CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
STRATEGIC RELATIONSHIP AGREEMENT
This Agreement ("Agreement") is made and entered into as of
January 29, 2001 (the "Effective Date") by and between Xxxxxx'x, Inc., a
Delaware corporation, with offices at 0000 Xx Xxxxxx Xxxxx, Xxx. 000, Xxxxxx,
Xxxxx 00000 ("Xxxxxx'x"), The FORTUNE Group, a division of Time Inc., a
Delaware corporation, with offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("FORTUNE"), and, for certain limited purposes, Warner Books
Multimedia Corp., a Delaware corporation, with offices at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Warner Books").
RECITALS
WHEREAS, Xxxxxx'x owns and operates an online service offering
information on companies, industries, people and products, featuring a host of
related channels focusing on business news, career development, personal
finance, and business travel located at XXX.XXXXXXX.XXX; and
WHEREAS, FORTUNE publishes FORTUNE Magazine, FSB Magazine and
eCompany Now Magazine (collectively, the "FORTUNE Group Magazines") and owns and
operates editorially related online sites located at XXX.XXXXXXX.XXX,
XXX.XXX.XXX and XXX.XXXXXXXXXXX.XXX (the "FORTUNE Group Sites");
NOW, THEREFORE, in consideration of the mutual covenants set forth
in this Agreement, Xxxxxx'x and FORTUNE, intending to be legally bound,
hereby agree to the following terms and conditions:
1. DEFINITIONS. For the purposes of this Agreement, the following
capitalized terms shall have the following meanings.
"Above the Fold" means that portion of any web page that is
designed to be visible by web users upon first accessing such page, without
requiring users with standard configurations to scroll vertically or
horizontally on the page.
"Affiliate" means any Person or entity that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with another Person, and includes any individual or entity
controlled by any individual or entity designated above. "Control" means the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities, by contract, or otherwise.
"Company Capsules" means company information on over 17,000 public,
private and international companies, currently available on the Xxxxxx'x
Site, as described on EXHIBIT A attached hereto.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
"Company Profiles" means in depth company profiles, currently a
paid premium product on the Xxxxxx'x Site, as described on EXHIBIT A attached
hereto.
"Competitive Entity" means [*]
"Content" means and includes any text, graphics, photographs,
video, audio or other data or information (including, without limitation, any
of the foregoing published in a publication) relating to any subject matter
or advertisements.
"XXXXXXXXXXX.xxx" means the FORTUNE Group Site operated at
xxx.xxxxxxxxxxx.xxx.
"XXXXXXX.xxx" means the FORTUNE Group Site operated at
XXX.XXXXXXX.XXX.
"FORTUNE Content" means: (i) the following lists from XXXXXXX.xxx:
AMERICA'S BEST COMPANIES FOR MINORITIES, AMERICAS MOST ADMIRED COMPANIES,
FORTUNE 500, FORTUNE E-50, GLOBAL 500, 100 BEST COMPANIES TO WORK FOR AND
WORLD'S MOST ADMIRED COMPANIES; (ii) directory information for
XXXXXXXXXXX.xxx; (iii) selected content from XXX.xxx; and (iv) subject to
Section 3.1.2, the FORTUNE Headlines, defined below, and the complete text of
up to thirty (30) FORTUNE articles per month from the FORTUNE Group Sites.
"FORTUNE Group Magazines" has the meaning set forth in the Preamble
of this Agreement.
"FORTUNE Headlines" means teasers for current and archived
articles, as determined by FORTUNE, available on the FORTUNE Group Sites.
"FORTUNE Marks" means and includes any and all of the present and
future brands names, trade names, trademarks, service marks and logos
developed, acquired, licensed or otherwise adopted by FORTUNE or any of its
Affiliates for use with the FORTUNE Group Sites, the FORTUNE Group Magazines
or any other FORTUNE Products.
"FORTUNE Products" means any FORTUNE premium products, excluding
FORTUNE Group Magazines, available for sale on or through the FORTUNE Group
Site.
"FORTUNE Group Sites" shall have the meaning set forth in the
Preamble of this Agreement.
"FORTUNE User Data" means all User Data collected on the FORTUNE
Group Sites, including, without limitation, User Data collected by FORTUNE
following
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
a Web visitor's click-through or linking from another web site not operated
as part of the FORTUNE Group Sites.
"XXX.xxx" means the FORTUNE Group Site operated at xxx.xxx.xxx.
"Xxxxxx'x Content" means: (i) Company Capsules; (ii) Industry
Snapshots; and, solely for the purposes of Section 3.1.1 below, (iii) the
Company Profiles.
"Xxxxxx'x Marks" means and includes any and all of the present and
future brand names, trade names, trademarks, service marks and logos
developed, acquired, licensed or otherwise adopted by Xxxxxx'x or any of its
Affiliates for use in connection with the Xxxxxx'x Site or any other goods or
services offered by them.
"Xxxxxx'x Site" means the web site operated at XXX.XXXXXXX.XXX. as
well as additional web sites that may be operated by Xxxxxx'x or its
Affiliates.
"Xxxxxx'x User Data" means all User Data collected on the Xxxxxx'x
Site, including, without limitation, User Data collected by Xxxxxx'x
following a Web visitor's click-through or linking from another web site not
operated as part of the Xxxxxx'x Site.
"Industry Snapshots" means Xxxxxx'x content profiling various
industries [*], as described on EXHIBIT A attached hereto.
"Link" means an embedded logo or icon, object or graphic within a
web page that, when clicked upon by a web user, allows the web user to access
another web page.
"Marks" means any of the Xxxxxx'x Marks or FORTUNE Marks, as the
context may require.
"Person" means an individual, a corporation, a partnership, an
association, a trust, a limited liability entity, a governmental authority or
any other entity or organization.
"Specifications" means the technical requirements, performance
standards and other specifications mutually developed by Xxxxxx'x and FORTUNE.
"Term" shall have the meaning set forth in Section 10 of this
Agreement.
"Third Party" means any Person other than Xxxxxx'x or FORTUNE or any
Affiliate of any of the foregoing.
"Valid Order" means an order for a FORTUNE Group Magazine which
includes a name, address, city, state, zip, email address of a U.S. or Canadian
resident.
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
"Valid Order" does not include (a) orders that include false addresses; (b)
foreign orders (i.e., outside of the U.S. or Canada); or (c) duplicate orders.
"Web Advertising" means and includes any web-based advertising,
including, by example, the following:
(a) "Banner," being an advertisement embedded within and as part of
a web page which provides a web link to another web site controlled and/or
operated by the advertiser or its independent contractors; and
(b) "Programming Sponsorship," being the recurring and prominent
placement of an advertiser's corporate and/or product brand identity in
connection with a particular programming offering, which may include web
links to other web sites controlled and/or operated by the advertiser or its
independent contractors.
2. CONTENT LICENSE.
2.1 USE OF THE XXXXXX'X CONTENT.
2.1.1 Xxxxxx'x grants to FORTUNE the non-exclusive,
royalty free, worldwide license to use the Xxxxxx'x Content on the FORTUNE Group
Sites. The Xxxxxx'x Content and/or links to the Xxxxxx'x Content will be made
available in areas of the FORTUNE Group Sites as described and subject to the
terms and conditions herein. FORTUNE agrees to accord Xxxxxx'x credit Above the
Fold in connection with any use of the Xxxxxx'x Content on the FORTUNE Group
Sites and to include trademark and copyright notices provided by Xxxxxx'x on
each page containing the Xxxxxx'x Content. The parties mutually agree that the
Company Capsules residing on the Xxxxxx'x Site shall be accessible via Links on
the FORTUNE Group Sites and shall be branded with the applicable FORTUNE Group
Site name (the "Private Label Pages"). FORTUNE will integrate the Xxxxxx'x
Content as follows: all references to a company name appearing on the entry page
of the XXXXXXX.xxx Investor, Careers, or Technology areas will be linked to the
customized XXXXXXX.xxx company snapshot page for such company. All XXXXXXX.xxx
company snapshot pages will include a prominent link to the corresponding
Xxxxxx'x Company Capsule Private Label Page. Nothwithstanding the foregoing, in
the event that: (i) Xxxxxx'x enters into a binding agreement on its own behalf
to license the Company Capsules and/or Profiles to a Competitive Entity as
permitted under Section 16 hereof; or (ii) FORTUNE undergoes a strategic shift
with the result that the XXXXXXX.xxx Site includes no third-party summary
company or industry information of type and format similar to the Company
Capsules, Company Profiles and Industry Snapshots, then FORTUNE will not be
obligated to maintain the above integration of the Xxxxxx'x Company Capsules on
XXXXXXX.xxx. In addition to the above-described integration, FORTUNE will use
commercially reasonable efforts to integrate the Xxxxxx'x Content within the
FORTUNE Group Sites as appropriate in areas where specific companies and
industries are mentioned, subject in all cases to FORTUNE's sole editorial
discretion. During the term of this Agreement, FORTUNE will not integrate
third-party summary company or industry information of type and
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
format similar to the Company Capsules, Company Profiles and Industry
Snapshots from any party other than Xxxxxx'x within XXXXXXX.xxx. With respect
to the other FORTUNE Group Sites, in the event that FORTUNE desires to
integrate third-party summary company and/or industry information of type and
format similar to the Company Capsules, Company Profiles and Industry
Snapshots from a party other than Xxxxxx'x, FORTUNE will provide Xxxxxx'x
with specifications as to the type of information requested by FORTUNE and
FORTUNE's estimated cost. Xxxxxx'x will have a period of ten (10) business
days to respond with a proposal for the provision of such company and/or
industry information. FORTUNE will consider in good faith any such Xxxxxx'x
proposals. Notwithstanding the foregoing, in the event that Xxxxxx'x enters
into a binding agreement on its own behalf to license the Company Capsules
and/or Profiles to a Competitive Entity as permitted under Section 16 hereof,
then the foregoing restrictions regarding FORTUNE's ability to integrate
third party company and/or industry information of type and format similar to
the Company Capsules, Company Profiles and/or Industry Snapshots shall no
longer apply. The look and feel of the Private Label Pages page shall be
designed in a manner consistent with the presentation of other FORTUNE
content on the applicable FORTUNE Group Site. FORTUNE shall have the right,
in its sole discretion, to approve the design, look and feel and all other
elements of the Private Label Pages. Subject to Section 2.1.2 below, FORTUNE
shall have the sole right to sell advertising on the Private Label Pages and
to retain any revenues derived therefrom. The parties will use their
respective best efforts to achieve initial integration of the Xxxxxx'x
Content on applicable FORTUNE Group Sites prior to the end of the first
quarter of 2001. Notwithstanding the foregoing, FORTUNE shall have the right
to remove the Xxxxxx'x Content, in whole or in part, in the event of any
claim, action or proceeding arising in connection with the Xxxxxx'x Content
and/or the Xxxxxx'x Marks.
2.1.2 FORTUNE shall pay to Xxxxxx'x a serving fee of [*] (the
"Serving Fee"), within thirty (30) days of receipt of Xxxxxx'x quarterly
invoice, provided that such pages are delivered in accordance with the service
level requirements set forth on EXHIBIT B attached hereto. [*]
2.1.3 FORTUNE shall have sole responsibility for maintaining
the servers on which the FORTUNE Content and the FORTUNE Group Sites shall be
operated.
2.1.4 Xxxxxx'x and FORTUNE shall develop as part of the
Specifications, requirements relating to the presentation within the Xxxxxx'x
Content of Links connecting users from the FORTUNE Group Sites to the
Xxxxxx'x Site. Each party shall use commercially reasonable efforts to
maintain the functionality of all such Links at all times. In the event a
party discovers any lack of functionality in any such Link, such party shall
use commercially reasonable efforts to immediately undertake such corrective
action as may be necessary to promptly restore the functionality of such Link.
2.1.5 Linkages from the Xxxxxx'x Content to material located
outside of the FORTUNE Group Sites, if any, shall be made only at the
discretion of
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
FORTUNE. Except for the agreed-upon Links to the Xxxxxx'x Site, in no event
shall Xxxxxx'x intentionally cause or encourage users of the Xxxxxx'x Content
to leave the XXXXXXX.xxx Site through the use of linkages to other locations.
2.1.6 Xxxxxx'x will supply FORTUNE with all
information, artwork, logo(s), trademarks and technology
needed for Links between the Xxxxxx'x Content and the FORTUNE
Group Sites. FORTUNE reserves the right to reject any
materials submitted by Xxxxxx'x for any reason at any time
regardless of any prior acceptance or display of any such
material, provided that FORTUNE shall give notice to Xxxxxx'x
of such rejection and shall promptly consult with Xxxxxx'x
regarding acceptable replacements for such materials. The
parties have agreed to implement the following procedure for
resolution of the parties' respective Company symbols used in
the delivery of the Xxxxxx'x Company Capsules: Xxxxxx'x will
make available on a designated FTP server a generic feed which
includes a table of information for facilitation of FORTUNE's
referencing, matching and accessing the Xxxxxx'x Company
Capsules. The feed consists of an ASCII-text, tab-delimited
file that includes company name, Xxxxxx'x index code, ticker
symbol (when available), and a hyperlinked generic FORTUNE
cobrand URL for such company. FORTUNE will be responsible for
matching companies referenced within the FORTUNE Group Sites
to the Xxxxxx'x Company Capsules as indicated by the Xxxxxx'x
index code within the Xxxxxx'x feed, including any additions,
changes or deletions. Xxxxxx'x will serve the Private Label
Pages in accordance with the service level requirements set
forth on EXHIBIT B attached hereto.
2.1.7 Except for the rights expressly granted to
FORTUNE in this Agreement, FORTUNE shall have no other rights to use, display,
incorporate, modify, translate, insert links or pointers into, frame, enhance,
prepare derivative works of, aggregate, disaggregate, reproduce, distribute,
redistribute, transmit, perform, publish, republish, sublicense, syndicate,
transfer, promote, advertise or sell the Xxxxxx'x Content. Xxxxxx'x hereby
reserves all other rights to the Xxxxxx'x Content not expressly granted to
FORTUNE pursuant to this Agreement.
2.1.8 FORTUNE acknowledges that it is familiar with
the high standards, quality, style and image of the Xxxxxx'x Site, the
Xxxxxx'x Content and the Xxxxxx'x Marks (collectively, the "Xxxxxx'x
Materials"), and agrees at all times to use the Xxxxxx'x Materials in a
manner which is consistent with the high standards, quality, style and image
of Xxxxxx'x. In the event Xxxxxx'x believes that FORTUNE is using the
Xxxxxx'x Materials in a manner materially inconsistent with Xxxxxx'x high
standards, quality, style or image, Xxxxxx'x shall have the right to request
FORTUNE, upon reasonable notice, to make changes to any portion(s) of the
FORTUNE Group Sites on which the Xxxxxx'x Materials (or portion thereof) are
displayed, and FORTUNE shall promptly make the changes reasonably requested
by Xxxxxx'x.
2.1.9 FORTUNE acknowledges the importance and
necessity of Xxxxxx'x editorial independence and agrees that all of Xxxxxx'x
decisions with respect to
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
the editorial content of the Xxxxxx'x Content shall be final and that
Xxxxxx'x shall have sole editorial control over the Xxxxxx'x Content. FORTUNE
further acknowledges and agrees that at no time shall it have any right to,
nor shall it, alter, add to or delete from, or request alterations in,
additions to or deletions from, the Xxxxxx'x Content.
2.1.10 FORTUNE shall not assign or associate, or
permit any Person to assign orassociate, a content rating (e.g., RSAC or
PICS) of any kind to or with any portion of the Xxxxxx'x Site, without the
prior written consent of Xxxxxx'x.
2.1.11 FORTUNE shall not permit any materials
contained in the FORTUNE Group Sites to state that Xxxxxx'x or its Affiliates
endorse FORTUNE, the FORTUNE Group Sites or any products or services available
through the FORTUNE Group Sites, or that FORTUNE has any editorial control over
or input into the Xxxxxx'x Content.
2.1.12 In the event Xxxxxx'x comes to believe that
any Xxxxxx'x Materials infringe on a Third Party's copyright or other
proprietary rights, violate a Third Party's publicity or privacy rights,
contain libelous or defamatory materials, otherwise violate any law, rule or
regulation, or if Xxxxxx'x deems any Xxxxxx'x Materials to be objectionable
in Xxxxxx'x sole discretion, Xxxxxx'x shall notify FORTUNE in writing and
FORTUNE shall immediately remove from the FORTUNE Group Sites the applicable
Xxxxxx'x Materials designated by Xxxxxx'x or make such changes as Xxxxxx'x
shall specify.
2.2 USE OF FORTUNE CONTENT.
2.2.1 FORTUNE grants to Xxxxxx'x the non-exclusive,
royalty free, worldwide license to use the FORTUNE Content on the Xxxxxx'x Site.
The FORTUNE Content and/or Links to the FORTUNE Content will be made available
on areas of the Xxxxxx'x Site as described and subject to the terms and
conditions herein. Xxxxxx'x agrees to accord FORTUNE credit Above the Fold in
connection with any use of the FORTUNE Content and to include any trademark and
copyright notices provided by FORTUNE on each page containing the FORTUNE
Content. Xxxxxx'x agrees to prominently display the XXX.xxx content component of
the FORTUNE Content in the small business area of the Xxxxxx'x Site, subject in
all cases to Xxxxxx'x sole editorial discretion. Links to FORTUNE lists will be
integrated into various areas of the Xxxxxx'x Site (e.g. editorial placement on
the Xxxxxx'x Site homepage, from Company Capsules, and news areas, subject in
all cases to Xxxxxx'x sole editorial discretion). At such time as FORTUNE is
able to provide a feed of its news headlines, Xxxxxx'x agrees to use its best
efforts to integrate such feed within the Xxxxxx'x Site and within the
information products developed by Xxxxxx'x Xxxxxx'x Media Technologies, Inc.
subsidiary, as feasible. The parties will use their respective best efforts to
achieve initial integration of the FORTUNE Content on the Xxxxxx'x Site prior to
the end of the first quarter of 2001. Notwithstanding the foregoing, Xxxxxx'x
shall have the right to remove the FORTUNE Content in whole or in part, in the
event of any claim, action or proceeding arising in
7
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
connection with the FORTUNE Content and/or the FORTUNE Marks.
2.2.2 Xxxxxx'x shall have sole responsibility for
maintaining the servers on which the Xxxxxx'x Site shall be operated and from
which the Xxxxxx'x Content shall be served.
2.2.3 Xxxxxx'x and FORTUNE shall develop as part of
the Specifications, requirements relating to the presentation within the FORTUNE
Content of Links connecting users from the Xxxxxx'x Site to the FORTUNE Group
Sites. Each party shall use commercially reasonable efforts to maintain the
functionality of all such Links at all times. In the event a party discovers any
lack of functionality in any such link, such party shall use commercially
reasonable efforts to immediately undertake such corrective action as may be
necessary to promptly restore the functionality of such link.
2.2.4 Linkages from the FORTUNE Content to material
located outside of the Xxxxxx'x Site, if any, shall be made only at the
discretion of Xxxxxx'x. Except for the agreed-upon Links to the FORTUNE Group
Sites, in no event shall FORTUNE intentionally cause or encourage users of the
FORTUNE Content to leave the Xxxxxx'x Site through the use of linkages to other
locations.
2.2.5 FORTUNE will supply Xxxxxx'x with all
information, artwork, logo(s), trademarks and technology needed for links
between the FORTUNE Content and the Xxxxxx'x Site. Xxxxxx'x reserves the
right to reject any materials submitted by for any reason at any time
regardless of any prior acceptance or display of any such material, provided
that Xxxxxx'x shall give notice to FORTUNE of such rejection and shall promptly
consult with FORTUNE regarding acceptable replacements for such materials.
2.2.6 Except for the rights expressly granted to
Xxxxxx'x in this Agreement, Xxxxxx'x shall have no other rights to use, display,
incorporate, modify, translate, insert links or pointers into, frame, enhance,
prepare derivative works of, aggregate, disaggregate, reproduce, distribute,
redistribute, transmit, perform, publish, republish, sublicense, syndicate,
transfer, promote, advertise or sell the FORTUNE Content. FORTUNE hereby
reserves all other rights to the FORTUNE Content not expressly granted to
Xxxxxx'x pursuant to this Agreement.
2.2.7 Xxxxxx'x acknowledges that it is familiar with
the high standards, quality, style and image of the FORTUNE Group Magazines, the
FORTUNE Content and the FORTUNE Marks (collectively, the "FORTUNE Materials"),
and agrees at all times to use the FORTUNE Materials in a manner which is
consistent with the high standards, quality, style and image of FORTUNE. In the
event FORTUNE believes that Xxxxxx'x is using the FORTUNE Materials in a manner
materially inconsistent with FORTUNE's high standards, quality, style or image,
FORTUNE shall have the right to request Xxxxxx'x, upon reasonable notice, to
make changes to any portion(s) of the Xxxxxx'x Site on which the FORTUNE
Materials (or portion thereof) are displayed, and Xxxxxx'x shall promptly make
the changes reasonably requested by FORTUNE.
8
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
2.2.8 Xxxxxx'x acknowledges the importance and
necessity of FORTUNE's editorial independence and agrees that all of FORTUNE's
decisions with respect to the editorial content of the FORTUNE Content shall be
final and that FORTUNE shall have sole editorial control over the FORTUNE
Content. Xxxxxx'x further acknowledges and agrees that at no time shall it have
any right to, nor shall it, alter, add to or delete from, or request alterations
in, additions to or deletions from, the FORTUNE Content.
2.2.9 Xxxxxx'x shall not assign or associate, or
permit any Person to assign or associate, a content rating (e.g., RSAC or PICS)
of any kind to or with any portion of the FORTUNE Content, without the prior
written consent of FORTUNE.
2.2.10 Xxxxxx'x shall not permit any materials
contained in the Xxxxxx'x Site to state that FORTUNE or its Affiliates endorse
Xxxxxx'x, the Xxxxxx'x Site or any products or services available through the
Xxxxxx'x Site, or that Xxxxxx'x has any editorial control over or input into the
FORTUNE Content.
2.2.11 In the event FORTUNE comes to believe that any
FORTUNE Materials infringe on a Third Party's copyright or other proprietary
rights, violate a Third Party's publicity or privacy rights, contain libelous
or defamatory materials, otherwise violate any law, rule or regulation, or if
FORTUNE deems any FORTUNE Materials to be objectionable in FORTUNE's sole
discretion, FORTUNE shall notify Xxxxxx'x in writing and Xxxxxx'x shall
immediately remove from the Xxxxxx'x Site the applicable FORTUNE Materials
designated by FORTUNE or make such changes as FORTUNE shall specify.
3. [*]
4. SUBSCRIPTIONS; PAID PRODUCTS
4.1 XXXXXX'X SUBSCRIPTIONS. Users of the Xxxxxx'x Site
may subscribe to a paid premium service available on the Xxxxxx'x Site (the
"Xxxxxx'x Premium Subscription") by registering on the Xxxxxx'x Site. Xxxxxx'x
shall pay to FORTUNE a commission of [*] of the amount received by Xxxxxx'x from
a FORTUNE Referred User during the Term of this Agreement. "FORTUNE Referred
User(s)" shall mean (a) users of the FORTUNE Group Sites who (i) reach a
Xxxxxx'x Premium Subscription order page maintained by or on behalf of Xxxxxx'x
by clicking on a link or button on areas of the FORTUNE Group Sites other than
Xxxxxx'x Web Advertising, and (ii) order a Xxxxxx'x Premium Subscription by
completing the order page and paying the subscription fee or sales price, and
(b) consumers who order a Xxxxxx'x Premium Subscription as a result of a
promotion conducted by FORTUNE, provided that such promotion has been approved
by Xxxxxx'x in advance and the parties have mutually agreed upon an appropriate
tracking method.
9
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
4.2. FORTUNE GROUP MAGAZINE SUSCRIPTIONS.
4.2.1 Xxxxxx'x shall make available subscription offers
to the FORTUNE Group Magazines on or through the Xxxxxx'x Site. The parties
shall mutually agree upon each such subscription offer promotions (e.g.,
quarterly e-mail solicitations to Xxxxxx'x subscribers, pop-up windows on the
Xxxxxx'x Site and/or on the Xxxxxx'x Site Premium Subscription registration
page). FORTUNE will retain sole and complete discretion over the subscription
offers (including without limitation, the term, rates and all other terms and
conditions that apply to such offers) that apply to the FORTUNE Group
Magazines offered through the Xxxxxx'x Site.
4.2.2 FORTUNE shall pay Xxxxxx'x a commission of [*]
per each Valid Order obtained from each Xxxxxx'x Referred User. "Xxxxxx'x
Referred User(s)" shall mean (a) users of the Xxxxxx'x Site who (i) reach a
subscription order page maintained by or on behalf of FORTUNE by clicking on
a link or button on areas of the Xxxxxx'x Site, other than FORTUNE Web
Advertising, and (ii) order a subscription to a FORTUNE Group Magazines by
completing the subscription order page, and (b) consumers who order a
subscription to FORTUNE Group Magazines as a result of a promotion conducted
by Xxxxxx'x, provided that such promotion has been approved by FORTUNE in
advance and the parties have mutually agreed upon an appropriate tracking
method.
4.3 FORTUNE PRODUCTS. FORTUNE makes available for sale
certain premium FORTUNE Products, other than the FORTUNE Group Magazines, on the
FORTUNE Group Sites. Xxxxxx'x shall have the non-exclusive right to sell such
FORTUNE Products on the Xxxxxx'x Site. FORTUNE shall have the right to approve
all materials relating to the sale and offer of the FORTUNE Products on the
Xxxxxx'x Site. FORTUNE shall pay to Xxxxxx'x a commission of [*] of the amount
received by FORTUNE in connection with the sale of a FORTUNE Product to a
Xxxxxx'x Referred User. Xxxxxx'x acknowledges and agrees that in no event shall
it be entitled to receive a commission in connection with the sale of any
FORTUNE Product generated by FORTUNE's Web Advertising on the Xxxxxx'x Site.
4.4. PAYMENTS, STATEMENTS AND AUDIT.
4.4.1 INVOICING AND PAYMENT. Each party shall render
statements and payments to the other concerning all transactions set forth
above. Each statement shall set forth in reasonable detail, a description of the
product sold, the quantities of the product sold, the gross price of the
product, the commission and the amount received. Each party shall remit such
amounts prior to the last day of the month following the month in which such
payment was received.
4.4.2 AUDIT. Xxxxxx'x and FORTUNE shall maintain
accurate records in accordance with generally accepted accounting principles for
all transactions, including but not limited to the Serving Fees and Insertion
Orders, which are the subject of this Agreement. Either party may, no more
frequently than once each calendar year
10
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
during the term and upon no less than ten (10) business days prior written
notice, request access during normal business hours to such records for the
purposes of inspection and audit by an independent accounting firm selected
by the party requesting such inspection. The cost of such inspection shall be
borne by the party requesting such inspection, unless the inspection by such
accounting firm reveals a variance of ten percent (10%) or more from any
amounts or calculations reported pursuant to this Agreement, in which event
the reasonable cost of such inspection shall be borne by the other party.
5. ADVERTISING COMMITMENT.
5.1 ADVERTISING COMMITMENT.
5.1.1 BY FORTUNE. FORTUNE shall place through Insertion
Orders a total of [*] worth of Web Advertising on the Xxxxxx'x Site and/or its
Affiliate sites (including, without limitation, banners, buttons and pop-ups)
[*]; Xxxxxx'x will determine appropriate placement of such advertising on the
Xxxxxx'x Site as appropriate for advertisers of FORTUNE's stature, and will
consult with FORTUNE as to its desired placements. [*]
5.1.2. BY XXXXXX'X. Commencing April 1, 2001, Xxxxxx'x
shall place through Insertion Orders a total of [*] worth of advertising in the
FORTUNE Group Magazines and/or Web Advertising and/or in connection with
sponsorships of FORTUNE conferences [*]. Xxxxxx'x, [*] shall pay for such
services as they are provided, in accordance with standard FORTUNE billing
procedures. All such advertising shall be subject to the terms and conditions
(excluding price) for the then current rate card of the applicable FORTUNE
Group Magazine and/or FORTUNE Group Site and/or FORTUNE conference.
5.1.3 TERMINATION OF ADVERTISING COMMITMENT. The
parties' respective advertising commitments provided in Sections 5.1.1 and 5.1.2
may be terminated by either FORTUNE or by Xxxxxx'x by providing written notice
to the other in the event of the following: (i) a merger or sale of
substantially all of the assets of Xxxxxx'x resulting in a "change of control"
of Xxxxxx'x as defined under the regulations of the Securities and Exchange
Commission; (ii) a third-party (other than an existing Xxxxxx'x shareholder as
of the date of this Agreement) acquires an equity interest in Xxxxxx'x which
constitutes greater than thirty-five percent (35%) of the total equity interest
in Xxxxxx'x following such acquisition; or (iii) FORTUNE undergoes a strategic
shift with the result that the XXXXXXX.xxx Site includes no third-party summary
company or industry information of type and format similar to the Company
Capsules, Company Profiles and Industry Snapshots. [*]
5.2 ADVERTISING RATE.
5.2.1 [*]
5.2.2 [*]
11
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
5.2.3 FORTUNE shall make available to Xxxxxx'x the
opportunity to participate with Time Warner and Affiliate entities in
internal bidding for remnant advertising space in the FORTUNE Group
Magazines. Xxxxxx'x acknowledges and agrees that FORTUNE cannot guarantee
that Xxxxxx'x will win any of its bids.
5.2.4 Each party shall invoice the other upon receipt
of all Insertion Orders placed during the prior quarter. After giving effect
to the applicable rate discounts (which shall be explicitly set forth on each
invoice), each party shall remit such invoiced amounts within thirty (30)
days after receipt of the invoice.
6. DATA OWNERSHIP AND USAGE.
6.1 GENERAL. In connection with the transactions
contemplated by this Agreement, each party shall offer to the other party the
opportunity to obtain from them at no cost any reports, analyses, evaluations or
similar studies produced by the other party relating to aggregate User Data
("User Data Reports").
6.2 DISCLAIMER. Except as may be otherwise provided in
Section 15, each party acknowledges that, in all other respects, neither party
has any right, title or interest in any User Data collected by the other party
in connection with the FORTUNE Group Sites, or the Xxxxxx'x Site, as the case
may be.
7. PRIVACY POLICY.
FORTUNE and the FORTUNE Group Sites and Xxxxxx'x and the
Xxxxxx'x Site will at all times comply with the online privacy policies and
procedures promulgated by the Online Privacy Alliance or the Direct Marketing
Association and as may be otherwise required by law or regulation. FORTUNE
and the FORTUNE Group Sites and Xxxxxx'x and the Xxxxxx'x Sites will post a
privacy policy on their respective home pages and on each page of the their
respective sites where personally identifiable information is collected from
its users. Each party will be solely responsible for any claims arising out
of any inaccuracies or omissions on its online privacy policy or the failure
to comply with its online privacy policy.
8. MAILING LISTS.
8.1 FORTUNE MAGAZINE LIST. FORTUNE shall make available
(i) names and addresses of subscribers to FORTUNE Magazine and eCompany Now
Magazine once per calendar quarter during the Term hereof, and (ii) the e-mail
addresses of opt-in registered users of the FORTUNE Group Sites a minimum of
once per calendar quarter during the Term hereof, (collectively, the "FORTUNE
Lists") for the purpose of a one-time use direct mail campaign featuring
Xxxxxx'x Premium Subscriptions in accordance with the terms and conditions set
forth in this Section 8. In connection with such use, Xxxxxx'x agrees:
12
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
(a) that any and all portions of the FORTUNE Lists, as
well as all documentation of it and all data derived from it, in any form
whatsoever, are and shall always remain the exclusive and valuable property of
FORTUNE. Xxxxxx'x is expressly prohibited from incorporating the FORTUNE Lists,
or any data contained in or derived from it, into a database or any other form
of record-keeping system.
(b) that it shall diligently observe the proprietary
nature of the FORTUNE Lists and of all information and data encoded in it and/or
derived from it and shall take all necessary precautions to protect it from any
use not specifically authorized by this Agreement, by any and all persons or
organizations, both within the Xxxxxx'x organization and without, as long as
this Agreement is in effect and/or the FORTUNE Lists, or any portion thereof or
any data derived therefrom is in the possession or control of Xxxxxx'x.
(c) that the FORTUNE Lists shall be limited to
one-time use solely and exclusivelyfor addressing a specified solicitation to
the persons and/or organizations whose addresses it contains, and that this
solicitation shall be the same as that contained in the sample submitted to and
approved in writing by FORTUNE. Further, that in the course of undertaking this
solicitation and if the FORTUNE Lists are provided in electronic or magnetic
media, Xxxxxx'x may, if it chooses to: a) include the FORTUNE Lists and data
contained therein in a computer merge/purge operation for the sole purpose of
eliminating duplicate names and addresses one time and only in the mailing for
the solicitation in which the FORTUNE Lists are intended; and/or b) may compare
the FORTUNE Lists with other lists for the sole purpose of selecting or
suppressing certain parts of it solely for this solicitation. Xxxxxx'x shall
make no other use of the FORTUNE Lists.
(d) that upon completion of the solicitation mailing,
all FORTUNE List data delivered hereunder, or derived therefrom, shall be
returned to FORTUNE or destroyed, and will not be further used in whole or in
part, or transferred to any other party for any purpose whatsoever. An
officer of Xxxxxx'x shall certify in writing to FORTUNE to this effect.
(e) that the FORTUNE Lists provided under this
Agreement has been seeded with decoy addresses in order to detect
unauthorized use, and that Xxxxxx'x shall not remove or alter these decoy
addresses for any reason whatsoever.
9. TRADEMARK LICENSE.
9.1 FORTUNE MARKS.
9.1.1 Subject to the terms and conditions of this
Agreement, FORTUNE grants a limited, nonexclusive, nontransferable license to
Xxxxxx'x to use the FORTUNE Marks (a) as the FORTUNE Marks appear in the FORTUNE
Content made available to Xxxxxx'x, or (b) as may be otherwise approved by
FORTUNE in advance, provided that FORTUNE will have a continuing right of
approval over the use of any of
13
----------------------------
[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
the FORTUNE Marks used in connection with the Private Label Pages and the
Xxxxxx'x Site.
9.1.2 Xxxxxx'x shall submit to FORTUNE, for its prior
written approval, any and all materials displaying or referring to the FORTUNE
Marks, including without limitation, any advertising and promotional materials
relating to the FORTUNE Group Magazines, FORTUNE Group Sites, the FORTUNE
Products or the Xxxxxx'x Site. Xxxxxx'x agrees that the FORTUNE Marks are to be
used solely as provided herein. At no time shall Xxxxxx'x use or authorize
others to use the FORTUNE Marks except as may be approved in writing in advance
by FORTUNE. All uses of the FORTUNE Marks shall bear such legal notices as
FORTUNE may from time to time request. Xxxxxx'x compliance with all directions
of FORTUNE to protect the FORTUNE Marks is a material provision of this
Agreement.
9.1.3 Xxxxxx'x hereby acknowledges that the FORTUNE
Marks are valuable trademarks registered and/or owned exclusively by FORTUNE or
its Affiliates ("Company") and shall remain the sole property of Company.
Nothing in this Agreement shall confer any right of ownership in the FORTUNE
Marks in Xxxxxx'x. Xxxxxx'x shall not at any time contest the validity of the
FORTUNE Marks. Xxxxxx'x shall not use or display the FORTUNE Marks in any manner
which in Company's judgment may be deceptive or misleading or which might tend
to bring the FORTUNE Marks or Company into disrepute. Xxxxxx'x recognizes the
goodwill attached to the FORTUNE Marks and acknowledges Xxxxxx'x shall not use
any FORTUNE Marks in such a manner that confusion may arise in the public mind
as to the products or services for which the license being set forth herein is
being granted. Xxxxxx'x shall not adopt or use any names, logos or trademarks
which include or may be confusingly similar to the FORTUNE Marks.
9.2 XXXXXX'X MARKS.
9.2.1 Subject to the terms and conditions of this
Agreement, Xxxxxx'x grants a limited, nonexclusive, nontransferable license to
FORTUNE to use the Xxxxxx'x Marks (a) as the Xxxxxx'x Marks appear in the
Xxxxxx'x Content made available to FORTUNE, or (b) as may be otherwise approved
by Xxxxxx'x in advance, provided that Xxxxxx'x will have a continuing right of
approval over the use of any of the Xxxxxx'x Marks used in connection with the
FORTUNE Group Sites.
9.2.2 FORTUNE shall submit to Xxxxxx'x, for its prior
written approval, any and all materials displaying or referring to the Xxxxxx'x
Marks, including without limitation, any advertising and promotional materials
relating to the Xxxxxx'x Site. FORTUNE agrees that the Xxxxxx'x Marks are to be
used solely as provided herein. At no time shall FORTUNE use or authorize others
to use the Xxxxxx'x Marks except as may be approved in writing in advance by
Xxxxxx'x. All uses of the Xxxxxx'x Marks shall bear such legal notices as
Xxxxxx'x may from time to time request. FORTUNE's compliance with all directions
of Xxxxxx'x to protect the Xxxxxx'x Marks is a material provision of this
Agreement.
14
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
9.2.3 FORTUNE hereby acknowledges that the Xxxxxx'x
Marks are valuable trademarks registered and/or owned exclusively by Xxxxxx'x
and shall remain the sole property of Xxxxxx'x. Nothing in this Agreement
shall confer any right of ownership in the Xxxxxx'x Marks in FORTUNE. FORTUNE
shall not at any time contest the validity of the Xxxxxx'x Marks. FORTUNE
shall not use or display the Xxxxxx'x Marks in any manner which in Xxxxxx'x
judgment may be deceptive or misleading or which might tend to bring the
Xxxxxx'x Marks into disrepute. FORTUNE recognizes the goodwill attached to the
Xxxxxx'x Marks and acknowledges FORTUNE shall not use any Xxxxxx'x Marks in
such a manner that confusion may arise in the public mind as to the products
or services for which the license being set forth herein is being granted.
FORTUNE shall not adopt or use any names, logos or trademarks which include or
may be confusingly similar to the Xxxxxx'x Marks.
10. TERM. Unless terminated earlier as provided in Section 18, the
Term of this Agreement shall commence on the Effective Date and shall
continue until [*]
11. PUBLIC STATEMENTS. Within thirty (30) days after the Effective
Date, the parties shall mutually approve an appropriate press release to
describe the relationship between the parties and the transactions described
in this Agreement. Except as provided in the preceding sentence, no party
shall make any other announcements or statements to the public concerning the
relationship between them or the transactions described herein without the
prior written consent of the other parties.
12. OWNERSHIP.
12.1 As between Xxxxxx'x and FORTUNE, all right, title
and interest in and to FORTUNE Materials and the FORTUNE Group Sites (except
to the extent they contain any Xxxxxx'x Materials) shall belong to and remain
with FORTUNE, including without limitation, all copyright, patent, trademark,
trade secret and proprietary rights therein and thereto. FORTUNE will own all
data collected in connection with the sale of subscriptions to the FORTUNE
Group Magazines and/or through the sale of FORTUNE Products.
12.2 As between Xxxxxx'x and FORTUNE, all right, title
and interest in and to the Xxxxxx'x Materials and the Xxxxxx'x Site (except
to the extent they contain any FORTUNE Materials) shall belong to and remain
with Xxxxxx'x, including without limitation, all copyright, patent,
trademark, trade secret and proprietary rights therein and thereto. Xxxxxx'x
will own all data collected in connection with registrations for the Xxxxxx'x
Premium Subscriptions.
13. REPRESENTATIONS AND WARRANTIES.
13.1 FORTUNE represents and warrants as follows:
15
--------------------------------
[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
(a) FORTUNE has full power and authority to enter
into this Agreement, to perform all of its obligations hereunder, and its entry
into this Agreement does not violate any other agreement by which it is bound;
(b) the conduct of FORTUNE in performing this
Agreement, including the operation of the FORTUNE Group Sites and all FORTUNE
products and services offered or sold on or through the FORTUNE Group Sites and
the offer(s) themselves, shall at all times comply with all applicable laws,
rules and regulations; and
(c) FORTUNE has acquired and shall maintain all
rights and licenses necessary in connection with the performance of its
obligations under this Agreement.
13.2 Xxxxxx'x represents and warrants as follows:
(a) Xxxxxx'x has full power and authority to enter
into this Agreement, to perform all of its obligations hereunder, and its entry
into this Agreement does not violate any other agreement by which it is bound;
(b) the conduct of Xxxxxx'x in performing this
Agreement, including the operation of the Xxxxxx'x Site and all Xxxxxx'x
products and services offered or sold on or through the Xxxxxx'x Site and the
offer(s) themselves, shall at all times comply with all applicable laws, rules
and regulations; and
(c) Xxxxxx'x has acquired and shall maintain all
rights and licenses necessary in connection with the performance of its
obligations hereunder.
13.3 Warner Books represents and warrants as follows:
(a) Warner Books has full power and authority to
enter into this Agreement, to perform all of its obligations hereunder, and its
entry into this Agreement does not violate any other agreement by which it is
bound;
14. INDEMNIFICATION.
14.1 FORTUNE shall, at its sole cost, indemnify and hold
harmless Xxxxxx'x and its Affiliates, and their respective officers, directors,
employees, from and against any and all liability, cost, loss, damage, injury or
expense, including reasonable attorneys' fees, arising in connection with any
Third Party claim (a) based upon the acts or omissions of FORTUNE resulting out
of a breach, or allegation which if true would constitute a breach, of any of
its representations and warranties herein, or (b) alleging that any FORTUNE
Materials included on the FORTUNE Group Sites or utilized by Xxxxxx'x as
authorized pursuant to this Agreement, infringe on such Third Party's copyright,
patent, trademark, trade secret or other proprietary or intellectual property
16
--------------------------------
[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
rights under United States law, or constitute libel or defamation under United
States law, or (c) relating to or arising out of any FORTUNE product or service
offered, ordered or sold on or through the FORTUNE Group Sites (other than
Xxxxxx'x Premium Subscriptions) or (d) alleging that any statement (including
without limitation, the privacy policy on the FORTUNE Group Sites) made on the
FORTUNE Group Sites violates any false advertising, consumer protection or other
similar laws, rules or regulations.
14.2 Xxxxxx'x shall, at its sole cost, indemnify and
hold harmless FORTUNE and its Affiliates, and their respective officers,
directors and employees, from and against any and all liability, cost, loss,
damage, injury or expense, including reasonable attorneys' fees, arising in
connection with any Third Party claim (a) based upon the acts or omissions of
Xxxxxx'x resulting out of a breach, or allegation which if true would constitute
a breach, of any of its representations and warranties herein, or (b) alleging
that any Xxxxxx'x Materials included on the FORTUNE Group Sites or utilized by
FORTUNE as authorized pursuant to this Agreement, infringe on such Third Party's
copyright, patent, trademark, trade secret or other proprietary or intellectual
property rights under United States law, or constitute libel or defamation under
United States law, or (c) relating to or arising out of any Xxxxxx'x product or
service offered, ordered or sold on or through the Xxxxxx'x Site (other than
FORTUNE Group Magazine subscriptions and/or FORTUNE Products) or (d) alleging
that any statement (including without limitation, the privacy policy on the
Xxxxxx'x Site) made on the Xxxxxx'x Site violates any false advertising,
consumer protection or other similar laws, rules or regulations.
15. CONFIDENTIAL INFORMATION.
15.1 CONFIDENTIAL INFORMATION. For the purposes of this
Agreement, "Confidential Information" shall mean any and all proprietary and
confidential information provided, obtained or produced in connection with this
Agreement, and disclosed by or on behalf of either of the parties (a
"Discloser") to the other party (a "Recipient") in written, oral or other
tangible form, including without limitation, all non-public know-how information
furnished with respect to the Discloser or this Agreement that has been
identified as confidential, and all portions of any analyses, compilations,
data, studies or other documents prepared by, or at the direction of, the
Recipient, that contain or are based, in whole or in part, on any furnished
information or reflecting its review or use of such information.
15.2 OBLIGATIONS.
15.2.1 Other than as required for securities law
disclosure purposes, (a) each of the parties shall hold all Confidential
Information received from a Discloser in confidence, and shall use the
Confidential Information only in connection with this Agreement, and (b) neither
of the parties shall, without the Discloser's prior written consent, disclose or
use in any manner whatsoever, in whole or in part, any
17
--------------------------------
[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
Confidential Information received from the Discloser or its representatives
other than in connection with this Agreement.
15.2.2 Each Recipient receiving Confidential
Information from a Discloser agrees to undertake all necessary and appropriate
steps to ensure that the confidentiality of such Confidential Information is
maintained and that such Confidential Information is protected from unauthorized
disclosure. A Recipient shall exercise at least the same degree of care with
respect to maintaining the confidentiality of Confidential Information of the
Discloser that it exercises to maintain the confidentiality of its own
confidential and proprietary information of like importance.
15.3 OWNERSHIP. All tangible materials containing
Confidential Information delivered by a Discloser to a Recipient, including
without limitation documents, tapes, computer disks and other fixed storage
devices (whether or not machine or user readable) ("Confidential Materials"),
are the property of the Discloser. Upon expiration or termination of this
Agreement, all Confidential Materials (and all copies thereof) belonging to one
party in the other party's possession must be returned or destroyed, at the
option of its owner. If Confidential Materials are destroyed, a certificate of
destruction must be provided to their owner promptly upon request.
15.4 EXCEPTION. The restrictions of this Section 15
shall not apply to any Confidential Information: (v) after it has become
generally available to the public without breach of this Agreement by a
Recipient; (w) is rightfully in a Recipient's possession before disclosure to it
by a Discloser; (x) is independently developed by a Recipient without reference
to any Confidential Information of the Discloser; (y) is rightfully received by
a Recipient from a third party without a duty of confidentiality; or (z) to the
extent is required to be disclosed under operation of law or administrative
process.
16. [*]
17. LIMITATION ON LIABILITY; DISCLAIMER.
17.1 EXCEPT FOR EACH PARTY'S OBLIGATIONS UNDER SECTION
14, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
(EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS,
BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY CLAIM
ARISING OUT OF ANY DOWNLOADING OR OTHER USE OF THE FORTUNE GROUP SITES OR THE
XXXXXX'X SITE.
18
--------------------------------
[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
17.2 EXCEPT AS SET FORTH IN SECTION 13, FORTUNE MAKES
NO, AND XXXXXX'X ACKNOWLEDGES THAT FORTUNE HAS NOT MADE ANY, AND FORTUNE HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE FORTUNE MATERIALS, THE FORTUNE PRODUCTS AND/OR THE FORTUNE GROUP
SITES INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES
ARISING FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.
17.3 EXCEPT AS SET FORTH IN SECTION 13, XXXXXX'X MAKES
NO, AND FORTUNE ACKNOWLEDGES THAT XXXXXX'X HAS NOT MADE ANY, AND XXXXXX'X HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY XXXXXX'X MATERIALS, THE XXXXXX'X PREMIUM SUBSCRIPTIONS AND/OR THE
XXXXXX'X SITE , INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR
IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.
18. TERMINATION.
18.1 TERMINATION. This Agreement shall terminate at the
expiration of the Term. In addition, this Agreement may be terminated earlier
than the expiration of the Term, as follows:
(a) Either Xxxxxx'x or FORTUNE shall have the right
to terminate this Agreement if the other party has breached its obligations
under this Agreement. In such event, no right of termination shall arise until
the non-breaching party shall have given the breaching party written notice
describing the breach and thirty (30) days shall have passed from the delivery
of such notice during which the described breach shall not have been cured. In
any such event, the party exercising a right of termination shall do so by
written notice to the other party.
(b) Any party shall have the right to terminate
the Agreement upon written notice to the other party upon the occurrence of
any of the following events: (i) the other party commences a voluntary case
or proceeding; consents to the entry of an order for relief against it in an
involuntary case or proceeding; consents to the appointment of a receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law (a "Custodian") of it or for all or any substantial portion of
its property or assets; makes a general assignment for the benefit of its
creditors; or becomes insolvent or generally fails to or is unable to or
admits in writing its inability to pay its debts as they become due; or (ii)
an involuntary case or proceeding is commenced against the other party under
any Bankruptcy Law and is not dismissed, bonded or discharged within thirty
(30) days thereafter, or a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that is for relief against the other party in
an
19
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
involuntary case or proceeding; appoints a custodian of the other party or
for all or substantially all its properties; or orders the liquidation of the
other party. "Bankruptcy Law" as used herein shall mean title 11 of the
United States Code or any similar Federal, state or foreign law for the
relief of debtors or the arrangement, reorganization, assignment for the
benefit of creditors or any other marshaling of assets or liabilities of
debtors.
(c) Either Xxxxxx'x or FORTUNE shall have the
right to terminate this Agreement in the event of a merger or sale of
substantially all of the assets of Xxxxxx'x resulting in a "change of
control" of Xxxxxx'x as defined under the regulations of the Securities and
Exchange Commission. In such event, the party seeking to terminate the
Agreement shall provide the other party with at least sixty days' prior
written notice of its intention to terminate, and the termination shall
become effective as of the date specified in such notice.
(d) In the event that Xxxxxx'x elects to exercise
its termination rights as set forth in Section 19(b).
18.1.2 The provisions of Sections 12, 14, 15, 17 and
20 shall survive the expiration or earlier termination of this Agreement. Any
payment obligations incurred by either party prior to the expiration or earlier
termination of this Agreement shall survive such expiration or termination.
18.1.3 Upon the expiration or termination of this
Agreement, (i) each party shall immediately destroy or return the other party's
Materials or any Confidential Information provided under this Agreement, and
shall have an authorized officer certify in writing that such destruction or
return has been completed, and (ii) each party shall discontinue the use of the
other's Materials and shall remove all hyperlinks or references to other party
from its site.
19. [*]
20. MISCELLANEOUS.
20.1 NOTICE. Any demands or notices (collectively,
"notices") required or permitted to be sent by this Agreement shall be in
writing and sent in a manner requiring a signed receipt such as authenticated
facsimile transmission, Federal Express or like courier delivery, or if mailed,
then mailed by registered or certified mail, return receipt requested. Notice is
effective: (i) upon personal delivery; (ii) if sent by facsimile, upon
confirmation of receipt; or (iii) if sent by Federal Express or like courier
delivery, registered or certified mail, upon receipt. Notices shall be sent to
the named persons at the addresses set forth below, on behalf of the parties,
unless a party changes its designee or address by giving written notice to the
other party, such notice being effective upon receipt by the party to whom it is
addressed. The addresses and requirements for notices and copies are as follows:
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
If to Xxxxxx'x:
Xxxxxx'x, Inc.
0000 Xx Xxxxxx Xxxxx, Xxx. 000
Xxxxxx, Xxxxx 00000
Attention: CEO
With a copy to:
Xxxxxx'x, Inc.
0000 Xx Xxxxxx Xxxxx, Xxx. 000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
If to FORTUNE
The FORTUNE Group,
A division of Time Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
With a copy to:
Time Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Such notice will be given to such other representatives or at such other
addresses as a party may furnish to the other parties pursuant to the foregoing.
If notice is given pursuant to this Section 20.1 of a permitted successor or
assign of a party, then notice will thereafter be given as set forth above also
to such successor or assign of such party.
20.2 FORCE MAJEURE. Except as otherwise expressly
provided in this Agreement, neither party shall be liable for any breach of this
Agreement for any delay or failure of performance resulting from any cause
beyond such party's reasonable control, including but not limited to the
weather, strikes or labor disputes, war, terrorist acts, riots or civil
disturbances, government regulations, acts of civil or military authorities,
failure of the Internet or acts of God provided the party affected takes all
reasonably necessary steps to resume full performance.
20.3 WAIVER. No waiver shall be effective unless in a
writing executed by the party against whom it is to be enforced. The failure of
any party at any time or times to require performance of any provision of this
Agreement will in no manner affect the right to enforce the same; and no waiver
by any party of any provision (or of a breach of any provision) of this
Agreement in any one or more instances will be deemed or
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
construed either as a further or continuing waiver of any such provision or
breach or as a waiver of any other provision (or of a breach of any other
provision) of this Agreement.
20.4 HEADINGS. The headings used in this Agreement will
be for the convenience of the parties only and will not be considered as
interpreting or applying the provisions of this Agreement.
20.5 GOVERNING LAW. This Agreement and any disputes
arising under or related thereto (whether for breach of contract, tortious
conduct or otherwise) shall be governed and interpreted in accordance with the
laws of the State of New York, without reference to its conflicts of law
principles.
20.6 Choice of Forum. Any legal actions, suits or
proceedings arising out of this Agreement (whether for breach of contract,
tortuous conduct or otherwise shall be brought exclusively in the state courts
of New York or in the United States District Court for the Southern District of
New York; and the parties to this Agreement hereby accept and submit to the
personal jurisdiction of these New York courts with respect to any legal
actions, suits or proceedings arising out of this Agreement.
20.7 ADDITIONAL DOCUMENTS. The parties agree to execute
such additional documents as may be reasonably necessary or desirable for the
other party to enforce its rights hereunder or otherwise to effectuate the
purposes of this Agreement.
20.8 INTEGRATION. This Agreement constitutes the entire
understanding and agreement between the parties hereto with respect to the
subject matter of this Agreement and supersedes all prior oral and written
negotiations, understandings and agreements relating thereto and may not be
modified, discharged, amended or terminated, except by a writing signed by an
authorized signatory of each party.
20.9 BINDING EFFECT; ASSIGNMENTS.
20.9.1 This Agreement shall inure to the benefit of
and shall be binding upon the parties, their respective successors, permitted
transferees and assigns.
20.9.2 Neither party shall sell, transfer,
distribute or assign this Agreement or their rights or obligations hereunder,
without the prior written consent of the other, and any such attempted
assignment shall be null and void. Notwithstanding the foregoing, either
party may assign this Agreement to an Affiliate or successor-in-interest
without the prior written consent of the other party.
20.10 EXPENSES. Except as otherwise specifically provided
in this Agreement, each party shall bear its own expenses in connection with
its performance of this Agreement.
20.11 RELATIONSHIP. Nothing in this Agreement shall be
construed to constitute the parties hereto as partners or as joint venturers, or
either as agent of the
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
other, and neither party shall have power to obligate or bind each other in
any manner except as provided in this Agreement.
20.12 Each party agrees that it shall exercise their
respective approval rights granted hereunder in good faith and not in a
manner intended to frustrate the purpose and transactions contemplated in
this Agreement.
20.13 SEVERABILITY. To the extent that any provision of
this Agreement that does not materially affect the intent of the parties
hereto shall be found by a court of competent jurisdiction invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of
such provision and of this Agreement shall be unaffected and shall continue
in full force and effect.
20.14 CONSENTS. Any consent or approval to be given
under this Agreement may be delegated by the party to give such consent or
approval to any agent or representative as such party may, from time to time,
authorize in writing.
20.15 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing one or
more counterparts.
20.16 THIRD PARTIES. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give any Person other
than the parties hereto, their permitted successors or assigns, any rights or
remedies under or by reason of this Agreement.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date identified above.
XXXXXX'X, INC. THE FORTUNE GROUP,
a division of Time Inc.
By: By:
------------------------------ --------------------------------------
Name: Name:
---------------------------- ------------------------------------
Title: Title:
--------------------------- -----------------------------------
WARNER BOOKS MULTIMEDIA CORP.
By:
--------------------------------------
[*]
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
EXHIBIT A
"Xxxxxx'x Company Capsules" shall mean capsules of company information,
each covering one of approximately 17,000 public and private enterprises
worldwide, consistent with Xxxxxx'x Company Capsules published on Xxxxxx'x
Online. Each Xxxxxx'x Company Capsule contains the following information,
when available:
[*]
"Xxxxxx'x Company Profiles" shall mean a profile of a company, each
covering one of approximately 4,000 public and private enterprises
worldwide and being consistent with Xxxxxx'x Company Profiles published on
Xxxxxx'x Online. Each Company Profile will include the following:
-[*]
and any other information currently included in the Company Profile
database or any additions to such Company Profile database.
"Xxxxxx'x Industry Snapshots" shall mean a profile of a major industry, each
covering one of approximately 56 industries and being consistent with Xxxxxx'x
Industry Snapshots published on Xxxxxx'x Online. Each Industry Snapshot will
contain the following information, when available:
[*]
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[*] Indicates that material has been omitted and confidential treatment
requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
EXHIBIT B
SERVICE LEVEL REQUIREMENTS
1. Uptime Performance. Xxxxxx'x shall maintain Uptime of at least [*] of the
time within each calendar month of this Agreement, barring exceptions detailed
under Measurement Stipulations below. "Uptime" means that a user on the Internet
is able to access the Private Label Pages and that access to the Private Label
Pages will not result in retrieval errors. Xxxxxx'x will ensure that the
performance and availability of the Private Label Pages is monitored on a
continuous, 24/7 basis and shall remain competitive in all material respects
with the performance and availability of other similar sites.
2. Performance Penalty. If the Uptime falls below [*] in any [*] during the Term
of this Agreement, then FORTUNE shall have, for a period of sixty (60) days
following the determination of Xxxxxx'x failure to meet the Uptime standard for
the second such month, the right to terminate this Agreement upon the provision
of thirty (30) days written notice to Xxxxxx'x.
3. Measurement Stipulations. Performance shall be measured by an independent
third party company agreed upon by both parties and at FORTUNE' s expense,
subject to reasonable industry standards for measurement. Measurement periods
shall begin at 12:00 a.m. on the first day of a calendar month and shall end at
11:59 p.m. on the last day of a calendar month. Any scheduled maintenance
performed by Xxxxxx'x or its agent shall be excluded from uptime calculations.
Xxxxxx'x shall not be responsible for access problems to the Private Label Pages
caused by failure of a user or third party measurement company's ISP,
intervening ISP between the user or third party measurement company's ISP, or
peering points (public or private) between any of the aforementioned parties.
Such failures shall not be included in performance measurement calculations.
Problems accessing content caused by user action or lack thereof (i.e., forgot
password, proxies or browser is not standards compliant, etc.) shall not count
toward performance measurement calculations. However, Xxxxxx'x shall take
commercially reasonable steps to solve such problems as they arise.
4. Outage Notification. Xxxxxx'x shall notify FORTUNE at least 24 hours prior to
any scheduled downtime.
5. Support. Xxxxxx'x shall provide telephone support and electronic mail support
to FORTUNE on a 24/7 basis. Xxxxxx'x shall respond to FORTUNE's requests within
a predefined time period specific to the Problem Severity Codes set forth below:
Problem Severity Code Level 1: Major system failure/Web site downtime. Major
failure attributed to Xxxxxx'x hardware, software, network connectivity, or
server hosting facility. Xxxxxx'x Site and the Private Label Pages are down
causing critical impact to business operations if services are not restored
quickly. Xxxxxx'x and FORTUNE will
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R.
SECTIONS 200.83 AND 230.496
commit substantial resources around the clock to resolve the situation.
Xxxxxx'x response time will be one (1) hour, so long as the recommended call
procedures are followed, which will be as agreed upon by the parties.
Problem Severity Code Level 2: Degradation of service on the applicable portion
of the Xxxxxx'x Site and Private Label Pages, including but not limited to
end-user experience and transaction processing. Degradation significantly
impacts business operations and quality of service. Xxxxxx'x and FORTUNE will
commit full-time resources during business hours to resolve the situation.
Xxxxxx'x response time will be four (4) hours, so long as the recommended call
procedures are followed, which will be as agreed upon by the parties.
Problem Severity Code Level 3. Minor impact on site usability or performance. A
problem that has no impact on current functionality or accessibility. Xxxxxx'x
and FORTUNE will commit appropriate resources based on mutual agreement of scope
of problem and solution. Xxxxxx'x response time will be one (1) business day, so
long as the recommended call procedures are followed, which will be as agreed
upon by the parties.
6. Backup and Recovery. Xxxxxx'x shall provide at least industry standard backup
procedures, which shall include incremental daily backup of all transaction
data, full weekend backup, offsite tape storage, including content and database
dumps.
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requested therefor. All such material has been filed separately with the
Commission pursuant to Rule 406.
