Exhibit 10.27
CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission
Services and Promotion Agreement
This Services and Promotion Agreement (this "Agreement") is made as of
December 22, 1999 (the "Effective Date"), by and between Xxxxxxxx.xxx, Inc., a
Delaware corporation with principal offices at 000 Xxxxxxxxx Xxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 ("Snowball") and Xxxxxxx.xxx, Inc., a
Delaware corporation with principal offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx X,
Xxxxx 000, Xxxx Xxxx, XX 00000 ("Riffage").
Background
Snowball owns and operates a network of sites on the World Wide Web,
including four hub sites located at XXX.xxx ("IGN"), Xxxxxxxxxx.xxx
("Chickclick"), XxxxxXxxxxxxx.xxx ("PS") and XxxxxxXxxxx.xxx ("IS")
(individually, a "Snowball Site" and collectively, the "Snowball Sites"). The
Snowball Sites connect to a network of affiliates sites (the "Affiliate Sites")
operated by Snowball's affiliates (collectively, "Snowball Affiliates") to
provide a greater breadth and depth of entertainment content. The Snowball
Sites and the Affiliate Sites are sometimes referred to, collectively, in this
Agreement as the "Snowball Network."
Riffage, among other things, provides a music service that allows
users to search for music and artists, receive personalized music
recommendations, rate and review songs and playlists, create their own music
files and playlists and share them with other users of the service (the "Riffage
Service"). Riffage currently provides the Riffage Service through its World
Wide Web site located at xxx.xxxxxxx.xxx (the "Riffage Site").
Riffage wishes to provide the Riffage Service to users of the Snowball
Sites. Snowball wishes to have Riffage provide the Riffage Service to its
users, subject to the terms and conditions of this Agreement.
Now Therefore, the parties agree as follows:
1. Riffage Service.
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(a) Provision of Service. Each Snowball User of a Snowball Site
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(each, a "Snowball User") will be provided access, at no charge, to a personal
Riffage Service account (each, a "Service Account"). Subject to the provisions
of Section 9 (User Data), when a Snowball User activates its Service Account,
Snowball will provide Riffage with certain data concerning such Snowball User
(to the extent provided by the Snowball User) as further described in Exhibit A
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(the "Registration Data") to enable Riffage to provide the Riffage Service.
Upon receipt of the Registration Data, Riffage will immediately activate the
Service Account for the applicable Snowball User. Riffage shall provide the
Riffage Service to all Snowball Users who activate their Service Accounts
throughout the term of this Agreement. Snowball Users who activate their
Service Accounts are referred to in this Agreement as "Registered Users."
Snowball acknowledges that the use of Service Accounts by Registered Users will
be subject to Riffage's standard terms of service
(including its privacy policy); provided that, [**]. Riffage will prepared to
implement the Riffage Service on at least one Snowball Site within [**] days of
the Effective Date and on all of the remaining Snowball Sites within [**] days
of the Effective Date. The specific implementation schedules for each Snowball
Site shall be mutually agreed by the parties.
(b) Right of First Offer/Refusal.
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(1) Right of First Offer. For the term of this Agreement, in the
--------------------
event Snowball develops and implements any additional hub site (each, an
"Additional Site"), Snowball will send a notice (the "Initial Notice") to
Riffage generally describing such Additional Site at least [**] days prior to
its implementation. At such time, the parties will negotiate in good faith to
include the Riffage Service on the Additional Site, on terms and conditions to
be agreed to by the parties at that time. If the parties do not reach such an
agreement within [**] days of the Initial Notice, Snowball will be free to
negotiate with any other third party to provide a service similar to the Riffage
Service, subject to the terms and conditions of this Section.
(2) Right of First Refusal. Snowball will send a notice ("Second
----------------------
Notice") to Riffage at least [**] business [**] days prior to entering into any
agreement with a third party to provide a service similar to the Riffage Service
on any Additional Site, including a summary of the material terms and conditions
of such agreement (although not including the name of the third party or the
relevant service). Upon written notice to Snowball, which must be given within
the [**] business day period commencing with Riffage's receipt of the Second
Notice, Riffage will be entitled to elect to provide the Riffage Service on such
Additional Site on the same terms and conditions as those set forth in the
Second Notice. If Riffage does not exercise its rights under this subsection
with respect to any Second Notice within the [**] business day period described
above, Snowball will be free to complete the transaction described in the Second
Notice.
(c) Development of Log-In Page. Snowball will develop, host and
--------------------------
maintain a co-branded page on each of the Snowball Sites through which Snowball
Users will be able to register with the Snowball Network ("Log-In Page").
Snowball will develop the content provided on the Log-In Page, with Riffage's
reasonable assistance and approval. The Log-In Page will link to the Jump Page
described in subsection (c) below.
(d) Development of Jump Page. Snowball will develop, host and
------------------------
maintain a co-branded page on each of the Snowball Sites through which Snowball
Users will be able to activate and access their respective Service Accounts
("Jump Page"). Snowball will develop the content provided on the Jump Page,
with Riffage's reasonable assistance and approval. The Jump Page will link to
the Riffage Service Pages described in subsection (d) below.
(e) Development of Riffage Service Pages. Riffage will develop,
------------------------------------
host and maintain co-branded pages through which the Riffage Service will be
provided (the "Riffage Service Pages"). Riffage will develop the content
provided on the Service Pages, based on the existing pages of the Riffage Site.
Riffage will implement and maintain links from the Riffage Service Pages
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
2
to the Snowball Site from which the applicable Snowball User has linked. Each
link to the Snowball Site will be indicated by, and in the form of, one of the
logos or other trademarks attached hereto as Exhibit C (the "Snowball Marks").
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In the event Snowball reasonably objects to the content contained in any of the
Riffage Service Pages, Snowball will send a notice to Riffage containing a
detailed description of the offending content. Within a week period, Riffage
will replace the offending content or work with Snowball to modify the content
to address Snowball's concerns.
(f) Content and Mock-ups. Any content provided to Riffage by Snowball
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under this Agreement is hereinafter referred to as "Snowball Content." Any
content provided by Riffage under this Agreement is hereinafter referred to as
the "Riffage Content." By [**], the parties will have developed and
mutually approved mock-ups of the Log-In Page, the Jump Page and the Riffage
Service Pages. Such mock-ups will be attached to this Agreement as Exhibit B1-
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B3. The parties agree to implement the Log-In Page, the Jump Page and the
--
Riffage Service Pages in substantially the same form shown in the mock-ups.
Each party agrees to notify the other if it intends to make any significant
changes to the look and feel of any of the Log-In Page, Jump Page or Riffage
Service Pages and to provide a new mock-up of such modified pages for the other
party's reasonable prior approval.
(g) Sales. Snowball shall be entitled to sell advertising or other
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promotions appearing on the Log-In Page and the Snowball Sites. Riffage will be
entitled to sell advertising and other promotions appearing on the Riffage
Service Pages. Neither party will have any obligation under this Agreement to
share any revenues derived from such sales.
2. Promotion. Subject to the terms and conditions of this Agreement,
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(a) Links and Copy. Snowball will develop, implement and maintain
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links to the Log-In Page and Jump Page (collectively, the "Links") that will
appear in conjunction with text and graphics that promote the Riffage Service.
The Links will appear on the "My Page" pages on each Snowball Site (the "My
Pages"). Snowball acknowledges that the third party links placed on the My
Pages are generally placed by Snowball in chronological order, unless otherwise
agreed by Snowball. The Links will also appear on the pages that feature MP3
music listings on each of the Snowball Sites (the "Music Listing Pages"). A
mock-up of the Links and their appearance on the My Pages and the Music Listing
Pages will be mutually agreed to by the parties and attached to this Agreement
as Exhibit B-4 along with the other mock-ups described in Section 1(f).
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Snowball will be entitled to change the content and look and feel of the My
Pages and the Music Listing Pages and the placement of the Links in its
discretion, provided that, any such changes do not disproportionately materially
adversely affect Riffage as compared to any other sponsor on those pages.
Snowball will use commercially reasonable efforts to notify Riffage of any such
changes prior to the implementation thereof.
(b) Navigational Links. Snowball will develop, implement and maintain
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navigational links ("Navigation Links") to the My Pages and the Music Listing
Pages. A mock-up of the Links and their appearance on the My Pages and the
Music Listing Pages is attached hereto as Exhibit B-4.
-----------
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
3
(c) Banner Advertisements. Snowball will implement and serve co-
---------------------
branded banner advertisements promoting the Riffage Service as provided through
the Snowball Network that will appear on a rotating basis on the Snowball Sites
and Affiliate Sites.
(d) Newsletters. Snowball will, on a rotating basis, include a link
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to My Pages and text promoting the Riffage Service in the newsletter Snowball
currently sends to its Snowball Users. In addition, Snowball will, on a
rotating basis, include a link to My Pages and text describing the Riffage
Service in the newsletters sent to subscribers through Microsoft's Hotmail
service, subject to the terms and conditions of Snowball's related agreement
with Microsoft. Snowball will provide any descriptions of the Riffage Service
that it intends to include in the newsletters described in this Section to
Riffage for Riffage's reasonable prior approval. Riffage will review such
descriptions and provide its approval or any reasonably requested changes with
five (5) days of its receipt of the descriptions from Snowball. If Riffage does
not respond to the descriptions within the five (5) day period, the descriptions
will be deemed approved by Riffage.
(e) Press Releases. The parties will jointly issue a mutually
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approved press release describing the relationship established under this
Agreement within thirty days of the Effective Date. Either party may issue
other press releases describing the relationship established under this
Agreement, subject to the other party's reasonable approval.
3. Other Obligations.
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(a) Exclusivity. Within three days of the Effective Date, Riffage
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will provide Snowball with a list of companies (each, a [**]). Subject to the
terms and conditions of this Agreement, Snowball will not, during the
term of this Agreement, enter into any agreement with respect to any [**] to
provide a service similar to the Riffage Service on the Snowball Sites. The list
of [**] may be augmented during the term of this Agreement by mutual
agreement of the parties. Notwithstanding the foregoing, except as provided in
subsection 3(b), Snowball will be free to display advertisements (including
links) on the Snowball Network that promote other companies that provide
services similar to the Riffage Service and to include such advertisements in
emails or newsletters distributed by Snowball.
(b) Right of First Refusal. Within three days of the Effective Date,
----------------------
Riffage will provide snowball with a list of companies [each, a "[**]"). For the
term of this Agreement, in the event any [**] wishes to purchase advertising
inventory on the Snowball Sites, Snowball will notify Riffage of any prospective
sale of advertising inventory to a [**] including the amount of inventory
proposed to be sold, the price and any other relevant terms and conditions
("Sale Notice"). Upon written notice to Snowball, Riffage will be entitled to
purchase such inventory at the lesser of the price offered to such [**] or
$[**]/CPM and on other the terms and conditions contained in the Sale Notice,
provided that Riffage's notice is received by Snowball within three (3) business
days of the date of the Sale Notice. If Riffage exercises its rights to purchase
under this subsection, Snowball will not sell the inventory identified in the
Sale Notice to the applicable [**]. If Riffage does not exercise its rights
under this subsection with respect to a particular Sale Notice within the time
frames described herein, Snowball will be free to complete the transaction
described in that Sale Notice.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
4
(c) Account Managers. Each party will appoint a dedicated account
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manager to act as primary contact between the parties and to facilitate any
requests for information or assistance made by a party hereunder. Each party
will notify the other of the dedicated account manager's name and contact
information on or before the Effective Date.
(d) Reasonable Assistance. Each party will provide the other with any
---------------------
information or assistance reasonably required to implement the Riffage Service
as contemplated by this Agreement. Each party will give the other party
reasonable advance notice in the event it changes any relevant universal record
locators (URLs).
4. Impressions. Snowball will, through the promotions and other
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obligations described in this Agreement, provide to Riffage the minimum number
of Impressions on the applicable Snowball Network, as further described in
Exhibit E. Snowball will provide Riffage with monthly, detailed reports
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describing the Impressions delivered during such month. Upon reasonable notice
to Snowball, during the term of this Agreement and for two years thereafter
Riffage will be entitled to review Snowball's records concerning the calculation
of the number of Impressions delivered hereunder. Any information disclosed to
Riffage during any such audit will be deemed Snowball's Confidential
Information, as further described in Section 7. IN THE EVENT SNOWBALL FAILS TO
DELIVER THE MINIMUM NUMBER OF IMPRESSIONS DESCRIBED IN THIS SECTION, AS
RIFFAGE'S SOLE AND EXCLUSIVE REMEDY AND SNOWBALL'S SOLE AND EXCLUSIVE
OBLIGATION, SNOWBALL WILL CONTINUE TO DELIVER IMPRESSIONS IN THE FORMS DESCRIBED
IN EXHIBIT E, UNTIL THE MINIMUM NUMBER OF IMPRESSIONS PROMISED HEREUNDER IS
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DELIVERED.
5. Payment.
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(a) Definitions. Achieving "Implementation" with respect to any of
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the Snowball Sites means either: (a) Snowball has actually provided access to
the Riffage Service on the applicable Snowball Site or (b) Snowball would have
been able to provide access to the Riffage Service on the applicable Snowball
Site were it not for Riffage's failure to deliver any technical information,
content or other materials within the time periods reasonably requested by
Snowball or to otherwise perform its obligations under this Agreement.
"Implementation Date" means the date of Implementation on the applicable
Snowball Site. Snowball will notify Riffage of the actual date that constitutes
the Implementation Date for each Snowball Site at least fourteen (14) days prior
to such date. "Initial Implementation Date" means the first Implementation Date
to occur among the Snowball Sites.
(b) Flat Fee. Riffage will pay Snowball [**] payable as [**] as
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provided in this Section. The first payment shall be due in advance of
Implementation and must be paid by Riffage within ten (10) days of the Effective
Date. The remaining payments will be due each monthly anniversary of the Initial
Implementation Date (e.g. if the Initial Implementation Date is January 10/th/,
2000, Riffage will pay Snowball
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
5
[**] on February 10/th/ and each subsequent payment will be
due on the 10/th/ day of the applicable calendar month).
(c) Registered Users. In addition to the flat fee described above,
----------------
Riffage will pay Snowball, on a quarterly basis, the amounts described in
Exhibit F. Riffage will make all payments to Snowball due under this Section
---------
within thirty (30) days of the end of the applicable calendar quarter.
(d) Other Payment Terms. Each payment will include a report setting
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forth all of the information needed to calculate the fees payable for that
period. Payments made under this Agreement after the applicable due date will
incur interest at a rate equal to [**] per month or the highest rate permitted
by applicable law, whichever is lower; provided that, such interest will not
begin to accrue until Snowball notifies Riffage that it has not received the
applicable overdue payment.
(e) Taxes. All amounts payable under this Agreement are exclusive of
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all sales, use, value-added, withholding, and other taxes and duties, all of
which shall be Snowball's obligation.
6. Licenses and Other.
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(a) Riffage Trademark License. Subject to the terms and conditions of
-------------------------
this Agreement, Riffage hereby grants Snowball a non-exclusive, revocable,
worldwide license to use the Riffage logos and trademarks (collectively, the
"Riffage Marks") solely in conjunction with the co-branding and promotional
activities described in this Agreement. Any use of the Riffage Marks must
comply with Riffage's trademark guidelines and will inure to Riffage's benefit.
Nothing contained in this Agreement gives Xxxxxxxx.xxx any right, title or
interest in the Riffage Marks, except the license expressly provided in this
Section and Snowball shall not take any action inconsistent with the Riffage's
ownership rights. Snowball will cease all use and display of the Riffage Marks
upon termination of this Agreement.
(b) Snowball Trademark License. Subject to the terms and conditions
--------------------------
of this Agreement, Snowball hereby grants Riffage a non-exclusive, revocable,
worldwide license to use the Snowball Marks solely in conjunction with the co-
branding and promotional activities described in this Agreement. Any use of the
Snowball Marks must comply with Snowball's trademark guidelines and will inure
to Snowball's benefit. Nothing contained in this Agreement gives Riffage any
right, title or interest in the Snowball Marks, except the license expressly
provided in this Section and Riffage shall not take any action inconsistent with
the Snowball's ownership rights. Riffage will cease all use and display of the
Snowball Marks upon termination of this Agreement.
(c) Ownership. Subject to the rights expressly granted in this
---------
Agreement, as between the parties, Snowball will retain all right, title and
interest in and to the Snowball Network, the Snowball Content and the Snowball
Marks and Riffage will retain all right title and interest in and to the Riffage
Site, the Riffage Service, the Riffage Marks and the Riffage Content.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
6
(d) Snowball Discretion. Unless expressly provided in this Agreement,
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the form, format and position of any link or advertisement on the Snowball
Network as described in this Agreement, and date of placement, will be
determined by Snowball in its discretion. Snowball may, upon written notice to
Riffage, reject any content provided by Riffage under this Agreement if it fails
to comply with Snowball's reasonable requirements or is otherwise inappropriate
for the users of the Snowball Sites, in Snowball's good faith business judgment.
Nothing in this Agreement will be construed to limit Snowball's right to modify
any of the content or any aspect of structure of the Snowball Sites, or to
rename or reposition the Snowball Sites, in its discretion; provided that, in
the event any such change affects Snowball's ability to perform any obligation
described in this Agreement, Snowball will use its best efforts to provide
reasonable alternative performance. Nothing in this Agreement or otherwise
grants to Snowball the right to edit, modify or otherwise change any of the
Riffage Content.
7. Confidential Information.
------------------------
(a) Obligations. Each party ("Receiving Party") agrees to treat as
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confidential all proprietary information disclosed to it by the other party
("Disclosing Party") that is labeled as "confidential" or "proprietary,"
including marketing information, customer data, and the terms of this Agreement
("Confidential Information"). Receiving Party agrees not to publish or disclose
the Disclosing Party's Confidential Information to others except to those
employees and subcontractors to whom disclosure is necessary in order to carry
out the purposes of this Agreement. All tangible materials embodying such
Confidential Information will remain the sole property of Disclosing Party and
will be delivered to Disclosing Party by Receiving Party upon Disclosing Party's
request. Receiving Party will inform all its employees and subcontractors who
receive Confidential Information of the confidential nature of such Confidential
information and of their obligation to keep same confidential and not to use it
other than as permitted hereunder. The Receiving Party may disclose the terms
and conditions of this Agreement for due diligence purposes as reasonably
required by any financing or potential acquisition. For purposes of this
Agreement, the Registration Data shall be deemed the Confidential Information of
Snowball and Riffage. All of the information contained in Exhibit D shall be
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deemed the Confidential Information of Riffage. Throughout the term of this
Agreement, each party shall use the same level of care to protect the
confidentiality of the Registration Data that such party uses to protect the
data of its other users, which in no event will be less than reasonable care.
Each party acknowledges that the Non-Disclosure Agreement executed by the
parties as of November 23, 1999 shall remain in full force and effect,
notwithstanding the provisions of this Section.
(b) Exceptions. Neither party will have any obligation with respect
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to any Confidential Information which: (1) was rightfully known to Receiving
Party prior to receipt of such Confidential Information from Disclosing Party;
(2) is lawfully obtained by Receiving Party from a third party under no
obligation of confidentiality; (3) is or becomes generally known or available
without any act or failure to act by Receiving Party; (4) is developed
independently by Receiving Party. Either party may disclose the Confidential
Information of the Disclosing Party if required by court order or legal
requirement and the party subject to the order has given the other party a
7
reasonable opportunity (and has cooperated fully) to contest or limit the scope
of such required disclosure (including application for a protective order).
Each party agrees to request confidential treatment of the material terms of
this Agreement in any government filings it is required or elects to make.
8. User Data.
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(a) Treatment of Individually Identifiable User Data. Neither party
------------------------------------------------
shall sell, disclose, transfer, or rent any user data obtained by it from the
other party which data identifies, or can be used to identify, a specific
individual ("Individually Identifiable User Data") to any third party or use any
Individually Identifiable User Data on behalf of any third party, without the
express permission of the applicable user specifically approving such use. In
those cases where permission for disclosure of Individually Identifiable User
Data has been obtained from the applicable user, each party shall use all
reasonable efforts to implement an "opt out" feature on its own behalf, and an
include and enforce through its agreements with third parties a requirement for
the inclusion of an "opt out" feature in all e-mail communications generated by,
or on behalf of, third party users of the Individually Identifiable User Data.
Riffage will not send any email or other correspondence to any Registered User
that has not opted-in to receive information from Riffage.
(b) Aggregate Data. Except as restricted by the obligations set forth
--------------
in Section 7, notwithstanding the restrictions above, the parties retain the
right to use, disclose or transfer any user data as long as such user data is in
an aggregate form that does not include any Individually Identifiable User Data;
provided that, neither party will identify the other party as the source of such
aggregate data.
9. Term and Termination.
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(a) Term. This Agreement will commence on the Effective Date and
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will, with respect to each Snowball Site, remain in effect until [**] for such
Snowball Site, unless extended or terminated under this Section 9.
(b) Target. Except as provided in this Section, in the event the
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number of Registered Users delivered to Riffage during the initial term of this
Agreement does not exceed [**] (the "Target"), then the term of this Agreement
with respect to each Snowball Site will extend until the earlier to occur of the
following events: (a) the date that Snowball reaches the Target or (b) [**] for
the applicable Snowball Site. Riffage will not be entitled to any extension of
the initial term as described in this subsection (b) if Riffage is not
technically or administratively prepared to provide the Riffage Service to
Snowball Users within time periods described in Section 1(a).
(c) Renewal of Term. If so requested by either party by written
---------------
notice to the other party within sixty (60) days of the end of the term, the
parties will negotiate in good faith to renew the term of this Agreement,
subject to any changes to the terms and conditions of this Agreement agreed to
by the parties.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
8
(d) Termination for Breach or Insolvency. Either party may terminate
------------------------------------
this Agreement at any time prior to the expiration of its stated term in the
event that: the other party breaches any term or condition of this Agreement
and fails to cure such breach within thirty (30) days of written notice; or
either party becomes the subject of a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors; or either party becomes the subject of
an involuntary petition in bankruptcy or any involuntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors, if such petition or proceeding is not dismissed within sixty (60)
days of filing.
(e) Effect of Termination. The following Sections will survive any
---------------------
termination of this Agreement: Section 4 (Impressions), Section 6(c)
(Ownership), Section 7 (Confidential Information), Section 8 (User Data),
Section 10 (Limitation of Liability), Section 11 (Indemnification) and Section
12 (General). Any proper termination of this Agreement by Snowball under
Section 9(d) will not limit the accrual of damages under Section 5 (Payment)
hereof; provided, however, that, nothing herein shall be deemed to limit or
waive Riffage's rights of counterclaim regarding the satisfactory of provision
of services by Snowball as described in this Agreement.
10. Limitation of Liability. EXCEPT WITH RESPECT TO ITS OBLIGATIONS UNDER
-----------------------
SECTION 7, SECTION 8 AND SECTION 11: (A) NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES, OR ANY LOSS OR REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH
THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; (B) RIFFAGE'S AGGREGATE LIABILTY UNDER THIS AGREEMENT WILL NOT EXCEED
[**] BY RIFFAGE HEREUNDER AND (C) SNOWBALL'S AGGREGATE LIABILITY
WILL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY SNOWBALL HEREUNDER.
11. Indemnification.
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(a) Snowball Obligations. Snowball hereby agrees to defend, indemnify
--------------------
and hold harmless Riffage, and its directors, officers and employees against any
and all claims, actions, losses, damages, costs, and expenses (including
reasonable attorneys' fees, "Losses") arising out of or based on any claim
related to the Snowball Sites other than those claims described in Section 11(b)
below. Snowball's obligations under this Section are hereby expressly
conditioned on the following: (1) Riffage provides Snowball with prompt notice
of any such claim; (2) Riffage permits Snowball to assume and control the
defense of such action, with counsel chosen by Snowball (who will be reasonably
acceptable to Riffage); and (3) Riffage provides Snowball with any information
or assistance requested by Snowball, at Snowball's expense.
(b) Riffage's Obligations. Riffage hereby agrees to defend, indemnify
---------------------
and hold harmless Snowball, and its directors, officers and employees against
any and all Losses arising out of or based on any claim related to the Riffage
Site or the Riffage Service or any content, information or other materials
provided to Snowball under this Agreement. Riffage's obligations under this
Section are hereby expressly conditioned on the following: (1) Snowball provides
Riffage with prompt notice of
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
9
any such claim; (2) Snowball permits Riffage to assume and control the defense
of such action, with counsel chosen by Riffage (who will be reasonably
acceptable to Snowball); and (3) Snowball provides Riffage with any information
or assistance requested by Riffage, at Riffage's expense.
12. General.
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(a) Waivers/Modifications. Any waiver modification or amendment to
---------------------
any provision of this Agreement will be effective only if in writing and
executed by both parties. The waiver by either party of any default or breach
of this Agreement will not constitute a waiver of any other or subsequent
default or breach.
(b) Notices. All notices required to be given under this Agreement
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will be deemed given when delivered personally or sent by confirmed facsimile or
U.S. certified mail, return receipt requested, to the address shown in the
preamble above, or as may otherwise be specified by either party to the other in
writing.
(c) Severability. If any provision of this Agreement is found illegal
------------
or unenforceable, it will be enforced to the maximum extent permissible, and the
legality and enforceability of the other provisions of this Agreement will
remain in full force and effect.
(d) Governing Law. This Agreement will be governed by and construed
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in accordance with the laws of the State of California applicable to agreements
entered into, and to be performed entirely, within California between California
residents.
(e) No Partnership. The relationship of the parties hereto is solely
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that of independent contractors, and not partners, joint venturers or agents.
Neither party has any authority to bind the other in connection with this
Agreement.
(f) Entire Agreement. This Agreement, including any exhibits attached
----------------
hereto, is the complete and exclusive agreement between the parties with respect
to the subject matter hereof, and supersedes and replaces any and all prior or
contemporaneous agreements regarding such subject matter.
(g) No Assignment. Neither party may assign this Agreement without
-------------
the other party's written consent except in the event of a Change of Control (as
defined below). Any assignment in violation of this Section will be null and
void. "Change of Control" means, with respect to a party: (A) the direct or
indirect acquisition of either (i) the majority of voting stock of such party or
(ii) all or substantially all of the assets of such party, by another entity in
a single transaction or a series of transactions; or (B) such party is merged
with, or into, another entity.
10
In Witness Whereof, the parties have entered into this Agreement as of the
Effective Date.
XXXXXXX.XXX, Inc. Xxxxxxxx.xxx, Inc.
By: /s/ Xxxxxxxxx S-Xxxxxxxxx By: /s/ Xxxxx X Xxxxxxx
------------------------- -------------------
Name: Xxxxxxxxx S-Xxxxxxxxx Name: Xxxxx X Xxxxxxx
--------------------- ------------------
Title: VP, Business Development Title: COO/CFO
------------------------ -----------------
11
EXHIBIT A
REGISTRATION DATA
Snowball User's legal name (first name and surname), zip code, user name,
password (and reminder) and email address, gender, such Snowball User's favorite
music genres (as indicated by the Snowball User) and any opt-in request to
receive Riffage correspondence (as indicated by the Snowball User).
12
EXHIBIT B
MOCK-UPS
Please see attached
13
EXHIBIT C
RIFFAGE MARKS AND SNOWBALL MARKS
14
EXHIBIT D
INTENTIONALLY LEFT BLANK
15
EXHIBIT E
IMPRESSIONS
Snowball will provide the Impressions described below on an average monthly
basis, during the term of this Agreement. For purposes of this Agreement, the
term "Impression"* means a view of any of the promotional links described in
this Agreement, Riffage Marks or other promotion of Riffage or the Riffage
Service.
1. Log-In Page: [**] Impressions
2. Navigation Links and Links: [**] Impressions
3. Banner Ads**: [**] Impressions
4. Buttons***: [**] Impressions
5. Newsletters: [**] Impressions
* Riffage acknowledges that Snowball is not currently able to track the
precise number of Impressions derived from the delivery of newsletters to users;
Snowball will use reasonable estimates to measure the number of email
Impressions obtained for purposes of this Agreement.
** no smaller than 468x60 pixels
*** no smaller than 120x90 pixels
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
16
EXHIBIT F
PAYMENTS
For each Registered User, Riffage will make the following payments:
---------------------------------------------------------------------
Number Fee Per User
---------------------------------------------------------------------
[**] [**]
---------------------------------------------------------------------
[**] [**]
---------------------------------------------------------------------
[**] [**]
---------------------------------------------------------------------
[**] [**]
---------------------------------------------------------------------
[**] [**]
---------------------------------------------------------------------
[**] [**]
---------------------------------------------------------------------
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
17
12/22/99
Dear Sir/Madam:
Reference is made to the Services and Promotion Agreement entered into between
Xxxxxxxx.xxx Inc. and Xxxxxxx.xxx, Inc. on December 22, 1999 (the "Agreement").
To follow are the entities Riffage is designating as its [**] and [**] as more
fully described in the Agreement:
For purposes of Subsection 3(a), the following companies and their subsidiaries,
affiliates and successors, are [**]:
[**]
For purposes of Subsection 3(b), the following companies and their subsidiaries,
affiliates and successors, are [**]:
[**]
Best regards,
/s/ Xxxxxxxxx S-Xxxxxxxxx
Xxxxxxxxx S-Xxxxxxxxx
Vice President, Business Development
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
