Exhibit 10.6
@HOME NETWORK
@HOME/GOURMETMARKET PARTNERSHIP AGREEMENT
At Home Corporation, a Delaware corporation with principal offices at 000
Xxxxxxxx, Xxxxxxx Xxxx; XX 00000 ("@Home") and XxxxxxxXxxxxx.xxx Inc., a
Delaware corporation with principal offices at 000 Xxxxxx Xx. Xxx Xxxxxxxxx, XX
00000 ("XxxxxxxXxxxxx.xxx") hereby enter into this @Home/GourmetMarket
Partnership Agreement (this "Agreement") as of April 29, 1999 (the "Effective
Date") to establish XxxxxxxXxxxxx.xxx Content and Commerce on the @Home Service
in accordance with the terms and subject to the conditions of this Agreement.
In consideration of the representations, warranties and covenants contained
herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties agree to be bound by the terms and conditions
of this Agreement.
At Home Corporation XxxxxxxXxxxxx.xxx
By ______________________ By ___________________________
Name: ___________________ Name: ________________________
Title: __________________ Title: _______________________
@HOME NETWORK/GOURMETMARKET PARTNERSHIP AGREEMENT
The parties agree as follows:
1. Definitions. Capitalized terms shall have the meanings set forth in
Section 1 or as elsewhere defined in the body of the Agreement.
A. "@Home Service" means the @HOME Network broadband service
offering of Internet access for personal computers
created by @Home and @Home's Distribution Affiliates in
connection with @Home's provision of Internet access via
the cable infrastructure and delivered to paying @Home
residential PC service subscribers at speeds in excess
of 128kbs as of the Effective Date.
B. "Above the Fold" means situated within that portion of a
page that is designed to be visible on a standard
computer screen with a resolution of 800 pixels by 800
pixels without requiring the user to scroll horizontally
or vertically through the page.
C. "Anchor Shopping Tenant" means one of multiple paying
featured merchants or service providers in the @Home
shopping channel.
D. "Competitors" means the entities identified as Xxxxxxx.xxx,
Digitalchef, Epicurious, Great xxxxx.xxx and Virtual
Vineyards in relationship to the Food SubChannel.
E. "Contract Year" means a period on the Effective Date, or any
anniversary thereof, and ending one year later.
F. "Cover Feature" means the portion of the Channel or
SubChannel Home Page that is produced daily by the
@Home editorial staff.
G. "Distribution Affiliates" means at any given time,
@Home's then-current domestic distribution affiliates who
offer the @Home Service.
H.
I. "Food SubChannel" means a collection of web pages on the
@Home Service that are grouped together under the
Lifestyle Channel by a persistent, dedicated
navigational HTML button to be called "Food".
J. "Impression" means a single viewing of a page or an
Advertisement. An Impression is recorded whether or not the
viewer acts on an advertisement located on that page.
K. "XxxxxxxXxxxxx.xxx Content" means a collection of web pages,
or portion thereof, on the @Home Service programmed by, and
provided to @Home by XxxxxxxXxxxxx.xxx.
L. "XxxxxxxXxxxxx.xxx Site" means the World Wide Web site with
URL: xxx.XxxxxxxXxxxxx.xxx.
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M. "Gross Margin Revenue" means gross revenue less transaction
fees (not to exceed 2%) and cost of goods sold.
N. "LifeStyle Channel" means a collection of web pages on the
@Home Service that are grouped together by a persistent,
dedicated navigation HTML button currently labeled
"LifeStyle", which is directly accessible from the main
navigation menu of the @Home Service.
0. "LifeStyle Home Page" means the first page accessed when
entering the LifeStyle Channel.
P. "Net Advertising Revenue" means the gross advertising and
sponsorship revenue collected by @Home which is directly
attributable solely to XxxxxxxXxxxxx.xxx Content, less third
party agency commissions and seller sales costs to be
computed as 15% of the gross advertising and sponsorship
revenue generated from XxxxxxxXxxxxx.xxx Content.
Q. "Quarterly Period means with respect to any Contract Year, a
three month period beginning on the effective date.
R. "Semiannual Period" means, with respect to any Contract Year, a
six month period beginning at either (i) the beginning of such
Contract Year, or (ii) six months after the beginning of such
Contract Year.
S. "Term" means two years from Effective Date.
T. "Unique Content" means food content not offered by
XxxxxxxXxxxxx.xxx.
U. "Wizard&" An @Home created search tool on the @Home Service
that provides an easy-to-use interface for common user
requests.
2. @Home Contribution.
-------------------
A. Persistent Channel Navigation.
-----------------------------
(i) Food SubChannel. During the Term of this Agreement
@Home will provide one button in the LifeStyle
Channel navigation bar dedicated to accessing the
Food SubChannel (the "Food SubChannel Button").
The Food SubChannel Button will: (i) receive
persistent placement, (ii) be accessible from any
page within the LifeStyle Channel, and (iii) link
to XxxxxxxXxxxxx.xxx Content. The button will
appear Above the Fold in a position that
encourages use on the @Home LifeStyle Channel. in
addition, @HOME may, in its sole discretion, add
additional navigational elements or links across
the @Home Service which link to all or any of
XxxxxxxXxxxxx.xxx Content
(ii) XxxxxxxXxxxxx.xxx Branding. @Home will place the
XxxxxxxXxxxxx.xxx
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brand (as designated by the parties) on the Food
SubChannel and subsequent XxxxxxxXxxxxx.xxx
co-created pages. The logo and branding shall be
mutually agreed upon and shall comply with
@Home's and XxxxxxxXxxxxx.xxx's trademark usage
guidelines.
XxxxxxxXxxxxx.xxx Content Appearance on the Food Subchannel.
------------------------------------------------------------
XxxxxxxXxxxxx.xxx Content from within the Food
SubChannel will receive persistent and prominent
placement by incorporating XxxxxxxXxxxxx.xxx's
content and branded hotlink and additional topical
hotlinks. Both parties will work together to
provide the optimal mix of @Home co-branded,
co-created XxxxxxxXxxxxx.xxx video content to
provide the optimal user experience and to
encourage broad use of the Food SubChannel and
drive traffic to XxxxxxxXxxxxx.xxx Content
(iv) Food SubChannel Anchor Tenancy. @Home agrees that
during the term of this Agreement,
XxxxxxxXxxxxx.xxx will be the Food SubChannel
Anchor Tenant content provider on @Home. For
purposes of this Agreement, "Food SubChannel
Anchor Tenant" means:
(a) Promotion of XxxxxxxXxxxxx.xxx at
a level significantly greater
than that given to other third
party content providers of food
content in the Food SubChannel or
other channels or subChannels.
(b) @Home will not include content or
sell targeted ad units or
sponsorships from Competitors in
the Food SubChannel. This does
not preclude @Home from selling
and serving advertisements run
of site or other non-LifeStyle
Channel opportunities from
Competitors.
(c) Right of First Negotiation for
Unique Content. In the event
@Home determines the need for
Unique Content in the Food
SubChannel, @Home promptly
notify XxxxxxxXxxxxx.xxx of such
content. XxxxxxxXxxxxx.xxx shall
advise @Home whether it wishes
to pursue producing the Unique
Content or rights to such
content to @Home no later than
ten (10) business days from the
date of such notice. @Home
agrees that it shall not offer
the Unique Content opportunity
to third parties providers
during the ten (10) day period.
(d) It XxxxxxxXxxxxx.xxx notifies
@Home during the ten (10) day
response period that it wishes
to enter negotiations with
@Home for development of Unique
Content, @Home shall not
negotiate with any third party
with respect to such Unique
Content. In the event that
XxxxxxxXxxxxx.xxx and @Home are
unable to agree upon the terms
of the opportunity within
fifteen (15) days after
entering into negotiations,
@Home shall be free to offer
the opportunity to third
parties, including
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Competitors, so long as the terms of such offer
are no more favorable than the terms offered to
XxxxxxxXxxxxx.xxx
(V) Product Development and Product Creation. All
facets of the Food SubChannel will be created,
designed, and administered by the @Home Network
editorial and production staffs.
XxxxxxxXxxxxx.xxx will play an integral role in
the product development and day-to-day editorial
decisions but final discretion will be with
@Home.
(vi) Editorial Autonomy. Notwithstanding the
provisions of Section 2 (a)(iii) above,
XxxxxxxXxxxxx.xxx's status as a partner shall in
no way affect @Home's editorial discretion. Such
discretion includes but not limited to:
(a) Inclusion of @Home editorial
features and/or other parties'
contextually relevant content
including that from
Competitors, in the LifeStyle
Channel, Food Subchannel or
other areas of the @Home
Service.
(b) Local programming by the
Distribution Affiliates.
B. Shopping Channel.
---------------
(i) Shopping Anchor Tenancy. During the term of this
agreement, @Home will include XxxxxxxXxxxxx.xxx
as a "Shopping Anchor Tenant"(hereby referred
to as "Tenant") of an online food store in its
shopping channel. @Home will use best efforts to
sell future positions within the food store for
a price equal to or greater than that given to
XxxxxxxXxxxxx.xxx during the term of this
Agreement.
(ii) Category Spotlight. @Home will regularly promote
the food store in the @Home shopping channel.
(iii) Product Advertisements on the Shopping Channel.
Subject to the availability of appropriate
functionality, @Home will promote, on the main
page of the shopping channel, along with the
products of other @Home merchants, a product
offered by XxxxxxxXxxxxx.xxx through the food
store. XxxxxxxXxxxxx.xxx shall select such
product and may change its selection of product
each week during the term provided that
XxxxxxxXxxxxx.xxx provides at least fourteen
(14) days notice of all such changes. @Home
will include a link directly to the information
or purchase page within the location at the
XxxxxxxXxxxxx.xxx Site of the product being
promoted. XxxxxxxXxxxxx.xxx shall use reasonable
efforts to make available to @Home digital
promotional material in accordance with standard
@Home specifications governing this area which
may be amended by @Home from time to time. @Home
shall not be obligated to provide this
advertisement if XxxxxxxXxxxxx.xxx does not make
available to @Home digital promotional material
in accordance with standard @Home specifications
governing this area.
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(iv) Shopping Focused Email Promotion. Subject to
appropriate Distribution Affiliate approval, @Home
will include promotions from XxxxxxxXxxxxx.xxx in
emails to @Home subscribers. These emails will at a
minimum include XxxxxxxXxxxxx.xxx name, but may also
include the XxxxxxxXxxxxx.xxx logo and information
regarding XxxxxxxXxxxxx.xxx products, specials,
sweepstakes giveaways, etc., subject to
XxxxxxxXxxxxx.xxx's prior written suggestions (which
shall not be unreasonably withheld or delayed).
@Home shall provide notification of planned email
into which XxxxxxxXxxxxx.xxx shall be included at
least 10 days before such promotion is be deployed.
XxxxxxxXxxxxx.xxx shall have 5 business days from
notification to deliver to @Home the following
promotional items: i) a deal which represents twenty
dollars in value and is at least 10% savings off of
the lowest price found on the Internet and ii)
digital images of said product, in the
specifications standards determined by @Home, to be
used in merchandising the product in the email, and
iii) a unique URL to be used for tracking
promotional response, including but not limited to
visitation and purchase conversion, and iv)
descriptive text explaining the product which shall
be used to inform the newsletter editor and writer
of the product.
C. Wizards.
-------
(i) Recipe and Cocktail Wizard. @Home will work with
XxxxxxxXxxxxx.xxx to create two (2) Wizards which
will be sponsored by XxxxxxxXxxxxx.xxx. One Wizard
will be entitled "How Do I Find a Recipe?' The
second Wizard will be entitled "How Do I Make a
Cocktail?" The design of the Wizards will follow
standard @HOME Wizard specifications. Such
specifications may change periodically. Both parties
will use reasonable efforts to integrate
XxxxxxxXxxxxx.xxx video assets into the wizards.
D. Advertising Inventory.
---------------------
(i) Impressions. @Home will provide XxxxxxxXxxxxx.xxx
with 3,500,000 above the fold advertising
Impressions in the first contract year and 6,000,000
above the fold advertising Impressions in the second
contract year. The advertisements will be
cross-promoted across the @Home channels. @Home
will also provide creative services to assist the
production of up to six b*box advertisement units
over the term of the agreement. XxxxxxxXxxxxx.xxx
has the option of creating new b*boxes, banners and
half banners (more than the six provided by @Home
creative services) at their own cost and per the ad
unit specifications provided by @Home. In addition,
@Home will offer XxxxxxxXxxxxx.xxx additional ad
unit Impressions at pricing based upon the most
favorable rate card currently provided to @Home's
advertising customers.
(a) Measuring Impressions. @Home will
use reasonable efforts to quantify
the total ad Impressions provided.
XxxxxxxXxxxxx.xxx recognizes that
because some types of ad
impressions can not be directly
tracked, parties shall rely upon
@Home's reasonable estimates of
Impressions
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served with respect to such types
of impressions. @Home shall
describe to XxxxxxxXxxxxx.xxx the
manner in which @Home makes each
such estimate.
(b) Audit. Within thirty (30) days
after the end of each calendar
month during the Term, @Home will
submit to XxxxxxxXxxxxx.xxx a
report detailing the number and
type of b*box, full banner and
half banner Impressions provided
during the calendar month. Within
thirty (30) days after the end of
each Quarterly Period, @Home will'
submit to XxxxxxxXxxxxx.xxx a
report detailing the number and
types of Impressions provided
during the previous Quarterly
Period and the manner in which
@Home makes estimates of the
number of Impressions. The parties
will maintain, and make available
to each other records relating to
the parties performance under this
Agreement.
3. @Home Marketing Contribution.
----------------------------
A. Outbound Marketing. As the XxxxxxxXxxxxx.xxx brand becomes more
recognized in the Internet space, @Home will use reasonable efforts to
encourage its Distribution Affiliates to include XxxxxxxXxxxxx.xxx in
any content-related external marketing pieces. These marketing pieces
may include the XxxxxxxXxxxxx.xxx logo but may also include the
XxxxxxxXxxxxx.xxx Content descriptions, screen shots, video of the
@Home Service which includes XxxxxxxXxxxxx.xxx Content, etc. Possible
marketing avenues may include cable TV spots, infomercials, newspaper
ads, xxxx stuffers, postcards, door hangers, direct mail, Mail Tour of
America and Take-One brochures. Subject to XxxxxxxXxxxxx.xxx
pre-approval, XxxxxxxXxxxxx.xxx will provide @Home with guidelines for
how to describe/display XxxxxxxXxxxxx.xxx in @Home outbound marketing
efforts.
B. Other Online Marketing. @Home and XxxxxxxXxxxxx.xxx will work
together to include XxxxxxxXxxxxx.xxx in other appropriate online
mechanisms for showcasing XxxxxxxXxxxxx.xxx Content and other offerings
as these mechanisms are developed.
C. Usage Data. To the extent both parties are legally and Contractually
permitted, they will provide each other with aggregated usage data on
the LifeStyle Food SubChannel, Shopping Channel and Wizard. Such
Aggregated data includes site visitation and videos downloaded by @Home
subscribers. This data will be used for internal use only. Usage data
reports will be provided quarterly and as reasonably requested by both
parties. The reports will be delivered in the format most commonly
collected by each party. All usage data will be considered Confidential
Information of the collecting party (as such term is defined in Section
17). Both parties agree that unless each is otherwise required by law,
they will not provide usage data specific to XxxxxxxXxxxxx.xxx Content
that has not been aggregated with other data to any third-party other
than Distribution Affiliates, without the other party's prior written
consent.
4. @Home Network Distribution Contribution.
---------------------------------------
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A. @Home will distribute XxxxxxxXxxxxx.xxx Content through all means
by which it distributes its national content to subscribers using
personal computers as of the Effective Date.
B. Channel Serving, Distribution and @Work Services. @Home will
provide backbone transport, caching, and network management associated
with the distribution of XxxxxxxXxxxxx.xxx Content and any related
content to @Home subscribers over the @Home Network. Without limiting
any rights @Home may have under applicable laws, XxxxxxxXxxxxx.xxx
agrees that @Home may promote (as contemplated by this Agreement)
transport (i.e. transmit and serve), cache on proxy servers, replicate
on replication servers and reproduce on related storage devices
operated by @Home and its Distribution Affiliates, the content
provided by XxxxxxxXxxxxx.xxx to @Home for the Food SubChannel. In
the event the response time from the XxxxxxxXxxxxx.xxx Site to @Home
subscribers becomes unacceptably slow (in the reasonable discretion of
@Home), XxxxxxxXxxxxx.xxx and @Home shall work together to establish
and maintain a direct connection from the XxxxxxxXxxxxx.xxx servers to
the @Home Network. XxxxxxxXxxxxx.xxx shall bear the costs of this
connection, the speed of which shall be no less than 1.5 Mbps. Any
price for the connection offered by @Home shall be discounted at the
same rate offered to our other partners.
5. XxxxxxxXxxxxx.xxx Contribution.
------------------------------
A. XxxxxxxXxxxxx.xxx Content. XxxxxxxXxxxxx.xxx Content shall consist
of food content that is rich in graphics, text and video and will
include, at a minimum, food content supplied by XxxxxxxXxxxxx.xxx to
be redistributed on @Home as follows:
1. Video and Text Recipes for food and cocktails
2. Gourmet Products
3. Wine Reviews
4. Expert Articles and Reviews
5. Gift Registry
6. Multimedia Content
B. Active Web Presence. During the term of this Agreement,
XxxxxxxXxxxxx.xxx will maintain at all times an Active Web Presence.
For the purpose of this Agreement "Active Web Presence" means the
maintenance of the XxxxxxxXxxxxx.xxx Site and XxxxxxxXxxxxx.xxx
Content at a level at least equal to the level of performance and
functionality as offered on the Effective Date (including breadth and
depth of offerings, services and suppliers).
C. Quality of Services. If the quality of the primary features and
functions of XxxxxxxXxxxxx.xxx Content (including, frequency of
updates, breadth and depth of coverage, usability) are not
substantially equal to or better than the analogous functions and
features provided by the XxxxxxxXxxxxx.xxx Site, by XxxxxxxXxxxxx.xxx
for its distribution partners, or by "Competitors", then @Home may so
notify XxxxxxxXxxxxx.xxx in writing of such deficiencies, including a
description of how XxxxxxxXxxxxx.xxx Content is deficient. Within
thirty (30) days of receiving such notice XxxxxxxXxxxxx.xxx will
provide @Home with a reasonable plan for rectifying such
deficiencies. Such plan must be completed as soon as possible and in
no event later than ninety (90) days after the date Gourmet Xxxxxx.xxx
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received the notice of deficiency. If XxxxxxxXxxxxx.xxx fails to
provide such plan or to implement it within such periods, or if such
implementation does not rectify the specified deficiencies, then @Home
may terminate this Agreement in its entirety or may terminate all or
any portion of the rights granted to XxxxxxxXxxxxx.xxx pursuant to
Section 2 above.
D. Customer Support. Customer support related to XxxxxxxXxxxxx.xxx
Content will be provided by XxxxxxxXxxxxx.xxx XxxxxxxXxxxxx.xxx shall
provide @Home with customer support telephone numbers, e-mails and
contacts and @Home agrees to forward any requests for customer support
to the designated personnel and email mailboxes.
E. Link Back. XxxxxxxXxxxxx.xxx agrees to include a "hot link" back to
@Home from all XxxxxxxXxxxxx.xxx Content that @Home links to from the
@Home service. In other words, XxxxxxxXxxxxx.xxx will include a "link
back" for @Home subscribers connecting to XxxxxxxXxxxxx.xxx Content
from XxxxxxxXxxxxx.xxx corn via an @Home HTML link.
6. Joint @Home/XxxxxxxXxxxxx.xxx Contribution.
------------------------------------------
A. Technical Specifications. XxxxxxxXxxxxx.xxx and @Home will
mutually agree upon the technical specifications for
XxxxxxxXxxxxx.xxx Content. If @Home makes changes in the applicable
technical specifications, XxxxxxxXxxxxx.xxx will make commercially
practical efforts to promptly comply with such changes.
B. User Interface and Content. @Home and XxxxxxxXxxxxx.xxx will
mutually agree on the user interface design (which shall be
consistent with the @Home look-and-feel) and on the types of
content which appear in the Food SubChannel. @Home and
XxxxxxxXxxxxx.xxx will mutually agree upon food content
specifications for XxxxxxxXxxxxx.xxx Content. If @Home makes
changes in the applicable content specifications, XxxxxxxXxxxxx.xxx
will make commercially practical efforts to promptly comply with
such changes.
(i) @Home User Interface Change. @Home reserves the right to
make changes to the @Home Service user interface at its
discretion; provided that @Home will give XxxxxxxXxxxxx.xxx
reasonable prior notice of any change that is likely to have
a material impact on XxxxxxxXxxxxx.xxx promotional
placements or advertising Impressions (including, among
other things, the size, functionality, prominence or
relative importance of such placements or advertisements).
To the extent commercially practicable, @Home will consult
with XxxxxxxXxxxxx.xxx regarding adjustments (if any)
required by XxxxxxxXxxxxx.xxx in connection with such
changes.
7. Cash Compensation.
-----------------
A. Guaranteed Service Payments to @Home. The parties have agreed
that the total value of the services provided by @Home for
development promotion, and carriage during the term of the
agreement (as outlined hereunder) are Eight Hundred Thousand
Dollars ($800,000) in Contract Year One and One Million Four
Hundred Fifty Thousand Dollars ($1,450.000) in Contract Year Two
("Payments").
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The breakdown Of Payments are as follows:
----------------------------------------
Year One
--------
Advertising Impressions $175,000
Creative Services of 3 B*boxes $20,000
Cocktail and Recipe Wizard $20,000
Shopping Anchor Tenant $200,000
SubChannel Premier Placement $280,000
Development Fees $105,000
-----------
TOTAL: $800,000
Year Two:
--------
Advertising Impressions $300,000
Creative Services of 3 B*boxes $20.000
Cocktail and Recipe Wizard $70,000
Shopping Anchor Tenant $420,000
SubChannel Premier Placement $630,000
----------
TOTAL: $1,450,000
B. Payment Schedule. All Payments shall be made in cash during the
Contract Year and such Payments will become due in quarterly
installments. Each Payment shall be paid within thirty (30)
days from the beginning of the relevant Quarterly Period.
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The Payment Schedule is as follows:
Payment 1 - $106,000 - Due 30 Days after effective date of
Agreement Estimated to be 5/23/99
Payment 2 - $95,000 - Due 30 Days after Launch (OR END OF 02/99
No Later than 6/30/99
Payment 3 - $200,000 - Due 90 Days after Launch (OR END OF 03/99)
No Later than 9/30/99
Payment 4 - $200,000 - Due 180 Days after Launch (OR END OF
04/99) No Later than 12/31/99
Payment 5 - $200,000 - Due 270 Days after Launch (OR END OF
01/00) No Later than 3/31/00
Payment 6 - $362,500 - Due 360 Days after Launch (OR END OF
02/00) No later than 6/31/00
Payment 7 - $362,500 - Due 450 Days after Launch (OR END OF
03/00) No Later than 9/31/00
Payment 8 - $362,500 - Due 540 Days after Launch (OR END OF
04/00) No later than 12/31/00
Payment 9 - $362,500 - Due 630 Days after Launch (OR END OF
01/01) No later than 3/31/01
C. Method of Payment. Payments. will be made by check or wire
transfer to the following account: Silicon Valley Bank Santa Xxxxx,
Routing/ Transit #000000000, For Credit of: At Home Corporation,
Credit Account # 3300113199, By Order of: XxxxxxxXxxxxx.xxx Inc.
8. Other Financial Considerations.
------------------------------
A. Advertising Revenue. @Home has now and shall retain at all
times during the Agreement the exclusive right to sell
advertising inventory on the LifeStyle Channel (including the
Food SubChannel and any other subChannels which may be
established now or in the future which feature XxxxxxxXxxxxx.xxx
Content). During the term of this Agreement @Home will remit to
XxxxxxxXxxxxx.xxx 50% of Not Advertising Revenue generated from
XxxxxxxXxxxxx.xxx Content.
B. Video Content Inventory. @Home has the right to sell embedded
sponsorships of XxxxxxxXxxxxx.xxx video content shipped to @Home by
XxxxxxxXxxxxx.xxx @Home will remit to XxxxxxxXxxxxx.xxx 50% of Net
Advertising Revenue generated by such embedded sponsorships at the
beginning or end of such video content.
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C Additional Shopping Revenue to @Home When the Gross Margin
Revenue generated from XxxxxxxXxxxxx.xxx Content reaches 200% of
the Shopping Anchor Tenant Payment for each Contract Year (as
outlined in section 7) XxxxxxxXxxxxx.xxx will remit to @Home 50%
of the Gross Margin Revenue generated from XxxxxxxXxxxxx.xxx
@Home will have the right, no more than two times per Contract
Year, to audit the financial records of XxxxxxxXxxxxx.xxx related
to the Payments owed to @ Home under this Agreement. if @Home
determines that XxxxxxxXxxxxx.xxx has underpaid @Home by more
than five percent (5%), XxxxxxxXxxxxx.xxx will immediately pay
@Home the amount of such underpayment and will reimburse @Home
for @Home's reasonable costs related to such audit.
D. Payment Frequency. All Net Advertising Revenue and additional
Shopping Revenue amounts owed from one party to the other shall be paid
within thirty (30) days following the end of each Semiannual Period of
the Contract Year.
9. Commencement. Both parties agree to use reasonable commercial
efforts to launch the XxxxxxxXxxxxx.xxx Content on @Home on or
before (60) days from the Effective Date.
10. Term and Termination.
A. Initial Term. The initial term of this Agreement will begin on the
Effective Date and will and two years following the Effective Date
unless otherwise terminated by the parties as set forth in this Section
10.
B. Automatic Termination. This Agreement will terminate automatically
if @Home no longer offers the Food SubChannel, or a practical
equivalent, to @ Home subscribers.
C. Termination After One Year. Either party has the right to terminate
the agreement in its discretion on or after the one year anniversary of
the Effective Date if @Home makes a substantial change to the @Home
Service user interface that results in a material change to
XxxxxxxXxxxxx.xxx's placement, functionality, prominence or relative
importance of such placements. The terminating party will provide 60
days written notice to the other party. In the event of a termination
by either party pursuant to this Section 10 (C), all Net Advertising
Revenue, Additional Shopping Revenue, and Payments owed from one party
to the other will be paid within thirty (30) days following the close
of business on which such termination occurs.
(i) Termination by @Home. in the event of a termination by @Home
pursuant to this Section 10 (C), XxxxxxxXxxxxx.xxx shall be
required to pay to @Home a pro-rata portion of the Payments set
forth in Section 7, calculated as of the close of business on
which such termination occurs.
D. Renewal Option. If XxxxxxxXxxxxx.xxx offers in writing, no less than
sixty (60) days prior to the end of the initial term as set forth in
Section 10(A), to renew this Agreement for an additional one (1), two
(2), or three (3) years, then the parties shall engage in mutual good
faith discussions for a period of fourteen (14) days to determine the
terms applicable to such renewal. If the parties are unable to agree
on such terms @Home will be free to pursue discussions with third
parties.
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E. Termination Due to Breach. Either party may terminate this
Agreement, effective upon thirty (30) days' written notice, if the
other party fails to cure any material breach of its obligations under
this Agreement within thirty (30) days following written notice to such
party.
F. No Liability for Termination. Neither @Home nor XxxxxxxXxxxxx.xxx
will have any liability to the other merely as a result of termination
of this Agreement in accordance with this Section 10, however all
amounts earned but unpaid as of such termination shall be due and
payable to either party in accordance with the terms set forth in this
Agreement.
G. Purge of XxxxxxxXxxxxx.xxx Content. Upon the termination of this
Agreement for any reason whatsoever, @Home shall promptly delete or
purge from its systems any and all XxxxxxxXxxxxx.xxx Content and all
copies thereof and @Home immediately shall cease using any and all
XxxxxxxXxxxxx.xxx Content. Notwithstanding the foregoing, @Home may
retain the XxxxxxxXxxxxx.xxx Content in its archives to the extent
necessary for regulatory or other purposes related to the archiving of
information and not for redistribution or use of the content therein.
11 Public Announcement. Both parties will periodically promote the
XxxxxxxXxxxxx.xxx @Home relationship through mutually agreed upon (as
to timing and content) press releases and other announcements. Prior to
the initial public announcement about the relationship under this
Agreement, the disclosing party will obtain written consent of the
other party, which consent shall not be unreasonably withheld.
12. Business Marks. @Home and XxxxxxxXxxxxx.xxx each will have the
right, without charge, to use In promoting the XxxxxxxXxxxxx.xxx
Content and the @Home Service the other's business name and any trade
names, trademarks and service marks as provided by the other party
(collectively, "Marks"). However, any such use must be identical to use
by the party that owns the Xxxx. and as approved by the owner in
writing in advance, or otherwise in accordance with any Xxxx usage
guidelines communicated by the owner. The owner retains all goodwill
and all other rights thereto, and the other party obtains no goodwill
or any other rights thereto as a result of the use of the owner's
Marks. Except as explicitly set forth herein, no other licenses or
rights are granted or implied.
13. Representatives and Warranties. Each party to this Agreement represents
and warrants to the other party that: (a) such party has the full
corporate right, power and authority to enter into this Agreement and
to perform the acts required of it hereunder, (b) the execution of this
Agreement by such party, and the performance by such party of its
obligations and duties hereunder, do not and will not violate any
agreement to which such party is a party or by which it Is otherwise
bound; and (c) when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms
XxxxxxxXxxxxx.xxx hereby represents and warrants to @Home that: (a) the
XxxxxxxXxxxxx.xxx Content does not and will not infringe or violate the
Intellectual Property (defined below) rights of any third party, and
@Home's exercise of its rights under this Agreement will not constitute
an infringement or violation of the Intellectual Property rights of any
third party; (b) the XxxxxxxXxxxxx.xxx Content does not and will not
(i) contain any false, defamatory, offensive, pornographic, or obscene
material, (ii) contain any viruses, trap doors, hidden sequences, hot
keys, or time bombs, or (iii) violate any
Page 13
applicable law or regulation; and (c) XxxxxxxXxxxxx.xxx has sufficient
rights to the XxxxxxxXxxxxx.xxx Content to grant @Home the rights set
forth in this Agreement, including any consent, authorization, release,
clearance, or license of any third party ("Release") including any
Release related to any rights of privacy or publicity, as may be
necessary for XxxxxxxXxxxxx.xxx to enter into this Agreement.
"Intellectual Property" means copyright, patent, trademark, trade
secret, or any other intellectual property right recognized by any
applicable jurisdiction.
14. Limitation Of Liability. @HOME, @HOME'S DISTRIBUTION AFFILIATES AND
XXXXXXXXXXXXX.XXX WILL NOT BE LIABLE TO ONE ANOTHER, UNDER ANY LEGAL OR
EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR
INDIRECT DAMAGES OF ANY KIND, SUFFERED BY OR OTHERWISE COMPENSABLE TO
THE OTHER, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, WHETHER
OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL
@HOME OR @HOME'S DISTRIBUTION AFFILIATES HAVE ANY LIABILITY OF ANY
NATURE OR AMOUNT WHATSOEVER TO XXXXXXXXXXXXX.XXX ARISING OUT OF, UNDER
OR RELATING TO ANY FAILURE OF THE DISTRIBUTION OF THE CONTENT OR ANY
PART THEREOF OR ANY SOFTWARE PROGRAM, SOFTWARE OR WEB SITE LINK OR LINK
MECHANISM, OR OTHER MATERIAL OR ITEMS THROUGH THE @HOME NETWORK OR
OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY SUCH FAILURE OF
DISTRIBUTION RESULTING FROM A DISTRIBUTION AFFILIATES' ELECTION NOT TO
DISTRIBUTE MATERIAL OR ITEMS OR DUE TO TECHNICAL DIFFICULTIES OR
OTHERWISE).
15. Proprietary Rights Generally. @Home and XxxxxxxXxxxxx.xxx each retain
any and all right, title and interest in and to all intellectual
property of any nature (including patents, rights under patent
applications and patents issuing on such applications, trade secrets.
copyrights, trademarks and other business names (including goodwill In
such marks), among others), subject to the rights granted by the
parties in Section 12 (concerning rights with respect to business
marks) and Section 3(C) (concerning rights with respect to usage
information) of this Agreement or as may be provided in the Attachments
to this Agreement. @Home and XxxxxxxXxxxxx.xxx each agree to reproduce,
and agree not to remove or obscure proprietary rights legends (such as
copyright notices, among others) or license terms and conditions
included with any intellectual property deliverable provided in
connection with this Agreement. XxxxxxxXxxxxx.xxx agrees to ensure that
the XxxxxxxXxxxxx.xxx Content and the XxxxxxxXxxxxx.xxx Marks and their
use, reproduction and distribution (alone and not in combination with
other material or items) do not infringe the intellectual property
rights of any third party. If, as a result of any collaboration by
@Home or XxxxxxxXxxxxx.xxx under this Agreement, they become joint
owners of intellectual property by operation of law, then they will
cooperate, subject to prudent business judgment, to establish,
register, maintain and protect such intellectual property.
16. Indemnification. Each party will indemnify the other party and its
customers and affiliates for, and hold them harmless from, any loss, expense
(including reasonable attorney's fees and court costs), damage or liability
arising out of any claim, demand or suit resulting from (a) a breach of any of
its respective covenants or warranties under this Agreement. (b) the failure of'
such party to have all rights and authority necessary in order to fulfill or
perform its obligations pursuant to this Agreement in compliance with applicable
laws; (c) the infringement of Intellectual Property rights of any third party or
the violation of any law by such parties' contributions and/or performance
hereunder (e.g., In the case of XxxxxxxXxxxxx.xxx, the XxxxxxxXxxxxx.xxx Content
and in the case of @Home, the @Home Service but not Including any third party
content), and (d) the violation of any laws concerning obscenity, defamation,
infringement, rights of privacy or publicity, harassment or export controls
caused by the development, use, reproduction, publication or distribution of
such parties' respective contributions to the @Home Service. As a condition to
indemnification (a) the indemnified party will promptly inform the indemnifying
party in writing of any such claim, demand or suit and the indemnifying party
will fully cooperate in the defense thereof; and (b) the indemnified party will
not agree to the settlement of any such claim, demand or suit prior to a final
judgment thereon without the consent of the indemnifying party.
17. Confidential Information.
------------------------
A. Definition. "Confidential Information" means all non-public
confidential and proprietary information which the disclosing party
identifies in writing as confidential before or within thirty (30) days
after disclosure to the receiving party or which, under the
circumstances surrounding disclosure, the receiving party should have
understood was delivered In confidence.
B. Nondisclosure. Each party agrees (a) to hold the other party's
Confidential Information in strict confidence, (b) not to disclose such
Confidential Information to any third party, and (c) not to use the
other party's Confidential Information for any purpose other than to
further this Agreement. Each party may disclose the other party's
Confidential Information to its responsible employees, and, in the case
of @Home, the employees of @Home's Distribution Affiliates, with a bona
fide need to know such information and subject to a nondisclosure
agreement, but only to the extent necessary to carry out this Agreement.
Each party agrees to instruct all such employees not to disclose such
Confidential Information to third parties, including consultants.
without the prior written permission of the disclosing party.
C. Exceptions. Notwithstanding the foregoing, Confidential Information
will not include information which (i) is now, or hereafter becomes.
through no act or failure to act on the part of the receiving party,
generally known or available to the public; (ii) was acquired by the
receiving party before receiving such information from the disclosing
party and without restriction as to use or disclosure; (iii) is
hereafter rightfully furnished to the receiving party by a third party,
without restriction as to use or disclosure; (iv) is information which
the receiving party can document was independently developed by the
receiving party without use of the disclosing party's Confidential
Information; (v) is required to be disclosed by law, provided that
the receiving party uses reasonable efforts to give the disclosing party
reasonable notice of such required disclosure and to limit the scope of
material disclosed; (vi) is disclosed with the prior written consent of
the disclosing party; or (vii) is XxxxxxxXxxxxx.xxx Content provided by
XxxxxxxXxxxxx.xxx pursuant to this Agreement
D. Return. Upon the disclosing party's request, the receiving party will
promptly return to the disclosing party all tangible items containing or
consisting of the disclosing party's Confidential Information.
E. Injunctive Relief. Each party acknowledges that all of the disclosing
party's Confidential Information is owned solely by the disclosing party
(or its licensors) and that the unauthorized disclosure or use of such
Confidential Information would cause irreparable harm and significant
injury to the disclosing party, the degree of which may be difficult to
ascertain. Accordingly, each party agrees that the disclosing party will
have the right to
Page 15
obtain an immediate injunction enjoining any breach of this Section 17,
as well as the right to pursue any and all other rights and remedies
available at law or in equity in the event of such a breach.
18. Warranty Disclaimers. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT: (a)@HOME DOES NOT MAKE ANY WARRANTIES CONCERNING THE @HOME
NETWORK OR THE @HOME SERVICE, EXPRESS, IMPLIED OR OTHERWISE, (b) @HOME
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO
THIRD PARTY RIGHTS, AND (c) THE @HOME NETWORK. THE @HOME SERVICE, AND
ANY AND ALL CONTENT AND TOOLS AND RELATED DELIVERABLES PROVIDED BY
@HOME IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED BY @HOME "AS IS".
19. General Provisions.
A. Governing Law and Venue. This Agreement and any disputes arising
under, in connection with, or relating to this Agreement will be
governed by the laws of the State of California, excluding its conflicts
of law rules. The state and federal courts in San Mateo County.
California will have exclusive venue and jurisdiction for such disputes,
and the parties hereby submit to personal jurisdiction in such courts.
The prevailing party in any such dispute will be entitled to recover
costs of suit (including the reasonable fees of attorneys and other
professionals).
B. Notices. All notices or other communications to or upon @Home or
XxxxxxxXxxxxx.xxx under this Agreement shall be by telecopy or in
writing and telecopied, mailed, or delivered to each party at its
address set forth in the introductory paragraph of this Agreement or
such other address or telecopier number as either party shall notify the
other. All such notices and communications: when sent by delivery
service, shall be effective on the third business day following the
deposit with such service; when mailed, first class postage prepaid and
addressed as aforesaid in the mails, shall be effective upon receipt,
when delivered by hand, shall be effective upon delivery; and when
telecopied, shall be effective upon confirmation of receipt.
C. Compliance with Laws. Subject to the express provisions of this
Section 19(o), each party agrees to comply with applicable laws in
connection with this Agreement. XxxxxxxXxxxxx.xxx agrees, in particular,
XxxxxxxXxxxxx.xxx Content will comply with all laws concerning
obscenity, defamation, infringement, rights of privacy, harassment and
export controls, among others, and to ensure that the use, reproduction
and distribution of the XxxxxxxXxxxxx.xxx Content in and of itself, does
not violate such laws or related legal rights of third parties.
D Assignment. Neither party may assign or transfer its rights or
obligations under Agreement without the prior written permission of the
other party (which permission shall not be unreasonably withheld or
delayed); provided that either party may assign its rights and
obligations under this agreement to any commonly controlled affiliate or
wholly-owned subsidary without the consent of the other party so long as
the original party remains liable for its obligations hereunder. Any
transferee must agree to accept the burdens as well as the benefits of
this Agreement. Any attempt to transfer, sublicense or assign any of the
rights or duties hereunder in violation of this Section is hereby
prohibited and shall be null
Page 16
D. Assignment. Neither party may assign or transfer its rights or
obligations under Agreement without the prior written permission of
the other party (which permission shall not be unreasonably withheld or
delayed); provided that either party may assign its rights and
obligations under this agreement to any commonly controlled affiliate or
wholly-owned subsidiary without the consent of the other party so long
as the original party remains liable for its obligations hereunder. Any
transferee must agree to accept the burdens as well as the benefits of
this Agreement. Any attempt to transfer, sublicense or assign any of the
rights or duties hereunder in violation of this Section is hereby
prohibited and shall be null and void. Subject to the foregoing, this
Assignment shall inure to the benefit of and be binding upon the parties
and their successors and assigns
E. Relationship of Parties. Neither this Agreement nor the parties'
business relationship established hereunder will be construed as a
partnership, joint venture or agency relationship or as granting a
franchise. Accordingly, neither party shall have any right to act on
behalf of the other party for any purpose. The parties represent to one
another that they have consulted legal counsel in reviewing and/or
negotiating this Agreement.
F. Waiver. No waiver of any breach of any provision of this Agreement
will be considered to be a waiver of any prior, concurrent or later
breach of the same provisions or different provisions, and will not be
effective unless made in writing and signed by an officer of the waiving
party.
G. Amendments. This Agreement may only be amended by a written agreement
or addendum signed by duty authorized representatives of both parties.
H. Survival. Sections 12, 14, 15, 16, 17, 18, and 19 of this Agreement
along with any other provisions which by their nature extend beyond
termination of this Agreement shall survive termination. Termination
shall not affect either party's obligation to pay amounts due prior to
termination or which (under the terms of this Agreement) become due
following termination.
I. Force Majeure. Neither party will have liability to the other party
under, in connection with or for any reason relating to this Agreement
as a result of any failure of performance by or on behalf of such party
as a result of an event of "force majeure". For purposes of this
Agreement, "force majeure" means an event beyond a party's reasonable
control whether or not foreseeable and includes, in any case, the
following events that may prevent or significantly hinder such party
from performing this Agreement or acting in connection with this
Agreement: armed conflicts, famine, floods, Acts of God, labor strikes
or shortages, governmental decree or regulation, court order, severe
weather, fire, earthquake, failure of suppliers, unavailability of
communications transport facilities and breakdowns in communications
transport facilities.
J. Distribution Affiliates. Notwithstanding any other term of this
Agreement, XxxxxxxXxxxxx.xxx acknowledges and agrees that the
Distribution Affiliates will have the right under certain circumstances
to elect not to distribute the XxxxxxxXxxxxx.xxx Content and promotional
material and that, pursuant to its agreement with such Distribution
Affiliates, @Home may be subject to restrictions regarding the promotion
or distribution of the XxxxxxxXxxxxx.xxx Content and promotional
materials. XxxxxxxXxxxxx.xxx agrees not to
bring any action or threaten to bring any action against the
Distribution Affiliates or @Home in connection with any such election,
restriction or failure to distribute.
K. Entire Agreement. This Agreement, including its Attachments,
constitutes the entire understanding of @Home and XxxxxxxXxxxxx.xxx with
respect to its subject matter and supersedes all prior agreements
between @Home and XxxxxxxXxxxxx.xxx
