Exhibit 10.8
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
CONFIDENTIAL EXECUTION COPY
This agreement ("Agreement") is entered into as of the 1st day
of May, 1998 ("Effective Date"), by and between Excite, Inc., a California
corporation, located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"),
and 800-FLOWERS, Inc., a New York corporation, located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx, 00000 ("Client").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Excite Site"), a site at xxxx://xxx.xxxxxxxxxx.xxx (the "WebCrawler Site")
and owns and/or manages related Web sites worldwide (collectively, the
"Excite Network") which, among other things, allow its users to search for
and access content and other sites on the Internet.
B. Within the Excite Site and the WebCrawler Site, Excite currently
organizes certain content into topical channels, including "shopping"
channels (the "Shopping Channels").
C. Client is engaged in the business of selling flowers at its Web site
located at xxxx://xxx.0000xxxxxxx.xxx (the "Client Site").
D. Client wishes to promote its sale of flowers and related gift items to
Excite's users by sponsoring various portions of the Excite Network and
purchasing banner advertising on the Excite Network.
Therefore, the parties agree as follows:
1. ADVERTISING AND PROMOTIONAL PLACEMENTS
a) The parties recognize that sponsorship, promotional
and advertising opportunities on the Excite Network
will evolve over time and will cooperate in good
faith to determine appropriate opportunities for
Client, subject to Excite's delivery of the
guaranteed impressions as described in Section 2.
b) [****]
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
c) Notwithstanding the foregoing, Excite may display
links to [****] in Excite Search and WebCrawler
search results pages in response to user queries,
in any portion of Excite's general directory of
Web sites that appears on the Excite Site or the
WebCrawler Site and in search results displayed in
the "Shopping Service powered by Jango".
2. IMPRESSION GUARANTEES
a) Excite guarantees the display of [****]
impressions of the sponsorship links, promotional
placements and advertising banners for Client in
"Year 1" of the Agreement. For the purposes of
this Agreement, "Year 1" means the period
commencing on July 1, 1998 and ending June 30,
1999.
b) Excite guarantees the display of [****]
impressions of the sponsorship links, promotional
placements and advertising banners for Client in
"Year 2" of the Agreement. For the purposes of
this Agreement, "Year 2" means the period
commencing July 1, 1999 and ending June 30, 2000.
3. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND
REPORTING
a) Client and Excite will use reasonable efforts to
implement the display of the first of Client's
sponsorship links, promotional placements and
advertising by July 1, 1998 (the "Launch Date"). The
parties recognize that the scheduled Launch Date can
be met only if Client provides final versions of all
graphics, text, keywords, banner advertising,
promotional placements, other promotional media and
valid URL links necessary to implement the
promotional placements and advertising described in
the Agreement (collectively, "Impression Material")
to Excite fourteen (14) days prior to scheduled
Launch Date.
b) In the event that Client fails to provide the
Impression Material to Excite fourteen (14) days in
advance of the scheduled Launch Date, Excite may, at
its reasonable discretion (i) reschedule the Launch
Date at the earliest practicable date according to
the availability of Excite's engineering resources
after delivery of the complete Impression Material or
(ii) commence delivery of Impressions based on
Impression Material in Excite's possession at the
time and/or reasonable placeholders created by
Excite.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
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c) Excite will have sole responsibility for providing,
hosting and maintaining, at its expense, the Excite
Network. Excite will have sole control over of the
"look and feel" of the Excite Network including, but
not limited to, the display, appearance and placement
of the parties' respective names and/or brands and
the promotional links.
d) Excite will provide Client with monthly reports
substantiating the number of impressions of Client's
sponsorship links, advertising banners and
promotional placements displayed on the Excite
Network. The parties acknowledge that Excite may rely
on ad serving and reporting services provided by its
wholly-owned subsidiary MatchLogic, Inc. to deliver
Client's sponsorship links, advertising banners,
promotional placements and reporting. However, Excite
remains liable to Client for its obligations
hereunder.
e) Excite will maintain accurate records with respect to
impressions due under this Agreement. Once per year,
the parties will-review these records to verify the
accuracy and appropriate accounting of all
impressions delivered made pursuant to the Agreement.
In addition, Client may, upon no less than thirty
(30) days prior written notice to Excite, cause an
independent Certified Public Accountant to inspect
the records of Excite reasonably related to the
calculation of such impressions during Excite's
normal business hours. The fees charged by such
Certified Public Accountant in connection with the
inspection will be paid by Client unless the
impressions delivered by Excite are determined to
have been less than [****] of the impressions
actually owed to Client or as stated by Excite to
have been delivered to Client, in which case
Excite will be responsible for the payment of the
reasonable fees for such inspection.
4. SPONSORSHIP, ADVERTISING AND TRANSACTION FEES
a) Client will pay Excite sponsorship and advertising
fees of [****] for Year 1 of the Agreement. These
fees will be paid in [****] equal monthly
installments of [****]. The first monthly payment
will be due on July 1, 1998 and paid within thirty
(30) days of the execution of this Agreement.
Subsequent installments will be due and paid on
the first of each month thereafter.
b) Provided that Excite delivers the agreed-upon
impressions due in the first year of the term of
the Agreement and the Agreement remains in effect
at the end of the first year of its term, Client
will pay Excite sponsorship and advertising fees
of [****] for Year 2 of the Agreement. These fees
will be paid in [****] equal monthly installments
of [****]. The first of these monthly payments for
Year 2 will be due and paid July 1, 1999.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
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Subsequent installments will be due and paid on a
monthly basis thereafter.
c) Separate and apart from the sponsorship and
advertising fees, Client will pay Excite [****] of
all gross revenue in excess of [****] in Year 1
and [****] of all gross revenue in excess of [****]
in Year 2 Client realizes on transactions
conducted by users referred to the Client Site
from the Excite Network during the term of the
Agreement. The [****] commission payment is only
due in those years in which the minimum revenue
threshold is attained. Client will pay Excite its
share of revenues within thirty (30) days after
the close of the financial quarter in which Client
recognizes the revenue derived from these
transactions. "Gross revenue" is defined as the
total transaction amount recognized by Client less
discounts, gift certificates, sales and other
taxes, actual service charges paid to Client by
customers, shipping and handling charges, credits,
refunds, chargebacks, and credit card processing
fees.
d) The sponsorship fees and transaction-related payments
are net of any agency commissions to be paid by
Client.
e) Client will maintain accurate records with respect to
the calculation of all transaction payments due under
this Agreement. Once per year, the parties will
review these records to verify the accuracy and
appropriate accounting of all payments made pursuant
to the Agreement. In addition, Excite may, no more
frequently than every [****] months and upon no less
than thirty (30) days prior written notice to Client,
cause an independent Certified Public Accountant to
inspect the records of Client reasonably related to
the calculation of such payments during Client's
normal business hours. The fees charged by such
Certified Public Accountant in connection with the
inspection will be paid by Excite unless the
payments made to Excite during the period audited
are determined to have been less than [****] of
the payments actually owed to Excite during the
period audited and that such discrepancy is at
least [****], in which case Client will be
responsible for the payment of the reasonable fees
for such inspection.
f) Client will have sole ownership and control over the
"look and feel" of the Client Site.
5. PUBLICITY
Unless required by law, neither party will make
any public statement, press release or other
announcement relating to the terms of or existence
of this Agreement without the prior written
approval of the other. Notwithstanding the
foregoing, the parties agree to issue an initial
press release regarding the relationship between
Excite and Client, the timing and wording of which
will be mutually agreed upon.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
4
6. TERM AND TERMINATION
a) The term of this Agreement will begin on the
Launch Date and will not end until Excite displays
of a total of [****] impressions of Client's
sponsorship links, advertising banners and
promotional placements on the Excite Network.
Regardless of Excite's actual delivery of
impressions, but subject to Section 6(b), the term
of this Agreement will not be shorter than [****]
months after the display of the Launch Date,
unless earlier terminated pursuant to the terms
hereof.
b) Notwithstanding Section 6(a), in the event that
Client has not realized [****] in gross revenue
(the "Revenue Goal") on transactions conducted by
users referred to the Client Site from the Excite
Network within [****] months of the Launch Date,
Excite will continue to deliver the impressions of
Client's sponsorship links, advertising banners
and promotional placements on the Excite Network
otherwise required hereunder, but Client will not
be obligated to pay, and Excite hereby waives any
claim to, the monthly sponsorship and advertising
fees for the shorter of the following: (i) [****]
months, (ii) the end of the [****] month after the
Launch Date if by that time Client realizes [****]
in cumulative gross revenue on transactions
conducted by users referred to the Client Site
from the Excite Network or (iii) the end of
[****] month after the Launch Date if by that
time Client realizes [****] in cumulative gross
revenue on transactions conducted by users
referred to the Client Site from the Excite
Network. In the event that Client does not realize
the Revenue Goal within [****] months after the
Launch Date, Client may, at any time, terminate
this Agreement immediately upon written notice to
Excite.
c) Either party may terminate this Agreement if the
other party materially breaches its obligations
hereunder and such breach remains uncured for thirty
(30) days following the notice to the breaching party
of the breach.
d) All undisputed payments that have accrued prior to
the termination or expiration of this Agreement will
be payable in full within thirty (30) days thereof.
e) The provisions of Section 8 (Confidentiality and User
Data), Section 9 (Indemnity), Section 10 (Limitation
of Liability) and Section 11 (Dispute Resolution)
will survive any termination or expiration of this
Agreement.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
5
7. TRADEMARK OWNERSHIP AND LICENSE
a) Client will retain all right, title and interest in
and to its trademarks, service marks and trade names
worldwide, subject to the limited license granted to
Excite hereunder.
b) Excite will retain all right, title and interest in
and to its trademarks, service marks and trade names
worldwide, subject to the limited license granted to
Client hereunder.
c) Each party hereby grants to the other a
non-exclusive, limited license to use its trademarks,
service marks or trade names only as specifically
described in this Agreement. All such use shall be in
accordance with each party's reasonable policies
regarding advertising and trademark usage as
established from time to time, and, with the
exception of the links, advertising banners and
promotional placements described in this Agreement,
shall be subject to the prior written approval of the
other party, which approval shall not be unreasonably
withheld.
d) Upon the expiration or termination of this Agreement,
each party will cease using the trademarks, service
marks and/or trade names of the other except as the
parties may agree in writing.
8. CONFIDENTIALITY AND USER DATA
a) For the purposes of this Agreement, "Confidential
Information" means information about the disclosing
party's (or its suppliers') business or activities
that is proprietary and confidential, which shall
include all business, financial, technical and other
information of a party marked or designated by such
party as "confidential or "proprietary" or
information which, by the nature of the circumstances
surrounding the disclosure, ought in good faith to be
treated as confidential.
b) Confidential Information will not include information
that (i) is in or enters the public domain without
breach of this Agreement, (ii) the receiving party
lawfully receives from a third party without
restriction on disclosure and without breach of a
nondisclosure obligation, (iii) the receiving party
knew prior to receiving such information from the
disclosing party or (iv) the receiving party develops
independent of any information originating from the
disclosing party.
c) Each party agrees (i) that it will not disclose to
any third party or use any Confidential Information
disclosed to it by the other except as expressly
permitted in this Agreement and (ii) that it will
take all reasonable measures to maintain the
confidentiality of all Confidential Information of
the other party in its possession or control, which
will in no event be less than the measures it uses to
maintain the confidentiality of its own information
of similar importance.
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d) The usage reports provided by Excite to Client
hereunder will be deemed to be the Confidential
Information of Excite.
e) The terms and conditions of this Agreement will be
deemed to be Confidential Information and will not be
disclosed without the written consent of the other
party.
f) For the purposes of this Agreement, "User Data" means
all information submitted by users referred to the
Client Site from the Excite Network during the term
of the Agreement, with the exception of credit card
data. The parties acknowledge that any individual
user of the Internet could be a user of Excite and/or
Client through activities unrelated to this Agreement
and that user data gathered independent of this
Agreement, even from individuals who are users of
both parties' services, will not be deemed to be
"User Data" for the purposes of this Agreement.
g) User Data will be deemed to be the joint property of
the parties and, subject to the limitations contained
herein, both parties will retain all rights to make
use of any User Data obtained through this Agreement.
h) Client will provide to Excite all User Data collected
by Client within thirty (30) days following the end
of each calendar month during the term of the
Agreement in a mutually determined electronic format.
i) Client will not use User Data to directly or
indirectly solicit any Excite users (except as
specifically provided in this Agreement or except to
encourage the continued use of Client's services)
either individually or in the aggregate during the
term of this Agreement and for a period of [****]
following the expiration or termination of this
Agreement.
j) Neither party may sell, disclose, transfer or rent
any User Data which could reasonably be used to
identify a specific named individual ("Individual
Data") to any third party nor will either party use
Individual Data on behalf of any third party without
the express permission of the individual user. Where
user permission for the dissemination of Individual
Data to third parties has been obtained, each party
will use commercially reasonable efforts to require
the third party recipients of Individual Data to
provide an unsubscribe" feature in any email
communications generated by, or on behalf of, the
third party recipients of Individual Data.
k) Notwithstanding the foregoing, each party may
disclose Confidential Information or User Data (i) to
the extent required by a court of competent
jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a
"need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants,
banks and other financing sources and their advisors.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
7
9. INDEMNITY
a) Client will indemnify, defend and hold harmless
Excite, its affiliates, officers, directors,
employees, consultants and agents from any and all
third party claims, liability, damages and/or costs
(including, but not limited to, reasonable attorneys
fees) arising from:
i) The breach of any representation or covenant in
this Agreement; or
ii) Any claim that Client's advertising banners
infringe or violate any third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or contain any
defamatory content other than content provided by Excite, if any; or
iii) Any claim arising from content displayed on the
Client Site, other than content provided by Excite.
Excite will promptly notify Client of any and all
such claims and will reasonably cooperate with
Client with the defense and/or settlement thereof;
provided that, if any settlement requires an
affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally
impacts Excite in any way and such obligation,
liability, prejudice or impact can reasonably be
expected to be material, then such settlement
shall require Excite's written consent (not to be
unreasonably withheld or delayed) and Excite may
have its own counsel in attendance at all
proceedings and substantive negotiations relating
to such claim.
b) Excite will indemnify, defend and hold harmless
Client, its affiliates, officers, directors,
employees, consultants and agents from any and all
third party claims, liability, damages and/or costs
(including, but not limited to, reasonable attorneys
fees) arising from:
i) The breach of any representation or covenant in
this Agreement; or
ii) Any claim arising from or related to the Excite
Network other than content or services provided by Client.
iii) Any claim that Excite's advertising banners
infringe or violate any third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or contain any
defamatory content other than content provided by Client, if any.
Client will promptly notify Excite of any and all
such claims and will reasonably cooperate with
Excite with the defense and/or settlement thereof;
provided that, if any settlement requires an
affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally
impacts Client in any way and such obligation,
liability, prejudice or impact can reasonably be
expected to be material, then such settlement
shall require Client's written consent (not to be
unreasonably withheld or delayed) and Client may
have its own counsel in attendance at all
proceedings and substantive negotiations relating
to such claim.
c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT
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MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND
ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
10. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 9(a) AND 9(b), IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, [****].
11. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the
parties' obligations regarding trademarks, service
marks or trade names and/or confidentiality would
result in irreparable injury for which there is no
adequate remedy at law. Therefore, in the event of
any breach or threatened breach of a party's
obligations regarding trademarks, service marks or
trade names or confidentiality, the aggrieved party
will be entitled to seek equitable relief in addition
to its other available legal remedies in a court of
competent jurisdiction.
b) In the event of disputes between the parties arising
from or concerning in any manner the subject matter
of this Agreement, other than disputes arising from
or concerning trademarks, service marks or trade
names and/or confidentiality, the parties will first
attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot
be resolved through good faith negotiation, the
parties will refer the dispute(s) to a mutually
acceptable mediator.
c) In the event that disputes between the parties
arising from or concerning in any manner the subject
matter of this Agreement, other than disputes arising
from or concerning trademarks, service marks or trade
names and/or confidentiality, cannot be resolved
through good faith negotiation and mediation, the
parties will refer the dispute(s) to the American
Arbitration Association for resolution through
binding arbitration by a single arbitrator pursuant
to the American Arbitration Association's rules
applicable to commercial disputes. The Arbitration
will take place at an office of the American
Arbitration Association located in Nassau or New York
County if initiated by Excite and will take place at
an office of the American Arbitration Association
located in the county in which Excite maintains its
principal place of business if initiated by Client..
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
9
12. GENERAL
a) ASSIGNMENT. Neither party may assign this Agreement,
in whole or in part, without the other party's
written consent (which will not be unreasonably
withheld), except that no such consent will be
required in connection with (i) a merger,
reorganization or sale of all, or substantially all,
of such party's assets or (ii) either party's
assignment and/or delegation of its rights and
responsibilities hereunder to a majority-owned
subsidiary or joint venture in which the assigning
party holds an interest. Any attempt to assign this
Agreement other than as permitted above will be null
and void.
b) GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of
California, notwithstanding the actual state or
country of residence or incorporation of Excite or
Client.
c) NOTICE. Any notice under this Agreement will be in
writing and delivered by personal delivery, express
courier, confirmed facsimile, confirmed email or
certified or registered mail, return receipt
requested, and will be deemed given upon personal
delivery, one (1) day after deposit with express
courier, upon confirmation of receipt of facsimile or
email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set
forth below or such other address as that party may
specify in writing pursuant to this Section.
d) NO AGENCY. The parties are independent contractors
and will have no power or authority to assume or
create any obligation or responsibility on behalf of
each other. This Agreement will not be construed to
create or imply any partnership, agency or joint
venture.
e) FORCE MAJEURE. Any delay in or failure of performance
by either party under this Agreement will not be
considered a breach of this Agreement and will be
excused to the extent caused by any occurrence beyond
the reasonable control of such party including, but
not limited to, acts of God, power outages and
governmental restrictions, provided the effected
party takes all reasonable steps to resume full
operation.
f) SEVERABILITY. In the event that any of the provisions
of this Agreement are held to be unenforceable by a
court or arbitrator, the remaining portions of the
Agreement will remain in full force and effect.
g) ENTIRE AGREEMENT. This Agreement is the complete and
exclusive agreement between the parties with respect
to the subject matter hereof, superseding any prior
agreements and communications (both written and oral)
regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a
written document executed by both parties.
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h) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will serve to evidence
the parties' binding agreement.
800-FLOWERS, Inc. Excite, Inc.
By: /s/ Xxxxxxxxxxx XxXxxx By: /s/ Xxxxxx X. Xxxx
Title: Senior Vice President Title: Executive Vice President/Chief
Financial Officer
Date: 06/26/98 Date: 06/28/98
0000 Xxxxxxx Xxxxxx 000 Xxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
000-000-0000 (voice) 000-000-0000 (voice)
000-000-0000 (fax) 000-000-0000 (fax)
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EXHIBIT A
ANNUAL PLACEMENT SCHEDULE
1. SPONSORSHIP OF THE SHOPPING CHANNELS
a) Client will be prominently promoted in the Excite Shopping
Channel and the WebCrawler Shopping Channel as follows:
i) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed in the "Such
a Deal" promotional rotation on the home page of the Excite Shopping Channel
in [****] rotations during each year of the term of the Agreement, [****]
every [****].
ii) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed in the "Shop
Here First" promotional rotation on the home page of the Excite Shopping
Channel in [****] rotations during each year of the term of the Agreement,
[****] every [****].
iii) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed on the home
page of the Excite Shopping Channel under the Flowers & Gifts department
listing for the [****] of the Agreement.
iv) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed on the front
page of the Flowers & Gifts department of the Excite Shopping Channel for the
[****] of the Agreement.
v) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed in the "Shop
Here First" promotional rotation in the Flowers & Gifts department of the
Excite Shopping Channel in [****] rotations during each year of the term of
the Agreement, [****] every [****].
vi) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed in the
"Special Web Price!" promotional rotation on the home page of the WebCrawler
Shopping Channel in [****] rotations during each year of the term of the
Agreement, [****] every [****].
vii) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed in the
"Featured Merchants" promotional rotation on the home page of the WebCrawler
Shopping Channel in [****] rotations during each year of the term of the
Agreement, [****] every [****].
viii) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed on the home
page of the WebCrawler Shopping Channel under the Flowers & Gifts department
listing for the [****] of the Agreement.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
12
ix) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed on the front
page of the Flowers & Gifts department of the WebCrawler Shopping Channel for
the [****] of the Agreement.
x) A link to the Client Site (consistent with the
format used on similar links on the same page) will be displayed in the
"Featured Merchants" promotional rotation in the Flowers & Gifts department
of the WebCrawler Shopping Channel in [****] rotations during each year of
the term of the Agreement, [****] every [****].
b) During the [****] of the Agreement, Client will be
included in Excite's promotions of merchants with comparable sponsorship
commitments, such as Excite's Holiday Gift Guide promotion, a possible Gift
Reminder Service, a possible Personalized Gift Finder or other comparable
promotions.
2. "TRY THESE FIRST" AND "SHORTCUTS" LINKS
a) In the event that Client and Excite agree to include
Client in the "Try These First" and/or "Shortcuts" programs, Client will
create a co-branded version of the Client Site (the "Co-Branded Area"). Each
page in the Co-Branded Area will display the name and/or brands of Client and
Excite ("the Excite Co-Branded Area" or "the WebCrawler Co-Branded Area").
Client will create and maintain the Co-Branded Area in a manner consistent
with Excite's then-current guidelines for Co-Branded Areas including, but not
limited to, the display, appearance and placement of the parties' respective
names and/or brands and of advertising displayed on the Co-Branded Area.
b) The Co-Branded Area will be hosted by the Client. Client
will have sole responsibility for providing and maintaining, at its expense, the
Co-Branded Area and any updates thereto.
c) Each page in the Co-Branded Area will include one or more
links to the Excite Network. Excite will supply Client with the URLs for these
links.
d) Client will not sell or barter advertising on the
Co-Branded Area to Excite's competitors including, but not limited to, [****]
, or any other Web site promoting itself as a provider of Internet search and
navigation services. Within five (5) business days of receiving Excite's
written notice, Client will remove any advertising from Excite's competitors
displayed on the Co-Branded Area.
e) Other than updates to the content and to advertising
displayed on the Co-Branded Pages, Client will not change the Co-Branded Area
without Excite's prior consent, which consent will not be unreasonably withheld.
f) Excite may, upon fifteen (15) days prior notice to Client,
request reasonable revisions to the Co-Branded Area as needed to reflect changes
that will not adversely affect Client, such as changes to Excite's name and/or
brand or changes to the URLs for the links to the Excite Network. Client will
use reasonable efforts to accommodate Excite's requested changes within fifteen
(15) days from receipt of such notice.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
13
g) A text link to the Excite Co-Branded Area will be
displayed in the "Try These First" section on Excite Search results pages in
response to the following keywords: [****]. The text link will be no more
than twenty-five (25) characters in length, will consist of a "call to
action" based on a special promotion relevant to the holiday (such as [****]
as opposed to a generic solicitation to [****] and will not include [****].
All text links will be prepared by Client and be subject to Excite's sole
approval. The text link will link to a page in the Excite CoBranded Area
which displays content and/or transaction opportunities responsive to the
call to action in the text link. Excite will have sole control over the "look
and feel" of the text links including, but not limited to, the display,
appearance and placement of the text links on the Excite Search results page.
h) A link to the WebCrawler Co-Branded Area will be
displayed as a "Shortcut" on WebCrawler search results pages in response to
the following keywords: [****]. The link will include text of no more than
twenty-two (22) characters in length which consists of a "call to action"
based on a special promotion relevant to the holiday (such as [****] as
opposed to a generic solicitation to [****] and may include the display of
Client's logo. All links will be prepared by Client and be subject to
Excite's sole approval. The link will link to a page in the WebCrawler
Co-Branded Area which displays content and/or transaction opportunities
responsive to the call to action in the text portion of the link. Excite will
have sole control over the "look and feel" of the links including, but not
limited to, the display, appearance and placement of the links on the
WebCrawler search resultspage.
i) At the present time, reports on the number of displayed
"Try These First" or "Shortcut" links are not available. In the event that such
reports are made available to advertisers and sponsors, Excite will provide them
to Client.
j) Excite reserves the right to modify or eliminate the "Try
These First" and/or "Shortcut" functions and to modify its guidelines for
Co-Branded Areas.
3. SPONSORSHIP OF THE EXCITE LIFESTYLE CHANNEL
A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the Family, Holidays, and
Relationships departments of the Excite Lifestyle Channel in a promotional area
in the left sidebar of these pages being developed by Excite (or in an
equivalent promotional area) when launched and for the duration of the term of
the Agreement.
4. SPONSORSHIP OF THE EXCITE SPORTS CHANNEL
A link to the Client Site (consistent with the format used
on similar links on the same page) will be displayed in the "Exciting Stuff'
promotional rotation on the home page of the Excite Sports Channel in [****]
rotations centered on Valentine's Day, Mother's Day and Easter during each
year of the term of the Agreement.
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
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5. SPONSORSHIP OF THE EXCITE SMALL BUSINESS AREA
a) The parties recognize that Excite is currently in the
process of developing personalization functionality for the Excite Small
Business Area which will allow a user to display a set of links to certain
merchants offering services of interest to the user. The user will be able to
select the merchants displayed from a list of participating merchants determined
by Excite. The user will also be able to delete the entire listing from his or
her personalized page. For the purposes of this Agreement, this planned
functionality (or comparable functionality in the Excite Small Business Area)
will be referred to as the "Business Services Module".
b) When Excite implements the Business Services Module, Excite
will display a link to the Client Site in the default configuration of the
Business Services Module (consistent with the format used on similar links in
the module) in periods centered on Valentine's Day, Mother's Day and Easter
during each year of the term of the Agreement. Client will also be included in
the listing of participating merchants from which users may choose to include in
the Business Services Module for the remainder of the term of the Agreement.
Client's participation in the Services Module will be subject to Excite's
guidelines generally applicable to similar participating merchants.
c) Due to the user's control over the listing displayed in the
Business Services Module and whether the Business Services Module will appear at
all in a user's personalized page, the parties acknowledge that Excite cannot
guarantee the number of times Client's link in the Business Services Module will
be displayed.
6. SPONSORSHIP OF THE WEBCRAWLER HOME & FAMILY CHANNEL
A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the WebCrawler Home &
Family Channel in a promotional area being developed by Excite (or in an
equivalent promotional area) when launched and for the duration of the term of
the Agreement.
7. LINK IN PERSONALIZED EXCITE FRONT PAGE "SERVICES" MODULE
a) The parties recognize that Excite is currently in the
process of developing functionality for the front page of the Excite Site which
will allow a user to display a set of links to certain merchants offering
services of interest to the user. The user will be able to select the merchants
displayed from a list of participating merchants determined by Excite. The user
will also be able to delete the entire listing from his or her personalized
front page. For the purposes of this Agreement, this planned functionality (or
comparable functionality in the personalized front page of the Excite Site) will
be referred to as the "Services Modules".
b) When Excite implements the Services Module, Client will be
included in the list of participating merchants from which users may choose to
include in the Services Module. Client's participation in the Service Module
will be subject to Excite's guidelines generally applicable to similar
participating merchants.
15
c) Due to the user's control over the listing displayed in the
Services Module and whether the Services Module will appear at all in a user's
personalized front page, the parties acknowledge that Excite cannot guarantee or
estimate the number of times Client's link in the Services Module will be
displayed.
8. SPONSORSHIP OF THE WEBCRAWLER HOME PAGE
A link to the Client Site (consistent with the format used on
similar links on the same page) will be displayed in the "A Word From Our
Sponsors" promotional area on the home page of the WebCrawler Site during
mutually determined periods during the term of the Agreement. Client will comply
with Excite's then-current guidelines regarding "A Word From Our Sponsors"
promotional placements.
9. ADVERTISING ON THE EXCITE SITE AND THE WEBCRAWLER SITE
a) Excite will display Client's banner advertising on Excite
Search results pages in response to the following keywords: [****].
b) Excite will display Client's banner advertising on
WebCrawler search results pages in response to the following keywords: [****].
c) Excite will display Client's banner advertising in rotation
on the Excite Site and the WebCrawler Site as follows:
i) Excite Lifestyle Channel
ii) Excite Small Business Area
iii) Excite People & Chat Channel
iv) WebCrawler People & Chat Channel
v) WebCrawler Home & Family Channel
vi) WebCrawler "Horoscopes" pages
vii) WebCrawler Relationships Channel
**** Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406 of
the Securities Act of 1933, as amended.
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