any such change affects
Snowball's ability to perform any obligation described in this Agreement,
Snowball will provide reasonable alternative performance. Within the co-branded
Career Center, all visual modifications will be mutually agreed to. Nothing
contained in this Section 6.5 shall limit or otherwise modify the obligations of
Snowball set forth in Section 2.
6.6 XxxXxxxxx.xxx Site Information. JobDirect will provide Snowball with
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any information reasonably required to implement links from the Snowball
Networks to the XxxXxxxxx.xxx Site. XxxXxxxxx.xxx will give Snowball reasonable
advance notice in the event XxxXxxxxx.xxx changes its universal record locator
(URL) for the XxxXxxxxx.xxx Site.
7. Confidential Information.
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7.1 Obligations. Each party ("Receiving Party") agrees to treat as
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confidential all proprietary information disclosed to it by the other party
("Disclosing Party") including marketing information, customer data, any data
described herein and the terms of this Agreement ("Confidential Information").
Receiving Party agrees not to publish or disclose the Disclosing Party's
Confidential Information to others except to those employees and subcontractors
to whom disclosure is necessary in order to carry out the purposes of this
Agreement. All tangible materials embodying such Confidential Information will
remain the sole property of Disclosing Party and will be delivered to Disclosing
Party by Receiving Party upon Disclosing Party's request. Receiving Party
will inform all its employees and subcontractors who receive Confidential
Information of the confidential nature of such Confidential information and of
their obligation to keep same confidential and not to use it other than as
permitted hereunder.
7.2 Exceptions. Neither party will have any obligation with respect to
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any Confidential Information which: (1) was rightfully known to Receiving Party
prior to receipt of such Confidential Information from Disclosing Party; (2) is
lawfully obtained by Receiving Party from a third party under no obligation of
confidentiality; (3) is or becomes generally known or available without any act
or failure to act by Receiving Party; (d) is developed independently by
Receiving Party. Either party may disclose the Confidential Information of the
Disclosing Party if required by court order or legal requirement and the party
subject to the order has given the other party a reasonable opportunity (and has
cooperated fully) to contest or limit the scope of such required disclosure
(including application for a protective order).
8. User Data.
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8.1 Ownership. Subject to the restrictions in this section and any rights
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to use the applicable data granted under this Agreement, Snowball will own
Snowball Network user registration data, and XxxXxxxxx.xxx will own
XxxXxxxxx.xxx user registration data.
8.2 Treatment of Individually Identifiable User Data. Neither party will
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sell, disclose, transfer, or rent any user data obtained by it from the other
party which data identifies, or can be used to identify, a specific individual
("Individually Identifiable User Data") to any third party or use any
Individually Identifiable User Data on behalf of any third party, without the
express permission of the applicable user specifically approving such use.
Snowball and XxxXxxxxx.xxx will only use Individually Identifiable User Data in
accordance with the Terms of Service and Privacy Policy posted on the Snowball
Network sites, as they may be amended from time to time by Snowball. Snowball
acknowledges and agrees that any user collected by XxxXxxxxx.xxx or through
links from or activities related to the Career Center other than the Registrant
Data shall be the sole property of XxxXxxxxx.xxx and Snowball shall have no
rights with respect to such data. In those cases where permission for disclosure
of Individually Identifiable User Data has been obtained from the applicable
user, each party will use all reasonable efforts to implement an "opt out"
feature on its own behalf, and an include and enforce through its agreements
with third parties a requirement for the inclusion of an "opt out" feature in
all e-mail communications generated by, or on behalf of, third party users of
the Individually Identifiable User Data; provided, however, that nothing
contained in this section shall obligate XxxXxxxxx.xxx to provide or cause to be
provided to Snowball any Individually Identifiable User Data other than the
Registration Data.
8.3 Aggregate Data. Notwithstanding the restrictions above, the parties
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retain the right to use, sell, disclose, transfer, or rent any user data as long
as such user data is in an aggregate form that does not include any Individually
Identifiable User Data.
9. Term and Termination.
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9.1 Term. This Agreement will commence on the Effective Date and remain
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in effect for a period of [**] after the Launch Date (as defined in Section 2)
(the "Initial Term"), unless terminated earlier under this Section 9. Commencing
[**] prior to the last day of the Initial Term, XxxXxxxxx.xxx shall have a
period of [**]
** Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission
in which it may give notice to Snowball of its desire to renew this Agreement
on new terms to be mutually agreed between the parties. In the event that during
that [**] notice period, XxxXxxxxx.xxx provides such notice, Snowball will enter
into good faith negotiations with XxxXxxxxx.xxx in an effort to reach agreement
on renewal terms, and for [**] after receipt of such notice, Snowball will not
negotiate with any other providers of career placement and job search/listings
to replace JobDirect upon termination of this Agreement. If during the [**]
notice period XxxXxxxxx.xxx does not provide notice of its desire to renew, or
if within the [**] negotiation period the parties are unable to reach agreement
on the renewal terms, Snowball's rights to negotiate with other such providers
will not be limited by this Agreement.
9.2 Termination. Upon written notice no fewer than [**] prior to the end
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of the [**] after the Launch Date, XxxXxxxxx.xxx may terminate this Agreement on
the last day of the [**] after the Launch Date at their sole discretion with no
further obligation to pay any fees other than those already due and payable
before the termination date. If by the end of the [**] after the later of the
Launch Date or the first date on which XxxXxxxxx.xxx obtains and implements the
technical capability to receive dual registration data from Snowball's
registration protocol, no more than [**] Registrants (as defined in Section
2.1(c)) have "registered with" XxxXxxxxx.xxx, as that term is defined in Section
5.4 of this Agreement, then XxxXxxxxx.xxx may terminate and, at XxxXxxxxx.xxx's
request (whether or not XxxXxxxxx.xxx so terminates), Snowball will continue to
deliver the monthly impressions specified in Section 2.4 and the registration
programs described in Sections 2.1 and 2.2 for a period of [**] after the [**]
of the Launch Date or until the [**] new Registrants are delivered, whichever
occurs first, for no additional fee or cost to XxxXxxxxx.xxx. Section 1,
"Exclusivity," will not apply during that additional [**] period.
9.3 Effect of Termination. Except as set forth in the preceding Section,
---------------------
XxxXxxxxx.xxx's payment obligations hereunder, as well as the provisions of this
Section and the following Sections will survive any termination of this
Agreement: Section 2.4(g) (remedy for insufficient impressions), Section 6
(Compensation), Section 6.5 (Ownership), Section 7 (Confidential Information),
Section 8 (User Data), Section 10 (Limitation of Liability), Section 11
(Indemnification) and Section 12 (General).
10. Limitation of Liability. EXCEPT WITH RESPECT TO ITS OBLIGATIONS UNDER
-----------------------
SECTION 7 AND SECTION 8, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR REVENUE, PROFITS,
OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Indemnification.
---------------
11.1 Snowball Obligations. Xxxxxxxx.xxx hereby agrees to defend, indemnify
--------------------
and hold harmless XxxXxxxxx.xxx, and its directors, officers and employees,
against any and all claims, actions, losses, damages, costs, and expenses
(including reasonable attorneys' fees, "Losses") arising out of or based on any
claim related to any Snowball Marks, the Snowball Networks or Snowball's
performance of its obligations herein other than those claims described in
Section 11.2 below. Snowball's obligations under this section are hereby
expressly conditioned on the following: (1) XxxXxxxxx.xxx provides Xxxxxxxx.xxx
with prompt notice of any such claim; (2) XxxXxxxxx.xxx
** Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission
and (2) XxxXxxxxx.xxx provides Snowball with any information or assistance
requested by Snowball, at Snowball's expense.
11.2 XxxXxxxxx.xxx's Obligations. XxxXxxxxx.xxx hereby agrees to defend,
---------------------------
indemnify and hold harmless Snowball, and its directors, officers and employees,
against any and all Losses arising out of or based on any claim related to
(1) the XxxXxxxxx.xxx Site and any products or services provided by
XxxXxxxxx.xxx (or omissions) with respect to any customer, or (2) any content,
information or other materials provided to Snowball under this Agreement.
XxxXxxxxx.xxx's obligations under this section are hereby expressly conditioned
on the following: (1) Snowball provides XxxXxxxxx.xxx with prompt notice of any
such claim; (2) Snowball permits XxxXxxxxx.xxx to assume and control the defense
of such action, with counsel chosen by XxxXxxxxx.xxx (who will be reasonably
acceptable to Snowball); and (3) Snowball provides XxxXxxxxx.xxx with any
information or assistance requested by XxxXxxxxx.xxx, at XxxXxxxxx.xxx's
expense.
12. General.
-------
12.1 Waivers/Modifications. Any waiver modification or amendment to any
---------------------
provision of this Agreement will be effective only if in writing and executed by
both parties. The waiver by either party of any default or breach of this
Agreement will not constitute a waiver of any other or subsequent default or
breach.
12.2 Notices. All notices required to be given under this Agreement will
-------
be deemed given when delivered personally or sent by confirmed facsimile or U.S.
certified mail, return receipt requested, to the address shown in the preamble
above, or as may otherwise be specified by either party to the other in writing.
12.3 Severability. If any provision of this Agreement is found illegal or
------------
unenforceable, it will be enforced to the maximum extent permissible, and the
legality and enforceability of the other provisions of this Agreement will
remain in full force and effect.
12.4 Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of California applicable to agreements
entered into, and to be performed entirely, within California between California
residents.
12.5 No Partnership. The relationship of the parties hereto is solely that
--------------
of independent contractors, and not partners, joint venturers or agents.
Neither party has any authority to bind the other in connection with this
Agreement.
12.6 Entire Agreement. This Agreement, including any exhibits attached
----------------
hereto, is the complete and exclusive agreement between the parties with respect
to the subject matter hereof, and supersedes and replaces any and all prior or
contemporaneous agreements regarding such subject matter. The parties agree
that the letter of intent, dated
as of January 5, 2000, between the parties is hereby terminated and replaced
in its entirety by this Agreement.
12.7 Force Majeure. Neither party will be liable to the other party as a
-------------
result of its failure to perform any obligation or duty under this Agreement,
other than the obligation to pay money, to the extent that such failure is cause
by flood, war, riot, civil insurrection, labor or material shortages, failure of
contractors to perform their obligations, or other events that are not
reasonably foreseeable or are beyond the reasonable control of the party.
12.8 No Assignment. Neither party may assign this Agreement without the
-------------
other party's written consent except in the event of a reorganization, merger,
consolidation or sale of all or substantially all of its assets related to this
Agreement. Such consent will not be unreasonably withheld. Any assignment in
violation of this section will be null and void.
12.9 Consolidated URL Listing. XxxXxxxxx.xxx hereby grants Snowball
------------------------
permission to include all of the URLs related to the pages served on the Career
Center through the Snowball Networks together with other Snowball-related URLs
in a consolidated listing assembled by third-party measurement companies,
including but not limited to Media Metrix, NetRatings or another similar
measuring service selected by Snowball; provided that Snowball provide
XxxXxxxxx.xxx with all results, compilations, analyses, data and reports
provided by such third-party in a reasonable time after receipt thereof.
XxxXxxxxx.xxx agrees that the rights granted under this section are exclusive to
Snowball and that XxxXxxxxx.xxx will not grant the same or similar rights to any
other party. Nothing contained in this Section shall limit XxxXxxxxx.xxx's right
to collect or analyze such data or to hire a third-party to collect or analyze
such data on XxxXxxxxx.xxx's behalf.
12.10 Calculation of Periods. With respect to the determination of any
----------------------
month, six month, twelve month, year or other period set forth herein and the
determination of the date of any event to occur at the end of any such period,
the anniversary of the Effective Date shall be used to determine the end of such
period. (For example, if the Effective Date is the 15th of the month, then the
end of a six-month period beginning on the Effective Date shall be the 15th of
the sixth month following the Effective Date.)
In Witness Whereof, the parties have entered into this Agreement as of the
Effective Date.
XxxXxxxxx.xxx, Inc. Xxxxxxxx.xxx, inc.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxx
_________________________ ________________________
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxxxxx
_______________________ ______________________
Title: Chairman and CEO Title: COO/CFO
______________________ _____________________
Schedule A
----------
[**]
**Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission.
EXHIBIT A
NEW REGISTRANT BOUNTY FEE
Unless this Agreement has been terminated in accordance with its terms, at the
end of [**] after the Launch Date, XxxXxxxxx.xxx will pay Snowball a new
registrant bounty fee for each Qualified Registrant (as defined below) over the
Benchmark for that period (as defined below). A Qualified Registrant will be any
person who "registers with" XxxXxxxxx.xxx (as that term is defined in Section
5.4 of this Agreement) who has reached the age of twenty years or older.
The Benchmark for the first [**] period after the Launch Date will be [**] new
Qualified Registrants. In the event that, pursuant to the above calculation, the
number of new Qualified Registrants exceeds the Benchmark in the first [**]
after the Launch Date, the new registrant bounty fee will be as follows for each
Qualified Registrant:
First [**]
[**] [**]
[**] [**] (20+ years of age) for such number in excess of [**]
[**] [**] (20+ years of age) for such number in excess of [**]
[**] [**] (20+ years of age) for such number in excess of [**].
The Benchmark for the second [**] period after Launch Date will be [**] new
Qualified Registrants (such amount to include only those Qualified Registrants
delivered in such second [**] period and shall not include any Qualified
Registrants delivered prior to such period). In the event that, pursuant to the
above calculation, the number of new Qualified Registrants exceeds the Benchmark
for the second [**] after the Launch Date, the new registrant bounty fee will be
as follows for each Qualified Registrant:
Second [**]
[**] [**]
[**] [**] (20+ years of age) for such number in excess of [**]
[**] [**] (20+ years of age) for such number in excess of [**]
[**] [**] (20+ years of age) for such number in excess of [**].
**Confidential treatment has been requested with respect to the information
contained within "[**]" markings. Such marked portions have been omitted from
this filing and have been filed separately with the Securities and Exchange
Commission.
Schedule B
PAYMENT TERMS
XxxXxxxxx.xxx will pay Snowball a total participation fee of [**]. The
participation fee will be payable in [**] installments, due and payable as set
forth below:
The parties acknowledge and agree that each date set forth below reflects a
Launch Date of March 1, 2000. In the event that the Launch Date is delayed for
any reason whatsoever, then each date set forth below shall similarly be
extended by such period of delay.
[**]
**Confidential treatment has been requested with respect to the information
contained within the "[**]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and Exchange
Commission.
