Exhibit 10.16
STRATEGIC BUSINESS AGREEMENT
BY AND BETWEEN
COMPAQ COMPUTER CORPORATION
AND
CMGI, INC.
This Strategic Business Agreement (the "Agreement") is entered into as of
this 29th day of June, 1999 by and between Compaq Computer Corporation, a
Delaware corporation (hereinafter referred to as "Compaq," as such term is
defined below), and CMGI, Inc., a Delaware corporation (hereinafter referred to
as "CMGI," as such term is defined below).
WHEREAS, Compaq is the largest global supplier of computer systems and a
market leader in delivering Internet-enabled personal computers to consumers;
WHEREAS, CMGI is a recognized leader in the Internet economy with a
portfolio of synergistic Internet enterprises focused on providing solutions
and creating compelling Internet user experiences;
WHEREAS, Compaq and CMGI desire to work together to define mutually
beneficial vehicles for the strategic bundling, distribution, and promotion of
CMGI products and services on Compaq's products.
NOW THEREFORE, in consideration of the premises, the mutual agreements and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS
The following definitions shall apply throughout this Agreement:
1.1 "Affiliate" shall mean, with respect to any specified Person, any
other Person that directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with, such specified Person.
1.2 "Aggregate User Data" shall mean (i) general User transactional or
behavioral tracking data that is not Registration Data (including
without limitation clickstreams, purchasing patterns, connect time
and number of visits); (ii) anonymous User data, which may include
individual User information without personal identification; and
(iii) any data consisting of
any combination of Registration Data, anonymous User data, and/or
general User transactional or behavioral data that does not contain
or constitute Registration Data. All such data in all instances
shall be aggregated over all relevant Users redirected from Products
or Compaq Sites.
1.3 "Agreement" shall have the meaning set forth in the preamble.
1.4 "Appliance" shall mean any consumer-oriented device designed or
intended for execution of a specific application or related set of
applications.
1.5 "Closing Date" shall be the date on which the transactions
contemplated by the Purchase and Contribution Agreement between the
parties dated of even date herewith have been satisfied or waived.
1.6 "CMGI" shall mean CMGI, Inc. and its Affiliates.
1.7 "CMGI Site" shall mean any Site owned by CMGI or any CMGI Affiliate.
1.8 "Compaq" shall mean Compaq Computer Corporation and its Affiliates.
1.9 "Compaq's Area of Business" shall mean all business segments in
which Compaq sells goods or services during the applicable period.
1.10 "Compaq Labs" shall mean the [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of
1933, as amended.
1.11 "Compaq Site" shall mean any Site owned by Compaq or any Compaq
Affiliate, excluding any CMGI Site.
1.12 "Control" or "Controlled" shall mean that a corporation or entity
owns or directly or indirectly controls more than fifty percent
(50%) of the voting stock or other ownership interest of another
corporation or entity.
1.13 "including" shall mean including without limitation.
1.14 "Instant Internet Keyboard Button" shall mean a single button,
accessible by means of a keyboard or other input device as agreed
between the parties, that enables the functionality to access and
direct an end-user to a designated URL and/or a designated URLs
redirector.
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1.15 "Internet Browser" shall mean programs that allow for browsing the
Internet including but not limited to Microsoft Internet Explorer(R)
and Netscape Navigator(R). "Internet Browser" shall not include
browsers that are embedded or included with proprietary networks
such as AOL, Compuserve or Prodigy.
1.16 "Link" shall mean a URL (or an icon, logo, highlighted or colored
text, figure or image representing a URL) on which a user may point
and click, or otherwise send a command, to hyperlink to another Site
or page.
1.17 "Marks" shall mean trademarks, service marks, Internet domain names,
trade names, logos and designs, together with applications and
registrations of the foregoing.
1.18 "Marketing Addendum" shall mean a statement of the marketing
strategies of both parties, including joint marketing and promotion
plans, which shall be agreed to and implemented by the Executive
Coordinators prior to each Compaq product sales cycle, in accordance
with the schedules determined by the Executive Coordinators.
Marketing Addenda shall, at a minimum, contain reference to the
number and configuration of any Instant Internet Keyboard Buttons on
Products intended for sale in the next product cycle, including
where appropriate reference to the intended Links to CMGI Sites.
1.19 "Person" shall mean any individual, bank, partnership, firm,
corporation, limited liability company, association, trust, or any
other entity or organization.
1.20 "Product" shall mean Presario-branded (including successor brands or
sub-brands) consumer desktop and portable personal computers.
"Product" as used herein shall not include commercial or enterprise
computing devices, networking equipment, or consumer Appliances,
unless otherwise specified.
1.21 "Proprietary Online Service Provider" shall mean any provider of
Internet access or other network bandwidth to end-user customers for
whom the definition, allocation, distribution or programming of the
Instant Internet Keyboard Buttons or other Internet addressing
functionality is a defined requirement of distribution or resale of
its service.
1.22 "Redirect Script" shall mean a set of instructions that accepts
Internet traffic and redirects the traffic to another location.
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1.23 "Registration Data" shall mean any data collected by a party,
through registration or by any other means, that contains
information that could be used to determine the identity of a User.
1.24 "Search Engine" shall mean a general electronic information location
tool that (i) is accessible through the World Wide Web; (ii) accepts
a query in the form of words; and (iii) responds to the query by
indexing World Wide Web pages and using such index to present URL
addresses of World Wide Web pages that are relevant to the asserted
query.
1.25 "Site" shall mean a page or group of pages on the World Wide Web or
any successor online network organized under a single domain name.
1.26 "Term" shall have the meaning set forth in Section 6.1.
1.27 "User" shall mean any person who navigates to a Site.
2. COMPAQ OBLIGATIONS
2.1 Internet Traffic
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2.1.1 Obligations of Compaq. During the Term, Compaq shall
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preprogram each Product prior to sale so that activation of
any Instant Internet Keyboard Button automatically loads only
the Compaq Redirect Script URLs. For Products with seven (7)
or more Instant Internet Keyboard Buttons, Compaq shall
program Compaq Redirect Script URLs to immediately direct
traffic from four (4) Instant Internet Keyboard Buttons to
the applicable CMGI Site as directed by CMGI, provided that
such CMGI Sites shall be subject to Compaq's review and
approval for suitability and appropriateness for Compaq
customers, which approval shall not be unreasonably denied.
The process for such approval shall be defined in the
Marketing Addenda. In the event that a Product is equipped
with fewer than seven (7) Instant Internet Keyboard Buttons,
the number of Redirect Script URLs directed to CMGI Sites may
be fewer than four (4), but in any event shall comprise not
less than fifty percent (50%) of the total number of Instant
Internet Keyboard Buttons. Users shall be able to reconfigure
the Instant Internet Keyboard Buttons. For any Product for
which an Instant Internet Keyboard Button is programmed or
redirected to a default portal start page, the "Home" Link of
the Internet Browser shall also be linked or redirected to
the same default portal start page.
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2.1.2 Additional Obligations. It is Compaq's intention to redirect
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Internet traffic to appropriate CMGI Sites from all Compaq
products that are equipped with Instant Internet Keyboard
Buttons (including commercial PC products and Appliances) to
the same extent as described in Section 2.1.1, subject to
availability and suitability of appropriate CMGI Sites for
the specific customer segment targeted. Subject to the
applicable obligations and exclusions set forth in this
Article 2, for Compaq-only branded Appliances, Compaq shall
program Instant Internet Keyboard Buttons, if any, in the
same manner and quantity as set forth in Section 2.1.1, to
the extent that CMGI Sites are applicable and competitive in
price and performance.
2.1.3 Excluded Products. The products subject to the provisions of
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Sections 2.1.1 and 2.1.2 shall not include (i) products that
cannot be configured pursuant to this Article because of
local law restrictions, (ii) products intended for sale in
geographic regions in which CMGI does not have a local Site
that is translated, localized, relevant and fully operational
in the specific international market, (iii) products designed
or manufactured specifically for a sponsor or affinity
program that requires the programming of a proprietary
default start page, or (iv) products for which Compaq's
customers have requested that pre-programmed Internet
functionality not be included. The parties shall work
together to coordinate international expansion and roll-out
plans, including identification of specific local
requirements and time frames for implementation.
2.1.4 Exclusions. Compaq's obligations pursuant to this Section 2:
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(i) are subject to contractual obligations with third parties
existing as of the date of execution of this Agreement, and
(ii) shall not apply to products or services provided by or
for a Proprietary Online Service Provider. Compaq shall
provide CMGI with a list of all such contractual obligations
within 30 days of the execution of this Agreement, and Compaq
shall use its best efforts to minimize the adverse impact of
such contractual obligations upon Compaq's obligations
hereunder. If Compaq engages in a distribution agreement with
any Proprietary Online Service provider, Compaq shall as part
of the process use its best efforts to explore opportunities
with CMGI and the Proprietary Online Service Provider to
engage CMGI as a preferred provider of portal solutions or
other content. In addition, Compaq's obligations pursuant to
this Section 2 shall terminate, at Compaq's election, if
after January 1, 2000, the Primary CMGI Portal Site fails to
be one of the twelve (12) most
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trafficked web sites for four (4) consecutive months as
measured in terms of unique visitors by Media Metrix, or such
other comparable industry metric as may be agreed between the
parties. The Primary CMGI Portal Site shall mean, for
purposes of this Agreement, the AltaVista, Xxxxxxxx.xxx, and
Zip2 Sites (and any future Sites owned by AltaVista or any
subsidiary owned or Controlled by AltaVista) considered in
the aggregate. Within twenty-four (24) months of the Closing
Date, CMGI intends that AltaVista will be among the top three
(3) portal Sites as measured by Media Metrix.
2.2 Sale of Compaq Equipment. Subject to CMGI entering into Compaq's
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standard reseller agreement, during the Term, Compaq shall make
available to CMGI Compaq hardware and equipment for resale [***]
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
2.3 [***]. Compaq hereby designates CMGI as a [***] It is Compaq's
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intention to promote, demonstrate, and display CMGI's companies and
Sites on Compaq Sites and/or Compaq products, as further defined by
mutual agreement of the parties.
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
2.4 Designation of Internet Search Service. Subject to contractual
--------------------------------------
obligations existing as of the date of execution of this Agreement,
Compaq shall, and shall cause its Affiliates to, designate the Alta
Vista Search Engine as the only Search Engine offered by, linked to,
or promoted by each Compaq Site, provided that AltaVista maintains a
competitive Search Engine service, as determined by mutually agreed
upon industry competitiveness standards. Compaq shall provide CMGI
with a list of all such contractual obligations within 30 days of
the execution of this Agreement, and Compaq shall use its best
efforts to minimize the adverse impact of such contractual
obligations upon Compaq's obligations hereunder. Compaq shall state
on each Compaq Site that searches are "Powered By AltaVista." For
all products that contain Instant Internet Keyboard Buttons or other
features (including the Internet Browser, subject to authorization
from the Internet Browser licensor) that are specifically labeled or
otherwise identifiable as dedicated to a Search Engine, Compaq shall
not redirect users to any other Search Engine.
* * *
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* * *
2.7 Distribution Through Compaq Site Links. It is Compaq's intent to
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promote certain CMGI Sites through Links on Compaq Sites, subject to
Compaq's qualification and acceptance criteria and product marking
requirements, and further subject to negotiation of acceptable terms
and conditions including license rights, pricing, and compatibility.
3. CMGI OBLIGATIONS
3.1 Revenue Share
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3.1.1 During the Term, CMGI shall pay to Compaq a fee based on the
number of redirect messages directed to CMGI Sites from
Compaq, either directly or through Compaq's Redirect Script
Server (the "Redirect Fee"). The amount of the Redirect Fee
due to Compaq shall be as follows:
Time Period $ per redirect
----------- --------------
Closing Date - [***] [***]
[***] [***]
[***] [***]
[***] Denotes language for which AltaVista requested confidential
treatment pursuant to the rules and regulations of the Securities
Act of 1933, as amended.
3.1.2 Payment of the Redirect Fee shall be due to Compaq on a
monthly basis, no later than the last day of each month for
the previous month's traffic. CMGI shall provide to Compaq,
with each payment, a full report of User traffic in a level
of detail adequate to support the accuracy of the monthly
payment.
3.1.3 No later than March 31, 2001, the parties shall agree to an
appropriate revenue target for the time period June 1, 2001
through March 31, 2002. CMGI shall have the option to extend
the Agreement for one additional year based on the same
Redirect Fee
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schedule listed in Section 3.1.1 in effect as of the previous
year if the agreed upon revenue target is met or exceeded,
and if the Primary CMGI Portal Site is among the top five (5)
trafficked Sites, as determined by MediaMetrix. If the
revenue target is not met, CMGI may, at its option, pay to
Compaq an "option fee," calculated as the difference between
the revenue target and the actual revenue for the period.
Upon payment of the option fee, CMGI may extend the Agreement
for one additional year on the same terms as if the revenue
target was achieved. Each subsequent year, prior to March 31,
the parties shall agree to an appropriate revenue and traffic
target for qualification for an additional one-year renewal
option.
3.1.4 Compaq shall have the right to inspect and audit, upon five
(5) days notice, during normal business hours and not more
than four times per year, all of CMGI's records and books of
account insofar as they relate to Redirect Fee, provided that
any such audit and inspection shall be conducted by an
independent third-party accounting firm on Compaq's behalf.
The costs of said inspection and audit shall be borne solely
by Compaq unless accounting errors amounting to five percent
(5%) or more of the applicable total are found to Compaq's
disadvantage, in which case CMGI shall promptly pay the
entire cost of said inspection and audit. CMGI shall at all
times maintain such books and records, or true duplicates
thereof, at its primary or registered offices.
3.2 The Sites to which Compaq redirects CMGI traffic shall be co-branded
and customized in accordance with marketing plans to be determined
by the parties. CMGI will not display any advertisement or include
any other promotional element of any party (other than Compaq) in
Compaq's Area of Business on any pages or CMGI products that are
linked directly to or redirected directly from Compaq Sites or
Products.
* * *
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* * *
3.6 During the Term, the AltaVista Search Engine (or its successor)
shall be run exclusively on a Compaq hardware platform, subject to
ability of the hardware to meet competitive price/performance
specifications.
3.7 CMGI agrees to work with Compaq to develop [***], with the goal that
CMGI shall launch the [***] during the [***].
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
4. MUTUAL OBLIGATIONS
4.1 [***]
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
4.2 Relationship Management.
4.2.1 Executive Coordinator. Compaq and CMGI shall each designate a
---------------------
corporate officer who is at least a Vice President as an
Executive Coordinator who shall be responsible for all overall
matters pertaining to this Agreement. The initial Executive
Coordinator for CMGI shall be [***]. The initial Executive
Coordinator for Compaq shall be [***]. The responsibilities of
the Executive Coordinators are as follows:
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations
of the Securities Act of 1933, as amended.
4.2.1.1 Administer and coordinate the overall aspects of
this Agreement and the strategic relationship between the
parties;
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4.2.1.2 Arrange meetings, visits and consultations between
the parties concerning matters related to this Agreement,
including but not limited to all required quarterly and/or
annual business reviews; and
4.2.1.3 Review and approve plans for marketing programs to
be administered under the Joint Marketing Fund. All
expenditures from the Joint Marketing Fund must be approved
by both Executive Coordinators.
4.2.2 Quarterly Business Reviews. Both parties agree to meet at
--------------------------
least once every calendar quarter to review the basic
business terms and the business and marketing plans for the
next quarter. Topics to be addressed in each Quarterly
Business Review shall include, but shall not be limited to
the following: Strategic Plans/New Products and Services,
Advertising and Promotion Opportunities, Use of Joint
Marketing Funds, Performance Measurement of Existing Joint
Programs, Contract or Relationship Issues, including
negotiation and performance of Marketing Addenda.
4.2.3 Changes in Coordinators. Either party may replace any of the
-----------------------
people referenced in this Section by delivering written
notice of the change to the other party. The notice must be
signed by either the Executive Coordinator of the party
making the change, or by an authorized signatory of that
party. The notice shall set forth the name, business address
and telephone number of the replacement.
4.2.4 Program Management. Each party shall make available
------------------
sufficient facilities, resources and access to permit the
establishment of an on-site dedicated program management
office, as mutually agreed by the Executive Coordinators.
* * *
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* * *
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* * *
4.7 User Data. Each party shall provide to the other any Aggregate User
---------
Data that it collects from Users who are directed to CMGI Sites from
Compaq Sites or Products. All Aggregate User Data shall be made
available without the imposition of additional fees or obligations.
Subject to mutual agreement of the parties, the parties further
intend to share Registration Data to the extent such information is
collected from or related to the CMGI Sites directed from Compaq
Sites or Products, provided that sharing of Registration Data shall
be limited by and subject to the respective company privacy
policies.
4.8 Compaq Labs.
-----------
* * *
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4.8.2 New Search Technology. From time to time Compaq may disclose
---------------------
to CMGI new search technology which might be of interest to
AltaVista or CMGI for incorporation on the AltaVista Site.
CMGI shall promptly make its interest known. CMGI shall have
an option period of thirty (30) days, from the date of
disclosure, to acquire a non-exclusive license to use such
search technology on the AltaVista Site for a one-time
payment which will be identified by Compaq. Compaq and CMGI
each agree to use reasonable best efforts to enter into a
mutually acceptable license agreement within such thirty (30)
day period. If CMGI wants to obtain rights beyond a non-
exclusive license to use the identified search technology,
the parties will use reasonable best efforts to complete a
mutually acceptable license agreement within sixty (60) days.
Unless extended by mutual agreement in writing, after the
option period lapses Compaq can offer such search technology
to any third parties under any terms and conditions. In no
event shall this Agreement be interpreted as requiring Compaq
to provide any research and development services for CMGI,
unless set forth in a separate agreement.
* * *
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5. TRADEMARKS
5.1 Use of CMGI Marks. CMGI hereby grants to Compaq a non-exclusive,
-----------------
royalty-free license, in jurisdictions in which CMGI has such
rights, to use, reproduce, distribute and display the Marks owned by
CMGI in connection with its performance of the terms of this
Agreement.
5.2 Use of Compaq Marks. Compaq and its Affiliates hereby grant to CMGI
-------------------
a non-exclusive, royalty-free license, in jurisdictions in which
Compaq has such rights, to use the Marks owned by Compaq in
connection with its performance of the terms of this Agreement.
5.3 Quality Control. Each party shall have the right to exercise quality
---------------
control over the use of its Marks and the products and services with
which the Marks are used by the other party to the degree necessary,
in the sole opinion of the owner of such Marks, to maintain the
validity and enforceability of such Marks and to protect the rights
in such Marks and the goodwill associated therewith. Each party
shall, in their use of the other's Marks adhere to a level of
quality, at least as high as that used by such party in connection
with its use of its own Marks. In the event that the owner of a Xxxx
finds that use of the Xxxx by the other party in the reasonable
opinion of owner of such Xxxx materially threatens the goodwill of
the Xxxx or the rights in the Xxxx, the licensee of such Xxxx shall,
upon notice from such owner, immediately, and no later than ten (10)
days after receipt of such owner's notice, take all measures
reasonably necessary to correct the deviations or misrepresentations
in, or misuse of, the respective items.
5.4 Trademark Usage. Each party shall use the other's Marks in
---------------
accordance with sound trademark and trade name usage principles and
in compliance with all applicable laws and regulations of the United
States, including without limitation all laws and regulations
relating to the maintenance of the validity and enforceability of
such Marks and shall not use the Marks in any manner which might
tarnish, disparage, or reflect adversely on the Marks or the owners
of such Marks. Each party shall use, in connection with the other's
Marks, all legends, notices and markings as required by law. Neither
party may materially alter the appearance of another's Marks in any
advertising, marketing, distribution, or sales materials, or any
other publicly distributed materials.
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6. TERM AND TERMINATION
6.1 Term. This Agreement will become effective as of the Closing Date
----
and shall, unless sooner terminated as provided below or as
otherwise agreed, remain effective until May 30, 2002.
6.2 Termination by Mutual Consent. This Agreement may be terminated by
-----------------------------
mutual written consent.
6.3 Termination for Insolvency. Notwithstanding the foregoing, this
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Agreement may be terminated by either party immediately upon notice
if the other party: (i) becomes insolvent; (ii) files a petition in
bankruptcy; or (iii) makes an assignment for the benefit of its
creditors.
7. REPRESENTATIONS AND WARRANTIES
7.1 Compaq Warranties. Compaq hereby represent and warrant to CMGI as of
-----------------
the date hereof that:
7.1.1 Compaq is a corporation duly organized and validly existing
under the laws of the state of its incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to
carry on its business as now conducted;
7.1.2 The execution, delivery and performance by Compaq of this
Agreement are within the corporate powers of Compaq and has
been duly authorized by all necessary corporate action on the
part of Compaq. This Agreement constitutes a valid and
binding agreement of Compaq enforceable against Compaq in
accordance with its terms;
7.1.3 The execution, delivery and performance by Compaq of this
Agreement requires no action by or in respect of, or filing
with, any governmental body, agency or official; and
7.1.4 The execution, delivery and performance by Compaq of this
Agreement do not and will not (i) violate the organizational
documents of Compaq, (ii) violate any applicable law,
judgment, injunction, order or decree, or (iii) require any
notice or consent or other action by any person or entity
under, constitute a default under, or give rise to any right
of termination, cancellation or acceleration of any right or
obligation of Compaq or to a loss of
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any benefit to which Compaq is entitled under, any agreement
or other instrument binding upon Compaq or any license,
franchise, permit or other similar authorization held by
Compaq.
7.2 CMGI Warranties. CMGI hereby represents and warrants to Compaq as of
---------------
the date hereof that:
7.2.1 CMGI is a corporation duly organized and validly existing
under the laws of the state of its incorporation and has all
corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to
carry on its business as now conducted;
7.2.2 The execution, delivery and performance by CMGI, Inc.
(excluding its Affiliates) of this Agreement are within the
corporate powers of CMGI, Inc. (excluding its Affiliates) and
have been duly authorized by all necessary corporate action
on the part of CMGI, Inc. (excluding its Affiliates). This
Agreement constitutes a valid and binding agreement of CMGI,
Inc. (excluding its Affiliates) enforceable against CMGI,
Inc. (excluding its Affiliates) in accordance with its terms;
7.2.3 CMGI, Inc. shall cause its Affiliates to adhere to the terms
of this Agreement;
7.2.4 The execution, delivery and performance by CMGI of this
Agreement require no action by or in respect of, or filing
with, any governmental body, agency or official; and
7.2.5 The execution, delivery and performance by CMGI of this
Agreement do not and will not (i) violate the organizational
documents of CMGI, (ii) violate any applicable law, judgment,
injunction, order or decree, or (iii) require any notice or
consent or other action by any person under, constitute a
default under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of
CMGI or to a loss of any benefit to which CMGI is entitled
under, any agreement or other instrument binding upon CMGI or
any license, franchise, permit or other similar authorization
held by CMGI.
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8. LIMITATIONS OF LIABILITY
8.1 Limitation of Liability. Except for indemnification obligations, if
-----------------------
any, of a party pursuant to Article 10 , no party shall be liable to
another party or any other person or entity for special, incidental,
consequential, or indirect damages (including loss of good will or
business profits), or exemplary or punitive damages. No officer,
director, manager, member, or employee of any party shall have any
personal liability under this Agreement and the other parties hereby
hold such persons harmless for any liability hereunder.
8.2 Limitation of Warranties. Except as expressly set forth in this
------------------------
Agreement, each party expressly disclaims all warranties, express or
implied, including warranties of merchantability and fitness for a
specific purpose. Except as expressly set forth in this Agreement,
no party endorses, warrants, or guarantees any product or service
provided hereunder.
9. INDEMNIFICATION
9.1 Indemnification by CMGI. Except as provided in this Article, CMGI
-----------------------
will indemnify and hold Compaq and its Affiliates, officers,
directors and employees harmless from and against any and all
damages resulting from or arising out of (a) the CMGI Sites or any
other activities of CMGI, including infringement of any intellectual
property rights of any third person; (b) any misrepresentation or
breach of representation or warranty of CMGI contained herein; or
(c) any breach of any covenant or agreement to be performed by CMGI
hereunder. Notwithstanding anything to the contrary in this Section,
CMGI shall not have any obligation to indemnify Compaq for any
damages for which Compaq is obligated to indemnify CMGI under the
Assignment Agreement dated of even date herewith.
9.2 Indemnification by Compaq. Compaq will indemnify and hold CMGI and
-------------------------
its Affiliates, officers, directors and employees harmless from and
against any and all damages resulting from or arising out of (a) the
Compaq Sites or any other activities of Compaq, including
infringement of any intellectual property rights of any third
person; (b) any misrepresentation or breach of representation or
warranty of Compaq contained herein; or (c) any breach of any
covenant or agreement to be performed by Compaq or its respective
Affiliates hereunder.
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9.3 Notice of Indemnification. A party seeking indemnification pursuant
-------------------------
to this Article (an Indemnified Party) from or against the assertion
of any claim by a third person (a Third Person Assertion) will give
prompt notice to the party from whom indemnification is sought (the
Indemnifying Party); provided that failure to give prompt notice
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will not relieve the Indemnifying Party of any liability hereunder
(except to the extent the Indemnifying Party has suffered actual
material prejudice by such failure).
9.4 Assumption of Defense. Within five (5) business days of receipt of
---------------------
notice from the Indemnified Party pursuant to this Section, the
Indemnifying Party will have the right, exercisable by written
notice to the Indemnified Party, to assume the defense of a Third
Person Assertion. If the Indemnifying Party assumes such defense,
the Indemnifying Party may select counsel, which counsel will be
reasonably acceptable to the Indemnified Party.
9.5 Appointment of Counsel. After notice from the Indemnifying Party to
----------------------
the Indemnified Party of its election to assume the defense of such
Third Party Assertion, the Indemnifying Party shall not be liable to
the Indemnified Party under this Article for any legal or other
expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation, provided, that if there may be reasonable legal
--------
defenses available to it that are different from or in addition to
those available to the Indemnifying Party the reasonable fees,
disbursements and other charges of counsel for the Indemnified Party
will be at the expense of the Indemnifying Party or parties. It is
understood that the Indemnifying Party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such
Indemnified Party or parties.
9.6 Failure to Defend. If the Indemnifying Party (a) does not assume the
-----------------
defense of any Third Person Assertion in accordance with this
Article; or (b) having so assumed such defense, unreasonably fails
to defend against such Third Person Assertion, then, upon five (5)
days written notice to the Indemnifying Party, the Indemnified Party
may assume the defense of such Third Person Assertion. In such
event, the Indemnified Party will be entitled under this Article as
part of its damages to indemnification for the costs of such
defense.
9.7 Settlement. The party controlling the defense of a Third Person
----------
Assertion will have the right to consent to the entry of judgment
with respect to, or otherwise settle, such Third Person Assertion
with the prior written
18
consent of the other party, which consent will not be unreasonably
withheld; provided that such other party may withhold its consent if
-------------
any such judgment or settlement imposes a monetary obligation on
such other party that is not covered by the indemnification, imposes
any material non-monetary obligation, or does not include an
unconditional release of such other party and its Affiliates from
all claims of the Third Person Assertion.
9.8 Participation. The Indemnifying Party and the Indemnified Party will
-------------
cooperate, and cause their Affiliates to cooperate, in the defense
or prosecution of any Third Person Assertion. The Indemnifying Party
or the Indemnified Party, as the case may be, will have the right to
participate, at its own expense, in the defense or settlement of any
Third Person Assertion.
10. CONFIDENTIAL INFORMATION.
10.1 Definition of Confidential Information. Confidential Information
--------------------------------------
shall mean any information (whether or not in writing) relating to
or disclosed in the course of the performance of this Agreement,
which is marked as "confidential" or which is not generally known to
the public or in the trade and is or should be reasonably understood
to be confidential or proprietary to the disclosing party, including
without limitation (i) marketing and sales information and (ii)
other documentation and any analyses, compilations, studies or other
documents incorporating or developed from Confidential Information.
Confidential Information shall not include information (a) already
known to the receiving party lawfully and not in violation of any
agreement or understanding (whether or not in writing) relating to
the confidentiality thereof, (b) disclosed in published materials,
(c) obtained from any third party lawfully and not in violation of
any agreement or understanding (whether or not in writing) relating
to the confidentiality thereof, or (d) independently developed by
the receiving party without the use or inclusion of any Confidential
Information. The receiving party shall not be in breach of its
obligations with respect to Confidential Information hereunder in
the event the disclosure of any Confidential Information is required
by law, provided that prior to any such disclosure by a receiving
--------
party, the disclosing party is given ample notice to enable it to
move for a protective order.
10.2 Confidential Information. Each party hereto acknowledges that all
------------------------
title and interest, including all patents, copyrights, trade secrets
and other intellectual property rights, in the disclosing party's
(the "Disclosing Party") Confidential Information is the exclusive
property of the Disclosing
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Party. Each party further acknowledges that the Disclosing Party's
Confidential Information is proprietary and a trade secret of the
Disclosing Party. Each party agrees neither to do nor to permit any
act which may in any way jeopardize or be detrimental to the
validity of the Disclosing Party's patent, copyright, trade secret
or other rights in the Confidential Information.
10.3 Confidentiality. Each party shall use its best efforts to maintain
---------------
the confidentiality of any Confidential Information it receives,
including taking such steps as such party takes to maintain the
confidentiality of its own Confidential Information.
10.4 Return of Confidential Information. Upon the termination or
----------------------------------
expiration of this Agreement for any reason, each party shall at the
direction of the discloser of such Confidential Information (the
"Disclosing Party") either return all Confidential Information in
its possession or destroy such Confidential Information and certify
in writing to the Disclosing Party that it has done so.
10.5 Remedies for Breach of Confidentiality. It is understood and agreed
--------------------------------------
by both parties that in the event of a breach of this Article,
damages may not be an adequate remedy and either party shall be
entitled to injunctive relief to restrain any such breach,
threatened or actual.
10.6 Survival. Each party's respective obligations hereunder to protect
--------
Confidential Information shall survive any termination or expiration
of this Agreement or any license granted hereunder for any reason.
11. MISCELLANEOUS
11.1 Governing Law. Any question as to the validity, construction,
-------------
performance or effect of this Agreement and the transactions to
which it relates shall be construed in accordance with and subject
to the substantive laws (as opposed to the conflicts of law
provisions) of the State of Delaware and, where applicable, the laws
of the United States.
11.2 Further Assurances. Subject to the terms and conditions herein
------------------
provided, each of the parties hereto agrees to use their respective
reasonable best efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement. If
at any time after the Closing Date any further action is necessary
or desirable to carry out the purposes of this Agreement,
20
the parties hereto shall take or cause to be taken all such
necessary action, including, without limitation, the execution and
delivery of such further instruments and documents as may be
reasonably requested by the other party for such purposes or
otherwise to consummate and make effective the transactions
contemplated hereby.
11.3 Entire Agreement. This Agreement contains the entire understanding
----------------
between CMGI and Compaq with respect to its subject matter and the
transactions contemplated hereby, supercedes all previous or
contemporaneous oral or written agreements, negotiations,
representations or understandings between them with respect thereto,
and shall not be modified except by a writing of subsequent date
hereto signed by all parties hereto. Neither the course of conduct
between the parties nor trade usage shall act to modify or alter the
provisions of this Agreement.
11.4 No Waiver. No waiver by any party of a breach of any provision of
---------
this Agreement shall operate as or be deemed to be a waiver of any
other preceding, or subsequent breach of that provision or of any
breach of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement
on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be
in a writing of subsequent date hereto executed by the waiving party.
11.5 Partial Invalidity. If any portion of the Agreement, or the
------------------
application thereof in any circumstances, shall be held to be
illegal, invalid or unenforceable in any respect by a final or
unappealable order, decree or judgment of any court, this Agreement
shall be constructed as if such invalid, illegal or unenforceable
provision had never been contained herein within the jurisdiction of
such court and the Agreement shall otherwise remain in full force
and effect in such jurisdiction and in its entirety in other
jurisdictions. Additionally, in lieu of each such illegal, invalid
or unenforceable provision, there shall, within the jurisdiction of
such court finding such illegality, invalidity or unenforceability,
be added automatically as part of this Agreement a provision as
similar to such former provision as shall be legal, valid and
enforceable.
11.6 Section Headings. Section headings used herein are for informational
----------------
purposes only and shall not define nor limit the provisions of this
Agreement.
11.7 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of CMGI, Inc. and its successors and assignees
and Compaq
21
and its successors and assignees permitted hereunder; provided,
however, that neither party hereto may assign, subcontract,
transfer or otherwise delegate its rights or obligations hereunder,
in whole or in part, by operation of law or otherwise, without the
prior written consent of the other party, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, either
Compaq or CMGI, Inc. may assign its rights or obligations hereunder
in connection with the sale of all or substantially all of the
assets of its business related to this Agreement, whether by asset
purchase, merger or otherwise, unless the intended assignee is a
competitor of the non-assigning party. In the event of a change of
Control of the CMGI entity that holds the assets of the Alta Vista
Search Engine Site, the provisions contained in Section 2.4 hereof
shall immediately terminate at Compaq's election.
11.8 Independent Contractors. Each party agrees it is and will be an
-----------------------
independent contractor as to the other party and not an agent,
employee, partner or joint venturer of or with the other party.
Without limiting the foregoing, no party nor any officer or
employee of such will have any right to bind any other party, to
make any representations or warranties on behalf of any other
party, to accept service of process, to receive notice, or to
perform any act or thing on behalf of any other party other than as
expressly authorized by such other party in its sole discretion.
11.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each such counterpart shall be an original
instrument, and all such counterparts shall together constitute the
same agreement. Execution may be effectuated by delivery of
facsimiles of signature pages (and the parties shall follow such
delivery by prompt delivery or originals of such pages).
11.10 Press Releases/Statements. Except as may be required by law or by
-------------------------
the rules of any national securities exchange, no party hereto
shall issue a press release or other similar public announcement
making reference to any other party, such other party's products,
or the services provided hereunder, unless such party has received
the approval of the other party with respect to the proposed text
of such press release or announcement, which approval shall not be
unreasonably withheld or delayed. No party shall make or publish
any statement which is, or may be reasonably considered to be,
disparaging of any other party or its Affiliates, directors,
employees, products or services.
11.11 Remedies Cumulative. No remedy conferred upon any of the parties by
-------------------
this Agreement is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in
addition to any
22
other remedy given hereunder or now or hereafter existing at law or
in equity.
11.12 Export Control. Each party acknowledges that data and materials if
--------------
any, supplied by one party to the other may be subject to export
controls under United States law and the applicable export controls
in other territories. Accordingly, neither party shall export or re-
export any technical data supplied by the other party, directly or
through third parties, to any source for use in any country or
countries in contravention of any export laws, regulations or
decrees of the United States Government or any agency thereof. Each
party shall be solely responsible for identifying and complying
with all laws of any jurisdiction outside the United States
regarding use of technical data and materials supplied by the other
party. Each party agrees to obtain all licenses, permits or
approvals required by any government at that party's sole cost.
Each party's obligations under this Section shall survive the
expiration or termination of this Agreement for any reason
whatsoever.
11.13 Force Majeure. Except for the failure to make payments when due,
-------------
neither party shall be liable to the other by reason of any failure
of or delay in performance of its obligations under this Agreement
to the extent such failure or delay is due to circumstances beyond
its reasonable control, including, without limitation, acts of God,
acts of the other party, acts of a public enemy, fires, floods,
wars, civil disturbances, sabotage, accidents, insurrections,
blockades, embargoes, storms, other acts of nature, explosions,
damage to its plants, labor disputes (whether or not the employees'
demands are reasonable and within the party's power to satisfy), or
acts of any governmental body (whether civil or military, foreign
or domestic) collectively referred to herein as "Force Majeure",
nor shall any such failure or delay give the other party the right
to terminate this Agreement. Each party shall use its best efforts
to minimize the duration and consequences of any failure of or
delay in performance resulting from a Force Majeure event.
* * *
11.15 No Third-Party Beneficiaries. This Agreement is for the sole
----------------------------
benefit of the parties hereto, their Affiliates, and their
permitted successors and
23
assigns. Nothing herein, express or implied, is intended to or
shall confer upon any person or entity, other than the parties
hereto, their Affiliates and their permitted successors and
assigns, any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
Strategic Business Agreement as of the day and year first above written.
CMGI, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------------------------
Title: Chairman of the Board, President and Chief
-------------------------------------------
Executive Officer
-------------------------------------------
COMPAQ COMPUTER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Title: Vice President
-------------------------------------------
25
