The Ultimate Directory
xxx.xxxxxxxxx.xxx
INTERNET CONTENT (WORLD WIDE WEB SITE) DISTRIBUTION AGREEMENT
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THIS AGREEMENT, dated 12-30-99 (the "Effective Date"), is made by and
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between XxxxXxxxx.xxx, Inc., a Delaware corporation, ("InfoSpace"), with offices
at 00000 XX 00xx Xxxxxx, Xxxxxxx, XX 00000, and Net Taxi On-Line Communities, a
Delaware corporation ("Company"), with offices at 0000 Xxxx Xxxxxx, Xxxxxxxx, XX
00000.
RECITALS
This Agreement is entered into with reference to the following facts:
A. InfoSpace maintains on certain locations of its Web Sites (as
defined below) and makes available to Internet users certain content, resources,
archives, indices, software, catalogs and collections of information
(collectively, such materials are identified in Exhibit A and referred to herein
as the "Content").
B. Infospace wishes to grant certain rights and licenses to Company
with respect to access to the Content and certain other matters, and Company
wishes to grant certain rights and licenses to InfoSpace with respect to the
Company Web Sites (as defined below) and certain other matters, as set forth in
this Agreement.
AGREEMENT
The parties agree as follows:
Section 1. Definitions.
As used herein, the following terms have the following defined meanings:
"BANNER ADVERTISEMENT" means a rotating banner advertisement of up to
approximately 468*60 pixels located at the top and/or bottom of a Web Page, or
other advertisements, sponsorships or other promotions on or related to a
Personal Desktop Portal Page, as may be designated by InfoSpace.
"CO-BRANDED PAGES" means, collectively, Query Pages, Results Pages and
Personal Desktop Portal Pages.
"COMPANY MARKS" means those Trademarks of Company set forth on Exhibit B
hereto and such other Trademarks (if any) of Company which Company may own or
use from time to time.
"COMPANY WEB SITES" means, collectively, all Web Sites maintained by or on
behalf of Company and its affiliates.
"GRAPHICAL USER INTERFACE" means a graphical user interface, to be designed
by Company and InfoSpace and implemented by InfoSpace pursuant to the terms of
this Agreement, that contains or Implements branding, graphics, navigation,
content or other characteristics or features such that a user reasonably would
conclude that such interface is part of the Company Web Sites.
"IMPRESSION" means a user's viewing of any discrete screen of a Co-branded
Page containing any Banner Advertisement.
"INFOSPACE MARKS" means those Trademarks of InfoSpace set forth on Exhibit
B hereto and such other Trademarks (if any) as InfoSpace may from time to time
notify Company in writing to be "InfoSpace Marks" within the meaning of this
Agreement.
"INFOSPACE WEB SITES" means, collectively: (a) the Web Site the primary
home page of which is located at xxxx://xxx.xxxxxxxxx.xxx; and (b) other Web
Sites maintained by InfoSpace and its affiliates.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
"PERSON" means any natural person, corporation, partnership, limited
liability company or other entity.
"PERSONAL DESKTOP PORTAL APPLICATION" means a version (as designated by
InfoSpace) of a downloadable software application currently known as "The
InfoSpace Personal Desktop Portal" whereby end users are able to access and
display certain content, and any successors and/or revisions to such application
as InfoSpace may designate in its sole discretion.
"PERSONAL DESKTOP PORTAL PAGE" means any page hosted on the InfoSpace Web
Sites, and served to an end user who accessed such page through a version of the
Personal Desktop Portal Application that such end user downloaded from a Query
Page or Results Page, which may incorporate a
"QUERY PAGE" means any page hosted on the InfoSpace Web Sites which may
incorporate the Graphical User Interface and/or on which users clicking directly
from the Company Web Sites may input queries and searches relating to the
Content or may include download of or access to Content.
"RESULTS PAGE" means any page hosted on the InfoSpace Web Sites which may
incorporate the Graphical User Interface and/or displays Content in response to
queries and searches made on a Query Page or Personal Desktop Portal Page.
"TRADEMARKS" means any trademarks, service marks, trade dress, trade names,
corporate names, proprietary logos or indicia and other source or business
identifiers.
"WEB SITE" means any point of presence maintained on the Internet or on any
other public data network. With respect to any Website maintained on the World
Wide Web, such Website includes all HTML pages (or similar unit of information
presented in any relevant data protocol) that either (a) are identified by the
same second-level domain (such as xxxxxxxxx.xxx) or by the same equivalent level
identifier in any relevant address scheme, or (b) contain branding, graphics,
navigation or other characteristics such that a user reasonably would conclude
that the pages are part of an integrated information or service offering.
2. CERTAIN RIGHTS GRANTED.
2.1 InfoSpace Grant. Subject to the terms and conditions of this
Agreement, InfoSpace hereby grants to Company the following rights:
(a) the right to include on the Company Web Sites hypertext
links (whether in graphical, text or other format) which enable "point and
click" access to location of the InfoSpace Web Sites specified by InfoSpace
(and subject to change by InfoSpace from time to time); and
(b) the right to permit users to link to Results Pages via
Query Pages and/or to Personal Desktop Portal Pages hosted on the InfoSpace Web
Sites.
2.2 COMPANY GRANT. Subject to the terms and conditions of this
Agreement, Company hereby grants InfoSpace the following rights:
(a) the right to include on the Company Web Sites hypertext
links (whether in graphical, text or other format) which enable "point and
click" access to location of the InfoSpace Web Sites specified by InfoSpace
(and subject to change by InfoSpace from time to time);
(b) the right to sell and serve Banner Advertisements and other
promotions on the Co-branded Pages; and
(c) the right to track the number of Impressions.
2.3 LIMITATIONS. Company and its affiliates shall have no right to
reproduce or sub-license, re-sell or otherwise distribute all or any portion of
the Content to any Person including via the Internet (including the World Wide
Web) or any successor public or private data network. This Agreement and
delivery of the Content or any portion hereunder to Company shall not cause
InfoSpace to be in violation of any law of any jurisdiction or third party
agreement, and InfoSpace may at any time issue additional guidelines with
respect to use or display of any of the Content, to which Company will adhere.
Company shall implement and/or cooperate with InfoSpace in its implementation of
bug fixes, updates, and minimum build requirements for any Content supplied by
InfoSpace, promptly upon the request of InfoSpace. Neither party shall have any
right to: (a) edit or modify any Banner Advertisements submitted for a
Co-branded Page (but without limiting InfoSpace's right to reject any Banner
Advertisements pursuant to this Agreement); or (b) remove, obscure or alter any
notices of Intellectual Property Rights appearing in or on any materials
(including Banner Advertisements) provided by the other party.
2.4 COMPANY MARKS LICENSE. Subject to Section 2.6, Company hereby
grants InfoSpace the right to use, reproduce, publish, perform and display the
Company Marks: (a) on the InfoSpace Web Sites in connection with the posting of
hyperlinks to the Company Web Sites; (b) in and in connection with the
development, use, reproduction, modification, adaptation, publication, display
and performance of the Graphical User Interface, Results Pages and (if
applicable) the Personal Desktop Portal Pages; and (c) in promotional and
marketing materials, content directories and indexes, and electronic and printed
advertising, publicity, press releases, newsletters and mailings about
InfoSpace.
2.5 INFOSPACE MARKS LICENSE. Subject to Section 2.6, InfoSpace hereby
grants the right to use, reproduce, publish, perform and display the Company
Marks: (a) on the Company Web Sites in connection with the posting of hyperlinks
to the InfoSpace Web Sites; (b) in and in connection with the development, use,
reproduction in promotional and marketing materials, content directories and
indexes, and electronic and printed advertising, publicity, press releases,
newsletters and mailings about Company.
2.6 APPROVAL OF TRADEMARK USAGE. InfoSpace shall not use or exploit in
any manner any of the Company Marks, and Company shall not use or exploit in any
manner any of the InfoSpace Marks, except in such manner and media as the other
party may consent to in writing, which consent shall not be unreasonably
withheld or delayed. Either party may revoke or modify any such consent upon
written notice to the other party.
2.7 NONEXCLUSIVITY. Each party acknowledges and agrees that the rights
granted to the other party in this Agreement are non-exclusive, and that,
without limiting the generality of the foregoing, nothing in this Agreement
shall be deemed or construed
to prohibit either party from participating in similar business arrangements as
those describe herein including soliciting third party advertisements or other
materials, serving advertisements or other materials to third parties' Web
Sites, or hosting or permitting third parties to place advertisements on such
party's Web Site, whether or not, in each such case, such advertisements are
competitive with the products, services, or advertisements of the other party.
3. CERTAIN OBLIGATIONS OF THE PARTIES.
3.1 GRAPHICAL USER INTERFACE AND CO-BRANDED PAGES. To the extent
provided in this Agreement, Company and InfoSpace will cooperate to design the
user-perceptible elements of the Graphical User Interface, with the goals of:
(a) conforming the display output of the "lock and feel" associated with the
applicable Company Web Sites; and (b) maximizing the commercial effectiveness
thereof. Following agreement by the parties upon the design specifications
thereof, InfoSpace will use commercially reasonable efforts to develop the
Graphical User Interface and to implement the same on Co-branded Pages.
InfoSpace shall have no liability or obligation for failure to develop or
implement the Graphical User Interface or any Co-branded Pages as contemplated
by this Section 3.1, or for any nonformity with the design specifications agreed
upon by the parties, provided InfoSpace has used commercially reasonable efforts
to develop and implement the same as provided in this Section 3.1. The URL for
the Co-branded Pages shall not include Company's domain name. Any re-designs or
non-standard designs requested by Company (beyond the initial single standard
template design contemplated by this section) shall be charged at InfoSpace's
then current rates.
3.2 COMPANY OBLIGATIONS. Company shall integrate links to pages of the
InfoSpace Web Sites determined by InfoSpace (and subject to change by InfoSpace
from time to time) on the primary home page for each of the Company's Web Sites.
In addition, and unless otherwise designated by InfoSpace, the InfoSpace logo
and at least one other link pointing to pages of the InfoSpace Web Sites
specified by InfoSpace (and subject to change by InfoSpace from time to time)
will be present on all Co-branded Pages. Each link contemplated by this Section
3.2 shall be; (a) prominent in relation to links to other Web Sites on the
applicable page (and in any event at least as prominent as any link to any third
party Web Site); and (b) above-the-fold (i.e., immediately visible to any user
accessing the applicable page without the necessity of scrolling downward or
horizontally).
3.3 ACCESSIBILITY OF WEB SITES. Each party will use commercially
reasonable efforts to maintain accessibility of its Web Sites.
3.4 IMPRESSION INFORMATION. InfoSpace shall track and allow the
Company to remotely access in electronic form information maintained by
InfoSpace concerning the number of Impressions.
3.5 PUBLICITY. The parties may work together to issue publicity and
general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall have
any obligation to do so. In addition, neither party shall issue such publicity
and general marketing communications concerning their relationship without the
prior written consent of the other party (not to be unreasonably withheld).
Neither party shall disclose the terms of this Agreement to any third party
other than its outside counsel, auditors, and financial advisors, except as
required by law.
4. ADVERTISING AND REVENUE.
4.1 PLACEMENT OF BANNER ADVERTISEMENTS. In addition to the terms and
conditions otherwise set forth in this Agreement, Banner Advertisements sold on
the Co-branded Pages shall be governed by the terms and conditions set forth on
Exhibit C.
4.2 REMUNERATION; COLLECTION. The Company will pay to Info Space the
amounts as set forth on Exhibit C. Any amount not paid when due, or as
invoiced, will
be subject to a finance charge equal to one and one-half percent (1.5%) per
month or the highest rate allowable by law, whichever is less, determined and
compounded daily from the date due until the date paid. Payment of such finance
charges will not excuse or cure any breach or default for late payment.
InfoSpace may accept any check or payment without prejudice to its rights to
recover the balance due or to pursue any other right or remedy. No endorsement
or statement on any check or payment or letter accompanying any check or payment
or elsewhere will be construed as an accord or satisfaction. Unless explicitly
stated on Exhibit C, all amounts payable under this Agreement are denominated in
United States dollars and Company will pay all amounts payable under this
Agreement in lawful money of the United States. Unless explicitly stated stated
on Exhibit C, InfoSpace shall have no obligation to share with, allow Company to
sell, or account to Company regarding, any sums received by InfoSpace or any of
its affiliates from any advertisements or promotions on any of the InfoSpace Web
Sites (including, without limitation, any of the Co-branded Pages), including,
without limitation, any Banner Advertisements thereon. In the event Company
fails to make timely payment, InfoSpace shall have the right. In addition to
all other rights under this Agreement, to immediately terminate all links,
content, or services provided to Company under this Agreement. If Company fails
to make timely payment, Company will be responsible for all reasonable expenses
(including attorney fees) incurred by InfoSpace in Collecting such amounts.
5. WARRANTIES, INDEMNIFICATION AND LIMITATION OF DIRECT LIABILITY.
5.1 WARRANTIES
The parties to this Agreement represent and warrant as follows:
a) Each party warrants that it has the full corporate right, power and
authority to enter into this Agreement an to perform the acts
required of it hereunder;
b) Each party warrants that its execution of this Agreement by such
party and performance of its obligations hereunder, do not and will
not violate any agreement to which it is bound; and in performance
under and related to this Agreement, the parties shall comply with all
applicable laws, rules and regulations (including, without limitation,
privacy, export control and obscenity laws); and
c) Each party warrants that when executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of such
party, enforceable against it in accordance with its terms.
d) Company warrants that its Web Sites and the content contained therein,
and all Banner Advertisements served or submitted by Company to the
Co-branded Pages, as the case may be, will not contain any material
that is obscene, pornographic, profane, fraudulent, libelous or
defamatory, or infringing of any third party Intellectual Property
Rights.
5.2 INDEMNIFICATION. Each party (the "Indemnifying Party") will
defend, indemnify and hold harmless the other party (the "Indemnifying Party"),
and the respective directors, officers, employees and agent of the Indemnified
Party, from and against any and all claims, costs, losses, damages, judgements
and expenses (including reasonable attorney's fees) arising out of or in
connection with any third-party claim alleging any breach of such party's
representations or warranties or covenants set forth in this Agreement. The
Indemnified Party agrees that the Indemnifying Party shall have sole and
exclusive control over the defense and settlement of any such third party claim.
The Indemnified Party shall promptly notify the Indemnifying Party of any such
claim of which it becomes aware and shall; (a) at the Indemnifying Party's
expense, provide reasonable cooperation to the Indemnifying Party in connection
with the defense or settlement of any such claim; and (b) at the Indemnified
Party's expense, be entitled to participate in the defense of any such claim.
The Indemnifying Party shall not acquiesce
to any judgement or enter into any settlement that adversely affects the
Indemnified Party's rights or interests without prior written consent of the
Indemnified Party.
5.3 LIMITATION OF LIABILITY; DISCLAIMER.
(a) Liability, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES), ARISING FROM ANY PROVISIONOF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTCIPATED PROFITS OR LOST BUSINESS. INFOSPACE'S
LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING
ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR
STRICT LIAILITY OF INFOSPACE) UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF THE
PRODUCTS OR SERVICES RENDERED BY INFOSPACE UNDER THIS AGREEMENT (INCLUDING ANY
SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY
INFOSPACE OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE CO-BRANDED PAGES
OR PROVIDING CONTENT), THE INFOSPACE WEB SITES AND ANY OTHER ITEMS OR SEVICES
FURNISHED UNDER THIS AGREEMENT. IN NO EVENT WILL INFOSPACE'S AGGREGATE
LIABILITY TO COMPANY UNDER THIS AGREEMENT EXCEED THE COMPENSATION PAID BY
COMPANY TO INFOSPACE UNDER THIS AGREEMENT.
(b) No Additional Warranties. EXECT AS SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DICLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.), AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN
EACH CASE, REGARDING THEIR WEB SITES, ANY PRODUCTS OR SERVICES DESCRIBED
THEREON, ANY BANNER ADVERTISEMENTS, ANY SOFTWARE, OR ANY OTHER ITEMS OR SERVICES
PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, COMPANY ACKNOWLEDGES THAT THE INFOSPACE WEB SITES AND THE CONTENT
(INCLUDING ANY SERVICES OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR
PROVIDED BY INFOSPACE OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE
INFOSPACE WEB SITES OR THE CONTENT OR PERFORMANCE OF ANY SERVICES HEREUNDER) ARE
PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. COMPANY ACKNOWLEDGES THAT
INFOSPACE MAKES NO WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS WEB SITES OR
OFFER THE CONTENT IN THEIR CURRENT FORM, THAT ITS WEB SITES OR THE CONTENT WILL
BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE SITES OR THE CONTENT WILL MEET THE
REQUIREMENTS OR EXPECTIONS OF THE OTHER PARTY, OR THAT THE CONTENT, SOFTWARE OR
ANY OTHER MATERIALS ON ITS WEB SITES OR THE SERVERS AND SOFTWARE THAT MAKES ITS
WEB SITES AVAILABLE ARE FREE FROM ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS.
6. TERM AND TERMINATION.
6.1 TERM. The term of this Agreement is as set forth on Exhibit C.
6.2 TERMINATION. Either party may terminate the Term upon not less
than thirty (30) days' prior written notice to the other party of any material
breach hereof by such other party, provided that such other party has not cured
such material breach within such thirty (30) day period.
6.3 EFFECT OF TERMINATION. Upon termination or expiration of the Term
for any reason, all rights and obligations of the parties under this Agreement
shall be extinguished, except that; (a) all accrued payment obligations
hereunder shall survive such termination or expiration; and (b) the rights and
obligations of the parties under Sections 4.2, 4.3, 5, 6, 7 and 8 shall survive
such termination or expiration.
7. INTELLECTUAL PROPERTY.
7.1 COMPANY. As between the parties, Company retains all right, title
and interest in and to the Company Web Sites (including, without limitation, any
and all content, data, URLs, domain names, technology, software, code, user
interfaces, "look and feel", Trademarks and other items posted thereon or used
in connection or associated therewith; but excluding any Content or other items
supplied by InfoSpace) and the Company Marks along with all Intellectual
Property Rights associated with any of the foregoing. All goodwill arising out
of InfoSpace's use of any of the Company Marks shall inure solely to the benefit
of the Company.
7.2 INFOSPACE. As between the parties, InfoSpace retains all right,
title and interest in and to the Content and the InfoSpace Web Sites (including,
without limitation, any and all content, data, URLs, domain names, technology,
software (including, without limitation, the Personal Desktop Portal
Application), code, user interfaces, "look and feel", Trademarks and other items
posted thereon or used in connection or associated therewith; but excluding any
items supplied by Company), user data gathered from or through any InfoSpace
tools or applications, and the InfoSpace Marks, along with all Intellectual
Property Rights associated with any of the foregoing. All goodwill arising out
of InfoSpace's use of any of the Company Marks shall inure solely to the benefit
of InfoSpace.
7.3 COPYRIGHT NOTICES. All Co-branded Pages will include the following
acknowledgement, along with the InfoSpace logo.
"Powered by InfoSpace" or "Powered by XxxxXxxxx.xxx"
InfoSpace and Company acknowledge that the Co-branded Pages may also
contain copyright and patent notices of copyrighted or copyrightable works,
including those of InfoSpace Content providers. InfoSpace will be given credit
in advertisements of Company which promote the Content services provided by
InfoSpace in a manner such as "brought to you by XxxxXxxxx.xxx" or similar text.
7.4 OTHER TRADEMARKS. InfoSpace shall not register or attempt to
register any of the Company Marks or any Trademarks which Company reasonably
deems to be confusingly similar to any of the Company's Marks. Company shall
not register or attempt to register any of the InfoSpace Marks or any Trademarks
which InfoSpace reasonably deems to be confusingly similar to any of the
InfoSpace Marks.
7.5 FURTHER ASSURANCES. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
conform such other party's ownership interests and other rights as set forth
above in this Section 7.
8. GENERAL PROVISIONS.
8.1 CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential or by the nature of the circumstances
surrounding disclosure, ought in good faith to be treated as proprietary and/or
confidential ("Confidential Information"); provided that each party may disclose
the terms and conditions of this Agreement to its immediate legal and financial
consultants in
the ordinary course of its business. Each party agrees to use commercially
reasonable efforts to protect Confidential Information of the other party, and
in any event, to take precautions at least as great as those taken to protect
its own confidential information of a similar nature. Company acknowledges that
the terms of this Agreement and user information are Confidential Information of
InfoSpace. The foregoing restrictions shall not apply to any information that;
(a) was known by the Receiving Party prior to disclosure thereof by the other
party; (b) was in or entered the public domain through no fault of the Receiving
Party; (c) is disclosed to the Receiving Party by a third party legally entitled
to make such disclosure without violation of any obligation of confidentiality;
(d) is required to be disclosed by applicable laws or regulations (but in such
event, only to the extent required to be disclosed); or (e) is independently
developed by the Receiving Party without reference to any Confidential
Information of the other party. Upon request of the other party, or in any
event upon any termination or expiration of the Term, each party shall return to
the other all materials. In any medium, which contain, embody, reflect or
reference all or any part of any Confidential Information of the other party.
Each party acknowledges that breach of this provision by it would result in
irreparable harm to the other party, for which money damages would be an
insufficient remedy, and therefore that the other party shall be entitled to
seek injunctive relief to enforce the provisions of this Section 8.1.
8.2 INDEPENDENT CONTRACTORS. Company and InfoSpace are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Company and InfoSpace. Neither party has any authority to enter into agreements
of any kind on behalf of the other party.
8.3 ASSIGNMENT. Company may not assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without prior written
consent of InfoSpace; except that either party may, without the other party's
consent, assign this Agreement or any of its rights or delegate any of its
duties under this Agreement; (a) to any affiliate of such party; or (b) to any
purchaser of all or substantially all of such party's assets or to any successor
by way of merger, consolidation or similar transaction. Subject to the
foregoing, this Agreement will be binding upon, enforceable by, and inure to the
benefit of the parties and their respective successors and assigns.
8.4 CHOICE OF LAW; FORUM SELECTION. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Washington
without reference to its choice of law rules. Company hereby irrevocably
consents to exclusive personal jurisdiction and venue in the state and federal
courts located in King County, Washington with respect to any actions, claims or
proceedings arising out of or in connection with this Agreement, and agrees not
to commence or prosecute any such action, claim or proceeding other than in the
aforementioned courts.
8.5 NONWAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
8.6 FORCE MAJEURE. Neither party shall be deemed to be in default of
or to have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly or
indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, failure of equipment and/or software, other
catastrophes or any other occurrences which are beyond such party's reasonable
control.
8.7 NOTICES. Any notice or other communications required or permitted
to be given hereunder shall be given in writing and delivered in person, mailed
via confirmed facsimile or e-mail, or delivered by recognized courier service,
properly addressed and stamped with the required postage, to the individual
signing this Agreement on behalf of
the applicable party at its address specified in the opening paragraph of the
agreement and shall be deemed effective upon receipt. Either party from time to
time change the individual to receive notices or its address by giving the other
party notice of the change in accordance with this section. In addition, a copy
of any notice sent to InfoSpace shall also be sent to the following address:
XxxxXxxxx.xxx, Inc.
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
8.8 SAVINGS. In the event any provision of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. If any provision of
this Agreement shall, for any reason, be determined by a court of competent
jurisdiction to be excessively broad or unreasonable as to scope or subject,
such provision shall be enforced to the extent necessary to be reasonable under
the circumstances and consistent with applicable law while reflecting as closely
as possible the intent of the parties as expressed herein.
8.8 INTEGRATION. This Agreement contains the entire understanding of
the parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements or negotiations between InfoSpace and
Company concerning the subject matter hereof, and cannot be amended except by a
writing signed by both parties. This Agreement does not constitute an offer by
InfoSpace and it shall not be effective until signed by both parties.
8.9 COUNTERPARTS; ELECTRONIC SIGNATURE. This Agreement may be executed
in counterparts, each of which will be deemed an original, and all of which
together constitutes one and the same instrument. To expedite the process of
entering into this Agreement, the parties acknowledge that Transmitted Copies of
the Agreement will be equivalent to original documents until such time as
original documents until such time as original documents are completely executed
and delivered. "Transmitted Copies" will mean copies that are reproduced or
transmitted via photocopy, facsimile or other process of complete and accurate
reproduction and transmission.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
XXXXXXX.XXX XxxxXxxxx.xxx, Inc.
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("Company") ("InfoSpace")
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By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
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Name Xxxxxx Xxxxxxxx Name Xxxx X. Xxxxxx
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Title Executive Vice President Title Vice President, E - Commerce
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