EXHIBIT 10.4
SEARCH RESULTS AGREEMENT
This SEARCH RESULTS AGREEMENT ("Agreement") is made as of the 29'nd
day of March, 2000 ("Effective Date") between XXXXXXXX.XXX, INC., a Nevada
corporation with a principal place of business at 000 Xxxx 00/xx/ Xxxxxx, Xxxxx
000, XX, XX 00000 ("XxxxXxxx.xxx"), and The BigHub, Inc., a Florida corporation,
with a principal place of business at 0000 Xxx Xxxx, Xxxxxxx Xxxxx, XX
("Company").
A. XxxxXxxx.xxx operates an Internet search engine (the "XxxxXxxx.xxx
Website") and contracts directly with business entities worldwide that promote
their business and/or products on the Web.
B. Company is a megasearch engine that performs its searches through the
use of multiple independent Internet search engines to produce a larger list and
variety of results for individual consumers.
C. Company wishes to utilize XxxxXxxx.xxx as an Internet search engine
and XxxxXxxx.xxx wishes to be used as an Internet search engine in connection
with Company's megasearch engine website all upon the terms and conditions of
this Agreement.
Section 1. Definitions.
1.1 "Click Through Revenue" is the net revenue actually paid to
XxxxXxxx.xxx by an entity represented in a Search Result generated by
XxxxXxxx.xxx when a User clicks on such Search Result and visits the website of
such entity. For example, if Advertiser fee is $1.00 per click through and
XxxxXxxx.xxx actually receives the entire $1.00 from the Advertiser for such
click through, then XxxxXxxx.xxx's Click Through Revenue is $1.00 and
XxxxXxxx.xxx will pay Company $.40 cents of such revenue (as provided in Section
5.1 hereof.
1.2 "Company Content" shall mean the text, graphics, audio, video and
other content in any form contained in the Company Websites and each excluding
XxxxXxxx.xxx Intellectual Property.
1.3 "Company Websites" shall be the megasearch engine located at
xxxx://xxx.xxxxxxxxx.xxx or such subsequent website that Company locates the
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megasearch engine currently located at the Web address set forth above as well
as any other website that displays Company's Search Results.
1.4 "End User Conversion Revenue" means certain revenue received from
Advertisers as follows: a consumer ("End User") clicks on an advertisement on
the XxxxXxxx.xxx Website and as a result of the click through to the
Advertiser's Website from XxxxXxxx.xxx's Website, the Advertiser receives money
from the End User due to a purchase made by the End User; the Advertiser then
pays XxxxXxxx.xxx a percentage of the revenue received from the End User.
XxxxXxxx.xxx will only pay a percentage of the End User Conversion Revenue
actually received by XxxxXxxx.xxx in accordance with the terms of this
Agreement.
1.5 "XxxxXxxx.xxx Intellectual Property" shall mean the XxxxXxxx.xxx
Website, XxxxXxxx.xxx Search Result Content, XxxxXxxx.xxx Licensed Marks, any
XxxxXxxx.xxx marketing materials and any other patents, patent rights, service
marks, trademarks, trademark rights, trade names, trade name rights, copyrights
(whether registered or not), know-how, technology and trade secrets, now owned
or hereafter acquired or developed by XxxxXxxx.xxx.
1.6 "XxxxXxxx.xxx Licensed Marks" shall mean the trademarks, trade names,
service marks and logos, including the XxxxXxxx.xxx logo and the XxxxXxxx.xxx/xx
/service xxxx, which are: (a) provided by XxxxXxxx.xxx to Company as part of a
Search Result, and/or (b) provided to the Company pursuant to the terms of this
Agreement.
1.7 "XxxxXxxx.xxx Search Result Content" shall mean the entire content of
the Search Result obtained by XxxxXxxx.xxx for Company including the appearance
and placement of all wording and any XxxxXxxx.xxx Licensed Marks.
1.8 "Query" shall mean a search initiated by a User on any Company
Websites.
1.9 "Search Results" means the results obtained by a Search Engine in
response to a User Query.
1.10 "Start Date" will be that date, not later than 30 business days
following the Effective Date, that XxxxXxxx.xxx will begin to be utilized as a
Search Engine by Company under the terms and conditions of this Agreement.
1.11 "Users" means users of any Company Websites.
1.12 "Advertiser" shall mean the company or individual who has a pay for
placement listing in the XxxxXxxx.xxx Website.
Section 2. Search Result and Logo Placement.
2.1 Placement of Search Results. With respect to 100% of the Queries
placed on the Company Websites, Company will only display XxxxXxxx.xxx's Search
Results to the extent that XxxxXxxx.xxx serves Search Results for which Click
Through Revenue is to be received. Results will be listed at a maximum set of 10
per page. Initial Query will return XxxxXxxx.xxx's top paid results as found in
XxxxXxxx.xxx's listings. XxxxXxxx.xxx's Search Results shall be integrated and
listed in the number three position in all Search Result listings on the Company
Websites.
2.2 Logo and Trademark Placement.
a. To the extent that XxxxXxxx.xxx is included in a listing of search
engines in connection with a summarized listing of Search Results (as shown
on Exhibit A), XxxxXxxx.xxx shall be listed in the third position, or if
less than three search engines are listed then in the second or first
position. With respect to any listings of the search engines utilized by
the Company, XxxxXxxx.xxx's logo, service xxxx or name will appear in the
same format as other search engines' logos, service marks or names appear
in such listing. For example if other search engines are listed by name and
the name provides the User with the ability to click through to the search
engine site, the XxxxXxxx.xxx Website will also be identified by logo with
associated click-through ability.
b. XxxxXxxx.xxx shall be provided as a default search engine on any
portion of the Company Websites that provides a listing of search engines
that permit Users to limit queries to less than all of the search engines
available through the Company Websites.
c. Company agrees to place the XxxxXxxx.xxx/xx/ service xxxx or the
XxxxXxxx.xxx logo, or any subsequent trademark or service xxxx designated
by XxxxXxxx.xxx, at the beginning of any Search Result obtained by
XxxxXxxx.xxx and displayed on the Company Websites in the same format used
by Company for attributing its other Search Results.
Section 3. Search Result Format. Company agrees:
a. To display any Search Result obtained from XxxxXxxx.xxx in the format
received from XxxxXxxx.xxx as displayed in EXHIBIT A, and not to alter the
XxxxXxxx.xxx Search Result Content or XxxxXxxx.xxx Licensed Marks appearing
in the Search Result provided by XxxxXxxx.xxx.
b. To provide links to XxxxXxxx.xxx Search Result Content from the Search
Results obtained by XxxxXxxx.xxx and displayed on the Company Websites, via
the URLs designated by XxxxXxxx.xxx; and
c. To transmit to Users via the Web the XxxxXxxx.xxx Search Result
Content along with other Search Results obtained from other search engines
in response to a User Query on the Company Websites pursuant to the format
and other terms and conditions contained in this Agreement.
Section 4. Duties of the Parties.
4.1 XxxxXxxx.xxx agrees to deliver to Company URL's providing the Company
and Users access to XxxxXxxx.xxx Search Results Content in response to Queries
on the Company Websites throughout the term of this Agreement.
4.2 Prior to the Start Date and throughout the term of this Agreement,
Company will:
a. Display the XxxxXxxx.xxx Search Result Content, XxxxXxxx.xxx logo and
XxxxXxxx.xxx/xx/ service xxxx, in accordance with the other terms and
conditions of this Agreement.
b. Test the functionality and appearance of and assist XxxxXxxx.xxx in
verifying functionality and appearance of the XxxxXxxx.xxx Search Result
Content, test the links to the XxxxXxxx.xxx Search Result Content and
ensure that Users gain timely access to the XxxxXxxx.xxx Search Result
Content; and
4.3 XxxxXxxx.xxx may require, in its sole discretion, and Company agrees
to assist in, the removal or alteration of any portion of the XxxxXxxx.xxx
Intellectual Property.
4.4 Company will provide support to Users for questions and problems that
arise relating to XxxxXxxx.xxx Search Result Content or refer such Users to
XxxxXxxx.xxx's customer service in a timely manner.
4.5 Company will not solicit any advertiser associated in any way with
XxxxXxxx.xxx.
4.6 Company will not save any Search Result provided by XxxxXxxx.xxx and
agrees to initiate a new search through XxxxXxxx.xxx for each User Query posed
on the Company Websites.
Section 5. Payment.
5.1 XxxxXxxx.xxx agrees to pay Company forty percent (40%) of all Click
Through Revenue actually received by XxxxXxxx.xxx resulting directly from User
click throughs on the XxxxXxxx.xxx Search Result Content displayed on Company
Websites during the term of this Agreement. When Search Results are returned in
a summarized format as shown on Exhibit A to this Agreement, click through
credit will be assigned to the first ordered search engine within the Search
Result and no Click Through Revenue will be due from XxxxXxxx.xxx if
XxxxXxxx.xxx is not listed in the first position of the list of search engines
that returned the Search Result.
5.2 In the event that XxxxXxxx.xxx is compensated by an Advertiser through
any means other than direct pay for placement advertising, The XxxXxx.xxx shall
be entitled to 40% of the end user conversion revenue paid to XxxxXxxx.xxx.
5.3 XxxxXxxx.xxx will track the Click Through Revenue and end user
conversion revenue received by XxxxXxxx.xxx from Advertisers and pay the
percentage due to Company as described in Section 5.1 and 5.2 within 10 days
after the end of each calendar month.
5.4 Company shall have the right, to audit XxxxXxxx.xxx's books and
records for the purpose of verifying payments made under this Agreement. Such
audits shall be made not more than twice per year, on not less than ten (10)
days written notice, during regular business hours, by such party's independent
auditors. An audit can only be for the previous twelve-month period dating back
from the date of this audit.
Section 6. Ownership and Licenses.
6.1 Except as set forth in this Agreement, nothing in this Agreement
will vest in Company any right, title or interest in the XxxxXxxx.xxx
Intellectual Property or any copyright, trademark and other intellectual
property rights therein.
6.2 Subject to the terms and conditions of this Agreement and only
during the Term of this Agreement, XxxxXxxx.xxx hereby grants to Company a
limited, revocable, non-exclusive, worldwide license to use the XxxxXxxx.xxx
Search Result Content and XxxxXxxx.xxx Licensed Marks for the purpose of
utilizing XxxxXxxx.xxx as a search engine and displaying XxxxXxxx.xxx Search
Results on the Company Websites and to perform the duties set forth in Sections
2, 3 and 4 above.
6.3 XxxxXxxx.xxx gives Company the right to redistribute the
XxxxXxxx.xxx search engine results as part of Companies private label portal
package or part of Megasearch tool, but not as a stand-alone piece of content.
All terms including but not limited to compensation and obligations as
illustrated throughout this Agreement will apply to any and all private label,
co-branding or link agreements that results in Company providing it's
megasearch.
6.4 Each party reserves all rights in its intellectual property not
specifically granted herein.
Section 7. Confidentiality. The parties each agree that the terms of this
Agreement are strictly confidential neither party will disclose the existence of
or terms of this Agreement to any third party without the prior written consent
of the other party to both the fact and content of such proposed disclosure.
Section 8. Term and Termination.
8.1 Term. This Agreement will be effective upon signature of an
authorized representative of all parties and continue for two years ("Term"),
unless terminated earlier pursuant to the terms hereof. This Agreement shall be
automatically renewed for a one (1) year term ("Renewal Term") each subsequent
year thereafter unless either party gives the other written notice of
cancellation at least ninety (90) days prior to the expiration of the Initial
Term or any Term Year as hereinafter defined. For purposes of this Agreement, a
Term Year shall be the same twelve (12) month period as the first twelve (12)
month period of the Initial Term.
8.2 Termination. Notwithstanding Section 8.1, this Agreement may be
sooner terminated as follows:
a. Either party may terminate this Agreement effective immediately if
the other party is in default of any material obligation under this
Agreement, and such default shall have continued unremedied for a period
of 30 days following written notice of such default given by the
nondefaulting party to the defaulting party.
b. Either party may terminate this Agreement, effective immediately, if
the other party is adjudicated bankrupt, becomes insolvent, voluntarily
or involuntarily commences liquidation, if a receiver (temporary or
permanent) for its property or a part thereof is appointed by a court of
competent jurisdiction and not dismissed within 30 days after
appointment, if it makes a general assignment for the benefit of
creditors, or if execution is levied against substantially all of its
property or which would have an adverse effect on the operation of its
business and is not removed within 30 days.
c. XxxxXxxx.xxx may terminate this Agreement effective immediately if:
(i) Company ceases to provide Users access to the Company and such access
denial has continued unremedied for 7 days after written notice from
XxxxXxxx.xxx; (ii) there is a change in the content, quality or
functionality of the Company Websites that XxxxXxxx.xxx determines in its
sole discretion to be unfavorable to XxxxXxxx.xxx; (iii) Company fails to
perform any of the duties set forth in Section 2 of this Agreement.
8.3 Effect of Termination. Upon the effective date of termination, all
rights and obligations of the parties will terminate except:
a. Each party's duty of Confidentiality pursuant to Section 7 of this
Agreement;
b. XxxxXxxx.xxx's duty to pay Click-Through Revenue received through the
date of termination and in accordance with the terms of Section 5 of this
Agreement; and
c. Each party shall be obligated to remove the other party's
Intellectual Property from its respective Website and any marketing
materials.
Section 9. Warranty Disclaimer. ALL PARTIES HERETO EXPRESSLY DISCLAIM ANY
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT. Furthermore, neither party makes any representation or
warranty to the other party that the performance of its obligations under this
Agreement will produce any level of profits or business for the other party.
Section 10. Mutual Indemnification. Company agrees to indemnify, defend and
hold XxxxXxxx.xxx, its successors officers, directors, employees and assigns
harmless from any and all actions, claims, demands, costs, liabilities, expenses
(including attorney fees) and damages that arise directly or indirectly out of
the existence, use and maintenance of the Company Websites. XxxxXxxx.xxx agrees
to indemnify, defend and hold Company, its successors, officers, directors,
employees and assigns harmless from any and all actions, claims, demands, costs,
liabilities, expenses (including attorney fees) and damages that arise directly
or indirectly out of the existence, use and maintenance of the XxxxXxxx.xxx
Website.
Section 11. Limitation of Liability. XxxxXxxx.xxx shall not be liable for any
special, indirect, consequential (including but not limited to lost profits),
incidental, exemplary or punitive damages arising, directly or indirectly, out
of its performance of this Agreement.
Section 12. Miscellaneous.
12.1 Notices. Any notice required or permitted by this Agreement shall
be deemed given if delivered by certified mail, postage prepaid, addressed to
the other party at the address shown at the beginning of this Agreement or at
such other address for which such party gives
notice hereunder. Delivery shall be deemed effective three (3) days after
deposit with the U.S. Post Office.
12.2 Severability. If any clause or provision in this Agreement is
determined to be invalid or unenforceable by a court of competent jurisdiction
or by operation of any applicable law, it will not affect the validity of any
other clause or provision this Agreement, which will remain in full force and
effect.
12.3 Complete Agreement. This Agreement constitutes the entire agreement
between the parties hereto relating to this specific subject matter thereof.
There are no terms, obligations, covenants, representations, statements, or
conditions relating to the subject matter thereof other than those contained in
this Agreement. No variation or modification of this Agreement or waiver of any
of the terms or provisions hereof will be deemed valid unless in writing and
signed by both parties.
12.4 Force Majeure. Neither party shall be deemed in default hereunder,
nor shall it hold the other party responsible for, any cessation, interruption
or delay in the performance of its obligations hereunder due to causes beyond
its reasonable control including, but not limited to: earthquake, flood, fire,
storm or other natural disaster, act of God, labor controversy or threat
thereof, civil disturbance or commotion, disruption of the public markets, war
or armed conflict or the inability to obtain sufficient material, supplies,
labor, transportation, power or other essential commodity or service required in
the conduct of its business, including internet access, or any change in or the
adoption of any law, ordinance, rule, regulation, order, judgement or decree.
12.5 Independent Contractors. The parties hereto are independent
contractors. This Agreement shall not be construed to create a joint venture or
partnership between the parties. Neither party shall be deemed to be an
employee, agent or legal representative of the other for any purpose and neither
shall have any right, power or authority to create any obligation or
responsibility on behalf of the other except as specifically set forth herein.
12.6 Waiver. The failure by any party to exercise or enforce any of the
terms or conditions of this Agreement shall not constitute a waiver of that
party's rights hereunder to enforce each and every term and condition of this
Agreement.
12.7 Assignment. Neither this Agreement nor any rights or obligations
thereunder may be assigned by either party without first receiving prior written
consent of the other party, which consent shall not be unreasonably withheld.
12.8 Interpretation. The section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties, and will not in any way affect the meaning or interpretation of this
Agreement.
12.9 Governing Law/Choice of Forum. This Agreement shall be governed by
the laws of the state of New York, U.S.A., without reference to it choice of law
rules. The parties agree that the forum for dispute resolution under this
Agreement shall be located exclusively in the courts of the state of New York.
12.10 Authority of Parties and Signatories. Each party represents and
warrants that by entering into this Agreement with the other, it is not
breaching any duty or obligation to any third party and that the person
executing this Agreement on behalf of it is the duly authorized representative
of such party and authorized to bind it to the terms of this Agreement.
12.11 Counterparts. This Agreement may be signed in one or more
counterparts each of which will be deemed an original and all of which will be
deemed to be one instrument.
AGREED AND ACCEPTED as of the Effective Date:
COMPANY:
THE XXXXXX.XXX, INC., XXXXXXXX.XXX, INC.,
A Florida Corporation A Nevada corporation
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
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Its: EVP Its: Director of Business Development
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EXHIBIT A
XxxxXxxx.xxx Search Results
(sample page)
By Engine Results:
XxxxXxxx.xxx
1. Planet Toys! Best in the Universe.
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The best toys on Earth at the best price! 100% secure ordering.
http:/xxxxxxxxx.xxxxxxxxxx.xxx (Cost to advertiser: $0.45)
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2. Great Toys For All Ages!!
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From hot board and video games for big kids, to stuffed animals for little
kids, we've got the toys that children get really excited about-and that
parents get really excited about giving! Yes we have Pokemon and Beanie
Babies!!
xxxx://xxxxxxxxxx.xxxxxxxxxx.xxx (Cost to advertiser: $0.38)
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Summarized Results:
1. Planet Toys! Best in the Universe.
----------------------------------
The best toys on Earth at the best price! 100% secure ordering.
http:/xxxxxxxxx.xxxxxxxxxx.xxx
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XxxxXxxx.xxx (Cost to advertiser: $0.33)
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AltaVista
2. Great Toys For All Ages!!
-------------------------
From hot board and video games for big kids, to stuffed animals for little
kids, we've got the toys that children get really excited about-and that
parents get really excited about giving! Yes we have Pokemon and Beanie
Babies!!
xxxx://xxxxxxxxxx.xxxxxxxxxx.xxx
--------------------------------
Yahoo
XxxxXxxx.xxx (Cost to advertiser: $0.38)
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