EXHIBIT 10.6
Mutual Release and Settlement Agreement dated November 27, 2000 between the
Company and Alta Vista Company
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (the "Release") is effective on the
date of execution by the last of the parties (the "Effective Date") between
AltaVista Company, with offices at 0000 Xxxxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000
U.S.A ("AltaVista") and XXxxxxxxx.xxx, with offices at #300 - 0000 Xxxxxxx Xxx,
Xxxxxxx XX X0X 0X0 Xxxxxx ("XXxxxxxxx.xxx") (each a "Party" and collectively
"the Parties").
WHEREAS, the Parties entered into the AltaVista Content License Agreement on
April 7, 2000 whereby AltaVista would promote certain XXxxxxxxx.xxx services to
users of the AltaVista Web sites in exchange for monetary consideration from
XXxxxxxxx.xxx (the "Agreement");
WHEREAS, the Parties desire to terminate the Agreement and to amicably resolve
and release one another on a confidential basis from all claims, demands and
rights of action which the other Party may have against the other arising from
or relating to the Agreement, under the terms set forth below;
IT IS AGREED AS FOLLOWS:
1 *** CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY. ***
2 Beginning December 13, 2000, XXXxxxxxx.xxx will no longer have an
obligation to support the AltaVista Helpdesk Tab.
3 Upon the Effective Date, AltaVista may terminate running advertisements
for XXxxxxxxx.xxx and may remove links to the XXxxxxxxx.xxx web site from
certain AltaVista web pages in its sole discretion.
4 Except with respect to the obligations created by, acknowledged, or
arising out of this Release and subject to XXxxxxxxx.xxx's tendering of
performance under Section 1, the Parties shall and hereby do for
themselves and their respective legal successors and assigns, release and
absolutely and forever discharge each other and their respective
shareholders, officers, directors, employees, agents, attorneys, legal
successors and assigns, if any, of and from any and all claims, demands,
damages, debts, liabilities, accounts, obligations, costs, expenses,
liens, actions and causes of action of every kind and nature whatsoever,
whether now known or unknown, suspected or unsuspected which either now
has, owns or holds or at any time heretofore ever had, owned or held or
could, shall or may hereafter have, own or hold against the other based
upon or arising out of either Party's performance under the Agreement or
any amounts earned or unearned in the course performing under the
Agreement ("Released Matters").
5 It is the intention of the Parties in executing this Release and in paying
and receiving the consideration called for by this Release that this
Release shall be effective as a full and final accord and satisfaction and
mutual general release of and from all Released Matters.
6 In furtherance of the intentions set forth herein, each of the Parties
acknowledges that it is familiar with Section 1542 of the Civil Code of
the State of California which provides as follows:
"A general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor."
7 Each of the Parties waives and relinquishes any right or benefit which it
has or may have under Section 1542 of the Civil Code of the State of
California or any similar provision of the statutory or nonstatutory law
of any other jurisdiction, to the full extent that it may lawfully waive
all such rights and benefits pertaining to the subject matter of this
Release. In connection with such waiver and relinquishment, each of the
Parties
acknowledges that it is aware that it or its attorneys or accountants may
hereafter discover claims or facts in addition to or different from those
which it now knows or believes to exist with respect to the subject matter
of this Release or the other Party hereto, but that it is its intention
hereby fully, finally and forever to settle and release all of the
Released Matters. In furtherance of this intention, the releases herein
given shall be and remain in effect as full and complete mutual releases
notwithstanding the discovery or existence of any such additional or
different claim or fact.
8 Each of AltaVista and XXxxxxxxx.xxx warrant and represent to the other
that it is the sole and lawful owner of all right, title and interest in
and to all of the respective Released Matters and that it has not
heretofore voluntarily, by operation of law or otherwise, assigned or
transferred or purported to assign or transfer to any person whomsoever
any Released Matter or any part or portion thereof of any claim, demand or
right against the other. Each of AltaVista and XXxxxxxxx.xxx shall
indemnify and hold harmless the other from and against any claim, demand,
damage, debt, liability, account, obligation, cost, expense, lien, action
or cause of action (including payment of attorneys' fees and costs
actually incurred whether or not litigation be commenced) based on or in
connection with or arising out of any assignment or transfer or purported
or claimed assignment or transfer of any Released Matter of any part or
portion thereof.
9 Each Party shall, for a period of ten (10) years from the Effective Date
of this Release, maintain in confidence the terms of the Agreement and the
basis for and terms of this Release, except that either party may disclose
such matters to: (i) outside legal counsel; (ii) outside auditors; (iii)
affiliated companies; and (iv) the extent required by law (e.g., required
disclosures under applicable securities laws), provided that the other
Party has had the opportunity to review and consult on the content of such
disclosures.
10 Each Party shall bear its own costs and attorneys' fees in connection with
this dispute and the negotiation of this Release.
11 The prevailing Party shall be entitled to recover from the losing Party
its attorneys' fees and costs incurred in any lawsuit or other action
brought to enforce any right arising out of this Release.
12 This Release and the releases contained herein and the payment of the
monetary consideration referred to herein effect the settlement of claims
which are denied and contested and neither anything contained herein nor
the payment of any sum provided for herein shall be construed as an
admission by a Party hereto of any liability of any kind to the other
Party. Each Party expressly denies that it is in any way liable or
indebted to the other Party, except as set forth herein.
13 Each Party acknowledges to the other Party that it has been represented by
independent legal counsel of its own choice throughout all of the
negotiations which preceded the execution of this Release and that it has
executed this Release with the consent and on the advice of such
independent legal counsel. Each Party further acknowledges that it and its
counsel have had adequate opportunity to make whatever investigation or
inquiry it may deem necessary or desirable in connection with the subject
matter of this Release prior to the execution hereof and the delivery and
acceptance of the consideration specified herein.
14 This Release and any other documents referred to herein shall in all
respects be interpreted, enforced and governed by and under the laws of
the State of California applicable to instruments, persons and
transactions which have legal contacts and relationships solely within the
State of California. Counsel for all Parties have read and approved the
language of this Release. The language of this Release shall be construed
as a whole according to its fair meaning, and not strictly for or against
any of the Parties.
15 This Release may be executed in counterparts which, taken together, shall
constitute one and the same agreement and shall be effective as of the
date first written above.
16 This Release constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior or
contemporaneous negotiations and agreements, whether written or oral. This
Release may not be altered or amended except by an instrument in writing
executed by all of the Parties hereto.
IN WITNESS HEREOF, the Parties have caused this Release to be executed by their
duly authorized representatives.
AltaVista Company XXxxxxxxx.xxx
/s/ Xxxxx Xxxxx /s/ Xxxxxxx X. XxXxxx
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Xxxxx Xxxxx, VP, National Sales Xxxx XxXxxx, President & CEO
November 27, 2000 November 23, 2000
