Exhibit 10.3
ENHANCEMENTS AND CO.BRANDING AGREEMENT
THIS AGREEMENT (the "Agreement"), effective as of August 1, 1999 (the
"Effective Date"), is made by and between XXXXXXXXX.XXX, INC., a Delaware
corporation having a principal place of business at 00000 XX 00xx Xx., Xxxxxxx,
XX 00000, including any successor of XxxxXxxxx.xxx, Inc. ("InfoSpace"), and
VEQUITY CORPORATION, a Colorado corporation with offices at 0000 Xxxx Xxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Vequity").
RECITALS
WHEREAS, Vequity has a web site on the World Wide Web part of the Internet
("WWW") that provides online advertising services located at Uniform Resource
Locator ("URL") xxx.xxxxxxx.xxx (along with any successor or replacement
thereto, the "Vequity Site") and various affiliated sites;
WHEREAS, InfoSpace provides information and other content to end users via
several sites on the WWW, including without limitation a national directory
system that contains listings for businesses and residences and other
information, the primary home page of which is located at
xxxx://xxx.xxxxxxxxx.xxx (along with any successor or replacement thereto, the
"InfoSpace Site"), on various affiliated sites, and on the Web sites of certain
of its co-brand partners (collectively, as defined below, the "InfoSpace
Network");
WHEREAS, Vequity desires to permit users of the Vequity Site to access the
InfoSpace Network maintained by InfoSpace at the InfoSpace Site; and
WHEREAS, Vequity and InfoSpace desire that InfoSpace will include certain
enhancements to listings displayed on the InfoSpace Network. Vequity will
provide these enhancements in accordance with the terms of this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
Definitions:
1. "InfoSpace Network" as used herein shall mean: (a) a national directory
system containing listings for businesses and residences and other located
at xxxx://xxx.xxxxxxxxx.xxx (or any successor or replacement thereto); and
(b) such other points of presence maintained by or for InfoSpace on the
Internet or any other public data network as initially designated and
periodically revised by InfoSpace (in its sole discretion) as being part of
the InfoSpace Network for purposes of this Agreement (which points of
presence may include business and residential directory listing content
posted and maintained by or for InfoSpace on third party web sites pursuant
to agreements between InfoSpace and third parties). The InfoSpace Network
for purposes of this Agreement, includes the InfoSpace Basic Network, and
may include (at InfoSpace's sole discretion) the InfoSpace Premium Network.
If InfoSpace enters into any agreement with any third party following the
date of this Agreement to maintain points of presence on such third party's
web site, InfoSpace shall have sole discretion on whether to include such
third party's web site, within the definition of "InfoSpace Network" for
purposes of this Agreement.
2. "InfoSpace Basic Network" as used herein shall mean: (a) a national
directory system containing listings for businesses and residences and
other information located at xxxx://xxx.xxxxxxxxx.xxx (or any successor or
replacement thereto); and (b) such other web pages maintained by or for
InfoSpace from time to time with respect to which InfoSpace has entered
into agreements with certain third parties to provide access to certain
business and residential directory listing content posted and maintained by
InfoSpace on such web pages through such third parties' web sites whereby
InfoSpace is not obligated to pay such third parties any fee of any kind
for such rights.
3. "InfoSpace Premium Network" as used herein shall mean: (a) the InfoSpace
Basic Network; and (b) such other web pages maintained by or for InfoSpace,
or portions thereof, with respect to which InfoSpace has entered into
agreements with certain third parties to provide access to certain business
and residential directory listing content posted and maintained by
InfoSpace on such web pages through such third parties' web sites whereby
InfoSpace is obligated to pay such third parties any fee of any kind for
such rights. InfoSpace will provide Vequity a substantive list of current
Premium Network provider's, and will continue to provide, on reasonable
request but not more than quarterly, an updated list of Premium Network
providers for the duration of the term of the Vequity/InfoSpace agreement
inasmuch as this provision does not cause InfoSpace to violate any
confidentiality agreement.
4. "National directory system" as used herein shall mean any and all yellow
pages directories or similar databases irrespective of titling "directory"
which is or will be created, maintained, made available by, provided or
hosted by InfoSpace, at its discretion, within the InfoSpace Network.
5. "All Listings Section" as used herein shall mean the section, irrespective
of titling, of a directory that contains unpaid listings. This section is
always last in priority and therefore the last section of listings to be
made available for viewing by a user, therefore requiring the Preferred
Listing, Enhanced Listings as well as any other listing sections to be
viewed first. Listings are displayed in alphabetical order.
6. "Enhanced Listings Section" as used herein shall mean the section,
irrespective of titling, of a directory, which contains paid listings. This
section is viewed prior to any listings in the All Listing Section and
after the listings in the Preferred Listing Section. Listings are displayed
in alphabetical order.
7. "Preferred Listings Section" as used herein shall mean the section,
irrespective of titling, of a directory, which contains paid listings. This
section is always first in priority, meaning the section is viewed prior to
any listings in the All Listings Section and Enhanced Listing Section, and
therefore is the first section of listings to be made available for viewing
by a user. Listings are displayed in alphabetical order.
SECTION 1. CERTAIN OBLIGATIONS
1.1 Vequity Sales Effort. Vequity shall solicit businesses in order to
sell its advertising listing services, including its Internet yellow
pages advertising packages. Within the print directory areas of
Vequity, as set forth in Exhibit A (the "Markets"), Vequity will have
the right to perform premise bundled, print, and Internet yellow pages
sales of Enhanced Section Listings of Internet yellow pages Listing
Enhancements for distribution on the InfoSpace Basic Network, subject
to Exhibit A. Within the Markets, Vequity shall have the same right,
subject to Exhibit A, to perform premise bundled, print, and Internet
yellow pages marketing campaigns to businesses to promote its
advertising listing services, and in connection therewith to use,
reproduce, publish, perform and display the "InfoSpace Marks"
(InfoSpace Marks shall mean those Trademarks of InfoSpace set forth on
Exhibit C hereto and such other Trademarks as InfoSpace may from time
to time notify Vequity in writing to be "InfoSpace Marks" within the
meaning of this Agreement) in promotional and marketing materials, and
electronic and printed advertising, publicity, press releases,
newsletters and mailings about Vequity.
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1.2 Vequity Enhancement Data and Software Integration Tool. Upon execution
of this Agreement, Vequity will use the InfoSpace web-based software
integration tool ("InfoSpace Publisher" including "InfoSpace
PageExpress" for web site creation) provided by InfoSpace to integrate
yellow pages advertising listing enhancements ("Listings
Enhancements") on a listing-by-listing basis. Collectively, these
Listing Enhancements are the "Vequity Enhancement Data."
1.3 Display of Enhancements. InfoSpace will use such Vequity Enhancement
Data to create text and/or graphical advertising and hyperlinks to be
located on the InfoSpace Basic Network ("Vequity Listings
Enhancements"), as determined in the sole discretion of InfoSpace,
that will point users to the advertising items for the corresponding
listing as indicated. InfoSpace may, as appropriate, include text and
or icon hyperlinks to: customer provided e-mail, customer provided
URL, mapping, driving directions, and web sites in listings within the
InfoSpace Basic Network's yellow pages, which form may change from
time to time at InfoSpace's sole discretion. In addition, InfoSpace
may provide additional hyperlinks on the InfoSpace Basic Network, the
number, function, design, label and placement of such hyperlinks to be
determined solely by InfoSpace.
1.4 Formatting. Provisions for Vequity Listing Enhancements include:
1.4.1 Listing Results Pages Icon Links. See Exhibit B.
1.4.2 Listings. Vequity shall provide to InfoSpace a list of Vequity's
advertisers and such advertisers' listings within the InfoSpace Basic
Network in an acceptable format (each a "Listing") and such Listings
shall be placed, subject to Exhibit A, in search results generated in
response to searches of the by InfoSpace Basic Network. In addition to
the free listing features in the InfoSpace Network maintained by
InfoSpace, to the extent the listing information is available to
InfoSpace, each Vequity's customer advertiser Listing shall include
the Basic Listing:
1.4.3 Basic Listing. The Basic Listing may include the following features:
(a) Enlarged Listing. The font size of the name shall be increased from
the standard listing font size to the largest font size available.
(b) Emboldened Listing. The font shall be emboldened with the hypertext
markup language bold command making the text bold whenever possible
depending on the user's browser.
(c) Link to E-mail. A text link to an E-mail address of the business being
listed.
(d) Phone Number. Phone number of business being listed.
(e) Link to Vequity's Customer's URL. A text and or graphical link to a
Vequity's customer-provided web site or URL. All web sites created by
Vequity shall have a "back button" to transport the user back to the
referring page.
(f) Mapping. A map showing the location of the business being listed.
(g) Driving Directions. Driving directions to the location of the business
being listed.
1.4.4 InfoSpace PageExpress. InfoSpace PageExpress is a one-page basic web
site, which may be created by Vequity staff and is able to be edited
by Vequity customers. InfoSpace PageExpress shall be maintained by
InfoSpace on its servers (and/or such third party servers as
periodically designated by InfoSpace in its sole discretion) as such
may be periodically modified, revised, supplemented or enhanced by
InfoSpace in its sole discretion; provided, however, it is understood
that, upon completion of the release of PageExpress software allowing
for multiple pages, Vequity shall be allowed to create sites with up
to four (4) pages and that any additional page or e-commerce upgrades
to PageExpress web sites are not covered under this Agreement.
1.5 Co-Branding; Grant of Rights; Advertising.
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1.5.1 Co-Brand Pages. InfoSpace shall use commercially reasonable efforts
during the term of this Agreement (i) to make the InfoSpace Basic
Network maintained by InfoSpace at the InfoSpace Site available to
users of the Vequity Site as provided below, (ii) obtain and maintain
in effect all telephone lines and other communications transmission
devices to enable the Vequity Site to access the InfoSpace Basic
Network (ii) answer any reasonable questions that Vequity may from
time to time ask of InfoSpace relating to the InfoSpace Network, (iii)
provide quotes for the terms and conditions of any updates or other
modifications Vequity may from time to time desire InfoSpace to make
to the Vequity Site, or (iv) render other limited incidental
consulting services from time to time requested by Vequity, subject to
agreement by the parties on the terms and conditions for such
services. Advertising and promotions, at InfoSpace's discretion, may
appear on all or any of the Co-branded Web Pages (as defined below)
and, unless otherwise allowed under this Agreement, InfoSpace shall
have the sole right to sell such advertising and promotions and the
right to track the number of impressions on the Co-Branded Web Pages.
1.5.2 Grant of Rights. Subject to the terms and conditions of this
Agreement, InfoSpace grants to Vequity: (a) the right to include on
the Vequity Site hypertext links (whether in graphical, text or other
format) which enable "point and click" access to locations of the
InfoSpace Site specified by InfoSpace (and subject to change by
InfoSpace from time to time); (b) the right to permit users to link to
Results Pages (as defined below) via Query Pages (as defined below)
hosted on the Vequity Site; (c) a limited, non-exclusive,
non-transferable, non-assignable right to use, and allow end-users to
use, the Page Express web site building tools solely for purposes of
creating, editing and updating user web sites pursuant to this
Agreement; and (d) a limited, non.-exclusive non-transferable,
non-assignable right to use the InfoSpace web-based software
integration tool "InfoSpace Publisher" for purposes of integrating
Listing Enhancements on a listing by listing basis, under the terms of
this Agreement. "Query Pages" means any page hosted on the Vequity
Site which incorporates the Graphical User Interface and on which
users may input queries and searches. "Results Pages" means any page
hosted on the InfoSpace Network which incorporates the Graphical User
Interface (as defined below) and displays the Directory Content in
response to queries and searches made on a Query Page. "Co-Branded
Pages" means, collectively, the Results Pages and the Query Pages. It
is expressly understood that the rights granted to Vequity as set
forth in this Section for the Markets do not include the right to
redistribute, resell, sublicense, or perform the licensed activities
outside the Markets, which conduct would be in material breach of the
Agreement.
1.5.3 Graphical User Interface. "Graphical User Interface" means a
graphical user interface, which may be designed by InfoSpace and
Vequity and implemented by InfoSpace pursuant to this Agreement for
the Vequity Site, that contains or implements branding, graphics,
navigation, content or other characteristics or features such that a
user reasonably would conclude that such interface is part of the
Vequity Site, and containing InfoSpace's customary and required
content attribution which may include logo and "Powered by InfoSpace."
Vequity and InfoSpace will cooperate to design the user-perceptible
elements of the Graphical User Interface, with the goals of: (a)
conforming the display output of the "look and feel" associated with
the Vequity Site; and (b) maximizing the commercial effectiveness
thereof. Following agreement by the parties upon the design
specifications thereof, InfoSpace will use commercially reasonable
efforts to develop the Graphical User Interface and to implement the
same on the Co-Branded Pages. InfoSpace shall have no liability or
obligation for failure to develop or implement the Graphical User
Interface or any Co-Branded Pages as contemplated by this Section
1.5.3, or for any nonconformity with the design specifications agreed
upon by the parties, provided InfoSpace has used commercially
reasonable efforts to develop and implement the same as provided in
this Section 1.5.3.
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1.5.4 Limitations. Vequity and its affiliates shall have no right to
reproduce or sub-license, re-sell or otherwise distribute all or any
portion of InfoSpace Network content or any other content posted on
any portion of the InfoSpace Network to any person or entity,
including without limitation via the Internet (including the World
Wide Web) or any successor public or private data network. This
Agreement and delivery of any InfoSpace content or any portion
hereunder to Vequity or any third party pursuant to this Agreement
shall not cause InfoSpace to be in violation of any law of any
jurisdiction or third party agreement, and InfoSpace may at any time
modify its grant of rights to the extent necessary to ensure
compliance. Should InfoSpace agree to provide content services to any
third party introduced to InfoSpace by Vequity pursuant to this
Agreement, InfoSpace may require as a prerequisite to access to
InfoSpace's content services any third party to execute InfoSpace's
standard content distribution agreement, which may be presented by
InfoSpace (at InfoSpace's option) in the form of an online
"click-wrap" acknowledgment. InfoSpace shall provide only a basic
templated site which shall not require development or customization by
InfoSpace. In addition, neither party or any affiliate shall have any
right to: (a) edit or modify any advertisement submitted for a
Co-branded Page or (b) remove, obscure or alter any notices of
Intellectual Property Rights appearing in or on any content or other
materials.
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1.5.5 Advertising and Revenue Share
(a) Placement of Banner Advertisements. Each party shall have the right to
sell banner advertisements (such banner advertisements adhering to
InfoSpace's standards and sized at approximately 60 x 468 pixels
"Banner Advertisements") on the Co-branded Pages. The appearance of
the Banner Advertisements will be as reasonably determined by the
party selling such Banner Advertisements; provided, that InfoSpace may
reject any Banner Advertisement if such Banner Advertisement would
materially slow the download time or performance of such page.
(b) Remuneration for Banner Advertisements. The parties agree to share in
the advertising revenues from Banner Advertisement sales ("Advertising
Revenues") as set forth on Exhibit D. Advertising Revenue share
payments will be reconciled and paid within thirty (30) days following
the calendar quarter in which the applicable Advertising Revenues are
received. The party that sells the Banner Advertisement (the "Selling
Party") will provide with each such payment a report setting forth
Advertising Revenues received by it for such quarter and the
percentage thereof payable to the other party.
(c) Records and Audit; Late Payments. During the Term, each party shall
maintain accurate records of any and all fees payable to the other
party under this Agreement. Any amounts owed under this Agreement not
paid when due will be subject to a finance charge equal to one and
one-half percent (1.5%) per month or the highest rate allowable by
law, whichever is less, determined and compounded daily from the date
due until the date paid. Payment of such finance charges will not
excuse or cure any breach or default for late payment.
1.5.6 "Co-brand" Web Site Referral Program. Vequity shall make referrals to
InfoSpace of opportunities for InfoSpace to provide InfoSpace's basic
templated "co-brand" service. Vequity shall make such referrals to its
financial planning company affiliates for an initial technology fee of
five thousand dollars ($5,000), payable to InfoSpace from Vequity
which shall collect the payment from the referred entity, each due
prior to activation. Ongoing payments shall be $5,000 per year and due
to InfoSpace on the anniversary thereof. Details of the referral
program shall be at InfoSpace discretion, and Vequity shall operate
and abide by the guidelines as InfoSpace may determine for the
referral program. Initially, it is contemplated that InfoSpace shall
provide a basic templated site which shall not require development or
customization by InfoSpace. InfoSpace shall have the right to approve
of the referral of any third party introduced to InfoSpace by Vequity
pursuant to this Agreement. InfoSpace shall require, as a prerequisite
to access to InfoSpace's content services, that a third party must
execute InfoSpace's standard content distribution agreement, which may
be presented by InfoSpace (at InfoSpace's option) in the form of an
online "click-wrap" acknowledgment. InfoSpace shall share revenue with
Vequity for referral program templated web sites as set forth in
Section 2.3 below.
SECTION 2. REVENUE SHARE FEE; REMUNERATION
2.1 Revenue Share Fee. InfoSpace grants Vequity a limited right (as
described in Section 1.5.2) to integrate in the Markets an unlimited
number of Vequity Listing Enhancements including (i) Basic Listings
with (ii) PageExpress web sites as described in this Agreement, and
for the period of the Term of this Agreement, in consideration of the
greater of (a) the monthly Revenue Share Fee as defined by the
following matrix or (b) twenty thousand dollars ($20,000):
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---------------------------- ------------------------- ------------------------- --------------------------
Number of Websites Sold InfoSpace Revenue Share Maximum Revenue Share Cumulative Annual
Per Year Per Website Paid to InfoSpace Per Revenue Share Paid to
(Breakpoint Pricing) Breakpoint InfoSpace
---------------------------- ------------------------- ------------------------- --------------------------
1 - 5,000 $400 $2,000,000 $2,000,000
---------------------------- ------------------------- ------------------------- --------------------------
5,001 - 10,000 $300 $1,500,000 $3,500,000
---------------------------- ------------------------- ------------------------- --------------------------
10,001 - 20,000 $200 $1,000,000 $4,500,000
---------------------------- ------------------------- ------------------------- --------------------------
Over 20,000 $100 $500,000 $5,000,000
---------------------------- ------------------------- ------------------------- --------------------------
For the purposes of the table above, the terms "Website" and
"Websites" shall mean either (a) a PageExpress site as defined in this
Agreement or (b) a Vequity Listing Enhancement placed on the InfoSpace
Network.
2.2 Maximum Annual Revenue Share Fee. In all cases, the maximum Revenue
Share Fee Vequity shall pay is six million dollars ($6,000,000) per
year.
2.3 Revenue Share for referral program "co-branded" web sites. InfoSpace
shall share revenue with Vequity as follows: eighty percent (80%) of
the initial technology fee (fee minimum $5,000) payable to InfoSpace
from Vequity prior to activation and ongoing payments shall be split
on the same basis. There shall be no maximum to this Revenue Share.
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2.4 Payment Terms. Vequity shall remit the first minimum monthly Revenue
Share Fee of twenty thousand dollars ($20,000) on or before August 20,
1999. The first month to which this first payment shall apply will be
the earlier of October 1999 or the month of activation of the
co-branding of InfoSpace content for Vequity. Vequity shall remit
payment to InfoSpace for the second, third, and fourth months when the
fourth month payment is due (minimum of $60,000). Thereafter, Vequity
shall remit the Revenue Share Fee for each month, according to Section
2.1, by the twentieth (20th) day of the month following the month of
service, after which the payment shall be considered late and
InfoSpace, at its sole discretion, may then disengage all services,
links and co-branding supplied to Vequity with fifteen days written
notice to Vequity. Payment shall be made in immediately available U.S.
Dollar funds. Methods of payment may include, without limitation
check, wire transfer, cashier's check, or cash.
2.5 Records. Each party shall keep reasonable records in connection with
its respective performance under this Agreement and shall permit the
other party reasonable access to such records at such other party's
expense upon reasonable notice, solely for the purpose of verifying
such party's compliance with the terms of this Agreement. Vequity
shall submit monthly reports of its web sites sold pursuant to this
Agreement in support of Revenue Share calculations along with its
payment of the Revenue Share Fee payment. Either party, at its
expense, and upon ten (10) days' advance notice to the other party,
shall have the right during the Term to examine or audit such records
in order to verify the listing figures reported in any report and the
amounts owned to such party under this Agreement. Any such audit shall
be conducted, to the extent possible, in a manner that does not
interfere with the ordinary business operations of the audited party.
In the event that any audit shall reveal an underpayment of more than
five percent (5%) of the amounts due to the auditing party for any
quarter, the other party will reimburse such party for the actual cost
of such audit.
2.6 Taxes. All fees and payments stated herein exclude, and Vequity shall
pay, any sales, use, property, license, value added, withholding,
excise or similar tax, federal, state or local, related to the
parties' performance of their obligations or exercise of their rights
under this Agreement and any related duties, tariffs, imposts and
similar charges, excluding those taxes based upon InfoSpace's income.
2.7 Disputes. In the event that Vequity disputes the amount of money owed
pursuant to any Listing Invoice, Vequity shall notify InfoSpace of
such dispute and the parties agree to cooperate in good faith to
promptly resolve any dispute, including exchanging such information
and documentation as may be reasonably related to or likely to resolve
any and all amounts in dispute.
SECTION 3. PROPRIETARY RIGHTS AND LICENSES
3.1 Ownership.
3.1.1 Vequity. All right, title and interest in and to the Vequity Site,
along with all Intellectual Property Rights, as defined below, related
thereto shall remain with Vequity or its licensors and/or suppliers.
For purposes herein, "Intellectual Property Rights" shall include all
patents, copyrights, trademarks, service marks, web site design,
computer software tools, URLs, trade secrets and other proprietary or
intellectual property rights arising under the laws of any
jurisdiction. .
3.1.2 InfoSpace. All right, title and interest in and to the InfoSpace
Site, the InfoSpace PageExpress web site building tool and the text,
graphics, data, designs, computer programs, computer code, items,
inventions, works of authorship, concepts, materials, methods,
processes and other content and information contained therein or
relating thereto, including the InfoSpace Network and listings, along
with all related Intellectual Property Rights to any of the foregoing,
shall remain with InfoSpace, no rights to resell, sub-license in any
way the Intellectual Property Rights are granted or shall be inferred.
3.2 License Grants. Vequity hereby grants to InfoSpace for the term of
this Agreement a non-exclusive, worldwide, royalty-free license to
reproduce, electronically distribute, publicly perform, publish,
publicly display, digitally perform, post, reformat as required under
standards of the InfoSpace Network, and maintain the Vequity Listings.
In furtherance of this Agreement, InfoSpace shall have the right to
use, reproduce, publish, perform and display the "Vequity Marks"
(Vequity Marks meaning those Trademarks of Vequity including those set
forth on Exhibit C hereto and/or such other Trademarks as Vequity may
from time to time notify InfoSpace in writing to be "Vequity Marks"
within the meaning of this Agreement).
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3.3 Limitations; Editorial Control Of InfoSpace Network. Either party may
modify its grant to the other party of the rights to use of any of its
trademarks (as set forth in Sections 1.1, 1.5 and 3.2) upon written notice to
the other party. Neither party shall be in violation of any third party
intellectual property rights, third party contract rights or agreements by
virtue of this Agreement, and should a potential violation arise, the
performance and obligations of either party herein may be qualified and limited
in scope to the extent necessary to avoid such violation. InfoSpace will have
the right (but not the obligation) to remove, refuse to host or edit any Page
Express web site created (or any portion thereof), co-branded web site,
sponsorship or listing which in its sole discretion InfoSpace considers actually
or potentially obscene, indecent, offensive, defamatory, unlawful,
mis-categorized, infringing of third-party Intellectual Property Rights or third
party contract, or otherwise objectionable or unsuitable for posting anywhere on
InfoSpace's servers (including, without limitation, hyperlinks, framed content
or meta tags). Notices of Intellectual Property Rights which may be required by
InfoSpace or an InfoSpace content provider shall not be removed from content
supplied by InfoSpace.
SECTION 4. CONFIDENTIALITY
4.1 Each party that receives information (the "Receiving Party") from the
other party (the "Disclosing Party") agrees to use reasonable best
efforts to protect all non-public information and know-how of the
Disclosing Party that is either designated as proprietary and/or
confidential or that, by the nature of the circumstances surrounding
disclosure, ought in good faith to be treated as proprietary and/or
confidential ("Confidential Information"), and in any event, to take
precautions at least as great as those taken to protect its own
Confidential Information of a similar nature. Each party agrees that
the terms and conditions of this Agreement shall be Confidential
Information, provided that each party may disclose the terms and
conditions of this Agreement to its immediate legal and financial
consultants in the ordinary course of its business. The parties
further agree that Listing and web site content received by or from
InfoSpace shall be included in the Confidential Information of
InfoSpace, and that Vequity may use such information internally for
any lawful purpose, provided that Vequity shall not disclose such
information to any third party without the prior written consent of
InfoSpace.
4.2 The foregoing restrictions shall not apply to any information that:
(a) the Receiving Party can document it had in its possession prior to
disclosure by the Disclosing Party; (b) was in or entered the public
domain through no fault of the Receiving Party; (c) is disclosed to
the Receiving Party by a third party legally entitled to make such
disclosure without violation of any obligation of confidentiality; (d)
is required to be disclosed by applicable laws or regulations (but in
such event, only to the extent required to be disclosed); or (e) is
independently developed by the Receiving Party without reference to
any Confidential Information of the Disclosing Party. Upon request of
the other party, or in any event upon any termination or expiration of
the Term, each party shall return to the other all materials, in any
medium, that contain, embody, reflect or reference all or any part of
any Confidential Information of the other party. Each party
acknowledges that breach of this provision by it would result in
irreparable harm to the other party, for which money damages would be
an insufficient remedy, and therefore that the other party shall be
entitled to seek injunctive relief to enforce the provisions of this
Section 4.
SECTION 5. NONEXCLUSIVITY
Each party expressly acknowledges and agrees that the rights granted to the
other party in this Agreement are non-exclusive and that, without limiting the
generality of the foregoing, nothing in this Agreement shall be deemed or
construed to prohibit either party from soliciting third party content, links,
banner ads or other materials, serving content, links, banner ads or other
materials to third parties' web sites, or hosting or permitting third parties to
place links, content, advertisements or other materials on such party's web
site, whether or not, in each such case, such content, links, advertisements or
other materials are placed in higher priority than or are competitive with the
products, services, content or advertisements of the other party.
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SECTION 6. WARRANTIES AND DISCLAIMERS
6.1 Representations and Warranties. Each party represents and warrants to
the other party that: (a) it is duly incorporated, validly existing
and in good standing under the laws of the state of its incorporation,
and duly qualified to do business in any state in which it is required
to so qualify; (b) this Agreement has been duly executed and delivered
and constitutes a valid and binding agreement enforceable against such
party in accordance with its terms; (c) no authorization or approval
from any third party is required in connection with such party's
execution, delivery or performance of this Agreement; and (d) the
execution, delivery and performance of this Agreement does not violate
the laws of any jurisdiction or the terms or conditions of any other
agreement to which it is a party or by which it is bound.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT,
THE OPERATION OF THE RESPECTIVE SITES, OR ANY SERVICES OR ITEMS
PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, VEQUITY ACKNOWLEDGES
THAT THE WEB SITE BUILDING TOOLS, THE INFOSPACE SITES, THE CO.BRANDED
SERVICE USER WEB SITES, THE CO.BRANDED PAGES AND ANY AND ALL OTHER
ITEMS OR SERVICES FURNISHED BY INFOSPACE UNDER THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, ANY SERVERS OR OTHER HARDWARE,
SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY INFOSPACE OR ANY
THIRD PARTIES IN CONNECTION WITH PROVIDING ACCESS TO OR HOSTING ANY OF
THE FOREGOING OR THE PERFORMANCE OF ANY SERVICES BY INFOSPACE
HEREUNDER) ARE PROVIDED BY INFOSPACE "AS IS" AND THAT VEQUITY HEREBY
WAIVES, RELEASES AND DISCLAIMS, ALL WARRANTIES, OBLIGATIONS AND
LIABILITIES OF INFOSPACE, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF
THE FOREGOING. VEQUITY ACKNOWLEDGES THAT INFOSPACE MAKES NO WARRANTY
THAT IT WILL CONTINUE TO OPERATE ITS WEB SITES OR THE WEB SITE
BUILDING TOOLS IN THEIR CURRENT FORM, OR THAT ITS WEB SITES OR THE WEB
SITE BUILDING TOOLS WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT ITS
WEB SITES OR THE WEB SITE BUILDING TOOLS WILL MEET THE REQUIREMENTS OR
EXPECTATIONS OF VEQUITY OR ANY CO.BRANDED SERVICE USER OR THAT THE
CONTENT, SOFTWARE OR ANY OTHER ANY MATERIALS ON OR THROUGH ITS WEB
SITES OR THE SERVERS AND SOFTWARE THAT MAKES ITS WEB SITES AVAILABLE
(INCLUDING, WITHOUT LIMITATION, THE WEB SITE BUILDING TOOLS) ARE FREE
FROM ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS
SECTION 7. INDEMNITY
7.1 Vequity hereby agrees to defend, indemnify and hold InfoSpace and its
officers, directors and Affiliates harmless from and against any and
all damages, liabilities, costs and expenses (including reasonable
attorney's fees) incurred by InfoSpace as a result of any third party
claim arising out of (a) a breach or alleged breach by Vequity of any
representation or warranty of this Agreement or (b) a claim that the
Vequity Site, Vequity Enhancement Data, or any content, ads or other
materials on the Vequity Web Site, Vequity Enhancement Data or
PageExpress web site or affiliated web site is misappropriate, violate
or infringe upon any law, Intellectual Property Rights, contract
rights or privacy rights, provided, however, that InfoSpace (i) gives
Vequity prompt notice of any such claim or action, (ii) allows Vequity
sole control of the defense or any settlement (provided that Vequity
shall not, without the consent of InfoSpace, enter into any settlement
that reasonably can be expected to require a material affirmative
obligation of, result in any ongoing material liability to or
materially prejudice InfoSpace in any way) and (iii) provides
reasonable cooperation, at Vequity's reasonable expense, in Vequity's
defense or settlement of the claim or action.
7.2 InfoSpace hereby agrees to defend, indemnify and hold Vequity and its
officers, directors and Affiliates harmless from and against any and
all damages, liabilities, loss, costs and expenses (including
reasonable attorney's fees) incurred by Vequity as a result of any
third party claim arising out of (a) a breach or alleged breach by
InfoSpace of any representation or warranty of this Agreement or (b) a
claim that InfoSpace Network violates or infringe upon any
Intellectual Property Rights, contract rights or privacy rights
(excepting material provided under Section 7.1), provided, however,
that Vequity (i) gives InfoSpace prompt notice of any such claim or
action, (ii) allows InfoSpace sole control of the defense or any
settlement (provided that InfoSpace shall not, without the consent of
Vequity, enter into any settlement that reasonably can be expected to
require a material affirmative obligation of, result in any ongoing
material liability to or materially prejudice Vequity in any way) and
(iii) provides reasonable cooperation, at InfoSpace's expense, in
InfoSpace's defense or settlement of the claim or action.
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SECTION 8. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO ANY LIABILITY ARISING UNDER SECTION 7 HEREUNDER, IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR
ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL INFOSPACE'S LIABILITY
UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY VEQUITY TO INFOSPACE
HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH
LIABILITY. SECTION 9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence as of the Effective Date and shall
continue for two years from the Effective Date of this Agreement (the
"Term"), unless earlier terminated as set forth herein. The Term shall
be automatically renewed for successive one-year periods, unless
written notice is given by either party at least 60 days prior to the
termination of any term. After termination, the parties will cooperate
to accommodate Vequity advertisers that have agreements for
advertising or Websites on the InfoSpace Network in effect prior to
the termination, for up to one year after termination (the "Phase-Out
Period"), provided the terms of continuation of service are acceptable
to InfoSpace, and InfoSpace is compensated reasonably and at least to
the same extent as during the Term.
9.2 Termination.
9.2.1 Either party may terminate this Agreement for any reason upon sixty
day's written notice to the other party.
9.2.2 Either party may terminate this Agreement at any time upon thirty
(30) days written notice to the other party in the event that the
other party is in material breach of this Agreement and such party
fails to cure such breach within thirty (30) days following receipt of
such notice.
9.2.3 Either party may terminate this Agreement immediately upon notice in
the event that the other party (i) makes a general assignment for the
benefit of creditors, (ii) files a voluntary petition of bankruptcy,
suffers or permits the appointment of a receiver for its business or
assets, (iii) becomes subject to any proceedings under any bankruptcy
or insolvency law where such proceeding has not been dismissed within
sixty (60) days or (iv) has wound up or liquidated, voluntarily or
otherwise.
9.2.4 Upon the effective date of expiration or termination of this
Agreement, all obligations defined herein, including prioritization
rights, shall expire except for those obligations set forth in
Sections 3.1, 4, 6, 7, 8, 10 and 11, and payment obligations to the
date of termination or other obligations which would reasonably
survive termination, which shall survive.
SECTION 10. PUBLICITY
The parties may with the other party's prior approval of the form, content
and timing, issue a press release regarding this Agreement. In the event the
parties agree to issue a press release regarding the relationship between
InfoSpace and Vequity, such release may contain quotes from the chief executive
officers of each of InfoSpace and Vequity, subject to the mutual consent of both
parties.
SECTION 11. GENERAL PROVISIONS
11.1 Governing Law; Jurisdiction; Venue. This Agreement will be governed
and construed in accordance with the laws of the State of Washington
without giving effect to its conflict of law principles. The
jurisdiction and venue of any action or claim arising out of this
Agreement shall be in King County, Washington.
11.2 Compliance with Laws. At their own expense, Vequity and InfoSpace
shall comply with all applicable laws, regulations, rules, ordinances
and orders regarding their respective activities related to this
Agreement.
11.3 Severability; Headings. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated in
any way. The parties agree to replace any invalid provision with a
valid provision, which most closely approximates the intent and
economic effect of the invalid provision. Headings are for reference
purposes only and in no way define, limit, construe or describe the
scope or extent of such section, or in any way affect this Agreement.
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11.4 Independent Contractors. The parties to this Agreement are independent
contractors, and no agency, partnership, joint venture or employee-employer
relationship is intended or created by this Agreement. Neither party may incur
any obligations or liabilities on behalf of the other party. Without limiting
the foregoing, Vequity shall not make any representations or warranties to third
parties on behalf of InfoSpace.
11.5 Notice. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified above or at such other address as
the party shall specify in writing. Unless otherwise specified, such notice
shall be deemed given upon personal delivery, upon confirmation of receipt if
sent by fax, or three (3) days after the date of mailing if sent by certified or
registered mail, postage prepaid.
11.6 Entire Agreement; Waiver. This Agreement and the Exhibits attached
hereto set forth the entire understanding and agreement of the parties, and
supersede any and all prior or contemporaneous oral or written agreements or
understandings between the parties, as to the subject matter of this Agreement.
In the event of any conflict between the Agreement and an Exhibit, the terms of
the Exhibit shall control. Except as provided herein, only by writing an
addendum, signed by both parties, may a change be made to this Agreement. Waiver
by either party of a breach of any provision contained herein must be in
writing, and no such waiver shall be construed as a waiver of any other and/or
succeeding breach of such provision or a waiver of the provision itself.
11.7 Assignment and Transfer of Control. Neither party may assign this
Agreement or any rights hereunder without the prior written consent of the other
party, which consent shall not be unreasonably delayed or withheld, except that
the other party's prior written consent shall not be required where the assignee
(i) is an Affiliate, as defined below, of the assigning party or (ii) is the
successor entity in any merger, consolidation, reorganization or similar
transaction that is acquiring all or substantially all of the assets of the
assigning party. "Affiliate" shall mean any entity that has an equity interest
of fifty percent (50%) or more in the assigning party, or any entity in which
the assigning party has an equity interest of fifty percent (50%) or more. In
any event, the assignee must assume and agree in writing to perform all of the
assigning party's executory obligations and the assigning party must guarantee
performance by the assignee throughout the Term.
11.8 Force Majeure. "Force Majeure Event" means any act of God, act of
governmental authority, act of public enemy, war, riot, flood, civil commotion,
insurrection, severe weather conditions, or any other cause beyond the
reasonable control of the party delayed; provided that the inability of any
party to pay any monetary sum when due for any reason will not constitute a
"Force Majeure Event" for purposes of this Agreement. Neither party will be
liable for any losses arising out of the delay or interruption of its
performance of obligations under the Agreement due to any Force Majeure Event,
provided that the party delayed will provide the other party notice of any such
delay or interruption as soon as reasonably practicable, will use commercially
reasonable efforts to minimize any delays or interruptions resulting from the
Force Majeure Event and in no event will any failure to pay any monetary sum due
under this Agreement be excused for any Force Majeure Event.
11.9 Counterparts Electronic Signature. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original and all of
which shall be deemed to be one instrument. To expedite the process of entering
into this Agreement, the parties acknowledge that Transmitted Copies of the
Agreement will be equivalent to original documents until such time as original
documents are completely executed and delivered. "Transmitted Copies" will mean
copies that are reproduced or transmitted via photocopy, facsimile or other
process of complete and accurate reproduction and transmission.
XXXXXXXXX.XXX, INC. VEQUITY CORPORATION
By: By:
--------------------------------- -------------------------------
Title: Title:
------------------------------ ----------------------------
Date: Date:
------------------------------- -----------------------------
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EXHIBIT A
Vequity Yellow Pages Listing Prioritization Rights on the InfoSpace Basic
Network
The rights granted under this Agreement shall apply solely to the areas noted in
Exhibit E (the "Markets").
InfoSpace and Vequity acknowledge that InfoSpace may grant superior and
sometimes exclusive yellow pages listing prioritization rights to certain local
advertising sales partners. This Agreement shall not cause InfoSpace to violate
any yellow pages listing prioritization rights previously granted to its
partners, nor shall the Agreement be interpreted to grant rights outside the
Markets defined herein or outside the Markets in which Vequity operates and
distributes through a bona fide yellow page print publisher premise sales force.
InfoSpace reserves the unlimited right to inform Vequity of restrictions which
are required by InfoSpace potential conflicts with InfoSpace partners concerning
solicitation of customers or categories of customers (in InfoSpace's sole
discretion), or Vequity solicitation of customers in certain areas of the United
States, and Vequity shall abide by such restrictions. InfoSpace may make
commercially reasonable efforts, as necessary in InfoSpace's sole discretion, to
restructure or address prior or future agreements to allow Vequity Listings to
be included in the highest available priority listing position. To the extent
possible, Vequity Listings shall be placed in the Enhanced Listing Section (or
successor) within the InfoSpace Basic Network with the following exceptions:
1. InfoSpace has previously entered into a contract with local
advertising sales partners which prohibit placement, or such
prioritized placement and said local advertising sales partner have
not agreed to allow Vequity's Listings in said prioritization
position.
2. InfoSpace will use reasonable commercial efforts to keep Vequity's
Listings on distribution sites throughout the InfoSpace Basic Network.
However, Vequity understands that the ultimate control of listings
rests with each distribution site owner.
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EXHIBIT B
Graphic Link Example
The design of a link on the listing results page currently appears as follows.
However, this design is subject to change at InfoSpace's discretion.
[Graphics Omitted]
EXHIBIT C
TRADEMARKS
Vequity Marks
Vequity
Xxxxxxx.xxx
[Graphics Omitted]
InfoSpace Marks
InfoSpace
XxxxXxxxx.xxx
[GRAPHIC OMITTED]
Powered By InfoSpace
Powered by XxxxXxxxx.xxx
The Ultimate Directory
EXHIBIT D
BANNER ADVERTISEMENT REVENUE SHARE
The Selling Party shall receive a commission of thirty percent (30%) of all
Advertising Revenue derived from Banner Advertisements, which shall be served by
InfoSpace on the co-branded pages. The remaining Advertising Revenue will be
then shared, quarterly, as follows:
Fifty percent (50%) to InfoSpace
Fifty percent (50%) to Vequity
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EXHIBIT E
NON-EXCLUSIVE ENHANCED LISTING RIGHTS
Subject to InfoSpace's right to inform Vequity of any areas where Vequity cannot
solicit listings or conduct business under this Agreement, Vequity will have the
non-exclusive right to placement in the Enhanced Listing Section at InfoSpace's
discretion for its Vequity Listing Enhancements during the Term ("Non-Exclusive
Rights"), in all fifty states of the United States of America.
EXHIBIT F
Sample InfoSpace PageExpress Site
The "look and feel" of a Page Express site shall be similar to the following.
However, this design is subject to change at InfoSpace's discretion.
[Graphics Omitted]
EXHIBIT G
Features
The following list of features is intended to clarify certain features and
aspects but, as to products and services, is not a comprehensive product
description, or warranty of performance.
Vequity will supply in a reasonable time frame the definitions of the virtual
areas for its markets.
|X| A "local portal" presence to be powered by InfoSpace
o Standardized design elements to be decided using all or any portion of
InfoSpace's content and "portal-in-a-box" features, including but not
limited to -
Yellow Pages
White Pages
Classifieds
City Guides
Investing
News
Sports Scores
Community
Government
E-Shopping (ActiveShopper & ActivePromotion to be discussed)
International Listings
Business Services
Other items and services that may from time to time be added to the
InfoSpace Web Sites by InfoSpace (in its sole discretion)
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o Vequity and InfoSpace to decide on specific "look and feel" parameters and
limitations for the co-branded presence.
|X| A local sales solution -
o Distribution
o All ad packages will be promoted and distributed on the InfoSpace
Network. Hundreds of top-name and top-used sites carrying Vequity
advertisers.
o Base packages:
o Silver Package
>> Enhanced Level listing
>> Bold Font
>> Enlarged Font
>> URL link
>> Email link
o Gold Package
>> Silver Package
>> plus Ad Link (any graphic) or PageExpress (web sites,
storefronts)
o Access to InfoSpace Publisher(TM), the instant publishing system that
allows for the creation of Internet yellow pages advertising,
including web sites and storefronts.
o Web-based application - no special equipment, rote data entry,
worldwide access, no client software, minimal MIS maintenance,
etc.
o Instantly publishes across the Basic InfoSpace Network.
o Seller maintains control of advertisers' orders.
o Geo-scoping functionality
o Regardless of the advertiser's physical address and location, any
listing and any category sponsorship in any package may be set up
to show in the search results of 7 distinct geographies:
>> City (one city)
>> Multi-City (up to 5 cities)
>> State (all cities in one state)
>> Multi-state (all cities in up to 5 states)
>> National (all cities nationwide)
o Foreign listings (listings from outside the sales rights area)
always appear in the Enhanced Section
EXHIBIT H
Training
InfoSpace shall provide to Vequity management training and sales training as
follows:
Initial (a.k.a. Launch or Kick-off) Training
--------------------------------------------
If needed, at a mutually acceptable time and place and for a mutually
acceptable duration, InfoSpace's trainer may conduct initial training to
Vequity management and sales management and representatives to launch the
relationship set forth in this Agreement. Costs shall be borne by
InfoSpace.
Ongoing or Follow-up Training
-----------------------------
If needed, at a mutually acceptable time and place and for a mutually
acceptable duration, InfoSpace's trainer may conduct follow-up training to
Vequity management and sales management and representatives. Travel,
lodging, and meals costs shall be born by Vequity.
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EXHIBIT I
Referral Fee
In addition to remuneration set forth in Section 2, Vequity shall remit two
hundred dollars ($200) to InfoSpace for each Vequity web site sale generated
through an InfoSpace banner advertisement of other marketing program. InfoSpace
is not obligated to market Vequity web sites.
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