EXHIBIT 10.30
XXXXXXXXXXXXX.XXX
CONTENT LICENSE AGREEMENT
This Content License Agreement (the "Agreement") is made as of December 6,
1999 (the "Effective Date") by and between XxxxxxXxxxxxx.xxx, a Delaware
corporation with offices at Marketplace Tower, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, XX 00000 ("HealthCentral"), and Xxxxxx Xxxxxx, an individual
("Xxxxxx").
BACKGROUND
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A. HealthCentral owns and operates an Internet network currently
consisting of a website known as "XxxxxxXxxxxxx.xxx" (the "HealthCentral
Network").
X. Xxxxxx has developed and/or produced and expects to continue to develop
and/or produce works on health and fitness topics consisting of books, audio
tapes, video tapes and radio and television content, and may in the future
develop and/or produce additional products relating to health and fitness
topics.
X. Xxxxxx wishes to license certain content to HealthCentral and to make
such content available to End-Users via the HealthCentral Network, and
HealthCentral wishes to obtain such a license; and the parties desire that
HealthCentral use Xxxxxx'x name, as well as Xxxxxx'x approved likeness and image
(collectively, the "Name") in connection with the distribution of certain
content over the internet and other interactive media (excluding television and
radio).
In consideration of the foregoing, and the mutual promises contained
herein, the parties hereby agree as follows:
A G R E E M E N T
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1. DEFINITIONS. Capitalized terms shall have the meaning ascribed to them
in this Section 1, or elsewhere in this Agreement.
"ADVERTISING RIGHTS" means the advertising, promotional, sponsorship and
similar rights sold or licensed with respect to the HealthCentral Network.
"ADVERTISING DESIGNEE" means an employee of HealthCentral approved by
Xxxxxx. Xxxxxxxxx Xxxxxx is hereby proposed by HealthCentral and accepted by
Xxxxxx to serve as the Approved Designee, and Xx. Xxxxxx shall remain so until
and unless Xxxxxx retracts his approval in writing or until Xx. Xxxxxx'x
employment is terminated in due course by HealthCentral. If Xx. Xxxxxx or other
Approved Designee is unavailable, Xxxxxx will himself assume the rights and
obligations of Approved Designee.
"BRAND FEATURES" of a party means such party's trademarks, trade names,
service marks, service names, logos and other distinct brand elements that
appear from time to time in such party's properties, ventures and services
worldwide, and for which such party has established trademarks or trade dress
rights, or which are protected by U.S. copyright laws, together with any
modifications to the foregoing made by such party during the term of this
Agreement.
"BRAND GUIDELINES" means the guidelines for use of HealthCentral's Brand
Features, as prescribed by HealthCentral from time to time.
"END-USER" means an end-user who accesses the HealthCentral Network.
"XXXXXX CONTENT" means health and fitness topics which Xxxxxx develops,
licenses, or works on, as of the Effective Date and during the Term, consisting
of books audio AND VIDEO tapes, and radio television show content produced
and/or performed in by Xxxxxx, and any other products produced and/or performed
in by Xxxxxx during the Term.
"INTELLECTUAL PROPERTY RIGHTS" means all rights in and to trade secrets,
patents, copyrights, trademarks, know-how, as well as moral rights and similar
rights of any type under the laws of any governmental authority, domestic or
foreign, including rights in and to all applications and registrations relating
to any of the foregoing.
"LAUNCH DATE" means the date on which the Xxxxxx Content is made publicly
available to End-Users via the HealthCentral Network.
"LINK" means a URL hidden behind a formatting option that may take the form
of a colored item of text (such as a URL description), logo or image, "button"
or graphic box, and which allows an end-user to move automatically to or between
web pages, web sites or within a web page.
"THIRD PARTY SITES" means one or more web-sites on the Internet developed
by HealthCentral for third parties.
"OTHER INTERNET ENTITIES" means any entity other than HealthCentral whose
business primarily involves the Internet or any entity providing portals,
content, Internet service, search engines or broadband content or services.
"URL" means Universal Resource Locator, which provides a unique Internet
protocol address for accessing an Internet page.
2. HEALTHCENTRAL NETWORK DEVELOPMENT & MAINTENANCE.
2.1 XXXXXX CONTENT. Xxxxxx will make available to HealthCentral the
Xxxxxx Content and/or access to the Xxxxxx Content for delivery to HealthCentral
at HealthCentral's expense Xxxxxx will use reasonable commercial efforts and
will cooperate with HealthCentral, to ensure the Xxxxxx Content is current and
accurate, and will provide HealthCentral with all Xxxxxx Content and/or access
to all Xxxxxx Content promptly following its creation or production expect that
preexisting xxxxxx Content is limited as regards this paragraph to the extent
the Xxxxxx Content is within Xxxxxx'x possession and under Xxxxxx'x control.
2.2 HEALTHCENTRAL NETWORK.
(a) EDITORIAL CONTROL. HealthCentral will have sole editorial control
of use of the Xxxxxx Content in the HealthCentral Network, subject to the
approval by Xxxxxx or his Approved Designee. HealthCentral may include non-
Xxxxxx content in the HealthCentral Network, including on pages containing
Xxxxxx Content provided that no such use creates an actual or implied
endorsement by Xxxxxx of products or services produced or provided by other
parties. HealthCentral shall have no obligation to use any portion of the
Xxxxxx Content for any purpose whatsoever.
(b) HOSTING. HealthCentral will, at its own expense, provide and
manage all servers, telecommunications, facilities maintenance, and operations
related to the delivery of the HealthCentral Network to End-Users. HealthCentral
will be solely responsible for providing technical and customer support to End-
Users.
(c) AUTOMATIC LINK TO HEALTHCENTRAL NETWORK. Xxxxxx will use his
commercially reasonable efforts to ensure that the preexisting Xxxxxx website
(currently located at xxx.xxxxxxxxxxxx.xxx) will be automatically linked to the
HealthCentral Network, so that users searching the Internet for "Xxxxxx" or
"Xxxxxx Xxxxxx" will automatically be linked to the HealthCentral Network and
not the preexisting Xxxxxx website.
2.3 COSTS AND EXPENSES. Except as otherwise expressly provided for
herein, each party shall be responsible for and bear all costs and expense it
incurs in connection with its execution of the Agreement, and in connection with
its performance of its obligations and its exercise of its rights provided for
in this Agreement. Any out of town travel required of Xxxxxx by Healthcentral
shall be at HealthCentral's expense, including airfare, ground transportation,
hotel accommodations and meals (or a reasonable per diem for meals) and
incidental expenses.
3. ADVERTISING.
3.1 ADVERTISING RIGHTS. Xxxxxx acknowledges and agrees that
HealthCentral will exclusively own all Advertising Rights for the HealthCentral
Network, and HealthCentral shall be entitled to retain all revenue arising from
the license or sale of such Advertising Rights. Subject to Section 3.2,
HealthCentral will have sole control over the content of any advertising on the
HealthCentral Network, except that no actual or implied endorsement by Xxxxxx
shall be created thereby.
3.2 XXXXXX APPROVAL. Xxxxxx will have no right to reject or to
prevent HealthCentral from including specific advertising on any pages within
the HealthCentral Network which contain Xxxxxx Content except that no actual or
implied endorsement by Xxxxxx shall be created thereby. Notwithstanding the
foregoing, Xxxxxx reserves the right to request that HealthCentral refuse to
display, or remove, any Advertising from pages of the HealthCentral Network
containing Xxxxxx Content (i) that would violate any applicable law, regulation
or third party right, or (ii) that Xxxxxx in good faith reasonably determines:
(x) is inappropriate, (y) may result in liability or adverse publicity to
Xxxxxx, or (z) may otherwise damage the reputation or goodwill associated with
Xxxxxx and the Name; and HealthCentral shall use reasonable commercial efforts
to comply with such request.
4. LICENSES.
4.1 GRANT OF LICENSE BY XXXXXX. Subject to the terms and conditions
of this Agreement, and subject to the existing contracts and/or licenses with
third parties as provided for in Section 4.2, Xxxxxx hereby grants to
HealthCentral for the Term of this Agreement, an exclusive, royalty-free,
worldwide license under all of Xxxxxx'x Intellectual Property Rights (a) to use,
reproduce, publicly display, publicly perform, distribute, modify, edit, he
needs to pre-approve and transmit the Xxxxxx Content in the HealthCentral
Network; (b) to sublicense the use, reproduction, public display, public
performance, distribution, modification, editing, and transmittal of the Xxxxxx
Content in Third Party Sites; and (c) to use, reproduce, publicly display,
distribute and transmit the Name on and in connection with the HealthCentral
Network and the Third Party Sites in conjunction with the proper use hereunder
of Xxxxxx Content in such Third Party Sites.
(d) to modify and edit the Xxxxxx Content for the purpose set forth
immediately above the 4.1(c) subject to the approval of Xxxxxx or his Approved
Designee; and (d) to use , reproduce, publicly display, distribute and transmit
the Name on and in connection with Healthcentral Network and the approved Third
Party Sites in conjunction with the proper use here under of Xxxxxx Content in
such Third Party Sites. For purpose of the this paragraph "approved Third Party
Sites" refers to search engines and other third party websites that transmit
content in good taste and in a manner consistent with HealthCentral's terms of
use policy.
4.2 THIRD PARTY RELATIONSHIPS. Xxxxxx is subject to obligations under
the contracts and agreements listed in Exhibit 4.2. Xxxxxx will not enter into
any other contracts or relationships after the Effective Date which would
conflict with the obligations of Xxxxxx under this Agreement, including without
limitation the exclusivity obligations of Section 5, without the express prior
written approval of HealthCentral. HealthCentral will not use or exploit either
the Xxxxxx Content or Name controlled by third parties as set forth in Exhibit
4.2, without written approval form such third parties.
4.3 RESERVED RIGHTS. Without limitation of the foregoing, each party
reserves all rights other than those expressly granted in this Agreement, and no
licenses are granted except as expressly set forth herein.
5. EXCLUSIVITY.
6.2 BY XXXXXX. During the Term of this Agreement, without prior written
approval of HealthCentral, Xxxxxx shall not provide any Xxxxxx Content, or other
content relating to the topics of health and fitness, to any Other Internet
Entity or other third party for use on the Internet. During the Term of this
Agreement, Xxxxxx shall not provide services to or for use on the Internet by
any Other Internet Entity or other third party, including without limitation,
services as a host, author, or contributor, and shall not authorize or permit
any Other Internet Entity or other third party to use the Name on the Internet.
6. SERVICES.
6.1 CHAT ROOM. Xxxxxx will give good faith consideration as to his
participation in an interactive "chat room", or similar public discussion and
communication forum, on the HealthCentral Network at a frequency and on topics
to be mutually determined.
6.2 REFERENCES. Xxxxxx shall use all reasonable efforts to make reference
to the HealthCentral Network as appropriate in connection with his appearances
on radio and television and publications of Xxxxxx Content, including in
newspapers, other periodicals, and books. Such efforts to make such website
references are agreed by the parties to be a part of the exclusivity obligations
of Xxxxxx hereunder (except that Xxxxxx may make incidental references to non-
competing websites).
6.3 FUTURE COOPERATION. The parties will use good faith efforts to discuss
and negotiate the terms and conditions pursuant to which the parties may
cooperate in providing additional services including without limitation
coaching, product and merchandise sales.
7. PROPRIETARY INFORMATION.
7.1 CONFIDENTIALITY. HealthCentral and Xxxxxx hereby acknowledge that in
the course of activities under this Agreement each of them may have access to
confidential and proprietary information which relates to the other party's
marketing, business, and technology (the "Confidential Information"). Each
party agrees to, during the Term and for a five (5) year period following any
expiration or termination of this Agreement: (a) preserve and protect the
confidentiality of the other party's Confidential Information: (b) refrain from
using the other party's Confidential Information except as contemplated herein;
and (c) not disclose such Confidential Information to any third party except to
employees as is reasonably required in connection with the exercise of its
rights and obligations under this Agreement (and only subject to binding use and
disclosure restrictions at least as protective as those set forth herein
executed in writing by such employees). Notwithstanding the foregoing, either
party may disclose Confidential Information of the other party which is: (i)
already publicly known; (ii) discovered or created by the receiving party
without reference to the Confidential Information of the disclosing party, as
shown in records of receiving party; (iii) otherwise known to the receiving
party through no wrongful conduct of the receiving party, or (iv) required to be
disclosed by law or court order. Moreover, any party hereto may disclose any
Confidential Information hereunder to such party's agents, attorneys and other
representatives or any court of competent jurisdiction or any other party
empowered hereunder as reasonably required to resolve any dispute between the
parties hereto. Each party shall treat the terms of this Agreement as
"Confidential Information", provided, however, that after the initial press
release issued pursuant to the condition of paragraph 13.1 of this Agreement,
either party may disclose the existence of this Agreement and, in general, the
relationship between Xxxxxx and HealthCentral.
7.2 OWNERSHIP.
(a) BY XXXXXX. As between Xxxxxx and HealthCentral, Xxxxxx will have and
retain full and exclusive right, title and ownership interest in and to the
Xxxxxx Content and the Name, together with any Intellectual Property Rights
thereto.
(b) BY HEALTHCENTRAL. As between Xxxxxx and HealthCentral, HealthCentral
will have and retain full and exclusive right, title and ownership interest in
and to: (i) the HealthCentral Brand Features, (ii) the HealthCentral Network
(except as set forth in subsection (a) above), and (iii) any Intellectual
Property Rights to both of the foregoing.
8. TERMINATION.
8.1 TERM.
(a) INITIAL TERM. This Agreement will become effective as of the Effective
Date and, unless sooner terminated as provided below, or as otherwise mutually
agreed, shall remain effective for a period of four (4) years following the
Launch Date (the "Initial Term").
(b) RENEWAL. Six (6) months prior to the expiration of the Initial Term,
the parties shall meet to negotiate the terms under which the parties would
renew the Agreement.
8.2 TERMINATION. This Agreement may be terminated at any time by a party,
effective immediately upon notice, if the other party: (a) becomes insolvent;
(b) files a petition in bankruptcy, (c) makes an assignment for the benefit of
its creditors, or (d) breaches any of its material responsibilities or
obligations under the Agreement which breach is not remedied within thirty (30)
days from receipt of written notice of such breach.
8.3 EFFECT OF TERMINATION. Upon expiration or termination of this
Agreement: (a) each party shall return or, at the disclosing party's request
destroy, the Confidential Information of the other party, (b) all licenses
granted herein shall terminate, (c) HealthCentral shall have no further right to
use, and shall not use, Xxxxxx Content in any way whatsoever and agrees to purge
Xxxxxx Content from all electronic memories owned by it or in its possession or
under its control and (d) Sections 1, 7, 8.3, 9, 10, 11, and 13 will survive
any termination or expiration of the Agreement.
9. REPRESENTATION AND WARRANTIES.
9.1 BY EACH PARTY. Each party represents and warrants to the other that:
(a) (except for Xxxxxx), 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.
9.2 BY XXXXXX. Xxxxxx hereby represents and warrants that Xxxxxx has
assigned or otherwise transferred, and, throughout the Term, will assign or
otherwise transfer to HealthCentral. sufficient rights to the Name, the Xxxxxx
Content, and such other Xxxxxx property as are necessary for Xxxxxx to xxxxx to
HealthCentral the licenses granted hereunder. Xxxxxx hereby consents to the
licenses and sublicenses, as applicable, of such rights to HealthCentral as
provided for in this Agreement. The parties understand and agree that Xxxxxx
does not develop or provide and are not obligated hereunder to develop or
provide software of any kind and nothing in this Agreement shall be construed to
require the provision, development or licensing of software by Xxxxxx.
9.3 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION, NO PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE HEALTHCENTRAL
NETWORK, THE NAME, THE XXXXXX CONTENT AND ANY OTHER CONTENT PROVIDED HEREUNDER,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
10. INDEMNIFICATION.
10.1 INDEMNIFICATION BY XXXXXX. Xxxxxx agrees, at its own expense, to
defend or at its option to settle any claim or action brought against
HealthCentral arising out of or relating to a claim that: (a) use of Xxxxxx'x
Brand Features in accordance with the terms of this Agreement infringes a third
party copyright or trademark, (b) the Xxxxxx Content infringes the Intellectual
Property Rights of a third party or contains any material or information that is
obscene, defamatory, violates any law or regulation, or breaches the rights of
any person or entity, including, without limitation, rights of publicity,
privacy or personality, and/or (c) results from a breach by Xxxxxx of any
representation or warranty contained in Section 9; and Xxxxxx will indemnify
HealthCentral against any and all losses, damages, suits, judgments, costs and
expenses (including litigation costs and reasonable attorneys' fees) arising
under any such claim or action; provided that HealthCentral provides Xxxxxx
with: (x) prompt written notice of such claim or action, (y) sole control and
authority over the defense or settlement of such claim or action (provided that
Xxxxxx shall not enter into any settlement which materially affects
HealthCentral's rights without HealthCentral's prior written consent), and (z)
proper and full information and reasonable assistance to defend and/or settle
any such claim or action.
10.2 INDEMNIFICATION BY HEALTHCENTRAL. HealthCentral agrees, at its own
expense, to defend or at its option to settle any claim or action brought
against Xxxxxx arising out of or relating to a claim that: (a) use of
HealthCentral's Brand Features in accordance with the terms of this Agreement
infringes a third party copyright or trademark, (b) the HealthCentral Network,
excluding any Xxxxxx Content contained therein, or the operation of the
HealthCentral Network infringes the Intellectual Property Rights of a third
party or contains any material or information that is obscene, defamatory,
violates any law or regulation, or breaches the rights of any person or entity,
including, without limitation, rights of publicity, privacy or personality,
and/or (c) results from a breach by HealthCentral of any representation or
warranty contained in Section 9.1; and HealthCentral will indemnify Xxxxxx
against any and all losses, damages, suits, judgments, costs and expenses
(including litigation costs and reasonable attorneys' fees) arising under any
such claim or action; provided that the Xxxxxx Party provides HealthCentral
with: (x) prompt written notice of such claim or action, (y) sole control and
authority over the defense or settlement of such claim or action (provided that
HealthCentral shall not enter into any settlement which materially affects
Xxxxxx'x rights without Xxxxxx'x prior written consent) and (z) proper and full
information and reasonable assistance to defend and/or settle any such claim or
action.
11. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS
7.1 AND 10, UNDER NO CIRCUMSTANCES WILL ANY PARTY BE LIABLE TO ANOTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM
ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
12. COMPENSATION.
(a) DOLLAR SUM. In consideration of Xxxxxx'x undertaking of
responsibilities under this Agreement, HealthCentral will (a) pay Xxxxxx the sum
of thirty-six thousand dollars ($36,000) by the earlier of seven (7) days of the
Launch Date or fifteen days after execution of this Agreement; and (b) beginning
on the first day of the thirteenth (13th) month following the payment set forth
immediately above, and monthly thereafter during the remainder of the Term,
three thousand dollars ($3,000).
(b) EQUITY. In consideration of Xxxxxx'x undertaking of responsibilities
under this Agreement, HealthCentral will (a) issue Xxxxxx as of the Effective
Date five thousand (5,000) shares of the common stock of HealthCentral; and (b)
xxxxx Xxxxxx non-qualified options to aquire twenty four thousand (24,000)
shares of the common stock of HealthCentral (the "Option
Shares") at a strike price equal to the fair market value as of the Effective
Date, which Option Shares shall vest at the rate of 1/48th of such shares on
each monthly anniversary of the Effective Date, provided that Xxxxxx continues
to perform his obligations under this Agreement. These options will be subject
to a one hundred eighty (180) day lock-up agreement, commencing on the effective
date of HealthCentral's proposed initial public offering.
13. MISCELLANEOUS.
13.1 PRESS RELEASE. Notwithstanding Section 7.1, the parties will
cooperate to create appropriate, mutually agreeable, public announcements of
the relationship set forth in this Agreement. No party will make any separate
public announcement without first delivering the announcement to the other party
and obtaining the other party's prior consent, which will not be unreasonably
withheld or delayed.
13.2 NOTICES. Any notice or other communication to be given hereunder
will be in writing and given by facsimile, postpaid registered or certified mail
return receipt requested, or electronic mail (with a copy concurrently mailed as
set forth above). The date of receipt shall be deemed the date on which such
notice is given. Notice hereunder will be directed to a party at the address
for such party set forth in the first paragraph of this Agreement. A party may
change its address for notice purposes hereof on written notice to the other
party in accordance with this Section 13.2.
13.3 NO JOINT VENTURE OR AGENCY. Nothing in this Agreement shall
constitute or create a joint venture, partnership, or any other similar
arrangement between Xxxxxx and HealthCentral. Neither party is authorized to
act as agent or bind the other party except as expressly stated in this
Agreement.
13.4 NO ASSIGNMENT. Neither party will transfer or assign any of its
rights or assign or delegate any of its obligations under this Agreement, in
whole or in part, whether voluntarily or by operation of law, without the prior
written consent of the other party. Any purported transfer, assignment or
delegation by either party without the appropriate prior written approval will
be null and void and of no force or effect. Notwithstanding the foregoing,
HealthCentral will have the right to assign its rights and obligations under
this Agreement to any successor of such party by way of merger or consolidation
or the acquisition of all or substantially all of the business and assets of the
assigning party relating to the Agreement
13.5 HEADINGS. Sections, titles or captions in no way define, limit,
extend or describe the scope of this Agreement nor the intent of any of its
provisions.
13.6 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
13.7 ENTIRE AGREEMENT. This Agreement together with its Exhibits
contains the entire agreement of the parties with respect to the subject matter
hereof, and supersedes all prior and/or contemporaneous agreements or
understandings, written or oral, between the parties with respect to the subject
matter hereof.
13.8 GOVERNING LAW. This Agreement will be governed by and interpreted
under the laws of the State of California, without giving effect to applicable
conflicts of law principles.
13.9 AMENDMENT. This Agreement may not be amended or modified by the
parties in any manner, except by an instrument in writing signed on behalf of
each of the parties to which such amendment or modification applies by a duly
authorized officer or representative.
13.10 WAIVER. Any of the provisions of this Agreement may be waived by
the party entitled to the benefit thereof. Neither party will be deemed, by any
act or omission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event will not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
13.11 GENDER. Throughout this Agreement, the masculine gender shall be
construed to include the feminine gender, the feminine gender to include the
masculine gender, and the neuter gender to include the masculine and/or feminine
gender as the context may require.
13.12 DISPUTE RESOLUTION. Representatives from each party will meet
within ten (10) business days after receipt of a request from either party to
review in good faith any dispute with respect to the interpretation of any
provision of this Agreement or with respect to the performance of either party
under this Agreement. In the event a disagreement or dispute under this
Agreement is not resolved by the designated representatives of each party by
mutual agreement within ten (10) business days after a meeting to discuss the
disagreement, either party may present the dispute to a mutually agreeable
mediator for resolution. If such mediation does not resolve the dispute, such
dispute or claim arising out of or in connection with this Agreement will be
finally settled by binding arbitration in accordance with the then-current
Commercial Arbitration Rules of the American Arbitration Association by one
arbitrator appointed in accordance with said rules who is knowledgeable in the
Internet industry. In arriving at his award the arbitrator shall make every
effort to find a solution to the dispute in the provisions of this Agreement and
shall give full effect to all parts hereof. The arbitrator shall apply
California law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. The location of the
arbitration shall be Portland, Oregon. The arbitrator shall designate in his
award the party which is the prevailing party and the prevailing party will be
entitled to recover its costs and expenses, including, without limitation,
attorneys' fees and costs, incurred in connection with such arbitration.
Judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, the parties may
apply to any court of competent jurisdiction for preliminary or interim
equitable relief, or to compel arbitration in accordance with this paragraph,
without breach of this arbitration provision.
13.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if both parties hereto had signed the same
document. All counterparts will be construed together and will constitute one
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers or representatives as of
the Effective Date.
By:
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Xxxxxx Xxxxxx
XXXXXXXXXXXXX.XXX
By:
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Title:
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