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Exhibit 10.16
CONFIDENTIAL
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
This agreement ("Agreement") is entered into as of the 23rd day of September,
1997 ("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and N2K
Inc., a Pennsylvania corporation, located at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx, 00000 ("Sponsor").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Excite Site") and owns and/or manages related Web Sites worldwide
(collectively, the "Excite Network") which, among other things, allow users
to search for and access content and other sites on the Internet.
B. Excite also maintains and/or manages certain Web pages which may be
delivered to users via email, desktop "channels" or Internet "push"
technologies (collectively, "Broadcast Pages") which may incorporate
content supplied to Excite by third parties for the purpose of providing
value to Excite users and providing access to the content, products and/or
services of such third parties.
C. Sponsor is in the business of distributing certain online retail music
merchandise and related content and maintains a Web site at
xxxx://xxx.xxxxxxxxx.xxx (the "Sponsor Site") and other Web sites through
which it makes this merchandise and this content available to its users.
D. Sponsor wishes to be the exclusive retail store music sponsor of the Excite
Site and the Excite Broadcast Pages, to distribute its music-related
content through the Excite Site and the Excite Broadcast Pages and to
promote its online retail music merchandise business to Xxxxxx.xxx users.
Therefore, the parties agree as follows:
1. EXCLUSIVITY, TERM AND RIGHT OF FIRST REFUSAL
a) Sponsor will be the exclusive retail music store sponsor of
the Excite Site and the Excite Broadcast Pages. Excite will
not permit the display of advertising banners, promotional
buttons, promotional links or other promotional materials for
any retail sale of Music Products on the Excite Site, except
those Music Products offered by Sponsor, nor advertising by
any other Retail Music Store. "Retail Music Store" shall mean
any entity which is primarily engaged in the sale of Music
Products at retail to consumers. "Music Products"
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shall mean pre-recorded music hard goods, digitally
distributed music (except live and/or cybercast events), music
books (to the extent this Agreement does not conflict with
Excite's existing agreement with Xxxxxx.xxx), music-related
t-shirts and apparel, and music videos (except live and/or
cybercast events).
Notwithstanding the foregoing, Excite may make available
opportunities on the Excite Site to purchase Music Products
from parties other than Sponsor if such Music Products are not
available from Sponsor so long as, prior to entering into
arrangements to make available opportunities to purchase Music
Products from parties other than Sponsor, Excite notifies
Sponsor of its interest in the Music Products and gives Sponsor
thirty (30) days to make the desired Music Products available
through the Sponsor Site. Excite and Sponsor acknowledge that
certain market opportunities may arise in which the desired
Music Products must be made available on less than thirty (30)
days advance notice and will work together in good faith to
maximize those opportunities. In no event will Excite enter
into arrangements to make available opportunities to purchase
Music Products from parties other than Sponsor that would
prevent Sponsor from being the exclusive source of such Music
Products on the Excite Site once the Music Products become
available through Sponsor.
b) The term of this Agreement will begin on the Effective Date and
will end on the second (2nd) anniversary of the Commencement
Date. The "Commencement Date" means the date on which Excite
commences delivery of Impressions (defined below). The parties
anticipate the Commencement Date will be on or about October
15, 1997.
c) The parties' existing agreements regarding sponsorship of the
WebCrawler Web site (xxxx://xxxxxxxxxx.xxx) and all of the
existing advertising buys on the Excite Network will be
terminated as of the Commencement Date. Excite will credit
Sponsor in an amount equal to [****]. This credit will be
applied to reduce the first year exclusivity fee described in
Section 7(b) and will be reflected in a reduction of Sponsor's
December 31, 1997 payment to Excite described in Section 7(e).
d) Excite will offer Sponsor the right of first refusal to
negotiate with Excite for renewal of this sponsorship.
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i) Excite will not propose, solicit or negotiate offers from
entities other than Sponsor for any retail music store
sponsorships of the Excite Site, if at all, until [****] prior
to the expiration of the term of this Agreement.
ii) Commencing not later than [****] prior to the expiration
of the term of the Agreement, Excite will negotiate with
Sponsor in good faith with respect to the terms and conditions
under which this Agreement would be renewed. Excite will
negotiate exclusively with Sponsor for the next [****] in good
faith effort to negotiate and execute a written sponsorship
renewal agreement. If, [****] prior to the expiration of the
term of the Agreement, the parties have not entered into a
written sponsorship renewal agreement. Excite may enter into
negotiations with any third party with respect to retail music
store sponsorships of the Excite Site.
iii) In the event that Excite intends to enter into an
agreement with a third party with respect to retail music
store sponsorships of the Excite Site before the expiration of
the term of the Agreement, Excite will deliver to Sponsor a
written notice describing the relevant opportunity. Although
Excite will not be required to disclose any information in
violation of any nondisclosure agreement between Excite and
any third party, the notice will include information
sufficient to permit Sponsor to evaluate the requirements for
meeting the competing offer for retail music store sponsorship
of the Excite Site and to formulate a meaningful response.
Sponsor will have [****] after receipt of such written notice
to provide notice to Excite that it is prepared to enter into
an agreement with Excite on the same terms and conditions as
Excite proposes to accept from such third party. Excite and
Sponsor will then promptly commence good faith negotiations to
conclude the agreement.
iv) If Sponsor rejects said offer or fails to notify Excite of
its acceptance within the [****] period, Excite shall have
the right thereafter to enter into the agreement with such
third party, provided the terms and conditions of the
agreement (if entered into within the subsequent ninety (90)
days) are not less favorable to Excite than previously offered
by Sponsor.
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2. IMPRESSIONS
a) "Impression" means any appearance of a link to the Sponsor
Site whether graphic, text or any combination of graphic and
text. More than one Impression may appear on a page, except,
however, not more than three (3) Impressions per Channel page
will count towards delivery of guaranteed Impressions and, of
these 3 Impressions, at least two (2) will link to pages in
the Sponsor Site offering Music Products; not more than two
(2) Impressions per generic search results page will count
towards delivery of guaranteed Impressions and, of these 2
Impressions, at least one (1) will link to pages in the
Sponsor Site offering Music Products; and no more than one (1)
Impression per specific search results page will count towards
delivery of guaranteed Impressions. In all events, Excite will
make a good faith effort to avoid duplicate Impressions on a
single page, but in no event will more than one (1)
Impression for the same artist on a Music Product page count
towards delivery of guaranteed Impressions. For the purposes
of this Agreement, "generic search results page" is an Excite
Search results page displayed in response to a query
concerning generic music topics and a "specific search results
page" is an Excite Search results page displayed in response
to a query concerning a specific music artist or specific
album title.
b) Excite and Sponsor will work together in good faith to define
mutually agreeable Impressions in the Excite Site designed to
provide content of interest (defined below) to Excite users
and/or promote the Sponsor Site, in numbers sufficient to meet
the Impression guarantees stated in Section 3.
c) Excite and Sponsor will collaborate on the design, appearance,
and placement (the "look and feel") of all Impressions. Excite
will have final approval over the look and feel of the
promotional Impressions, which approval will not be
unreasonably withheld.
3. IMPRESSION GUARANTEES
a) During the first year of the sponsorship following the
Commencement Date, Excite will deliver not less than
[****] Impressions on the Excite Site.
b) During the second year of the sponsorship following the first
anniversary of the Commencement Date, Excite will deliver not
less than [****] Impressions on the Excite Site.
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c) Excite will report traffic, Impressions and click-thrus to
Sponsor on a monthly basis.
4. CONTENT PROVIDED TO EXCITE
a) Sponsor will provide to Excite the content described in
Exhibit A ("Content"), subject to the terms and conditions
hereunder. Excite may incorporate music-related content on the
Excite Site from parties other than Sponsor so long as any
links in or associated with such third-party content relating
to opportunities to purchase Music Products will link to pages
in the Sponsor Site. Any Content which appears in the Excite
Site will be accompanied by attribution or branding
identifying Sponsor as the source of the Content and linking
to the Sponsor Site.
b) Sponsor will ensure that the Content will at all times feature
the full array of content and functionality as made generally
available by Sponsor at the Sponsor Site and its related Web
sites, through any other means of distribution of Sponsor's
own branded service or through any other third-party
relationship, where Sponsor controls the Content.
c) Sponsor and Excite will determine mutually agreeable methods
for the transmission and incorporation of updates to the
Content.
d) Excite will have sole control over the "look and feel" of the
Excite Site and the Excite Network. Excite will have sole
control over the content, composition, "look and feel" and
distribution of the Broadcast Pages. Excite will have sole
responsibility for providing, hosting and maintaining, at its
expense, the Excite Network and for providing and delivering
the Broadcast Pages and for integration of Content into the
Broadcast Pages.
e) Sponsor will have sole responsibility for providing, at its
expense, the Content to Excite.
5. THE CO-BRANDED AREA OF THE SPONSOR SITE AND DISTRIBUTION THROUGH THE
EXCITE SITE AND THE BROADCAST PAGES
a) Sponsor will design and create Web pages ("Co-Branded Pages"
or, collectively, the "Co-Branded Area") in the Sponsor Site
incorporating music-related content to be mutually determined
by the parties including but not limited to Content described
in Exhibit A, subject to the terms and conditions hereunder.
Each Co-Branded Page will display the name and/or brands of
Sponsor and Excite.
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Sponsor and Excite will collaborate on the "look and feel" of
the Co-Branded Pages including, but not limited to, the
display, appearance and placement of the parties' respective
names and/or brands and of advertising displayed on the
Co-Branded Pages. Excite will have final approval over the
"look and feel" of the Co-Branded Pages, which approval will
not be unreasonably withheld.
b) The Co-Branded Area will reside completely on the Sponsor
Site. Sponsor will have sole responsibility for providing and
maintaining, at its expense, the Sponsor Site, the Co-Branded
Area, the content displayed on the Co-Branded Site and any
updates thereto.
c) Each Co-Branded Page will include one or more links to the
Excite Site. Excite will supply Sponsor with the URLs for
these links.
d) Excite may, upon fifteen (15) days prior notice to Sponsor,
request reasonable revisions to the Co-Branded Area as needed
to reflect changes that will not adversely affect Sponsor,
such as changes to Excite's name and/or brand or changes to
the URLs for the links to the Excite Site. Sponsor will use
reasonable efforts to accommodate Excite's requested changes
within the fifteen (15) day period.
e) Excite may incorporate reasonable portions of the Content on
the Excite Site. Each such display of the Content will count
as an Impression, as defined in Section 2(a). Excite will
provide links to the Co-Branded Area from any pages on the
Excite Site on which the Content appears. In its discretion,
Excite may elect to provide additional links to the Co-Branded
Area from other locations on the Excite Network and/or
Broadcast Pages.
f) Reasonable excerpts or portions of the Content may be
incorporated into Broadcast Pages, at Excite's discretion.
Excite will have sole control over of the content,
composition, "look and feel" and distribution of the Broadcast
Pages.
6. PROMOTIONS
a) Excite and Sponsor will work together in good faith to create
promotions specifically for customers of the Co-Branded Area.
Such joint promotions, when possible and where Sponsor
controls any applicable rights, will include but not be
limited to the following:
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- [****]
- [****]
- [****]
- [****]
- [****]
- [****]
- [****]
- [****]
- [****]
- [****]
b) Neither party will make any public statement, press release or
other announcement relating to the terms of or existence of
this Agreement without the prior written approval of the
other. Notwithstanding the foregoing, Sponsor hereby grants to
Excite the right to issue an initial press release, the timing
and wording of which will be subject to Sponsor's reasonable
approval, regarding the relationship between Excite and
Sponsor.
7. SPONSORSHIP FEES AND TRANSACTION COMMISSIONS
a) [****] will be due to Excite on the Effective Date as
compensation for Excite's costs of initiating access to the
Excite Site, programming costs, set-up costs and other
expenses associated with Excite's initiation of the links,
placements, advertisements and promotions contemplated by the
Agreement.
b) Sponsor will pay Excite [****] per year as compensation for
being the exclusive online retail music store sponsor of the
Excite Site.
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c) Sponsor will pay Excite [****] in the first year of the term
of the Agreement as compensation for on-going programming,
links, placements, advertisements and promotions contemplated
by this Agreement.
d) Sponsor will pay Excite [****] in the second year of the term
of the Agreement as compensation for on-going programming,
links, placements, advertisements and promotions contemplated
by this Agreement.
e) Sponsor will make payments to Excite according to the
following schedule:
DATE PAYMENT
---- -------
Effective Date [****]
Commencement Date [****]
12/31/97 [****]
1/1/98 [****]
4/1/98 [****]
7/1/98 [****]
10/1/98 [****]
1/1/99 [****]
4/1/99 [****]
7/1/98 [****]
f) Sponsor will pay Excite a share of all gross margins Sponsor
realizes on transactions, advertising, sponsorship, promotions
and any other revenue generated during each year of the term
of the Agreement on the Sponsor Site as a result of users
referred from the Excite Site ("Total Revenue"), subject to
the following conditions:
i) "Gross margin" is defined as [****].
ii) Total Revenue will be measured at the end of every
three months after the Commencement Date. This
three-month Total Revenue amount will be compared to
an amount equal to two (2) times the corresponding
three-month share of the applicable sponsorship fee
described in Sections 6(c) and 6(d) (each pro rata
share a "Revenue Floor").
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iii) If the Total Revenue earned by Sponsor during the
three-month period exceeds the total of the Revenue
Floor applicable to the same three-month period,
Sponsor will pay Excite [****] of the gross margin
Sponsor realizes on the gross revenue amount equal to
the excess of the Total Revenue over the Revenue
Floor during the three-month period.
iv) If the Total Revenue earned by Sponsor during the
three-month period does not exceed the Revenue Floor
applicable to the same three-month period, Sponsor
will not be obligated to pay Excite any share of the
gross revenue realized during the three-month period.
g) Payments of shared gross margin will be due to Excite within
thirty (30) days of the end of each calendar quarter in which
the revenue is recognized by Sponsor.
h) With each payment, Sponsor will provide to Excite
documentation reasonably detailing the calculation of the
payment.
i) Sponsor will maintain accurate records with respect to the
calculation of all payments due under this Agreement. Excite
may, upon no less than thirty (30) days prior written notice
to Sponsor, cause an independent Certified Public Accountant
to inspect the records of Sponsor reasonably related to the
calculation of such payments during Sponsor's normal business
hours. The fees charged by such Certified Public Accountant in
connection with the inspection will be paid by Excite unless
the payments made to Excite are determined to have been less
than ninety percent (90%) of the payment owed to Excite, in
which case Sponsor will be responsible for the payment of the
reasonable fees for such inspection.
8. USER DATA AND USAGE REPORTS
a) All data concerning users and their behavior relating to the
use of the Excite Site will be owned solely by Excite. Data
relating to the use of Sponsor's Site (excluding users
referred from the Excite Site) will be owned solely by
Sponsor. Data relating to the use of the Co-Branded Pages will
be jointly owned and shared by both parties.
b) All jointly owned and shared data will be held in confidence
and will not be used except in accordance with reasonable
guidelines to be mutually agreed upon by the parties.
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c) Sponsor and Excite will each provide the other via email usage
reports containing the information set forth in Exhibit B
("Usage Reports"). Each Usage Report will cover a calendar
month and will be delivered within fifteen (15) days following
the end of the applicable month. The parties may, by mutual
written agreement, alter the content of the Usage Reports.
d) SPONSOR AND EXCITE WILL USE REASONABLE EFFORTS TO ENSURE THE
ACCURACY OF THE USAGE REPORTS BUT NEITHER PARTY WARRANTS THAT
THE USAGE REPORTS WILL CONFORM TO ANY SPECIFICATIONS AT ANY
GIVEN TIME. NEITHER PARTY WILL BE HELD LIABLE FOR ANY CLAIMS
AS THEY RELATE TO SUCH USAGE REPORTS, EXCEPT TO THE EXTENT
THAT SUCH USAGE REPORTS SERVE AS THE BASIS FOR PAYMENTS UNDER
THIS AGREEMENT.
9. CONTENT OWNERSHIP AND LICENSE
a) Sponsor will retain all right, title and interest in and to
the Content worldwide (including, but not limited to,
ownership of all copyrights and other intellectual property
rights therein). Subject to the terms and conditions of this
Agreement, Sponsor hereby grants to Excite a royalty-free,
non-exclusive, worldwide license to use, reproduce,
distribute, transmit and publicly display the Content in
accordance with this Agreement and to sub-license the Content
to Excite's wholly-owned subsidiaries or to joint ventures in
which Excite participates for the sole purpose of using,
reproducing, distributing, transmitting and publicly
displaying the Content in accordance with this Agreement
b) Excite will retain all right, title, and interest in and to
the Excite Site and the Excite Network and the Broadcast Pages
worldwide (including, but not limited to, ownership of all
copyrights, look and feel and other intellectual property
rights therein).
10. TRADEMARK OWNERSHIP AND LICENSE
a) Sponsor will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide,
subject to the limited license granted to Excite hereunder.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject
to the limited license granted to Sponsor hereunder.
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c) Each party hereby grants to the other a non-exclusive, limited
license to use its trademarks, service marks or trade names
only as specifically described in this Agreement. All such use
shall be in accordance with each party's reasonable policies
regarding advertising and trademark usage as established from
time to time.
d) Upon the expiration or termination of this Agreement, each
party will cease using the trademarks, service marks and/or
trade names of the other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
11. TERMINATION
a) If Excite fails to deliver the guaranteed number of
Impressions on the Excite Site during the first year, Excite
will use commercially reasonable efforts to "make good" the
shortfall. If Excite fails to "make good" the shortfall within
[****] following the first year end, Sponsor may terminate the
Agreement in accordance with Section 11 (b).
b) If Excite fails to deliver the guaranteed number of
Impressions on the Excite Site during the second year, Excite
will use commercially reasonable efforts to "make good" the
shortfall within [****] following the second year end.
However, the term of this Agreement will continue until Excite
has made good the guaranteed number of Impressions on the
Excite Site. Sponsor will not be obligated to make
sponsorship, advertising or exclusivity payments to Excite
during the "make good" period after the second year of the
Agreement, but Sponsor will continue to make revenue sharing
payments as described in Section 7(e). For the purposes of the
calculation of revenue sharing during this "make good" period
only, the "Revenue Floor" from the last quarter of the second
year of the term of the Agreement will apply.
c) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following the notice to
the breaching party of the breach, with the following
exceptions:
i) Excite will promptly notify Sponsor of any errors,
failures or outages of the Content. Sponsor will
promptly notify Excite of any errors, failures or
outages of the Co-Branded Area.
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Sponsor will take all reasonable measures to correct
any such errors or outages as soon as reasonably
possible. In the event of three or more errors,
failures or outages of the Content or the Co-Branded
Area in any thirty (30) day period, Excite may elect
to terminate this Agreement upon fifteen days written
notice to Sponsor, unless Sponsor demonstrates to
Excite's reasonable satisfaction before the
expiration of the fifteen (15) day notice period that
the cause(s) of the errors, failures or outages have
been corrected; or
ii) Sponsor will ensure that the Content will at all
times be at least substantially similar to any other
source of comparable topical content available on the
Internet in terms of the following factors, taken as
a whole: (i) breadth and depth of coverage, (ii)
timeliness of content updates and (iii) reputation
and ranking based on a cross-section of third party
reviewers in terms of features, functionality,
quality and other qualitative factors. In the event
that Sponsor fails to meet these quality criteria,
Excite may terminate this agreement on thirty (30)
days written notice and enter into an other
arrangements for the acquisition of similar content,
unless Sponsor demonstrates to Excite's reasonable
satisfaction before the expiration of the thirty (30)
day notice period that the deficiencies in the
Content have been corrected.
d) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within
thirty (30) days thereof.
e) The provisions of Section 12 (Confidentiality), Section 13
(Warranty and Indemnity), Section 14 (Limitation of Liability)
and Section 15 (Dispute Resolution) will survive any
termination or expiration of this Agreement.
12. CONFIDENTIALITY
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a) For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's (or its
suppliers') business or activities that is proprietary and
confidential, which shall include all business, financial,
technical and other information of a party marked or
designated by such party as "confidential" or "proprietary";
or information which, by the nature of the circumstances
surrounding the disclosure, ought in good faith to be treated
as confidential.
b) Confidential Information will not include information that (i)
is in or enters the public domain without breach of this
Agreement, (ii) the receiving party lawfully receives from a
third party without restriction on disclosure and without
breach of a nondisclosure obligation or (iii) the receiving
party knew prior to receiving such information from the
disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third
party or use any Confidential Information disclosed to it by
the other except as expressly permitted in this Agreement and
(ii) that it will take all reasonable measures to maintain the
confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality
of its own information of similar importance.
d) Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court
of competent jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a "need-to-know" basis
under an obligation of confidentiality to its legal counsel,
accountants, banks and other financing sources and their
advisors.
e) The information contained in the Usage Reports provided by
each party hereunder will be deemed to be the Confidential
Information of the disclosing party.
f) The terms and conditions of this Agreement will be deemed to
be the Confidential Information of each party and will not be
disclosed without the written consent of the other party.
13. WARRANTY AND INDEMNITY
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a) Sponsor warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement,
any and all content provided to Excite or made available to
third parties in connection with this Agreement.
b) Sponsor warrants that the Content will comply with the
description and technical specifications contained in Exhibit
A.
c) Excite will indemnify, defend and hold harmless Sponsor, its
affiliates, officers, directors, employees, consultants and
agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, attorneys fees)
arising from the breach of any warranty, representation or
covenant in this Agreement. Sponsor will promptly notify
Excite of any and all such claims and will reasonably
cooperate with Excite with the defense and/or settlement
thereof; provided that, if any settlement requires an
affirmative obligation of, results in any ongoing liability to
or prejudices or detrimentally impacts Sponsor in any way and
such obligation, liability, prejudice or impact can reasonably
be expected to be material, then such settlement shall require
Sponsor's written consent (not to be unreasonably withheld or
delayed) and Sponsor may have its own counsel in attendance at
all proceedings and substantive negotiations relating to such
claim.
d) Sponsor will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and
agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, attorneys fees)
arising from:
i) The breach of any warranty, representation or
covenant in this Agreement; or
ii) Any claim that the Content infringes or violates any
third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or
contains any defamatory content.
Excite will promptly notify Sponsor of any and all such claims
and will reasonably cooperate with Sponsor with the defense
and/or settlement thereof; provided that, if any settlement
requires an affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally impacts Excite in
any way and such obligation, liability, prejudice or impact
can reasonably be expected to be material, then such
settlement shall require Excite's written consent (not to be
unreasonably withheld or
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delayed) and Excite may have its own counsel in attendance at
all proceedings and substantive negotiations relating to such
claim.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT
MATTER.
14. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 13(c) and (d), IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE
LIABILITY OF EXCITE FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS
LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY
SPONSOR TO EXCITE HEREUNDER.
15. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality would result in irreparable injury for
which there is no adequate remedy at law. Therefore, in the
event of any breach or threatened breach of a party's
obligations regarding trademarks, service marks or trade names
or confidentiality, the aggrieved party will be entitled to
seek equitable relief in addition to its other available legal
remedies in a court of competent jurisdiction.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names and/or confidentiality, the
parties will first attempt to resolve the dispute(s) through
good faith negotiation. In the event that the dispute(s)
cannot be resolved through good faith negotiation, the parties
will refer the dispute(s) to a mutually acceptable mediator.
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c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names and/or confidentiality, cannot be
resolved through good faith negotiation and mediation, the
parties will refer the dispute(s) to the American Arbitration
Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration
Association's rules applicable to commercial disputes.
16. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole
or in part, without the other party's written consent (which
will not be unreasonably withheld), except that no such
consent will be required in connection with (i) a merger,
reorganization or sale of all, or substantially all, of such
party's assets or (ii) either party's assignment and/or
delegation of its rights and responsibilities hereunder to a
wholly-owned subsidiary or joint venture in which such party
holds a controlling interest. Any attempt to assign this
Agreement other than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York
c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail,
return receipt requested, and will be deemed given upon
personal delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or email or
five (5) days after deposit in the mail. Notices will be sent
to a party at its address set forth below or such other
address as that party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors and will
have no power or authority to assume or create any obligation
or responsibility on behalf of each other. This Agreement will
not be construed to create or imply any partnership, agency or
joint venture.
e) Force Majeure. Any delay in or failure of performance by
either party under this Agreement will not be considered a
breach of this Agreement and will be excused to the extent
caused by any occurrence beyond the reasonable control of such
party including,
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but not limited to, acts of God, power outages and
governmental restrictions.
f) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will
remain in full force and effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject
matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject
matter. This Agreement may only be modified, or any rights
under it waived, by a written document executed by both
parties.
N2K Inc. Excite, Inc.
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
-------------------------- ------------------------
Name: Xxxxxxxx Xxxxxxx Name: Xxxxxx Xxxx
-------------------------- ------------------------
Title: Vice Chairman Title: Pres. and CEO
-------------------------- ------------------------
Date: 9/23/97 Date: 9/23/97
-------------------------- ------------------------
00 Xxxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx, 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
415.568.6000 (voice)
000.000.0000 (fax)
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EXHIBIT A
CONTENT DESCRIPTION AND TECHNICAL SPECIFICATIONS
FOR THE CONTENT
Sponsor content shall be defined as any or all content and services controlled
by N2K available via the main Music Boulevard site (xxxx://xxx.xxxxxxxxx.xxx),
the Music Store. In addition, Excite reserves the right to draw upon the
editorial content controlled by N2K and available via N2K's network of
music-related sites including, but not limited to the following:
Music News
AllStar Mag - xxx.xxxxxxxxxx.xxx
Labels
N2K record label, N2K Encoded Music - xxx.x0xxxxxxxxxxxxx.xxx
Music Genre Sites
Classical Insites - xxx.xxxxxxxxxxxxxxxx.xxx
Xxxxxxx Xxxxxxxxx - xxx.xxxxxxxxxxxxxxxx.xxx
Rocktropolis - xxx.xxxxxxxxxxxx.xxx
Jazz Central Station - xxx.xxxxxxxxxxxxxxxxxx.xxx
N2K will make good faith efforts to assist Excite in obtaining access to
music-related content under the control of third parties with which N2K has
existing relationships.
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EXHIBIT B
USAGE REPORTS
