Exhibit 10.14
Cyberian Outpost, Inc. has omitted from this Exhibit 10.14 portions of
the Agreement for which Cyberian Outpost, Inc. has requested confidential
treatment from the Securities and Exchange Commission. The portions of the
Agreement for which confidential treatment has been requested are marked with
X's in brackets and such confidential portions have been filed separately with
the Securities and Exchange Commission.
MERCHANT INTEGRATION AGREEMENT
THIS CONTENT PROVIDER AGREEMENT (the "Agreement") is made as of 1/6/1998
(the "Effective Date"), by and between INFOSPACE, a Washington corporation
having a principal place of business at 0000 000xx Xxxxxx XX, Xxxxxxx, XX 00000
("Company"), and CYBERIAN OUTPOST, INC., with offices at 00 Xxxxx Xxxx Xxxxxx,
Xxxx, Xxxxxxxxxxx ("Cyberian Outpost, Inc.").
WHEREAS, Company provides information and other content in various media to end
users via its site on the World Wide Web (the "Web") and other electronic media
environments;
WHEREAS, Cyberian Outpost, Inc. supplies hardware and software for sale via the
Web; and
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS. The following terms shall have the following meanings for the
purpose of this Agreement:
1.1 "COMPANY CONTENT" means the materials to be provided by Company (such
as the Marks, an HTML template for the "look and feel" of the Branded Pages,
files, data and formulae) necessary for Cyberian Outpost, Inc. to develop and
create Branded Pages in accordance with the Branded Page Specifications.
1.2 "CYBERIAN OUTPOST, INC. CONTENT" means the text, pictures, graphics,
sound, video, other data and computer software and code to be provided by
Cyberian Outpost, Inc. hereunder which also include, but are not limited to: the
search engine and the process to view, and search for items as well as all
information and resources provided by Cyberian Outpost, Inc.
1.3 "MARKS" means the Domain Name and the Company logos and trademarks to
be provided to Cyberian Outpost, Inc. in accordance with this Agreement.
1.4 "CYBERIAN OUTPOST, INC. MARKS" means the Cyberian Outpost, Inc. logos
and trademarks to be provided to Company in accordance with this Agreement.
1.5 "PROMOTIONAL LINKS" means links to the Web sites of any third party
for which Company receives monetary, promotional, or other consideration.
1.6 "SERVER LOGS" means the InfoSpace logs, identifying information for
Users and records of User activities conducted on or in the Branded Pages from
both Company and Cyberian Outpost, Inc. links. This section does not refer to
logs from Cyberian Outpost servers.
1.7 "USER" means any person who accesses or attempts to access the Branded
Pages.
2. INTEGRATION OF MERCHANT.
2.1 COMPANY'S OBLIGATIONS. Company shall make Cyberian Outpost, Inc.'s
Content available on its Website. Company will provide links to Cyberian
Outpost, Inc. in the following locations:
X. XXXXX PAGES: Integration throughout the white pages of InfoSpace
in a manner similar to or better than the links to Xxxxxx and
Noble appearing on 12-28-97.
B. E-SHOPPING: Integration of Cyberian Outpost, Inc. into the
eShopping site, as described below (category of your choice):
a) Category sponsorship graphic.
b) Rotational graphic on Top of Category Page (where Xxxxxx &
Noble & 800Florals are as of 12/28/97).
c) Primary sponsorship graphic at top of HotSite level.
d) Graphic link and expanded 300-character text link at HotSite
level.
C. YELLOW PAGES: The listings pages from a maximum of [XXX] Yellow
Page categories will provide the opportunity to buy
software/hardware from Cyberian Outpost, Inc.. Cyberian Outpost,
Inc. will choose up to a maximum of [XXX] categories in computer
hardware or software related categories.
D. INFOSPACE HOME PAGE: Placement of permanent text link for
Cyberian Outpost, Inc. on home page of InfoSpace under e-shopping
heading. At the sole discretion of InfoSpace, a rotational
graphic link to Cyberian Outpost will appear on the home page.
E. NAVIGATION BAR: Placement of a text (or graphical text) link for
Cyberian Outpost, Inc. on the navigation bar of InfoSpace. In
addition, placement of a rotational graphic link for Cyberian
Outpost, Inc. on the InfoSpace navigation bar at a one out of six
rotation level.
F. TRAFFIC GUARANTEE: InfoSpace will guarantee to implement the
above links (2.1 A, B, C, D, and E), and that the InfoSpace
Xxxxxxx I-Pro verified page views will exceed [XXXXXX] per
month. In the event that Xxxxxxx I-Pro verified page views are
below [XXXXXX] page views for any month, Cyberian Outpost will
be eligible for a [XXX] reduction in that month's minimum
payment for each whole[XXXXXX] shortfall in page views as
measured by Xxxxxxx I-Pro. InfoSpace will supply copies of
monthly Xxxxxxx I-Pro reports to Cyberian Outpost upon request.
2.2 CYBERIAN OUTPOST, INC.'S OBLIGATIONS.
A. Cyberian Outpost, Inc. shall provide to InfoSpace customers
services related to sales and customer service which are normal
and traditional in the way Cyberian Outpost, Inc. services
customers of the Cyberian Outpost, Inc. web site.
B. Cyberian Outpost, Inc. will pay Infospace revenues outlined in
point #3, below.
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3. REVENUE PAYMENTS.
3.1 ACTIVITY REVENUE: CYBERIAN OUTPOST, INC. WILL PAY INFOSPACE A MINIMUM
MONTHLY GUARANTEE:
A. Cyberian Outpost, Inc. will pay minimum guaranteed revenue to
InfoSpace of [XXXXX] per month. In addition, InfoSpace will be
eligible for a maximum of [XXXXX] in additional integration
revenues, as described in point 3.1.B, below.
B. In the event that InfoSpace monthly page views for any particular
month exceed [XXXXX] per month, as measured by Xxxxxxx I-
Pro, then Cyberian Outpost, Inc. will pay InfoSpace [XXXXX] per
month, plus an additional [XXXXX] per month for each [XXXXX]
of page views in excess of [XXXXX] for the preceding month.
This incremental amount will be due with the invoice for the
month in which the increase occurred.
C. Cyberian Outpost, Inc. will provide InfoSpace with [XXX] of gross
revenue (defined as gross sales less returns) of Cyberian
Outpost, Inc. revenues derived from the traffic originating from
InfoSpace and syndicated sites, except that Cyberian Outpost,
Inc. will not owe InfoSpace said share of the gross revenue until
said share of net earnings exceeds the minimum guarantee outlined
in point 3.1 A, or B, respectively, above.
The [XXX] monthly revenue share will not engage until Cyberian
Outpost has earned revenue equal to [XXXXX] per month. Thus,
company would get [XXX] of sales once Cyberian Outpost has sold
approximately [XXXXX] worth of product in a month's time.
D. Cyberian Outpost, Inc. will pay InfoSpace all revenues owed in
quarterly installments, to be sent no later than 30 days
following the last day of the quarter, except that the first
payment will be due for a pro-rata month to establish regular
billing at the end of the following quarter. The first payment
will be due for a partial month in a prorated share following the
end of the first month in which the integration described in 2.1
has been completed. Following the first pro-rata monthly
payment, quarterly payments will be due.
As an option, Cyberian Outpost, Inc. may elect to pay monthly
instead of the quarterly payments described above. If Cyberian
Outpost, Inc. elects to utilize this option, Cyberian Outpost
will subtract [XXXXX] per month from the revenue owed to
InfoSpace.
E. Cyberian Outpost, Inc. will provide information to Company
summarizing total clickthroughs, and gross revenue on a monthly
basis.
3.2 ADVERTISEMENTS OPTIONS. Cyberian Outpost, Inc. will have the option to
purchase [XXXXXX] or more ROS banners per month at a [XXXXXX] charged for such
banners. Cyberian Outpost, Inc. will also have the option to purchase [XXXX] or
more ROS click-throughs per month at [XXXXXX]
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[************************************************] Payment for the optional
banner ads will be in addition to the revenues described in point 3.1 A and 3.1
B.
3.3 RECORDS. Each party shall keep reasonable records in connection with
its respective performance under this Agreement (including without limitation,
records in relation to advertising, payment, and Server Logs in Company's case,
and in relation to the compilation of the Server Logs and activity revenue in
Cyberian Outpost, Inc.'s case), and shall permit the other party reasonable
access to such records at such other party's expense upon reasonable notice.
4. PROPRIETARY RIGHTS AND LICENSE.
4.1 LICENSE GRANT BY COMPANY. Company hereby grants to Cyberian Outpost,
Inc. for the term of this Agreement, a non-exclusive, royalty-free, worldwide
license to reproduce, distribute, create derivative works of, publicly perform,
publicly display and digitally perform Company Content in connection with
Cyberian Outpost, Inc.'s performance of its obligations hereunder. Company
hereby grants to Cyberian Outpost, Inc. a non-exclusive, nontransferable,
royalty-free, worldwide license to use Company's Marks on the Branded Pages and
for the purposes of marketing, promotion, and content directories or indexes,
and in electronic or printed advertising, publicity, press releases, newsletters
and mailings about Cyberian Outpost, Inc.
4.2 OWNERSHIP OF MARKS AND COMPANY CONTENT. All right, title and interest
in and to the Marks and the Company Content (including without limitation all
rights therein under copyright, trademark, trade secret and similar laws) shall
remain with Company or its licensors and/or suppliers.
4.3 OWNERSHIP OF CYBERIAN OUTPOST, INC. CONTENT AND CYBERIAN OUTPOST, INC.
MARKS. All right, title and interest in and to the Cyberian Outpost, Inc.
Content and Cyberian Outpost, Inc. Marks as well as intellectual property rights
(including without limitation all rights therein under copyright, trademark,
trade secret and similar laws) shall remain with Cyberian Outpost, Inc. or its
licensors and/or suppliers. Notwithstanding the foregoing, Cyberian Outpost,
Inc. hereby grants to Company a non-exclusive, nontransferable, royalty-free,
worldwide license to use Cyberian Outpost, Inc. Marks on the Branded Pages and
for the purposes of marketing, promotion, and content directories or indexes,
and in electronic or printed advertising, publicity, press releases, newsletters
and mailings about the Company.
4.4 QUALITY CONTROL AND USE RESTRICTIONS BY CYBERIAN OUTPOST, INC.
Cyberian Outpost, Inc. shall use the Marks in accordance with any written
instructions provided by Company. Cyberian Outpost, Inc. acknowledges that
Cyberian Outpost, Inc.'s use of the Marks will not create in it, nor will it
represent it has, any right, title or interest in or to the Marks other than the
license granted by Company above. Cyberian Outpost, Inc. will not challenge the
validity of or attempt to register any of the Marks or its interest therein as a
licensee. Cyberian Outpost, Inc. acknowledges Company's and its affiliates'
ownership and exclusive right to use the Marks and agrees that all goodwill
arising as a result of the use of the Marks shall inure to the benefit of
Company and its affiliates.
4.5 QUALITY CONTROL AND USE RESTRICTIONS BY COMPANY. Company shall use
the Branded Pages and Cyberian Outpost, Inc. Marks in accordance with any
written instructions provided by Cyberian Outpost, Inc. Company acknowledges
that Company's use of the Branded Pages and Cyberian Outpost, Inc. Marks will
not create in it, nor will it represent it has, any right, title or interest in
or to the Branded Pages, or its information, other than the license granted by
Cyberian Outpost, Inc. above. Company will not challenge the validity of or
attempt to register any of the Branded Pages or Cyberian
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Outpost, Inc. Marks or its interest therein as a licensee. Company acknowledges
Cyberian Outpost, Inc.'s and its affiliates' ownership and exclusive right to
use the Branded Pages and Cyberian Outpost, Inc. Marks and agrees that all
goodwill arising as a result of the use of the Branded Pages and Cyberian
Outpost, Inc. Marks shall inure to the benefit of Cyberian Outpost, Inc. and its
affiliates.
4.6 CYBERIAN OUTPOST, INC. NON-EXCLUSIVITY. The parties agree and
acknowledge that nothing in this Agreement shall be deemed or construed to
prohibit Cyberian Outpost, Inc. from providing material similar in nature to the
Cyberian Outpost, Inc. Content to any third party.
4.7 COMPANY EXCLUSIVITY. Company agrees and acknowledges that Cyberian
Outpost, Inc. acts as Company's sole provider of computer software and hardware
on its Website, except that the company may incorporate competitors ad and links
on banner ads and within the e-shopping area of the company website.
4.8 EXECUTION OF DOCUMENTS. Each party agrees to execute such documents
and take such other actions as are reasonably necessary to effectuate the
provisions of this Section 5 at the other party's request and sole expense. In
the event either party refuses or is unable to take such action, such party
hereby irrevocably appoints the other party as such party's agent-in-fact for
the purposes of taking such action, which appointment is coupled with an
interest.
5. LIMITED WARRANTY.
5.1 REGARDING THE BRANDED PAGES. Company does not guarantee continuous or
uninterrupted display or distribution of the Branded Pages. In the event of
interruption of display or distribution of the Branded Pages, company's sole
obligation shall be to restore service as soon as reasonably possible. This
clause will have no effect on reducing the minimum traffic guarantees by
InfoSpace to Cyberian Outpost.
5.2 LIMITED DAMAGES. In no event shall InfoSpace or Cyberian Outpost,
Inc. be liable for any special, indirectly, incidental or consequential damages
(including but not limited to such damages arising from breach of contract or
warranty or from negligence or strict liability), or for interrupted
communications, loss or use, lost business, lost data or lost profits, arising
out of or in connection with this Agreement.
5.3 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6,
EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6. INDEMNITY.
6.1 INDEMNITY BY COMPANY. Company shall indemnify and hold harmless
Cyberian Outpost, Inc. and its affiliates and suppliers against all claims,
losses, damages, liabilities, costs and expenses, including reasonable
attorneys' fees, which Cyberian Outpost, Inc. and its affiliates and suppliers
may incur as a result of any claims relating to the infringement by the Marks or
the Company Content of any third party copyright, trademark or trade secret.
6.2 CYBERIAN OUTPOST, INC.'S INDEMNITY. Cyberian Outpost, Inc. shall
indemnify and hold harmless Company and its affiliates and suppliers against all
claims, losses, damages, liabilities, costs
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and expenses, including reasonable attorneys' fees, which Company and its
affiliates and suppliers may incur as a result of claims relating to the
infringement by the Cyberian Outpost, Inc. Content or the Cyberian Outpost, Inc.
Marks of any third party copyright, trademark or trade secret.
6.3 MECHANICS OF INDEMNITY. The party seeking indemnification (the
"Indemnified Party") shall: (a) give the proposed indemnifier (the "Indemnifying
Party") notice of the relevant claim, (b) cooperate with the Indemnifying Party,
at the Indemnifying Party's expense, in the defense of such claim, and (c) give
the Indemnifying Party the right to control the defense and settlement of any
such claim, except that the Indemnifying Party shall not enter into any
settlement that affects the Indemnified Party's rights or interest without the
Indemnified Party's prior written approval. The Indemnified Party shall have
the right to participate in the defense at its expense.
7. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO ANY LIABILITY OF EITHER
PARTY TO THE OTHER PARTY ARISING UNDER SECTIONS 7 OR 10 HEREUNDER: IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR SHALL EITHER PARTY'S LIABILITY
UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY COMPANY TO CYBERIAN
OUTPOST, INC., OR CYBERIAN OUTPOST, INC. TO COMPANY, HEREUNDER.
8. TERM AND TERMINATION.
8.1 TERM. This Agreement shall expire twelve (12) months following the
first date on which the Branded Pages are available to Users. Upon conclusion
of the initial 12 month period, both parties will work in good faith toward a
mutually agreeable extension of the agreement. Either party may terminate the
agreement without cause after an initial six (6) month time period.
8.2 TERMINATION. Either party may terminate this Agreement upon the other
party's material breach if such breach continues for thirty (30) days after
written notice. Upon the effective date of expiration or termination, all
licenses hereunder shall terminate immediately. Sections 5.2, 5.3 (other than
with respect to the license granted to the Marks and Cyberian Outpost, Inc.
Marks set forth therein), 5.4, 5.5, 5.9, 6, 7, 8, 9, 10 and 11 shall survive
expiration or termination of this Agreement.
9. CONFIDENTIALITY.
9.1 CONFIDENTIAL INFORMATION. Each party agrees that during the term of
this Agreement such party may come into possession of Confidential Information
of the other party. For the purposes of this Agreement, "Confidential
Information" means any information which the party disclosing the information
(the "Discloser") designates as confidential or which the party receiving the
information (the "Receiver") knows or has reason to know is confidential to the
Discloser. Without limitation of the foregoing, Company's Confidential
Information includes: the Server Logs and all information contained therein,
all information provided by Users to Cyberian Outpost, Inc. in connection with
use of the Branded Pages, the Branded Page Specifications, code for Branded
Pages and the Company Content. Confidential Information does not include
information which is: (a) already known by the Receiver at time of disclosure;
(b) is or becomes, through no act or fault of Receiver, publicly known; (c)
received by Receiver from a third party without a restriction on disclosure or
use; (d) independently developed by
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Receiver without reference to Discloser's Confidential Information; or (e)
required to be disclosed by a court or governmental agency pursuant to a
statute, regulation or valid order.
9.2 NON-DISCLOSURE OBLIGATIONS. The Receiver shall hold the Confidential
Information in confidence and shall not disclose the Confidential Information to
third parties nor use the Confidential Information for any purpose other than as
permitted in this Agreement.
9.3 RETURN OF CONFIDENTIAL INFORMATION. Upon termination or expiration of
this Agreement for any reason, Receiver shall return or destroy all copies of
Confidential Information in its possession at Disclosure's direction.
10. GENERAL PROVISIONS.
10.1 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of California without giving effect its
conflict of laws principles.
10.2 COMPLIANCE WITH LAWS. At its own expense, Cyberian Outpost, Inc. and
Company shall comply with all applicable laws, regulations, rules, ordinances
and orders regarding its activities related to this Agreement.
10.3 PUBLICITY. Both parties shall issue a press release regarding this
relationship within 10 days of the Branded Pages being made available to the
public, but only with the prior approval of the other party. Additional press
releases may be issued regarding the relationship between Company and Cyberian
Outpost, Inc. but only after prior approval of the other party. Each party
shall not disclose the terms of this Agreement to any third party, except as
required by law.
10.4 SEVERABILITY; HEADINGS. If any provision of this Agreement is held
to be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision which most
closely approximates the intent and economic effect of the invalid provision.
Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of such section, or in any way affect this
Agreement.
10.5 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or employee-
employer relationship is intended or created by this Agreement. Neither party
may take any actions which are binding on the other party. Without limiting the
foregoing, neither Cyberian Outpost, Inc. nor Company shall not make any
representations or warranties to third parties on behalf of the other party.
10.6 NOTICE. Any notices required or permitted hereunder shall be given
to the appropriate party at the address specified above or at such other address
as the party shall specify in writing. Unless otherwise specified, such notice
shall be deemed given: upon personal delivery; if sent by fax, upon confirmation
of receipt; or if sent by certified or registered mail, postage prepaid, three
(3) days after the date of mailing.
10.7 ENTIRE AGREEMENT; WAIVER. This Agreement and any Exhibits attached
hereto set forth the entire understanding and agreement of the parties, and
supersede any and all prior or contemporaneous oral or written agreements or
understandings between the parties, as to the subject matter of this Agreement.
In the event of any conflict between the Agreement and an Exhibit, the terms
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of the Exhibit shall control. Except as provided herein, this
Agreement may be changed only by a writing signed by both parties. Waiver by
either party of a breach of any provision contained herein must be in writing,
and no such waiver shall be construed as a waiver of any succeeding breach of
such provision or a waiver of the provision itself.
10.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed to be one instrument.
COMPANY: CYBERIAN OUTPOST, INC.:
BY: /s/ XXXXXX XXXX BY: /S/ XXXXXX XXXX
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TITLE: PRESIDENT & CEO TITLE: PRESIDENT & CEO
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DATE: FEBRUARY 6, 1998 DATE: FEBRUARY 6, 1998
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