AGREEMENT
This Agreement is by and between Lycos Japan, (a joint Venture between
Lycos Inc., Sumitomo Corporation and Internet Initiative Japan) a Japanese
Corporation with a principal place of business at 0X Xxxxxxxxx Xxxx.,
Xxxxxxxxxxxxxxx, Xxxxxxx-Xx, Xxxxx, 000-0000 Xxxxx ("Lycos Japan"), and
XxxxXxx.xxx, Inc. a US company with a principal place of business at 00 Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx, 00000 XXX ("XxxxXXX.xxx").
Both parties agree to execute a definitive agreement by May 24, 1999
Recitals
A. Lycos Japan is the owner or licensee of the Japanese Web service.
B. XxxxXxx.xxx, Inc. the operator of a Web site accessible through the
URL xxx.XxxxXxx.xxx, (the "XxxxXxx.xxx Site") that provides a online
telecommunications products and services over the Internet.
Overview
Lycos Japan will place banners, promotional buttons, text links and other
hyperlinks from its Home Pages and Web Guides to the XxxxXXX.xxx site.
Additionally a presence will be provided on search results pages in the form of
banners, promotional buttons, text links and other hyperlinks. Lycos Japan will
provide keyword product when available.
TERMS
1/ Lycos Japan's Obligations:
Advertising Impressions. Lycos Japan shall provide advertising links promoting
the XxxxXXX.xxx site within the Lycos Japan sites. Lycos Japan shall provide
these advertising impressions in accordance with Lycos Japan' standard
advertising terms and conditions.
Affiliate Program. Lycos Japan will provide links promoting XxxxXXX.xxx on its
Affiliate Program Community, when available. Lycos Japan will allocate a part of
48,000,000 impressions to Affiliate Program when available.
Premier Partner Status. Lycos Japan shall designate XxxxXXX.xxx as a Premier
Partner in its Affiliate Program, when available.
Impression Guarantees. Lycos Japan guarantees during the term of this agreement
it shall provide XxxxXXX.xxx with 48,000,000 impressions. XxxxXXX.xxx shall have
the right, at its own expense, to audit Lycos Japan's books and records for the
purpose of verifying impressions served. Such audits will be made not more than
once per year, and not less than (10) ten days written notice, during regular
business hours, by auditors reasonably acceptable to Lycos Japan. Such audits
shall not interfere with Lycos Japan's normal business. In the event that Lycos
Japan has not delivered 48,000,000 impressions by the end of the Term, Lycos
Japan will continue to deliver impressions until that level of impressions is
received.
2/ XxxxXXX.xxx Inc.'s obligations:
Integration. XxxxXxx.xxx shall provide Lycos Japan with any assistance requested
by Lycos Japan in establishing links between Lycos Japan and the XxxxXXX.xxx
Site.
Lycos Japan Integration Fees. During the period beginning on the Effective Date
and ending on the two year anniversary, XxxxXXX.xxx shall pay Lycos Japan
$160,000 payable as follows: (i) $40,000 within 30 days of the Effective Date;
(ii) six quarterly installment payments of $20,000 due 90, 180, 270, 360, 450,
540 days after the Effective Date.
Lycos Japan Transaction Fees. In addition to the integration fees outlined
above, during the term and for two years thereafter, for a total of four years,
XxxxXXX.xxx shall owe Lycos Japan a percentage of any sales made my users and
affiliates referred to the XxxxXXX.xxx Site through the impressions, promotions
and offers outlined in Section 1. Initially, XxxxXXX.xxx shall owe Lycos Japan
20% of the Net Sales Revenue. Lycos Japan's percentage of the Net Sales shall be
credited dollar for dollar against the Integration Fee outlined above, until
such time as the full amount of Integration Fee has been offset. At such time,
the percentage share due Lycos Japan shall decrease to 15% of the Net Sales
Revenue, and XxxxXXX.xxx shall commence paying Lycos Japan its share of the Net
Sales Revenue at the end of each quarter such occurrence.
Affiliate Bounty. WHEN AVAILABLE, XxxxXXX.xxx shall pay Lycos Japan $40 (the
"Affiliate Bounty") for every affiliate member who registers for the XxxxXXX.xxx
Partner Affiliate
Program. XxxxXXX.xxx shall pay Lycos every calendar quarter the Affiliate Bounty
as follows: 50% upon registration by the affiliate and 50% upon the affiliate
signing a minimum of five customers for the XxxxXXX.xxx products or services.
3/ Term:
The term ("Term") of this Agreement shall commence on the Effective Date and
continue for two years unless terminated earlier as provided in Article 9/
below.
4/ Marks:
Lycos Japan hereby grants to XxxxXXX.xxx the non-exclusive right to use the
Lycos Japan Marks solely for the purposes of co-branding specified in this
Agreement. XxxxXXX.xxx hereby grants Lycos Japan the Non-exclusive,
non-transferable right to use the XxxxXXX.xxx Marks solely for the purposes
specified in this Agreement. Except as expressly stated herein, neither party
shall make any other use of the other party's marks. Upon request of either
party, the other party shall provide appropriate attribution of the use of the
requesting party's marks.
5/ Representations and Warranties: Each party hereby represents and
warrants as follows:
a. Corporate Power. Such party is duly organized and validly existing
under the laws of the state of its incorporation and has full corporate power
and authority to enter into this Agreement and to carry out the provisions
hereof.
b. Due Authorization. Such party is duly authorized to execute and
deliver this Agreement and to perform its obligations hereunder.
c. Binding Agreement. This Agreement is a legal and valid obligation
binding upon it and enforceable with its terms. The execution, delivery and
performance of this Agreement by such party does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a party
or by which it may be bound, nor violate any law or regulation of any court,
governmental body or administrative or other agency having jurisdiction over it.
d. Intellectual Property Rights. Such party has the full and exclusive
right to grant or otherwise permit the other party to access the XxxxXXX.xxx
Site content and to use the trademarks, logos and trade names as set forth on
this Agreement, and that it is aware of no claims by any third parties adverse
to any of such property rights.
The representations and warranties and covenants in this Section 5 are
continuous in nature and shall be deemed to have been given by each party at
execution of this Agreement and at each stage of performance hereunder. These
representations, warranties and covenants shall survive termination or
expiration of this Agreement.
6/ Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 5
ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
7/ Indemnification:
a. XxxxXXX.xxx Indemnity. XxxxXXX.xxx will at all times indemnify and
hold harmless Lycos Japan and its officers, directors, shareholders, employees,
accountants, attorneys, agents, successors and assigns from and against any and
all third party claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, arising out of or related to any breach of
any warranty, representation, covenant or agreement made by XxxxXXX.xxx in this
Agreement. Lycos Japan shall give XxxxXXX.xxx prompt written notice of any
claim, action or demand for which indemnity is claimed. XxxxXXX.xxx shall have
the right, but not obligation, to control the defense and/or settlement of any
claim in which it is named as a party. Lycos Japan shall have the right to
participate in any defense of a claim by XxxxXXX.xxx with counsel of Lycos
Japan's choice at Lycos Japan's own expense. The foregoing indemnity is
conditioned upon: prompt written notice by Lycos Japan to XxxxXXX.xxx of any
claim, action or demand for which indemnity is claimed; complete control of the
defense and settlement thereof by XxxxXXX.xxx; and such reasonable cooperation
by Lycos Japan in the defense as XxxxXXX.xxx may request.
b. Lycos Japan Indemnity. Lycos Japan will at all times defend,
indemnify and hold harmless XxxxXXX.xxx and its officers, directors,
shareholders, employees, accountants, attorneys, agents, successors and assigns
from and against any and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to any breach of any warranty, representation, covenant or agreement
made by Lycos Japan in this Agreement. XxxxXXX.xxx shall give Lycos Japan prompt
written notice of any claim, action or demand for which indemnity is claimed.
Lycos Japan shall have the right, but not the obligation, to control the defense
and/or settlement of any claim in which it is named as a party. XxxxXXX.xxx
shall have the right to participate in any defense of a claim by Lycos Japan
with counsel defense of XxxxXXX.xxx chosen at its own expense. The foregoing
indemnity is conditioned upon; prompt written notice by XxxxXXX.xxx to Lycos
Japan of any claim, action or demand for which indemnity is claimed; complete
control of the defense and settlement thereof by Lycos Japan; and such
reasonable cooperation by XxxxXXX.xxx in the defense of Lycos Japan may request.
8/ Confidentiality, Press Releases:
a. Non-Disclosure Agreement. The parties agree and acknowledge
that, as a result of negotiating, entering into and performing
this Agreement, each party has and will have access to certain
of the other party's Confidential Information (as defined
below). Each party also understands and agrees that misuse
and/or disclosure of that information could adversely affect
the other party's business. Accordingly, the parties agree
that, during the Term of this Agreement and thereafter, each
party shall use and reproduce the other party's Confidential
Information only for purposes of this Agreement and only to
the extent necessary for such purpose and shall restrict
disclosure of the other party's Confidential Information to
its employees, consultants or independent contractors with a
need to know and shall not disclose the other party's
confidential information to any third party without the prior
written approval of the other party. Notwithstanding the
foregoing, it shall not be a breach of this Agreement for
either party to disclose Confidential Information of the other
party if required to do so under law or in a judicial or other
governmental investigation or proceeding, provided the other
party has been given prior notice and the disclosing party has
sought all available safeguards against widespread
dissemination prior to such disclosure.
b. Confidential Information Defined. As used in this Agreement,
the term "Confidential Information" refers to (i) the terms
and conditions of this Agreement; (ii) each party's trade
secrets, business plans, strategies, methods and/or practices;
and (iii) other information relating to either party that is
not generally know to the public, including information about
either party's personnel, products, customers, marketing
strategies, services or future business plans. Notwithstanding
the foregoing, the term "Confidential Information"
specifically excludes (A) information that is now in the
public domain or subsequently enters the public domain by
publication or otherwise through no action or fault of the
other party; (B) information that is known to either party
without restriction, prior to receipt from the other party
under this agreement from its own independent sources as
evidenced by such party's written records, and which was not
acquired, directly or indirectly, from the other party; (C)
information that either party receives from any third party
reasonably known by such receiving party to have a legal right
to transmit such information, and not under any obligation to
keep such information confidential; and (D) information
independently developed by either party's employees or agents
provided that either party can show that those same employees
or agents had no access to the Confidential Information
received hereunder.
c. Press Releases. Lycos Japan and XxxxXXX.xxx may jointly
prepare press releases concerning the existence of this
Agreement and the terms hereof. Otherwise, no public
statements concerning the existence or terms of this Agreement
shall be made or released to any medium except with the prior
approval of Lycos Japan and XxxxXXX.xxx or as required by law,
except where such information is already clearly in the public
domain or the subject or existing jointly approved press
releases.
9/ Termination. Either party may terminate this Agreement if (a) the
other party files a petition for bankruptcy or is adjudicated bankrupt; (b) a
petition in bankruptcy is filed against the other party and such petition is
not dismissed within sixty (60) days of the filing date; (c) the other party
becomes insolvent or makes an assignment for the benefit of its creditors
pursuant to any bankruptcy law; (d) a receiver is appointed for the other party
or its business; (e) upon the occurrence of a material breach by the other
party if such breach is not cured within thirty (30) days after written notice
is received by the breaching party identifying the matter constituting the
material breach; (f) after 1 year either party may exercise the right to
terminate the agreement under this clause, 9/(f), in which case, Lycos Japan
must give 90 days notice to XxxxXXX.xxx and agrees to waive any further
payments from XxxxXXX.xxx. Equally, should XxxxXXX.xxx exercise this clause,
9(f), then they shall give 90 days notice to Lycos Japan and remain liable for
subsequent monthly guaranteed payments falling under the terms of this
Agreement within the 90 day notice period; (g) by mutual consent of the
parties.
10/ Force Majeure. In the event that either party is prevented from
performing, or is unable to perform, any of its obligations under this
Agreement due to any cause beyond the reasonable control of
the party invoking this provision, the affected party's performance shall be
excused and the time for performance shall be extended for the period of delay
or inability to perform due to such occurrence.
11/ Relationship of Parties. XxxxXXx.xxx and Lycos Japan are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture or agency relationship between XxxxXXX.xxx
and Lycos Japan. Neither party has authority to enter into agreements of any
kind on behalf of the other.
12/ Assignment, Binding Effect. Neither Lycos Japan nor XxxxXXX.xxx may
assign this Agreement or any of its rights or delegate any of its duties under
this Agreement without the prior written consent of the other.
13/ Choice of Law and Forum. This Agreement, its interpretation,
performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and wholly
to be performed within said state. XxxxXXX.xxx hereby consents to the personal
jurisdiction of the Commonwealth of Massachusetts, acknowledges that venue is
proper in any state or Federal court in the Commonwealth of Massachusetts,
agrees that any action related to this Agreement must be brought in a state or
Federal court in the Commonwealth of Massachusetts, and waives any objection
XxxxXXX.xxx has or may have in the future with respect to any of the foregoing.
14/ Good Faith. The parties agree to act in good faith with respect to
each provision of this Agreement and any dispute that may arise related hereto.
15/ Additional Documents/Information. The parties agree to sign and/or
provide such additional documents and/or information as may reasonably be
required to carry out the intent of this Agreement and to effectuate its
purposes.
16/ Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
17/ No Waiver. The waiver by either party of a breach or a default of any
provision of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
18/ Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
19/ Severability. Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the
legal enforceability of any specific provision.
20/ Notices. All notice required to be given under this Agreement must be
given in writing and delivered either in hand, by certified mail, return
receipt requested, postage pre-paid, or by Federal Express or other recognized
overnight delivery service, all delivery charges pre-paid, and addressed:
If to Lycos Japan: Lycos Japan Kabushiki Kaisha
5F Kinseisha Bldg., 0-00, Xxxxxxxxxxxxxxx,
Xxxxxxx-xx, Xxxxx, 000-0000 Xxxxx
Attention: Xx. Xxxxx Xxxxxxx Xxxxxxx, C.E.O.
If to XxxxXXX.xxx: XxxxXXX.xxx, Inc.
00 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxxx Xxxxxxxxxxx, C.E.O.
22/ Entire Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the transactions and matter contemplated
hereby, supersede all previous agreements between Lycos Japan and XxxxXXX.xxx
concerning the subject matter, and cannot be amended except by writing signed
by both parties. No party hereto has relied on any statement, representation or
promise of any other party or with any other officer, agent, employee or
attorney for the other party in executing this Agreement except as expressly
stated herein.
23/ Limitations of 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 PROVISION OF THIS AGREEMENT (INCLUDING SUCH
DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR DAMAGES IN EXCESS OF THE AMOUNT RECEIVED BY THE OTHER PARTY UNDER
THIS AGREEMENT, PROVIDED THAT THIS SECTION DOES NOT LIMIT EITHER PARTY'S
LIABILITY TO THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT
DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH
CAUSED BY NEGLIGENCE; OR (D) INDEMNIFICATION OBLIGATIONS HEREUNDER.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
XxxxXXX.xxx, Inc. Lycos Japan KK
By: /s/ Xxxxxxxxx Xxxxxxxxxxx _________ By: /s/ Kazuo Xxxxxxx Xxxxxxx _____
Name: Xxxxxxxxx Xxxxxxxxxxx, C.E.O. Name: Kazuo Xxxxxxx Xxxxxxx, C.E.O.
Title: C.E.O. Title: C.E.O.
Date: May 26, 1999 Date: May 26, 1999
