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EXHIBIT 10.11*
NBCI PROMOTION AGREEMENT
XXXXXXXXXX.XXX
This Promotion Agreement (the "Agreement") is made and entered into as of
December 9, 1999 (the "Effective Date") between NBC Internet, Inc., a Delaware
corporation, with its principal place of business at 000 Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("NBCi") and Xxxxxxxxxx.xxx, a Georgia corporation,
with its principal place of business at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx 00000 (the "Company"). Pursuant to this Agreement, NBCi will
provide various services, including promotions, to the Company to assist the
Company in promoting its Internet site and the products and services offered
through its Internet site. The Company acknowledges that NBCi will fulfill its
obligations under this Agreement itself and through various of its subsidiaries
and/or affiliates, including Snap! L.L.C. ("Snap"), a Delaware limited
liability company. Accordingly, the parties hereby agree as follows:
1. Background.
1.1. The Company operates an Internet site located at
xxxx://xxx.xxxxxxxxxx.xxx., which is designed to provide
Internet-based job searching products, listings and services
to online consumers.
1.2. NBCi operates a search and aggregation "portal" site on the
Web.
2. Certain Definitions. As used in this Agreement, the terms set forth
below shall have the following meanings:
2.1. "Above the Fold" means that a particular item on a Web page
is viewable on a computer screen at an 800 x 600 pixels
resolution when the User first accesses such Web page,
without scrolling vertically or horizontally to view more of
the Web page.
2.2. "Anchor Tenant" means a preferred Web content provider whose
position is greater in size and prominence than that of any
non-affiliated third party within the relevant NBCi Sites'
page or area of a page.
2.3. "Best of Breed" means (i) those job searching products and
services available on the Internet with the most advanced and
commercially successful, functionality, performance, content,
and features, whether utilitarian or aesthetic, and (ii) the
ability of the Company Sites and the Co-Branded Site to scale
easily with only additional hardware and to accommodate, at a
minimum, [***].
2.4. "Below the Fold" means that a particular item on a Web page
is not viewable on a computer screen at an 800 x 600 pixels
resolution when the User first accesses such Web page, but
requires scrolling down to view more of the Web page
2.5. "Business and Money Channel" means the Business and Money
Channel on the Snap Sites.
* In the upper right corner of a page indicates that portions of text
have been omitted from such page pursuant to a confidential treatment
request.
[***] Indicates omitted text
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2.6. "Career Center" means a collection of related Web sites, Web
pages, links, portals and other resources on the Business and
Money Channel that will feature job searching products,
listings and services for Users.
2.7. "City" means a particular city or geographic region of the
United States that constitutes an employment market for job
searching and listing purposes.
2.8. "Click Thrus" means any type of link (but not a Promotion
paid for by the Company as an Impression) from the Company
Content Portals or Jump Pages that a User (as tagged by NBCi
pursuant to 13.2) depresses or "clicks-on" and that delivers
the User, to the Co-Branded Site or the Company Site.
2.9. "Co-Branded Page" means a Web page that is part of the
Co-Branded Site that contains a specific subset of
information and content from the Company Site based on
criteria provided to the Company by NBCi.
2.10. "Co-Branded Site" means the co-branded version of the Company
Site (but excluding co-branded sites), and successors to the
foregoing, that is created pursuant to Section 5.
2.11. "Company Competitor" means the following: Xxxxxxx.xxx, Hot
Jobs, Careerpath, Career Mosaic, Careerbuilder, Xxxx.xxx,
K-Force, JobOptions and America's Job Bank.
2.12. "Company Content" means (i) the Company's and its licensors'
text links, graphic links, and other materials, tools,
editorial content, or text that are delivered by the Company
to NBCi hereunder and (ii) Company Marks.
2.13. "Company Marks" means the Company's and its licensors'
trademarks, trade names, service marks and logos that may be
delivered by the Company to NBCi hereunder.
2.14. "Company Products" means all job and resume posting and
searching services and related services offered through the
Company Sites or the Co-Branded Site.
2.15. "Company Sites" means the Internet site operated by the
Company at xxxx://xxx.xxxxxxxxxx.xxx, (not including the
Co-Branded Site), and successors to the foregoing.
2.16. "Competitor" means an entity providing products or services
in connection with the Web that compete with products or
services provided by NBCi on Exhibit C, as NBCi shall update
from time to time.
2.17. "Content Portal(s)" means the specific aggregations of linked
content within the Career Center and Employment Classifieds,
which are organized around the Company Content, and relate to
job searching products, listings and services.
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2.18. "Employment Classifieds" means the Web page within the
Shopping Channel providing services for national employment
classifieds that will feature the Company's job searching
tool to be accessed by Users. It does not include Local
Channel Users seeking job searching products, listings and
services.
2.19. "Front Door Window" means the promotional box on the front
door of the NBCi Site, including any one of the three front
doors of the Snap Site: Home, Local, and My Snap, and any
other front door created by NBCi in the future for the Snap
Site. NBCi, in its sole discretion, may cease use of the
Front Door Window at any time for any reason. In such an
event, the parties shall mutually agree on a specific
Promotion of substantially equivalent value to replace the
Front Door Window and such specific Promotion shall for all
purposes of this Agreement be deemed a Front Door Window.
2.20. "Impression" means the display of any Promotion on any NBCi
Site.
2.21. "Integrated Media Opportunity" means an advertising
opportunity that includes an on-air component on television
and its other components will be at the sole discretion of
NBC and NBCi.
2.22. "Jump Pages" means any Web pages within the NBCi Site that
contain Company Content with NBCi's Look and Feel and that
are created pursuant to Section 7 below.
2.23. "Keyword Promotions" means any Promotion tied to one of the
keywords listed in Exhibit A attached hereto, including the
advertising banners to be displayed on search results pages
corresponding with the keywords.
2.24. "Launch Date" means the date on which the Co-Branded Site
functions properly and is made accessible to Users.
2.25. "Local Channel" means the Local Channel on the Snap Sites.
2.26. "Look and Feel" means the look and feel, User interface and
flow of User experience of an Internet site.
2.27. "My Snap" means the My Snap channel on the Snap Sites.
2.28. "Net Advertising Revenue" means all fees, charges or value
that the Company or its agents receive for advertising on the
Co-Branded Site less any actual cash fees paid to third
parties related to such advertising.
2.29. "NBCi Marks" means any trademarks, trade names, service marks
and logos that may be delivered by NBCi to the Company
hereunder.
2.30. "NBCi Member" means a User who has registered to become a
member of one of NBCi's registration based services,
including without limitation, the NBCi Sites and the free
email service available at xxxx://xxx.xxxxx.xxx.
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2.31. "NBCi Product Manager" means a NBCi employee or independent
contractor holding editorial authority and responsibility for
a portal, site, collection, area, center or page on the NBCi
Sites.
2.32. "NBCi Sites" means: (i) subject to the "Distributor" (as
defined in Section 9.1) exclusion in Section 9.1, any and all
search and aggregation "portal," direct marketing, and
commerce Web sites, whether operated by NBCi or a third party
under the "NBCi" "Snap" or "Xoom" brand, including, without
limitation, the Web site located at xxxx://xxx.xxxx.xxx,
xxxx://xxx.xxxx.xxx, xxxx://xxx.xxx.xxx, and
xxxx://xxx.xxxxxxxxxxx.xxx, together with any mirror sites,
any co-branded editions of such site that have been or may be
developed for Distributors, and successors to the foregoing;
(ii) if NBCi so elects within its sole discretion, the
Enhanced Site and/or the International Editions, subject to
Section 9.2; and (iii) if NBCi so elects within its sole
discretion, the Web site located at xxxx://xxx.xxxxx.xxx and
successors thereto, and NBC's network of affiliate Web
stations' Web sites, as updated from time to time by NBCi in
its sole discretion.
2.33. "Promotions" means (i) banners, buttons, windows, portals,
Keyword Promotions, Front Door Windows, text links, and other
promotions that are offered by NBCi now or in the future and
link directly to the Company Sites and/or Co-Branded Site
from the NBCi Sites; and/or (ii) text links within email
newsletters distributed by NBCi (including, without
limitation, Snap Wires) and other promotions that are offered
by NBCi now or in the future and link directly to the Company
Sites and/or Co-Branded Site.
2.34. "Shopping Channel" means the Shopping Channel on the Snap
Sites.
2.35. "Snap Wire" means Snap email newsletter sent by NBCi to Snap
Members.
2.36. "Sufficient Job Listings" means a the number of job listings
for a particular City[***].
2.37. "User" means any end-user of the Web.
2.38. "User Profile Data" means data regarding a User provided by
the User on the NBCi Sites or the Co-Branded Site or
otherwise to NBCi or the Company, including without
limitation the User's name, e-mail address, street address,
telephone number and other information about the User.
2.39. "Web" means the World Wide Web part of the Internet.
2.40. "Year One" means the period beginning on the Effective Date
and ending upon the day before the twelfth month anniversary
of the Effective Date.
2.41. "Year Two" means the period beginning on the twelfth month
anniversary of the Effective Date and ending upon the day
before the twenty-fourth month anniversary of the Effective
Date.
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3. Promotions; Performance; and Account Management.
3.1. Promotion Design. The Company will design and create all
Company Content required for the Promotions in accordance
with NBCi's standard technical and editorial guidelines which
apply to a majority of NBCi partners providing harvested
content, as updated in NBCi's sole discretion from time to
time, including those set forth at xxxx://xxx.xxxx.xxx/xxxxx/
or any successor URL designated by NBCi. The Company shall
deliver via email such Company Content for the Promotions to
NBCi within five days after the Effective Date. If the
Company delivers such materials to NBCi more than five
business days after the Effective Date, then for each day
thereafter, (i) a pro-rata number of the Impressions to be
delivered pursuant to this Agreement will be deemed to have
been delivered by NBCi; and (ii) a pro-rata number of Click
Thrus, calculated as a daily average of the actual number of
Click Thrus over the first 30 days after such materials are
delivered to NBCi, will be deemed to have been delivered by
NBCi.
3.2. Impression Delivery.
3.2.1. Impressions. Beginning on the Effective Date, NBCi
will use commercially reasonable efforts to deliver
a total number of Impressions as set forth in
Exhibit A attached hereto.
3.2.2. Underdelivery. If NBCi fails to deliver the required
number of Impressions during the Term, the Company
agrees that NBCi shall have an additional three
months to deliver such Impressions on any Web site
operated by NBCi, Snap or Xoom, at NBCi's sole
discretion. If NBCi underdelivers on the required
number of Impressions during such additional three
months, NBCi will refund to the Company the pro-rata
amount of the media fees set forth in Section 11.4
for such undelivered Impressions.
3.2.3. Overdelivery. In the event that NBCi deliver in
excess of the number of Impressions required to be
delivered pursuant to this Section 3.2 during Year
One, then such over-delivery of Impressions shall be
credited towards satisfaction of the next year's
obligations for NBCi to deliver Impressions until all
obligations through the end of the Term have been
fulfilled, after which the Company will pay for any
additional Keyword Promotions delivered, with payment
to be at the lesser of (a) Snap's current standard
rate card charges for Keyword Promotions less a
[***]% discount or (b) Snap's rate card charges for
Keyword Promotions in effect at beginning of
overdelivery, less a [***]% discount. In the event
that NBCi delivers more than [***]% of Year Two's
obligation in Year One, the Company may choose to
either discontinue delivery of Keyword Promotions for
the remainder of Year One or pay for any additional
Keyword Promotions delivered during Year One at (a)
Snap's current standard rate card charges for Keyword
Promotions less a [***]% discount or
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(b) Snap's rate card charges for Keyword Promotions
in effect at beginning of overdelivery, less a
[***]% discount.
3.3. Click Thru Delivery. During the Term, NBCi will use
reasonable efforts to deliver Click Thrus to the Co-Branded
Site or the Company's Site.
3.4. Links; Performance Standards. The Company will be responsible
for ensuring that each link embedded within a Promotion takes
the User to the appropriate area within the Company Sites or
the Co-Branded Site (other than links to the Career Center and
the Employment Classifieds for which NBCi will be
responsible), and that such sites function with reasonable
reliability and in a commercially reasonable manner throughout
the Term. The Company agrees that the Company Sites and the
Co-Branded Site will comply with the performance standards set
forth in Exhibit B attached hereto throughout the Term. Any
failure by the Company to comply with this Section will be
deemed to be a material breach of this Agreement. In the event
of such breach, then for each day thereafter, (i) [***]
Impressions to be delivered pursuant to this Agreement will be
deemed to have been delivered by NBCi; and (ii) [***] Click
Thrus, calculated as [***] will be deemed to have been
delivered by NBCi for the duration of such breach. During the
Term, NBCi will maintain NBCi as a top twenty general purpose
portal site as measured by Media Metrix page views, unique
users, or other reasonable metric.
3.5. Best of Breed. During the Term, in the event the Company has
failed to maintain the Company Sites, Company Content, or the
Co-Branded Site as Best of Breed, NBCi shall have the right
to (a) remove any deficient Company Content from the NBCi
Sites and the Co-Branded Site until the Company has corrected
such failure and/or (b) terminate this Agreement in
accordance with Section 12.3.
3.6. Account Management.
3.6.1. Account and Contact Managers. For the purposes of
this Agreement, Xxxxxxx Xxxxx shall be NBCi's
account manager for the Company and Xxxx Xxxxxxx
shall be the Company's contact manager for NBCi
(collectively, the "Managers"). Subject to Section
19.16, the Managers shall be the primary points of
contact for inquiries and requests, and each Manager
shall provide the other with such information and
assistance as may be reasonably requested by the
other from time to time. Either party to this
Agreement may change its designated Manager by
giving the other party written notice of such
change.
3.6.2. Quarterly Meetings. At least once each quarter, the
Managers shall discuss the Company's Promotions for
the next quarter, the effectiveness of the last
quarter's Promotions, the reports provided under
Section 13, and any other items under this Agreement
either Manager wishes to bring to the attention of
the other Manager.
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4. Anchor Tenancy.
4.1. Anchor Tenant of Career Center and Employment Classifieds.
After the Launch Date and during the Term, NBCi will feature
the Company as the Anchor Tenant within the Career Center and
Employment Classifieds. In the Career Center, the Company
will have the right to program a Content Portal that begins
Above the Fold that measures approximately 67% of the screen
width and 250 pixels tall with relevant content and links to
the Co-Branded Site. In addition, the Company shall have the
right to program a Content Portal that measures approximately
67% of the screen width and 400 pixels tall in the Employment
Classifieds with links to the Co-Branded Site. Company will
provide the appropriate Company Content, subject to the
reasonable discretion of a NBCi Product Manager, for the
Content Portals as further defined in Sections 4.2 and 4.3.
The NBCi Product Manager may provide the Company with
reasonable assistance to enable the Company to effectively
design the Content Portals. Subject to this Section 4.1, the
NBCi Product Manager will determine the size and location of
the Content Portals. NBCi may, in the exercise of its
reasonable discretion, make changes to the design and
functionality of the Career Center and Employment
Classifieds. Notwithstanding anything in this Agreement to
the contrary, any third party content or links may exist on
any area of the Career Center and Employment Classifieds that
provide (i) products or services that the Company does not
offer or (ii) products or services for which the Company
Products or Company Content are not Best of Breed; provided
that (a) NBCi shall place any links to Company Competitors
with attribution primarily Below the Fold and (b) NBCi will
not have paid content aggregation with a Company Competitor.
Moreover, other than as expressly set forth herein, NBCi
shall have the right to display any third party links, media,
banner advertisements, other promotions, and/or paid or
unpaid editorial content anywhere on the NBCi Sites. Other
than as expressly set forth in this Agreement, Company shall
have the right to display any third party links, media,
banner advertisements, other promotions, and/or paid or
unpaid editorial content anywhere on the Company Sites.
4.2. Career Center. The Career Center will contain multiple links
to various areas of the NBCi Sites. During the Term, the
Career Center shall contain Company Marks in the form of the
Company logo, however it will otherwise retain the NBCi Look
and Feel, subject to the reasonable discretion of a NBCi
Product Manager, and will promote Company Content and the
Company's Products. Subject to the reasonable discretion of a
NBCi Product Manager, the Career Center may contain Jump
Pages from the Career Center to the Co-Branded Site.
4.3. Employment Classifieds. The Employment Classifieds will
contain multiple links to various areas of the NBCi Sites.
During the Term, the front door of the Employment Classifieds
shall contain Company Marks in the form of the Company logo,
the Company search tool and the language "Provided by
Headhunter". Company will not be required to change its
search methodology unless such change becomes necessary to
maintain Best of Breed status. No later than January 1, 2000,
the Company search tool on the NBCi Sites must be able to
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provide region-specific job searching information to Users
based on a zip code provided by Users.
4.3.1. Alternate Job Listings Providers. Notwithstanding
anything in this Agreement to the contrary, if
Company is not providing Sufficient Job Listings for
a City, NBCi may provide Users with listings from
alternate job listing providers ("Alternate
Listings"). Before NBCi may use Alternate Listings,
(a) NBCi must give the Company written notice that
the Company is not providing Sufficient Job
Listings; (b) then the Company will have 60 days to
provide Sufficient Job Listings after such written
notice; and (c) after such 60 days, NBCi may then
supplement its listings with Alternate Listings,
including listings from Company Competitors. Within
fifteen days after receiving written notice from the
Company that it has achieved Sufficient Job
Listings, and subject to NBCi's reasonable
verification, NBCi shall reinstate the Company's
listings and remove all Alternate Listings for such
City.
4.4. Harvesting. Except as set forth in Section 3.1, the Company
shall, beginning on the Effective Date, provide all Company
Content as required herein pursuant to NBCi's standard
harvesting technical specifications which are applicable to a
majority of NBCi partners, as updated in NBCi's sole
discretion from time to time, including those set forth at
xxxx://xxxxxxxxxxxxxxxx.xxxx.xxx/xxxxx/xxxxxxxxxxx.xxxx
(Standard HTML Harvest Specifications),
xxxx://xxxxxxxxxxxxxxxx.xxxx.xxx/xxxxx/xxxxxxxxxx.xxxx
(Sample of HTML harvested content) and
xxxx://xxxxxxxxxxxxxxxx.xxxx.xxx/xxxxx/xxxxxxxxxxx.xxxx (Meta
HTML Harvest Specifications),
xxxx://xxxxxxxxxxxxxxxx.xxxx.xxx/xxxxx/xxxxxxxxxx.xxxx
(Sample of Meta HTML harvested content), or any other
successor URLs designated by NBCi. For Company Content
appearing on My Snap or the Career Center, NBCi shall have
the right, in its sole discretion, to harvest such Company
Content in a manner requiring a User of the NBCi Sites to
"click through" as many as two Web pages within the NBCi
Sites before the User is transferred to the Company Sites or
the Co-Branded Site. For Company Content appearing on the
Employment Classifieds, NBCi shall harvest such Company
Content in a manner such that a User of the NBCi Sites
"clicks directly" to the Co-Branded Site. Harvested Company
Content will maintain the NBCi Sites' Look and Feel and will
include branding for the Company using Company Marks, in such
form and placement as the parties shall mutually agree. The
Company shall ensure that all Company Content remains at all
times current by continually providing NBCi with timely
updates to the Company Content. Furthermore, under no
circumstances shall Company Content include any content of a
Competitor or reference a Competitor.
4.5. Internal Promotions for the Career Center and Employment
Classifieds. During the Term, a NBCi Product Manager will use
reasonable efforts to promote the Career Center and/or the
Employment Classifieds by (i) placing a promotional link to
the Career Center and/or the Employment Classifieds on a NBCi
Front
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Door at least 24 days and (ii) subject to the discontinuance
of the Snap Wire, placing promotional links to the Career
Center and/or the Employment Classifieds in a minimum of six
Snap Wires. Such six Snap Wires referred to in this Section
are in addition of the requirements of Section 3.2. NBCi, in
its sole discretion may promote the Career Center and/or the
Employment Classifieds by linking to the Career Center and/or
the Employment Classifieds from relevant channels of the NBCi
Sites such as Local, Education, Entertainment, and Business
and Money.
4.6. Hosting. NBCi will host the Career Center, the Employment
Classifieds and the Content Portals on its servers, servers
within its control, or servers of a third party under
contract with NBCi, and will provide all computer hardware,
software and personnel necessary to operate and maintain the
Career Center and Employment Classifieds, and the Content
Portal as functional pages accessible to Users.
4.7. Advertising. NBCi shall own and have the right to use or sell
all of the advertising inventory on the Career Center and
Employment Classifieds. The Company acknowledges that any
advertising for and/or links to other sites similar to or in
competition with the Company may exist in Career Center and
Employment Classifieds; provided, however, that any links are
subject to the restrictions contained in Section 4.1 of this
Agreement.
5. Co-Branded Site.
5.1. Co-Branded Site Described. The Company will develop the
Co-Branded Site in accordance with this Section 5 and NBCi
will provide reasonable assistance in connection therewith.
Subject to the reasonable discretion of a NBCi Product
Manager, the Co-Branded Site will provide all of the features
and functionality provided by, and will perform in a manner
substantially identical to, the Company Sites, as the Company
Sites may be updated and enhanced from time to time by
Company in its sole discretion.
5.2. Changes. NBCi acknowledges that the Company may change the
design and functionality of the Company Sites from time to
time, in which case the design and functionality of the
Co-Branded Site will be changed in a similar fashion.
Notwithstanding the foregoing, the Company will ensure that
the Co-Branded Site at all times maintains the NBCi Sites'
Look and Feel and will make all changes reasonably suggested
by a NBCi Product Manager regarding the Look and Feel for
editorial consistency.
5.3. Co-Branding Features. Each page on the Co-Branded Site will
include branding for NBCi and the Company so that the NBCi
Marks and Company Marks are both Above the Fold and are of
substantially equivalent value and prominence to each other.
Each page of the Co-Branded Site will also comply with NBCi's
co-branding technical specifications, as updated in NBCi's
sole discretion from time to time, including those set forth
at
xxxx://xxxxxxxxxxxxxxxx.xxxx.xxx/xxxxxxx/xxxxxxxxx_xxxxx.xxxx
or any other
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successor URL designated by NBCi, and will include
appropriate navigation features, such as an embedded link on
each NBCi logo to the front door of the NBCi Sites,
breadcrumb trails linking the User to the page of the NBCi
Sites from which the User originated, navigation bars, and a
NBCi search box, that will include links to the NBCi Sites.
5.4. Launch Date. The Company will use its best efforts to achieve
a Launch Date for the Co-Branded Site within 60 days after
the Effective Date; provided, however, that if the Launch
Date occurs after such 60 days or does not occur due to the
fault of the Company, then such failure will be deemed a
material breach of this Agreement by Company. NBCi shall
provide the Company with reasonable assistance to launch the
Co-Branded Site. Notwithstanding the Launch Date, NBCi shall
have the right to begin displaying Impressions immediately
upon the Effective Date. If the Launch Date of the Co-Branded
Site does not occur within 60 days after the Effective Date,
due to the fault of the Company, then for each day
thereafter, (i) a pro-rata number of the Impressions to be
delivered pursuant to this Agreement will be deemed to have
been delivered by NBCi; and (ii) a pro-rata number of Click
Thrus, calculated as a daily average of the actual number of
Click Thrus over the first 30 days after the Launch Date,
will be deemed to have been delivered by NBCi.
5.5. Implementation. Notwithstanding anything in this Agreement to
the contrary, the Company shall have thirty days to implement
any significant changes required by a NBCi Product Manager.
5.6. Hosting. Except as otherwise expressly provided in this
Agreement, the Company will host the Co-Branded Site and the
Company Products on its servers (or on servers within its
control), and will provide all computer hardware, software
and personnel necessary to operate and maintain the
Co-Branded Site as a functional site accessible to Users.
5.7. Advertisements. The Company shall own and have the right to
use or sell (but not barter) all of banner advertising
inventory on the Co-Branded Site; provided, however, the
Company shall pay to NBCi [***] of the Net Advertising
Revenue, Company receives from such advertising on the
Co-Branded Site. The Company will display advertising
on the Co-Branded Site consistent with the number, type, and
placement of advertising displayed on the Company Sites;
provided, however, that all advertisements on the Co-Branded
Site must also comply with NBCi's reasonable editorial
guidelines in effect from time to time. At the Company's
request, NBCi will sell and deliver advertising to the
Co-Branded Site via third party advertising. The Company will
not display advertisements of Competitors on the Co-Branded
Site. Further, if any advertisement on the Co-Branded Site is
reasonably deemed inappropriate by NBCi, the Company shall
upon notice from NBCi immediately remove the advertisement
from the Co-Branded Site.
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5.8. Customized Co-Branded Pages. Subject to the mutual discretion
of a NBCi Product Manager and Company, NBCi may create links
within specific areas of the NBCi Sites to the Co-Branded
Site for targeted job searching products, listings and
services in a specified category (e.g. sports, entertainment,
health, computers). The Company shall create customized
Co-Branded Pages that contain jobs in the specified category.
5.9. DNS Redirection. Using Domain Name System redirection, the
URL for the Co-Branded Site will begin with
xxxx://xxxxxxxxxx/xxxx. NBCi agrees that the Company will be
entitled to count all page views of the Co-Branded Site
towards the Company's traffic as measured by Media Metrix and
other Internet traffic-auditing firms.
5.10. Most Favored Customer Pricing. The Company shall offer on the
Co-Branded Site and the Company Sites to Users from the NBCi
Sites the Company's most favored customer pricing, which
means pricing and terms substantially similar to the lowest
pricing and most favorable terms offered by the Company to
any other Users. The Company shall maintain competitive
pricing for the products and services it offers.
6. My Snap Job Search Option.
6.1. My Snap Job Search Described. No later than February 1, 2000,
the Company will provide job searching and listing services
to Users of My Snap ("My Snap Job Search"). My Snap Job
Search (or a substantial equivalent), will be linked to a
Jump Page. At the Jump Page, Users will be permitted to
create an individual job search that is refreshed each time
such User clicks on My Snap Job Search. Snap will promote the
My Snap Job Search to Users, however, My Snap Job Search will
not be a default link on My Snap. Snap has 60 days after
written notice from the Company to implement the Jump Pages
for the My Snap Job Search.
6.2. Availability. If the Company can not provide My Snap Job
Search by March 31, 2000, due to the fault of the Company,
NBCi, in its sole discretion shall have the right to obtain
the My Snap job searching and listing services as described
in this Section 6 from another job searching and listings
services provider and shall have no further obligation to the
Company under this Section 6. NBCi shall provide the Company
with reasonable assistance to launch My Snap Job Search.
7. Jump Pages.
7.1. Jump Pages Described. NBCi will develop, implement, and
maintain all Jump Pages in accordance with this Section 7 and
the Company will provide reasonable assistance in connection
therewith. NBCi has the sole discretion on the Look and Feel
of the Jump Pages. Jump Pages will feature Company Content
and attribution. Company Marks shall be included on all Jump
Pages.
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7.2. Changes. Subject to the other provisions of this Agreement,
NBCi may, in the exercise of its reasonable discretion, make
changes to the number, design and functionality of the Jump
Pages.
7.3. Company Content. The Company will provide all appropriate and
mutually agreeable Company Content for the Jump Pages to NBCi
as harvested Company Content pursuant to Section 4.4.
7.4. Hosting. NBCi will host the Jump Pages on its servers,
servers within its control, or servers of a third party under
contract with NBCi, and will provide all computer hardware,
software and personnel necessary to operate and maintain the
Jump Pages as functional pages accessible to Users.
7.5. Advertisements. NBCi shall own and have the right to use or
sell all of the advertising inventory on the Jump Pages.
8. NBC On-Air Promotion. Within six months of the Effective Date, NBCi
will present at least one Integrated Media Opportunity to air on NBC
(the "NBCi Spots"). The Company shall have seven (7) days to accept the
terms of such Integrated Media Opportunity from NBCi after which the
Company will be deemed to have forfeited such Integrated Media
Opportunity. If Company rejects the first Integrated Media Opportunity
presented by NBCi, NBCi will only be obligated to make one additional
presentation for an Integrated Media Opportunity to the Company during
the Term. NBCi shall have sole discretion regarding the final form and
content of all aspects of such advertisements but will consult with the
Company regarding how Company Products and/or Company Marks will be
featured in the NBCi Spots. Up to $[***] of the media fee paid by
Company under Section 11.4 of this Agreement may be applied to the fee
for the first Integrated Media Opportunity purchased by the Company
from NBCi. Company acknowledges that all placement of Company Products
and/or Company Marks within the NBCi Spots, as well as the NBCi Spots
themselves, will be subject to the NBC Advertising Standard Terms and
Conditions as well as the Advertising Standards set by NBC Broadcast
Standards and Practices, and NBCi will have no right or power to cause
NBC to make any exception thereto for Company or the NBCi Spots. All
other terms and conditions of the Integrated Media Opportunity shall be
contained in an advertising agreement for the Integrated Media
Opportunity between NBCi and the Company.
9. Co-Branded, Enhanced, and International Editions.
9.1. Co-Branded Editions. Company acknowledges that NBCi produces
co-branded editions of the NBCi Sites for various resellers,
distributors, other licensees and/or joint venture partners
(collectively the "Distributors"). In some cases, such
Distributors are entitled to replace NBCi's default content
with other content within their own co-branded editions of
any NBCi Site. Notwithstanding any other provisions of this
Agreement, if any such Distributor has exercised its right to
replace Company Content with other content, then NBCi will
not be required to display the Promotions or Company Content
within such Distributor's co-branded edition of the NBCi
Sites. If NBCi does display the Promotions or Company
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Content within a co-branded edition of any NBCi Site, such
display will be governed by this Agreement.
9.2. Enhanced and International Editions. NBCi has created an
enhanced, high-speed version of the NBCi Sites focused on
rich media content (together with any successor service(s) or
site(s) thereof and any co-branded editions of such service
that have been or may be developed for NBCi's third party
distribution partners and licensees, the "Enhanced Sites")
and may desire to include appropriate rich media Company
Content within the Enhanced Sites. NBCi is currently
considering creating one or more international editions of
the NBCi Sites to reflect appropriate localized and local
partner content ("International Editions") and may desire to
include localized Company Content within the International
Site. At NBCi's sole discretion, all terms and conditions
contained in the Agreement related to the "NBCi Sites" may
also apply to the Enhanced Site and International Editions,
and any Impressions and Click Thrus required under the
Agreement may be delivered on the Enhanced Sites,
International Editions, and/or the existing NBCi Sites. The
Company hereby acknowledges that NBCi, in its sole
discretion, may use appropriate content, promotions and other
material provided by Company within the Enhanced Sites and
the International Editions, and all licenses set forth in
this Agreement are hereby expanded to include the Enhanced
Sites and International Editions. The Company acknowledges
that the Look and Feel of the Enhanced Site will be designed
for a high-bandwidth audience and therefore may substantially
differ from the Look and Feel of the primary NBCi Sites. The
Company further acknowledges that the Look and Feel of the
International Editions will be localized for the relevant
target audience (e.g., in terms of language, culture, and
ethnicity) and therefore may substantially differ from the
Look and Feel of the primary NBCi Sites.
10. User Profile Data, Commerce Opportunities, and Direct Marketing.
10.1. Data Ownership. The Company will be the sole owner of any
information that the Company collects from Users through the
Company Sites and the Co-Branded Site, and NBCi will be the
sole owner of any information that NBCi collects from Users
through the NBCi Sites and the Co-Branded Site.
10.2. Use of Information and Confidentiality. Each party will have
the right to use any information provided by the other party
pursuant to Section 13 subject to the confidentiality
restrictions set forth in Section 19.8. Unless otherwise
clearly disclosed to Users on the respective site, all data
collected from Users through the Company Sites and Co-Branded
Site will be kept confidential and not disclosed to third
parties in accordance with the published privacy policy of
NBCi.
11. Payments and Credits.
11.1. Production Fee. On the Effective Date, the Company will pay
to NBCi a [***] production and content integration fee.
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*
11.2. Anchor Tenancy Fee. The Company will pay NBCi a [***] fee for
the Anchor Tenant position in the Career Center and the
Employment Classifieds. Year One of such fee, in the amount of
[***], shall be paid in three equal quarterly installments of
[***] due beginning three months after the Effective Date.
Year Two of such fee, in the amount of [***] shall be paid in
four equal quarterly installments of [***] due beginning on
the first day of Year Two.
11.3. Performance Fee. The Company will pay NBCi [***] for each
Click Thru delivered pursuant to Section 3.3 ("Performance
Fee"). Payments under this Section 11.3 will be due monthly,
on receipt of an invoice from NBCi. No Performance Fee shall
be due until NBCi has delivered [***] Click Thrus.
11.4. Media Fee. Beginning one month after the Effective Date, the
Company shall pay NBCi a media fee monthly for all Impressions
NBCi delivers pursuant to Section 3.2. During Year One, the
Company will pay NBCi [***] in twelve equal monthly payments
of [***] for such Impressions. During Year Two and beginning
one month after the first day of Year Two, the Company will
pay NBCi [***] in twelve equal monthly payments of [***] for
such Impressions. Media Fees are payable within 30 days of
receipt of invoice.
11.5. Payment. Payments under this Agreement will be made by check
or wire transfer of immediately available funds. If Company
should fail to make any payment due under this Agreement by
the date such payment is due, the overdue payment will bear
interest at the rate of one and one-half percent simple
interest per month or the maximum interest permitted by law,
whichever is less.
11.6. Invoice Procedure. NBCi shall send the Company all invoices
hereunder to the attention of Xxxx Xxxxxxx, whose title is
Senior Vice President of Marketing. The Company agrees to use
the following procedures for processing and payment of
invoices from NBCi: Company will send payment to NBCi
immediately upon receipt of invoice from NBCi unless
(i)expressly stated otherwise in this Agreement or (ii)
expressly stated otherwise by NBCi at time of invoice, which
shall not supercede provisions in this Agreement.
12. Term; Termination.
12.1. Term. The term of this Agreement will begin on the Effective
Date and end on the last day of the twenty-fourth month after
the Effective Date, unless otherwise terminated or extended
as set forth in this Agreement (the "Term").
12.2. Extension Negotiations. Eighteen months after the Effective
Date, the parties hereto shall work diligently and in good
faith, on an exclusive basis for 60 days, to prepare and
negotiate the written terms of an extension of the Term. If
an agreement is not reached after such exclusive time period,
the parties shall use their best efforts to conclude such
negotiations on a non-exclusive basis within three months of
the end of the Term.
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12.3. Termination for Cause. Either NBCi or the Company may
terminate this Agreement at any time by giving written notice
of termination to the other parties if any other party
commits a material breach of its obligations hereunder that
is not cured within 30 days after notice thereof from a
non-breaching party; provided, however, that if the Company
fails to make a payment as required hereunder, NBCi may
terminate this Agreement 15 days following the date of notice
of such non-payment if any such payment is not made within 15
days after the Company's receipt of such notice. Company or
NBCi (either, the "Terminating Party") may terminate this
Agreement immediately, and shall have no further obligation
under this Agreement, if the Company or NBCi (either, the
"Non-Terminating Party") becomes insolvent; makes an
assignment for the benefit of creditors; makes or sends
notice of a bulk transfer; calls a meeting of its creditors
with respect to its inability to pay its obligations owed to
such creditors on customary terms; defaults under any
agreement, document or instrument relating to the
Non-Terminating Party's indebtedness for borrowed money;
ceases to do business as a going concern; a petition is filed
by or against the Non-Terminating Party under any bankruptcy
or insolvency laws; or the Non-Terminating Party experiences
a change in its ownership, such that a Competitor holds an
equity interest in the Non-Terminating Party, without the
Terminating Party's prior, written consent to such ownership.
12.4. Termination Regarding Company Content. NBCi may terminate
this Agreement at any time by giving written notice of
termination to the Company if the Company fails to timely
deliver, pursuant to Section 4.4, any material part of the
Company Content, including updates, and such failure is not
cured within 10 days after Company's receipt of notice
thereof from NBCi.
12.5. Consequences of Termination. Upon the termination or
expiration of this Agreement, all licenses granted hereunder
shall immediately terminate and each party shall return or
destroy all Confidential Information of the other party in
its possession. In addition, in the event this Agreement is
terminated pursuant to Sections 12.3, then all monies paid by
the Company to NBCi hereunder prior to the termination,
including without limitation all performance fees set forth
in Section 11.3, shall be deemed non-refundable except (i) as
expressly stated otherwise in this Agreement, or (ii) in the
case of a material breach by NBCi. Finally, in the event this
Agreement is terminated pursuant to Sections 12.3 and 12.4,
then the Company shall pay to NBCi 100% of all fees that
would be incurred by the Company under the Agreement during
the subsequent 90 days of the Term as liquidated damages, and
such payment shall be made within 30 days of termination.
Such payments shall be due and payable on the dates they
would have been due and payable if the termination had not
occurred. The parties acknowledge and agree that it would be
impractical to estimate the amount of any damages that could
arise out of any material breach of this Agreement or
termination pursuant to Section 12.3 and/or Section 12.4, and
agree that the amount of liquidated damages described above
is a reasonable estimate of the actual damages that NBCi
would suffer and incur as a result of such breach or
termination of this Agreement. No party shall be liable to
the others for damages
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of any sort resulting solely from terminating this Agreement
in accordance with its terms.
13. Reports, Records, and Accounts.
13.1. NBCi Reports. Within 15 days after the end of each month
during the Term, NBCi will provide to the Company its
standard advertising report for User traffic generated from
the Promotions for such month.
13.2. Company Reports. Within 15 days after the end of each month
during the Term, the Company will provide to NBCi a complete
and detailed report that includes, at a minimum, for such
month: (i) the total page views on the Co-Branded Site, (ii)
the number of unique Users to the Co-Branded Site from the
Career Center and/or the Employment Classifieds, (iii) the
number of Click Thrus and the conversion rate resulting from
such Click Thrus, (iv) the number of Users and User Profile
Data for Users who click through from the NBCi Sites to the
Company Sites and/or the Co-Branded Site, (v) the number of
Users and User Profile Data for Users who click through from
the NBCi Sites to the Company Sites and/or the Co-Branded
Site and order Company Products, and (vi) the aggregate
statistical and demographic characteristics of Users in (ii),
(iii), (iv), and (v). To the extent that the Company does not
collect any of the reporting data specified in this Section
13.2, the Company shall not be required to report such data
to NBCi. NBCi will tag each Co-Branded User originating from
the NBCi Sites using a cookie or other similar technology to
assist the Company in obtaining the foregoing data.
13.3. Records and Accounts. The Company agrees to keep, on a
continuing basis, full and accurate records and accounts,
including, without limitation all logs and reports,
sufficient to permit NBCi to verify the accuracy of all
reports submitted by the Company as hereinabove required.
NBCi shall have the right, at its sole expense, to examine
such books and records, whether in electronic format or
otherwise, to the extent that such examination is necessary
and pertinent to the foregoing verification, during
reasonable business hours, using its employees or principals,
or through outside, authorized representatives. In the event
such an examination reveals that any of the Click Thru
reports submitted or payments made by the Company to NBCi, as
hereinabove required, understated the monies owed by five
percent (5%) or more, then the Company shall, in addition to
the payment of the additional monies owed fees determined by
such examination, promptly pay to NBCi the reasonable cost of
such examination.
14. Licenses.
14.1. Company Content. The Company hereby grants to NBCi a
non-exclusive, non-transferable, royalty-free license,
effective throughout the Term, to use, display and publish
the Company Content solely as permitted hereunder. In the
event the Enhanced Sites and/or the International Editions
are deemed included within this Agreement pursuant to Section
9.2, the Company hereby further grants to NBCi a
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non-exclusive, non-transferable, royalty-free license,
effective throughout the Term, to modify and create
derivative works of the Company Content solely as permitted
hereunder. In the event the International Editions are deemed
included within this Agreement pursuant to Section 9.2, the
Company shall in good faith modify the Company Marks to
incorporate changes reasonably suggested by NBCi for the
relevant target audience (e.g., complying with local laws or
avoiding the use of offensive terms in the local language).
Nothing contained in this Agreement will give NBCi any right,
title or interest in or to the Company Content or the
goodwill associated therewith, except for the limited usage
rights expressly provided above. NBCi acknowledges and agrees
that, as between the Company and NBCi, the Company is the
sole owner of all rights in and to the Company Content. All
use of the Company Marks by NBCi shall inure to the benefit
of the Company and shall be subject to any reasonable usage
guidelines communicated by the Company to NBCi regarding the
Company Marks.
14.2. NBCi Marks. NBCi hereby grants to the Company a
non-exclusive, non-transferable, royalty free license,
effective throughout the Term, to use, display and publish
the NBCi Marks solely within the Co-Branded Site as permitted
hereunder. Any use of the NBCi Marks by the Company must
comply with any reasonable usage guidelines communicated to
the Company by NBCi from time to time. Nothing contained in
this Agreement will give the Company any right, title or
interest in or to the NBCi Marks or the goodwill associated
therewith, except for the limited usage rights expressly
provided above. The Company acknowledges and agrees that, as
between the Company and NBCi, NBCi is the sole owner of all
rights in and to the NBCi Marks.
15. Responsibility for the Sites and Products. The Company acknowledges
and agrees that, as between the Company and NBCi, the Company will be
solely responsible for any claims or other losses associated with or
resulting from the marketing or operation of the Company Sites or the
Co-Branded Site or the offer or sale of any Company Products by the
Company or through the Company Sites or the Co-Branded Sites. NBCi is
not authorized to make, and agrees not to make, any representations or
warranties concerning the Company Products, except to the extent (if
any) contained within Promotions delivered to NBCi by the Company.
16. LIMITATION OF DAMAGES. NO PARTY WILL BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF A
CLAIM UNDER SECTION 18 OR SECTION 19.8, IN NO EVENT SHALL EITHER PARTY
BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN THE AMOUNTS
ACTUALLY PAID TO NBCI BY THE COMPANY HEREUNDER.
17. NO WARRANTIES. THE IMPRESSIONS, CAREER CENTER AND EMPLOYMENT
CLASSIFIEDS, USER PROFILE DATA AND COMPANY PRODUCTS ARE
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PROVIDED "AS IS" AND THE INFORMATION CONTAINED THEREIN IS NOT
WARRANTED TO BE FREE FROM ERROR. BOTH PARTIES DISCLAIM ALL WARRANTIES,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE CAREER CENTER, EMPLOYMENT CLASSIFIEDS, IMPRESSIONS
USER PROFILE DATA, COMPANY PRODUCTS AND CONTENT PORTALS.
18. Mutual Indemnification.
18.1. Indemnification by NBCi. NBCi shall indemnify, defend and
hold the Company harmless from and against any costs, losses,
liabilities and expenses, including all court costs,
reasonable expenses and reasonable attorney's fees
(collectively, "Losses") that the Company may suffer, incur
or be subjected to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether
commenced or threatened, arising out of or as a result of the
operation of the NBCi Sites (except in cases where the
Company is required to indemnify NBCi under Section 18.2).
18.2. Indemnification by Company. The Company shall indemnify,
defend and hold NBCi harmless from and against any Losses
that NBCi may suffer, incur or be subjected to by reason of
any legal action, proceeding, arbitration or other claim by a
third party, whether commenced or threatened, arising out of
or as a result of (i) the use of Company Content by NBCi in
accordance with this Agreement; (ii) the operation of the
Company Sites or the Co-Branded Site; (iii) the use of any
word as a keyword to trigger a Keyword Promotion; (iv) the
offer or sale of Company Products by the Company on or
through the Company Sites or the Co-Branded Site, or (v) the
authorized and legal use of the User Profile Data under the
terms of this Agreement.
18.3. Indemnification Procedures. If any party entitled to
indemnification under this Section (an "Indemnified Party")
makes an indemnification request to the other, the
Indemnified Party shall permit the other party (the
"Indemnifying Party") to control the defense, disposition or
settlement of the matter at its own expense; provided that
the Indemnifying Party shall not, without the consent of the
Indemnified Party enter into any settlement or agree to any
disposition that imposes an obligation on the Indemnified
Party that is not wholly discharged or dischargeable by the
Indemnifying Party, or imposes any conditions or obligations
on the Indemnified Party other than the payment of monies
that are readily measurable for purposes of determining the
monetary indemnification or reimbursement obligations of
Indemnifying Party. The Indemnified Party shall notify the
Indemnifying Party promptly of any claim for which
Indemnifying Party is responsible and shall cooperate with
the Indemnifying Party in every commercially reasonable way
to facilitate defense of any such claim; provided that the
Indemnified Party's failure to notify Indemnifying Party
shall not diminish Indemnifying Party's obligations under
this Section except to the extent that Indemnifying Party is
materially prejudiced as a result of such failure. An
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Indemnified Party shall at all times have the option to
participate in any matter or litigation through counsel of
its own selection and at its own expense.
19. Miscellaneous.
19.1. Local Employment Classifieds. During the Term, NBCi grants to
the Company a first right of refusal on any future
negotiations for the NBCi Local Channel Employment Classified
job searching products, listings and services.
19.2. Update of Company Competitor List. At the end of Year One,
the Company may provide the NBCi Product Manager with a
written list selecting nine (9) new competitors to qualify as
Company Competitors under this Agreement.
19.3. Promotion of NBCi Sites. The Company shall display the NBCi
Marks on the Company Sites at least as prominently as any
other portal or search engine entity that Company promotes on
the Company Sites. The Company shall ensure that the NBCi
Marks on the Company Sites link to the Co-Branded Site, the
Career Center or Employment Classifieds.
19.4. Assignment. Subject to Section 12.3, either party shall have
the right to assign all of its rights and liabilities
hereunder to an affiliate or to any person or entity that (i)
acquires all or substantially all of such party's operating
assets (whether by asset sale, stock sale, merger or
otherwise) or (ii) results from a merger or reorganization of
such party pursuant to any plan of merger or reorganization;
provided that the new entity accepts in writing all of such
party's rights, obligations and liabilities hereunder and
such entity is not a Competitor.
19.5. Relationship of Parties. This Agreement will not be construed
to create a joint venture, partnership or the relationship of
principal and agent between any of the parties hereto, nor to
impose upon any party any obligations for any losses, debts
or other obligations incurred by another party except as
expressly set forth herein.
19.6. Conflicts. Notwithstanding any other provision of this
Agreement, no obligation of NBCi pursuant to this Agreement
shall be interpreted or operate to cause NBCi to breach any
contract or agreement between NBCi and any other party, or
impair the rights of any such contract party pursuant to a
contract or agreement with NBCi.
19.7. Applicable Law; Forum. This Agreement will be construed in
accordance with and governed by the laws of the State of New
York, without regard to principles of conflicts of law.
Litigation of disputes under this Agreement shall be
conducted in the appropriate state or federal courts located
in the City of New York, New York. The parties hereto consent
to the jurisdiction of any local, state or federal court in
which an action is commenced and located in accordance with
the terms of this Section and that is located in New York,
New York. The parties further agree not to disturb such
choice of forum, and if not resident in such state, waive the
personal service of any and all process upon them, and
consent that
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such service of process may be made by certified or
registered mail, return receipt requested, addressed to the
parties as set forth herein.
19.8. Confidentiality. In connection with the activities
contemplated by this Agreement, each party may have access to
confidential or proprietary technical or business information
of another party, including without limitation (i) proposals,
ideas or research related to possible new products or
services; (ii) financial statements and other financial
information; (iii) any reporting information in Section 13;
and (iv) the terms of this Agreement and the relationship
among the parties (collectively, "Confidential Information").
Each party will take reasonable precautions to protect the
confidentiality of each of the other party's Confidential
Information, which precautions will be at least equivalent to
those taken by such party to protect its own Confidential
Information. Except as required by law or as necessary to
perform under this Agreement, no party will knowingly
disclose the Confidential Information of any other party or
use such Confidential Information for its own benefit or for
the benefit of any third party. Each party's obligations in
this Section with respect to any portion of another party's
Confidential Information shall terminate when the party
seeking to avoid its obligation under such Section can
document that: (i) it was in the public domain at or
subsequent to the time it was communicated to the receiving
party ("Recipient") by the disclosing party ("Discloser")
through no fault of Recipient; (ii) it was rightfully in
Recipient's possession free of any obligation of confidence
at or subsequent to the time it was communicated to Recipient
by Discloser; (iii) it was developed by employees or agents
of Recipient independently of and without reference to any
information communicated to Recipient by Discloser; (iv) it
was communicated by the Discloser to an unaffiliated third
party free of any obligation of confidence; or (v) the
communication was in response to a valid order by a court or
other governmental body, was otherwise required by law or was
necessary to establish the rights of either party under this
Agreement.
19.9. Press Release. No party will make any public statement or
other announcement (including without limitation, issuing a
press release) or pre-briefing any member of the press or
other third party) relating to the terms or existence of this
Agreement without the prior written approval of the other
parties. Notwithstanding the foregoing and Section 19.8, the
parties may issue an initial joint press release, the timing
and wording of which will be subject to each party's
reasonable approval, regarding the relationship between the
parties.
19.10. Injunctive Relief. Each party agrees that in the event of a
breach or alleged breach of Sections 19.8 or 19.9 that the
other parties shall not have an adequate remedy at law,
including monetary damages, and that the other parties shall
consequently be entitled to seek a temporary restraining
order, injunction, or other form of equitable relief against
the continuance of such breach, in addition to any and all
remedies to which any other party shall be entitled.
19.11. Captions and Section Headings. Captions and section headings
used in this Agreement are for convenience only and are not a
part of this Agreement and
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shall not be used in construing it. Except as otherwise
specifically provided, any reference in this Agreement to a
section or exhibit shall be deemed to be a reference to such
section or exhibit of this Agreement.
19.12. Survival. Termination or expiration of this Agreement for any
reason shall not release any party from any liabilities or
obligations set forth in this Agreement which (i) the parties
have expressly agreed shall survive any such termination or
expiration, or (ii) remain to be performed or by their nature
would be intended to be applicable following any such
termination or expiration.
19.13. Taxes. For all fees or charges payable hereunder by the
Company to NBCi, the Company will pay or reimburse NBCi for
any taxes or fees (including all federal, state, or local
taxes), if any, associated with NBCi's provision of the
services hereunder to the Company, except that the Company
will have no liability for any taxes based on NBCi's net
assets or net income, or for which Company has an appropriate
resale or other exemption.
19.14. Force Majeure. If any party shall be delayed in its
performance of any obligation hereunder or be prevented
entirely from performing any such obligation due to causes or
events beyond its reasonable control, including without
limitation any act of God, fire, strike or other labor
problem, such delay or non-performance shall be excused and
the time for performance shall be extended to include the
period of such delay or non-performance.
19.15. Dispute Resolution. In the event that any dispute arises
hereunder, the parties agree that prior to commencing
litigation, arbitration, or any other legal proceeding, each
party shall send an officer of such party to negotiate a
resolution of the dispute in good faith at a time and place
as may be mutually agreed. Each officer shall have the power
to bind its respective party in all material respects related
to the dispute. If the parties cannot agree on a time or
place, upon written notice from either party to the other,
the negotiations shall be held at the principal executive
offices of NBCi twenty one days following such notice (or on
the next succeeding business day, if the twenty first day is
a weekend or holiday).
19.16. Notices. All notices or other communications that shall or
may be given pursuant to this Agreement, shall be in writing,
in English, shall be sent by certified or registered air mail
with postage prepaid, return receipt requested, by facsimile,
overnight express mail, or by hand delivery. Such
communications shall be deemed given and received upon
confirmation of receipt, if sent by facsimile; the day after
delivery if by overnight express mail; or upon delivery if
hand delivered; or upon receipt of mailing, if sent by
certified or registered mail; and shall be addressed to the
parties as set forth above on the first page of this
Agreement and to the attention of Xxxx Xxxxxxx, if to the
Company; and to the attention of Xxxx Xxxxxxxx, Contracts
Administrator, if to NBCi; or to such other addresses or
persons as the parties may designate in writing from time to
time.
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19.17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed a duplicate
original and all of which, when taken together, shall
constitute one and the same document.
19.18. Entire Agreement. This Agreement constitutes and contains the
entire agreement between the parties with respect to the
subject matter hereof and supersedes any prior oral or
written agreements. This Agreement may not be amended except
in writing signed by all parties. Each party acknowledges and
agrees that the other has not made any representations,
warranties or agreements of any kind, except as expressly set
forth herein. All exhibits attached to this Agreement are
incorporated hereby and shall be treated as if set forth
herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the dates indicated below.
NBC INTERNET INC. XXXXXXXXXX.XXX
By: Xxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxx
-------------------------------- ---------------------------------
(Signature) (Signature)
Name: /s/ Xxxxxx Xxxxxxx Name: Xxxx Xxxxxx
------------------------------- -------------------------------
(Please print) (Please print)
Title: Pres. and C.O.O. Title: CFO
------------------------------ ------------------------------
Date: 12/10/99 Date: 12/10/99
------------------------------- -------------------------------
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*
EXHIBIT A
KEYWORD PROMOTIONS
1. Keywords. Subject to availability in NBCi's inventory, the Company
shall provide NBCi with no more than 10 keywords. For any keywords
protected by trademark or servicemark rights, NBCi shall have the
right to accept or reject such term regardless of availability. In the
event NBCi accepts such a keyword protected by trademark or service
xxxx rights, (i) the Company shall indemnify, hold harmless, and
defend NBCi as set forth in Section 18 of the Agreement to which this
Exhibit is attached and (ii) NBCi shall have the right, in its sole
discretion, to terminate immediately its acceptance in the event NBCi
becomes aware of third party claims regarding such keyword (e.g.,
demand letter, complaint, etc.).
Keywords:
1.Job
0.Xxxx
0.Xxxxxx
0.Xxxxxxx
5.Job Search
6.headhunters
7.resume
8.resumes
9. employment
10.job sites
2. [***] Exclusivity. At least [***] of all keyword search results for
only such keywords will result in a Company Keyword Promotion. This
Section 2 of this Exhibit A may not apply to keyword searches
containing the keywords indicated and also containing additional words.
[For example, if "job" is a selected keyword, a search on "job search"
means this Section 2 of this Exhibit A may not apply to this search.]
3. Underdelivery of Keyword Promotions. If for any reason NBCi
underdelivers on the stated number of Keyword Promotions, NBCi will
make good on the amount of the underdelivery with a number of targeted
Impressions of equal value.
4. Overdelivery. In the event that NBCi delivers in excess of the stated
number of Keyword Promotions, NBCi shall notify the Company in writing
as soon as reasonably practical. Upon receipt of such notice, the
Company shall, in writing, but within its sole discretion, either
accept or decline the overdelivery. In the event the Company either
confirms the over delivery of Impressions of Keyword Promotions or
does not respond in writing within 5 days of NBCi's written notice of
over delivery, the Company will pay for all excess ordered Impressions
of Keyword Promotions at NBCi's then standard net rate card charges
for Keyword Promotions less a 25% discount. In the event the Company
declines in writing to accept the over delivery within 5 days of
NBCi's written notice, NBCi shall cease delivering any additional
Keyword Promotions.
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*
5. Impressions. NBCi will make commercially reasonable efforts to deliver
the Impressions in the quantity and according to the allocation
schedule below. In the event that NBCi is unable to deliver the
Impressions as defined in the schedule below, NBCi may substitute
Impressions of comparable value.
6. Integrated Media Opportunity. If the Company elects the Integrated
Media Opportunity in Section 8 of this Agreement, the Impressions
defined below in the schedule will be reduced pro-rata across Year One
and Year Two up to $[***] of media fees that may be deferred under
such section.
IMPRESSIONS YEAR 1 YEAR 2 TOTAL
----------- ------ ------ -----
TARGETED:
Local [***] [***] [***]
Computing and Internet [***] [***] [***]
Entertainment [***] [***] [***]
Sports [***] [***] [***]
Education [***] [***] [***]
Shopping [***] [***] [***]
People and Society [***] [***] [***]
Health [***] [***] [***]
Business and Money [***] [***] [***]
Keywords [***] [***] [***]
TOTAL NBCI TARGETED IMPRESSIONS [***] [***] [***]
NBCI UNTARGETED:
Front Door Windows [***] [***] [***]
Run of Site Banners, Buttons, Windows [***] [***] [***]
Snap Wire [***] [***] [***]
TOTAL NBCI UNTARGETED IMPRESSIONS [***] [***] [***]
Direct Marketing Email [***] [***] [***]
TOTAL IMPRESSIONS [***] [***] [***]
MEDIA FEES [***] [***] [***]
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EXHIBIT B
GENERAL PERFORMANCE STANDARDS
The Company Sites, the Co-Branded Site and the Company's related operations
must comply with the following performance standards throughout the Term:
1. The Company Sites and Co-Branded Site will be operational and fully
functional in all material respects (i.e. capable of displaying
information and conducting transactions as contemplated in the
ordinary course of business) at least 99.5% of the time during any 30
day period.
2. The average time required to start displaying the HTML on a page of
the Company Sites or Co-Branded Site after a link from the NBCi Sites
shall not exceed a daily average of eight seconds, and the average
time required to deliver an entire page of the Company Sites or
Co-Branded Site over the open Internet shall not exceed a daily
average of eight seconds. For measurements required in this Section,
the Company may assume standard T1 connectivity to the Internet.
3. Without limiting the effect of Sections 1 and 2 above, the Company
shall provide to Users coming to the Company Sites or the Co-Branded
Site from the Promotions at least the same level of service as is
offered to Users coming directly to the Company Sites.
4. The Company Sites and Co-Branded Site will offer job searching
products, listings and services as well as links to various resources
and shall not: (i) contain defamatory or libelous material or material
which discloses private or personal matters concerning any person,
without such person's consent; (ii) permit to appear or be uploaded
any messages, data, images or programs which are illegal, contain
nudity or sexually explicit content or are, by law, obscene, profane
or pornographic; or (iii) permit to appear or be uploaded any
messages, data, images or programs that would knowingly or
intentionally (which includes imputed intent) violate the property
rights of others, including unauthorized copyrighted text, images or
programs, trade secrets or other confidential proprietary information,
or trademarks or service marks used in an infringing fashion.
5. If any of the performance standards set forth above are not met by the
Company, NBCi may immediately remove any or all links to the Company
Sites or Co-Branded Site, as applicable, at NBCi's sole discretion. If
the Company Sites or the Co-Branded Site fail to operate fully and
functionally in any material respect for any period of four or more
consecutive hours, even if otherwise in compliance with the
performance standards, NBCi may immediately remove any or all links to
the Company Sites or Co-Branded Site, as applicable, at NBCi's sole
discretion until such time as the Company notifies NBCi that such
Company Sites or Co-Branded Site has resumed acceptable operation.
These remedies are for NBCi's editorial purposes and in no way limit
NBCi's ability to terminate this contract or pursue any other remedies
hereunder in the event the performance standards set forth herein are
not met.
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Exhibit C
List of NBCi Competitors
1. @Home/Excite
2. 0xxxxxxxx.xxx
3. ABC
4. Xxxxx.xxx
5. Altavista/Compaq
6. Xxxxxx.xxx
7. XXX.xxx/XXX/Xxxxxxxxx-XXX/
8. AskJeeves
9. Xxxxxxxxx.xxx
10. CBS
11. CMGI/AltaVista
12. CMGI/Lycos
13. Compuserve
14. Direct Hit
15. Disney/Infoseek/GoNetwork
16. Euroseek
17. Fox
18. GeoCities
19. Go2net Inc.
20. GOD (Global Online Directory)
21. Google, Inc.
22. XxXx.xxx
23. HotBot
24. Hotmail
25. XxxxXxxxx.xxx
26. Looksmart
27. Magellan
28. MSN/Microsoft
29. Mining Company
30. Netscape
31. Northern Lights
32. RoadRunner/MediaOne
33. Xxxxxx.xxx
34. TalkCity
35. XxxXxxxx.xxx
36. Time Warner/Pathfinder
37. Tripod
38. USA Networks/Ticketmaster Online/CitySearch
39. WebCrawler
40. Yahoo
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