Exhibit 10.22
HEARME.COM-TM- SYNDICATION PARTNER PROGRAM AGREEMENT
This Agreement contains the terms and conditions that apply to an
individual's or entity's participation in the Xxxxxx.xxx Syndication Partner
Program (the "Program"). As used in this Agreement, "we" means Xxxxxx.xxx as
operated by Mpath Interactive, Inc., and "you" means the applicant. "Site"
means a World Wide Web site. "Partner" means someone who has been accepted
into the Program.
1. Program Applications
(a) You must complete and submit to us an application for the Program.
The application can be found online on our Web site at
xxx.xxxxxx.xxx. We will evaluate your application and will notify
you of your status.
(b) We may reject your application if we determine (at our sole
discretion) that your Site is unsuitable for the Program. For
example, we may reject certain applications due to the volume of
pending applications, or the content on your Site. If you are
rejected, you may reapply at any time.
(c) If you are accepted, your e-mail will contain your unique Partner
code and instructions for accessing the information necessary to
participate in the Program.
2. Partner Responsibilities
(a) You must provide an active hyperlink, in a format of a Xxxxxx.xxx
graphic image provided to you by us, from your Site to Xxxxxx.xxx.
This Xxxxxx.xxx graphic image must be displayed on your site no
smaller than 114 X 75 pixels on your home page. You may display this
Xxxxxx.xxx hyperlink as often and in as many areas on your Site as
you desire. Such active Xxxxxx.xxx hyperlink on your Site will
hyperlink to the download, registration and launch Site for the
Xxxxxx.xxx client software. Use of these Xxxxxx.xxx graphic images
(approved logos, buttons, banners, etc.) is subject to the Xxxxxx.xxx
Trademark Guidelines at xxx.xxxxxx.xxx.
(b) You must display, on your Site's home page and on any pages on your
Site that reference Xxxxxx.xxx, the Xxxxxx.xxx graphic image. We
will provide you with the Xxxxxx.xxx graphic image that identifies
your Site as a Hearme Partner.
(c) Our template for Xxxxxx.xxx Web pages to be displayed on your Web
site can be found online on our Web site at xxx.xxxxxx.xxx. The Web
pages include, among other things, a description of the features and
functionality of Xxxxxx.xxx. Once you have added your marks to the
Web pages you must maintain and include a link to them from your
home page as part of the Program. You must maintain such Web pages
on your Site. This page must include an active hyperlink, in a
format of a Xxxxxx.xxx graphic image provided to you by us, from
your Site to Xxxxxx.xxx.
(d) Allocate 10% of available Web banner advertising per quarter on your
Site to the promotion of Xxxxxx.xxx. We will provide you with the
banner advertising to run to publicize your audio chat "Live
Communities by Xxxxxx.xxx". If you do not run advertising on your
site, we will negotiate some alternate arrangement for the promotion
of Xxxxxx.xxx.
3. Our Responsibilities
(a) We will host the servers required for Xxxxxx.xxx and provide the
network operations support for such servers.
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(b) We will create a persistent branded area on Xxxxxx.xxx with your brand
and send users directly into that persistent branded area. Users can
create an unlimited number of chat rooms.
(c) We will provide you with guidelines and graphical artwork to use in
linking to Xxxxxx.xxx. These guidelines and artwork are located online
on our Web site at xxx.xxxxxx.xxx.
(d) We will license you a Xxxxxx.xxx graphic image that identifies your
Site as a Hearme Partner. We may modify the text or graphic image of
this notice from time to time and we may ask you to update your use of
the text or graphic image in a reasonable time thereafter.
(e) All people who register for Xxxxxx.xxx are end users of Xxxxxx.xxx.
Accordingly, all Xxxxxx.xxx rules, policies, and operating procedures
concerning will apply to such end users. We may change our policies and
operating procedures at any time. Information on obtaining end users
mailing lists from us is available at xxx.xxxxxx.xxx.
(f) We alone may sell, without restriction, advertising and sponsorships to
be displayed to users of the Xxxxxx.xxx client software.
(g) We will remain the sole and exclusive owner of all right, title and
interest in the Xxxxxx.xxx client software (except for any of your
trademarks incorporated into the Xxxxxx.xxx client software screen
display user interface).
(h) We may list you and all other members of the Program on a Web page on
Xxxxxx.xxx in order to enable visitors to Xxxxxx.xxx to find our
Xxxxxx.xxx Partners. You hereby authorize us to use certain of your
trademarks on such Web page, subject to reasonable quality control
restrictions as required by law to maintain the integrity of your
trademarks.
4. Site Responsibility
Your Site should continue to maintain the standards that enabled us to accept
your Site for the Program. We disclaim any responsibility or liability for
your Site. You will be solely responsible for the development, operation, and
maintenance of your Site and for all materials that appear on your Site. For
example, you will be solely responsible for: the technical operation of your
Site and all related equipment, the accuracy and appropriateness of materials
posted on your Site, ensuring that materials posted on your Site do not
violate or infringe upon the rights of any third party (including, for
example, copyrights, trademarks, privacy, or other personal or proprietary
rights), and ensuring that materials posted on your Site are not libelous or
otherwise illegal. We disclaim all responsibility and liability for these
matters. You will indemnify us and hold us harmless from all claims, damages,
and expense (including without limitation, attorneys' fees) relating to the
development, operation, maintenance and contents of your Site. The users of
Xxxxxx.xxx must evaluate, and bear the risk associated with, the accuracy,
completeness or usefulness of any content found on Xxxxxx.xxx. We do not
accept any responsibility or liability for the content found on Xxxxxx.xxx.
We do not pre-screen content as a matter of policy, but we do reserve the
right, but not the responsibility, to remove content which is deemed, in our
discretion, harmful, or offensive. YOU SPECIFICALLY AGREE THAT WE ARE NOT
RESPONSIBLE OR LIABLE TO YOU, USERS OR ANYONE ELSE FOR ANY THREATENING,
DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONDUCT OR SPEECH OF ANY OTHER
PARTY OR ANY INFRINGEMENT OR VIOLATION OF ANOTHER'S RIGHTS, INCLUDING
INTELLECTUAL PROPERTY AND RIGHT OF PUBLICITY RIGHTS.
5. Terms of the Agreements
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This Agreement begins upon our acceptance of your Program application and
ends when terminated by either party. Either party may terminate this
Agreement at any time, with or without cause, by giving the other party 30
days prior written notice of termination. Upon any termination of this
Agreement, all rights granted under this Agreement shall immediately
terminate and you shall immediately remove from your Site and cease all
further use of our trademarks and graphic images. Termination of this
Agreement by either party shall not act as a waiver of any breach of this
Agreement and shall not act as a release of either party from any liability
for breach of such party's obligations under this Agreement.
6. Modification
We may modify any of the terms and conditions contained in this Agreement, at
any time and in our sole discretion, by posting a change notice or a new
agreement on our Site. Modifications may include, for example, changes in the
Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE
IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM
FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL
CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
7. Limitation of Liability
REGARDLESS WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS
ESSENTIAL PURPOSE OR OTHERWISE, UNDER NO CIRCUMSTANCES WILL EITHER OF US BE
LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER
LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
OR LOST PROFITS OR REVENUE OF THE OTHER PARTY IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT EVEN IF THE PARTY HAS BEEN INFORMED IN ADVANCE OF
SUCH DAMAGES. THE LIMITATION OF LIABILITY IS REFLECTED IN THE CONSIDERATION
EXCHANGED IN THIS AGREEMENT. Further, our aggregate liability arising with
respect to this Agreement and the Program will not exceed the total payments
made to you under this Agreement.
8. Disclaimers
We make no express or implied warranties or representations with respect to
the Program (including, without limitation, warranties of fitness,
merchantability, non-infringement, or any implied warranties arising out of a
course of performance, dealing, or trade usage). In addition, we make no
representation that the operation of Xxxxxx.xxx will be uninterrupted or
error-free, and we will not be liable for the consequences of any
interruptions or errors.
9. Independence
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS
AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR
INDIRECTLY) OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB
SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN
THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, WARRANTY, OR STATEMENT
OTHER THAN AS SET FORTH IN THIS AGREEMENT. The parties to this Agreement are
independent contractors and nothing in this Agreement contained shall be
deemed to create a joint venture, franchise, partnership or agency
relationship between the parties to this Agreement. No party shall have any
power to enter into any contracts or commitments in the name of, or on behalf
of, the other party, or to bind the other party in any respect whatsoever.
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performance is so affected, including, without limitation, fire, war,
earthquake, strike, riot, labor dispute, or an act of God. In the event of
any such delay, preemption or failure, the affected performing party will
promptly notify the other party of the nature and anticipated length of
continuance of such force majeure, and during such period both parties will be
excused from performance hereunder. No such failure or delay constitutes a
material breach of this Agreement. You may not assign its rights under this
Agreement. Any assignment in violation of this prohibition is void. We may
assign this Agreement to an affiliate commonly owned and controlled by us or
to anyone else in connection with the merger or acquisition of us or sale of
all or substantially all of our assets used primarily in connection with this
Agreement. Each party agrees to provide no less than thirty (30) business
days' prior notification of any authorized assignment under this Agreement,
including assignment to an affiliate or as part of an asset sale. Any
attempted assignment except as allowed by the immediately preceding sentence
is null and void. Subject to the foregoing, this Agreement will benefit and
bind the successors and assigns of the parties. This Agreement will be
interpreted fairly in accordance with its terms and conditions and without
any strict construction in favor of or against either party. This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter to this Agreement, and supersedes and replaces all prior or
contemporaneous understandings or agreements, written or oral, regarding such
subject matter.
Entertainment Boulevard, Inc. Mypath Interactive, Inc.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxx
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Name: Xxxxxxx Xxxxx Name: Xxxx Xxxx
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Title: CEO Title:
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Date: 3/18/99 Date: 3/18/99
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Fax: (000) 000-0000 Fax: (000)000-0000
Xxxxxx.xxx, Hearme and the Hearme logo are trademarks of Mpath Interactive, Inc.
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