EXHIBIT 10.37
RAZORFISH, INC.
000 XXXXX XXXXXX, XXXXX XXXXX
XXX XXXX, XXX XXXX 00000
Dated as of August 8, 1997
Road Runner Group
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
This letter shall constitute the exclusive agreement between Road Runner
Group, A Joint Venture of Time Inc. And Time Warner Cable, A division of time
Warner Entertainment Company, L.P. ("You") and us ("Razorfish") and shall
supersede all letters and/or other communications by and between the parties
hereto (including, without limitation, by and between their respective agents,
attorneys and so forth) prior to the date hereof regarding the subject matter
hereof. The terms of said agreement are as follows:
1. SCOPE OF WORK, FEES, TERMS AND CONDITIONS
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1.01 Razorfish will work with You to plan, develop and design the
so-called Road Runner Online Service (the "Work") in accordance with the scope
of work, terms and conditions and fee structure as more particularly described
in Exhibit A attached hereto and made a part hereof.
2. RIGHTS
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2.01 (a) The Work shall be considered a "work made for hire".
If and to the extent that the Work is not deemed to be a work made for hire,
Razorfish shall, and hereby does, assign, transfer and otherwise convey to You
all right, title, and interest in and to the Work. Razorfish hereby waives any
and all claims that Razorfish may have now or may hereafter have in any
jurisdiction to so-called "rental rights", "moral rights" and all rights of
"droit moral" with respect to the Work, and to the results and proceeds thereof.
Razorfish agrees to take all appropriate action, and to execute any and all
documents, necessary or reasonably requested by You to effectuate any of the
foregoing.
(b) Notwithstanding anything to the contrary set forth in
paragraph 2.01(a) above, Razorfish shall retain all right, title and interest in
any source code and object code created by Razorfish prior to or during the term
of this Agreement and which are of general applicability and non-site specific
(the "Razorfish Utilities"). Razorfish hereby grants to You a non-exclusive,
royalty free, perpetual, irrevocable and worldwide right and license to use the
Razorfish Utilities in the form provided by Razorfish; it being understood that
You shall not have the right to copy, publish or distribute any Developer
Utilities other than as part of the Work. In order for a utility to be deemed a
Developer Utility: (i) Razorfish shall have adequately identified to You in
writing the existence of a Developer utility in any deliverable
hereunder prior to the delivery of such deliverable, and (ii) Razorfish shall
update such list at the time of delivery of such deliverable.
2.02 In the event that You desire to modify the Work after the
same is delivered by Razorfish and You do not desire to modify the work
Yourself, You will provide Razorfish with the first opportunity to modify the
same in accordance with the terms and conditions to be negotiated in good faith.
In the event that You and Razorfish fail to agree upon all material terms with
respect to such modification within fifteen (15) days following Your written
request for such modifications, Your obligations pursuant to this paragraph 2.02
shall terminate.
2.03 Razorfish is hereby granted the right to promote the Work in
its on-line portfolio, its press kit, its press releases, and any other
promotional materials. You shall have the right of approval with respect to the
promotion by Razorfish of that portion of the Work that embodies Your name in
its on-line portfolio, its press kit, its press releases, and any other
promotional materials, provided, however, that such approval shall not be
unreasonably withheld and shall be deemed to have been given within fifteen (15)
days following Your receipt of such material, unless You notify Razorfish to the
contrary within said fifteen (15) day period.
3. WARRANTIES, REPRESENTATIONS AND INDEMNIFICATION
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3.01 You warrant and represent the following:
(a) You are authorized, empowered and able to enter into
and fully perform its obligations under this agreement. Neither this agreement
nor the fulfillment thereof by any party infringes upon the rights of any third
party.
(b) The use and/or embodiment by Razorfish in the Work of
any materials provided by You to Razorfish hereunder shall not violate or
infringe upon the rights of any third party.
(c) You shall be solely responsible for and shall pay all
sums due to any third parties entitled to receive any payments in connection
with materials provided by You to Razorfish hereunder and/or materials which You
require Razorfish to obtain for display and/or digital transmission in the Work.
(d) You agree to and do hereby indemnify, save and hold
Razorfish harmless of and from any and all liability, loss, damage, cost or
expenses (including reasonable attorneys' fees) arising out of or connected with
any breach or alleged breach of this agreement or any claim which is
inconsistent with any of the warranties or representations made by You in this
agreement, and agree to reimburse Razorfish on demand for any payment made or
incurred by Razorfish with respect to any of the foregoing.
3.02 Razorfish warrants and represents the following:
(a) Razorfish is authorized, empowered and able to enter
into and fully perform its obligations under this agreement. Neither this
agreement nor the fulfillment thereof by any party infringes upon the rights of
any third party.
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(b) Razorfish shall be solely responsible for and shall pay
all sums due to any third parties entitled to receive any payments in connection
with materials embodied in the Work by Razorfish other than as provided and/or
instructed by You as described in paragraph 3.01(c) above.
(c) The Work (other than content contributed by You) and
all work prepared by Razorfish hereunder will be the original work of Razorfish.
(d) The Work (other than content contributed by You) and
all materials and methodologies used by Razorfish in performing its services
hereunder will not knowingly (i) invade the right of privacy or publicity of any
third person, (ii) contain any libelous, obscene, indecent or otherwise unlawful
material, or (iii) infringe any patent, copyright, trademark, trade secret or
other proprietary right in any jurisdiction or otherwise contravene any rights
of any third person.
(e) When delivered, the Work will be free of any disabling
code or other device ("Disabling Device") that is intended by Razorfish:
(i) to cause the Work or any portion thereof to
become erased other than as may be expressly requested by You in writing; or
(ii) to cause the Work or any portion thereof to
become incapable of performing or operating as intended by the parties hereto;
or
(iii) to cause any other system to become erased or
inoperable.
(f) For a period of 30 days following the launch thereof,
the Work will be (i) free from defects in material and workmanship under normal
use and (ii) will function as intended in accordance with this agreement. In the
event that the Work fails to conform to the provisions of this paragraph
3.02(f), Razorfish shall make, at its own expense, whatever corrections are
reasonably necessary in order to satisfy such provisions.
(g) Razorfish, in performing its services hereunder, will
not alter the content contributed to the Work by You in any manner without
permission.
(h) Razorfish will, in performing its obligations
hereunder, comply with all applicable laws.
(i) In the event that the Work embodies date-related
functionalities, the Work shall (1) accurately process date-related information
for all dates during and after January 1, 2000; (2) function without any change
in operation associated with the commencement of the year 2000 other than as may
be intended by the parties hereto; (3) respond to two-digit date information in
a way that resolves any ambiguity as to century; and (4) store and provide
output of date information in ways that are unambiguous as to century.
(j) Razorfish agrees to and does hereby indemnify, save and
hold You harmless of and from any and all liability, loss, damage, cost or
expenses (including reasonable attorneys' fees) arising out of or connected with
any breach or alleged breach of this agreement
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or any claim which is inconsistent with any of the warranties or representations
made by Razorfish in this agreement, and agrees to reimburse You on demand for
any payment made or incurred by You with respect to any of the foregoing.
4. CONFIDENTIALITY
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4.01 You and Razorfish acknowledge that, in connection with the
services rendered hereunder, the parties may provide certain proprietary
technical, financial and other information (collectively, the "Information") to
each other.
4.02 You and Razorfish agree that the Information will be
treated, held and maintained by You and Razorfish and their respective
representatives in the strictest confidence, will be used by You and Razorfish
and their respective representatives solely and exclusively for the purpose of
furthering the activities contemplated herein, and will not, directly or
indirectly, be used for any other purpose whatsoever by either party or its
representatives without prior written consent of the other party.
4.03 You and Razorfish agree that, upon written request by either
party hereto, all Information given by one party to the other party shall
immediately be returned to the party which owns, controls or developed the same
and no part thereof shall be retained by the other party or such other party's
representatives in any form and/or for any reason.
4.04 (a) Notwithstanding the provisions of paragraph 4.02 above,
Razorfish does not have to keep Information confidential if: it is or becomes
available to the public, other than as a result of disclosure by Razorfish; it
becomes available to Razorfish from a source other than You and that source was
not bound by a confidentiality agreement with You or Razorfish can demonstrate
that Razorfish possessed the Information prior to disclosure by You or
otherwise.
(b) Notwithstanding the provisions of paragraph 4.02 above,
You does not have to keep Information confidential if: it is or becomes
available to the public, other than as a result of disclosure by You it becomes
available to You from a source other than Razorfish and that source was not
bound by a confidentiality agreement with Razorfish; or You can demonstrate that
You possessed the Information prior to disclosure by Razorfish or otherwise.
4.05 If a party hereto becomes legally compelled to disclose any
of the other party's Information, the compelled party shall undertake reasonable
efforts to provide the other party with prompt notice of such requirement or
advice prior to disclosure so that the other party may seek a protective order
or other appropriate remedy and/or waive compliance with the terms of this
agreement. If such protective order or other remedy is not obtained, or the
other party waives compliance with the provisions hereof, the compelled party
agrees to furnish only that portion of the Information which it is legally
required to so furnish and, at the request of the other party, to use reasonable
efforts to obtain assurance that confidential treatment will be accorded such
Information, it being understood that such reasonable efforts shall be at the
cost and expense of the party whose Information has been sought.
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5. MISCELLANEOUS
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5.01 All notices hereunder shall be in writing and shall be sent
by certified mail, return receipt requested, overnight courier, by messenger or
by facsimile, with confirmation of receipt, to the applicable address above. If
the notice is sent by mail, the effective date of the notice will be the fifth
day after the date of the United States Postal Service postmark, or the date of
actual receipt if it was not postmarked by the United States Postal Service. If
the notice is sent by overnight courier, the effective date of the notice will
be the date the notice was given to the courier service, as shown by the courier
service's records. If the notice is hand delivered, the effective date of the
notice will be the date shown on a written receipt given by the recipient to the
messenger.
5.02 The invalidity or unenforceability of any provision hereof
shall not affect the validity or enforceability of any other provision hereof.
This writing sets forth the entire understanding between the parties with
respect to the subject matter hereof, and no modification, amendment, waiver,
termination or discharge of this agreement shall be binding upon either party
unless confirmed by a written instrument signed by the parties hereto. Section
headings are included for reference only, and are not part of this agreement.
5.03 This agreement is made under and governed by the internal
laws of New York State, excluding its conflict of laws rules.
5.04 (a) Neither party hereto, without the prior written consent
of the other party, may assign this agreement or any of its rights and/or
obligations hereunder other than in connection with a merger, acquisition or
consolidation involving all or substantially all of the assigning party's
assets. No assignment made in accordance with the terms of this paragraph
5.04(a) shall relieve the respective assignor of its obligations hereunder, it
being understood that such assignor shall remain primarily liable with respect
thereto.
(b) Razorfish shall cause every person it employs in
connection with its services hereunder to agree in writing to comply with the
terms and conditions of Articles 2 and 4 hereof.
5.05 The parties acknowledge and agree that a breach of any of
the provisions of this agreement would result in immediate and irreparable harm
for which money damages would not be an adequate remedy. In the event of any
breach of the provisions of this agreement, the non-breaching party shall be
entitled to seek equitable relief, including in the form of injunctions and
orders for specific performance, in addition to all other remedies available at
law or in equity.
5.06 The provisions of Paragraphs 2.01, 2.03, 3.4 and Article 5
shall survive termination, expiration or cancellation of this agreement.
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If the foregoing is not consistent with Your understanding and agreement,
then please contact Razorfish immediately as Razorfish is proceeding in reliance
thereon; otherwise please sign in the respective space provided below.
Very truly yours,
RAZORFISH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its: President
AGREED TO AND ACCEPTED
ROADRUNNER GROUP, A JOINT VENTURE OF TIME
INC. AND TIME WARNER CABLE, A DIVISION OF
TIME WARNER ENTERTAINMENT CO., L.P. ("YOU")
By: /s/ Xxxxxx Xxxx Xxxxx
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Xxxxxx Xxxx Wilde
Its: Vice President - Business Development
And An Authorized Representative
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