LIVEWORLD SALES REPRESENTATIVE AGREEMENT
Exhibit
10.10
PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
Execution Draft
LIVEWORLD SALES REPRESENTATIVE AGREEMENT
This Sales Representative Agreement (“Agreement”) is entered into as of July 7, 2006
(“Effective Date”), between LiveWorld, Inc., a Delaware corporation with offices at 000
Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, X.X.X. (“LiveWorld”), and
LiveWorld-WPP, L.L.P., 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, U.S.A
(“Representative”).
In consideration of the covenants and conditions contained herein, the parties hereby agree to the
following:
(a) “Revenue” shall mean the gross amount that LiveWorld receives from third parties
whose purchase of LiveWorld Services is directly attributable to solicitation by Representative.
For the purposes of this definition “receives” means LiveWorld recognizes the revenue on its
accounting books and collects cash payment for that revenue.
(b) “LiveWorld Services” means LiveWorld’s online solutions, which include marketing,
community support, business intelligence and other business promotions.
(c) “WPP” means J. Xxxxxx Xxxxxxxx U.S.A., Inc., a Delaware corporation.
(d) “WPP Affiliates” means any entity controlling, controlled by or under common
control with WPP, as per WPP Group plc’s annual report and published changes thereto that occur
until the release of the subsequent annual report. For purposes of this definition, “control”
shall mean the beneficial ownership of more than 50% of the voting securities of an entity.
(a) Appointment. Subject to the terms and conditions of this Agreement, LiveWorld
hereby appoints Representative as a sales representative for the LiveWorld Services, and
Representative hereby accepts such appointment. Representative’s sole authority shall be to
solicit orders for the LiveWorld Services only from WPP Affiliates or in conjunction with WPP
Affiliates from the clients thereof in accordance with the terms of this Agreement, unless
LiveWorld approves the solicitation of other companies. Unless otherwise authorized by LiveWorld
in writing, Representative shall have no power or authority, express or implied: (i) to make any
commitment or incur any obligations on behalf of LiveWorld; or (ii) to collect any monies or to
give receipts on behalf of LiveWorld.
(b) Exclusivity. Representative shall neither solicit sales for nor sell any other
products or services other than LiveWorld Services without the prior written consent of LiveWorld.
(c) Reserved Rights. Notwithstanding the appointment of Representative as a sales
representative, LiveWorld reserves the right to solicit orders directly from and sell directly to
any clients. Notwithstanding the foregoing, and subject to the processes set forth in Exhibit B,
(i) LiveWorld shall not solicit or accept orders directly from any client with respect to an
Opportunity (as defined in Exhibit B) that LiveWorld and Representative have agreed that
Representative will pursue; and (ii) if the specific brand unit
PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
of the client involved in an Opportunity has additional Opportunities, the two parties will
endeavor in good faith to pursue such Opportunities through the Representative, prior to LiveWorld
pursuing those Opportunities apart from the Representative.
(a) Sole Compensation. Representative’s sole compensation under the terms of this
Agreement shall be a commission on Revenue of LiveWorld Services computed in accordance with
Exhibit A and this Section 3, as adjusted pursuant to Sections 3(b) and 3(g) below.
(b) Split Commissions. If more than one sales representative is involved in the
solicitation of a particular order, LiveWorld and Representative shall mutually agree upon a
reasonable split of the total commission for the order between or among the representatives
involved, which split shall reflect each representative’s respective contribution to the earning of
such commission. Sales offices owned by LiveWorld shall be considered as sales representatives in
determining split commissions.
(c) Withholding Taxes. LiveWorld may withhold from payments to Representative under
this Agreement any withholding taxes required to be withheld by LiveWorld under applicable law.
Such amount shall be paid to the appropriate taxing authorities.
(d) Disputes. If Representative has questions about Representative’s commission
payment, Representative shall within [***] months of the original due date of the disputed payment,
send to LiveWorld a notice containing all of the following information: (i) Representative’s name
and address; (ii) the check number on the commission payment; (iii) the period of time covered by
the commission payment; (iv) the names of clients for which commissions were earned; and (v) a
description and explanation of the alleged discrepancy. Within [***] days after its receipt of
such notice, LiveWorld shall either (i) correct the deficiency or (ii) if LiveWorld believes in
good faith that the commission payment was not deficient, provide a detailed written response to
Representative explaining the basis for such belief. In the event the two parties cannot resolve
the issue they agree to go to non-binding mediation on the matter prior to pursuing any other legal
action on it.
(e) Payment. Payment of commissions shall be in United States dollars and shall be
subject to all applicable governmental regulations and rulings, including the withholding of any
taxes required by law.
(f) Date Commission Earned/Due; Time of Payment. The commission on a given purchase
of LiveWorld Services shall be deemed earned and due when LiveWorld actually receives and
recognizes such Revenue on its accounting books. For clarity, if Revenue from any client is paid
or recognized as revenue on LiveWorld’s accounting books over an extended time period, then
commissions to Representative shall be paid over a correspondingly extended time period. LiveWorld
shall pay any commissions which are due to Representative [***] days after the end of the calendar
month in which the commission became earned and due.
(g) Commission Charge-Back. LiveWorld shall have the absolute right to set such cash
discounts, to make such allowances and adjustments, to accept such returns from its clients, and to
write off as bad debts such overdue client accounts as it deems advisable. In each such case,
LiveWorld shall charge
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
back to Representative’s account any amounts previously paid or credited to it with respect to
such cash discounts, allowances, adjustments, returns or bad debts.
(a) Protocol for Representative and LiveWorld. Subject to the provisions of this
Section 4, Representative and LiveWorld shall operate in accordance with the processes set forth in
Exhibit B.
(b) LiveWorld Materials. LiveWorld shall make certain materials available to
Representative in connection with this Agreement, which may include systems, documentation, tools,
designs, data, content and other materials related to the LiveWorld Services (“LiveWorld
Materials”).
(i) License. Subject to the restrictions in this section, LiveWorld hereby grants
Representative a worldwide, nonexclusive, royalty-free license during the Term to use, modify and
prepare derivative works of the LiveWorld Materials for the sole purpose of soliciting orders for
LiveWorld Services to current and prospective clients; provided, however that all material
modifications shall be subject to LiveWorld’s prior approval. Non-material modifications to
LiveWorld Materials made by Representative shall be subject to change at LiveWorld’s direction.
(ii) Assignment and Further Assurances. LiveWorld shall retain all right, title and
interest in and to any intellectual property rights in the LiveWorld Materials, but to the extent
that Representative gains any ownership interest in LiveWorld Materials, Representative agrees to
assign (or cause to be assigned) and hereby assigns fully to LiveWorld such interest and any
copyrights, patents or other intellectual property rights relating to all LiveWorld Materials.
Representative agrees to assist LiveWorld, or its designee, at LiveWorld’s expense, in every proper
way to secure LiveWorld’s rights in LiveWorld Materials and any copyrights, patents or other
intellectual property rights relating to all LiveWorld Materials in any and all countries,
including the disclosure to LiveWorld of all pertinent information and data with respect to all
LiveWorld Materials, the execution of all applications, specifications, oaths, assignments and all
other instruments that LiveWorld may deem necessary in order to apply for and obtain such rights
and in order to assign and convey to LiveWorld, its successors, assigns and nominees the sole and
exclusive right, title and interest in and to all LiveWorld Materials, and any copyrights, patents
or other intellectual property rights relating to all LiveWorld Materials.
(c) Prices and Terms of Sale. LiveWorld shall provide Representative with copies of
its current pricing parameters, its descriptions of LiveWorld Materials, its timing and its
standard terms and conditions, as established from time to time. For any quote that it provides,
Representative shall adhere to the LiveWorld pricing parameters, descriptions, timing and terms and
conditions. Notwithstanding the foregoing, LiveWorld reserves the right to require that
Representative obtain LiveWorld’s prior approval for any such quote. Each order shall be governed
by the LiveWorld prices, descriptions, timing and terms and conditions in effect at the time the
order is accepted, and all quotations by Representative shall contain a statement to that effect.
(d) Weekly Reports. Representative shall provide LiveWorld with sales status reports
each week and other reports as may be requested by LiveWorld. The weekly sales status reports
shall contain at least the following information:(i) the WPP Affiliate(s) solicited, (ii) estimated
volume of sales of LiveWorld Services to such WPP Affiliate(s) or their clients, (iii) estimated
timeframe for implementation of such LiveWorld Services, (iv) description of LiveWorld Services
likely to be purchased.
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
(e) Acceptance. All business solicited by Representative shall be subject to
acceptance by LiveWorld, and all quotations by Representative shall contain a statement to that
effect. Representative shall have no authority to make any acceptance or delivery commitments to
clients. LiveWorld specifically reserves the right to reject any order or any part thereof for any
reason.
(f) Credit and Payment. LiveWorld shall have the sole right of credit approval or
credit refusal for clients in all cases. LiveWorld shall render all invoices directly to the
clients. Payments shall be made directly to LiveWorld. Notwithstanding the foregoing, if
requested by LiveWorld, Representative shall provide LiveWorld with reasonable assistance with the
collection of client accounts.
a. | Warrants. For the purpose of calculating the JV Net Revenue Contribution Portion (as defined in the Warrant Purchase Agreement), LiveWorld revenue from a Discontinued Project shall be considered Revenue for a period of [***] days following the date of such client’s termination of its relationship with the respective WPP Affiliate and the Representative for such Discontinued Project. Thereafter, any LiveWorld revenue from such Discontinued Project will no longer be considered Revenue, so it will not count towards the Net Revenue Contribution Portion. | ||
b. | Commissions. Subject to Representative’s compliance with the terms and conditions of the Agreement, LiveWorld shall pay commission to Representative on all Discontinued Projects meeting all of the following requirements: (i) the Discontinued Project was primarily attributable to Representative’s efforts during the period prior to termination of the project, such as the Representative having arranged the signing of the contract or having made a substantive introduction and recommendation that specifically led to the signing of a contract (as opposed to a casual referral); (ii) Revenue is recognized by LiveWorld on its accounting books within the [***] day period after the Discontinued Project was terminated; and (iii) LiveWorld actually collects the cash payment for such Revenue within the specified time period set forth in the contract for the Discontinued Project; provided however that LiveWorld shall have the right to equitably divide such commissions with succeeding representatives to the extent such succeeding representatives render services with respect to such Discontinued Project. If LiveWorld is owed any amounts by Representative, LiveWorld shall have the right, in its absolute discretion, to offset any commission payable by LiveWorld to Representative by such obligation owed to LiveWorld by Representative. |
(a) Promotion of the LiveWorld Services. Representative shall, at its own expense,
use its commercially reasonable best efforts to maximize the sale of the LiveWorld Services to WPP
Affiliates and clients thereof, provided that such efforts shall be made only through or in
coordination with the appropriate account teams of WPP Affiliates.
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
(b) Facilities. Representative shall provide itself with, and be solely responsible
for, such facilities, employees, business organization, permits, licenses, and other forms of
clearance from governmental or regulatory agencies as are necessary for the conduct of its business
operations in accordance with this Agreement and any expenses associated with any of the foregoing.
(c) Books and Records. Representative shall maintain and make available to LiveWorld
accurate books, records, and accounts relating to the business of Representative with respect to
the LiveWorld Services. Representative shall also maintain a record of any client complaints
regarding either the LiveWorld Services or LiveWorld and immediately forward to LiveWorld the
information regarding those complaints. LiveWorld shall have the right to inspect at reasonable
times all of the foregoing books, records and accounts.
(d) Notice of Changes. Representative shall promptly notify LiveWorld of: (i) any
changes in the key personnel, organization, and status of clients; and (ii) any political,
financial, legislative, industrial or other events that Representative is or becomes aware of that
could affect the mutual business interests of Representative and LiveWorld.
(e) Employee Policies. Representative shall comply with all LiveWorld company
policies, including any policies enumerated in LiveWorld’s employee handbook, including but not
limited to policies regarding ethics, conflicts of interest, equal opportunity employment,
diversity and sexual harassment.
(f) LiveWorld Direction. Representative shall follow any proper and reasonable
instructions given by the chief executive officer of LiveWorld or agent or delegate thereof in
carrying out its obligations under this Agreement.
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
(a) Definition. “Confidential Information” means any information disclosed by
LiveWorld to Representative, either directly or indirectly in writing, orally, by inspection of
tangible objects whose confidential or proprietary nature is identified at the time of such
disclosure, including without limitation (i) this Agreement and all its Exhibits, any addenda
hereto signed by both parties; (ii) any source code, software tools, designs, schematics, plans,
work in process or future development relating to LiveWorld Services; (iii) any LiveWorld
scientific, engineering, manufacturing, marketing or business plan relating to LiveWorld; (iv)
financial or personnel matter relating to LiveWorld, (v) present or future products, sales,
suppliers, web site visitors, and web site users. Confidential Information may also include
information disclosed to LiveWorld by third parties. Confidential Information shall not, however,
include any information which (i) was publicly known and made generally available in the public
domain prior to the time of disclosure to Representative by LiveWorld; (ii) becomes publicly known
and made generally available after disclosure to Representative by LiveWorld through no action or
inaction of Representative; (iii) is in the possession of Representative, without confidentiality
restrictions, at the time of disclosure by LiveWorld as shown by Representative’s files and records
immediately prior to the time of disclosure or (iv) was provided to Representative pursuant to
Section 4 or 7 hereof and not clearly marked “Confidential” at the time it was so provided.
(b) Obligations. Representative acknowledges that the Confidential Information
constitutes LiveWorld’s valuable trade secrets. Representative shall not use any Confidential
Information for any purpose other than as expressly permitted under this Agreement. Representative
will not disclose Confidential Information or permit Confidential Information to be disclosed,
directly or indirectly, to any third party without LiveWorld’s prior written consent.
Representative shall not disclose Confidential Information to its employees, except on a “need to
know” basis where such disclosure is necessary and required for Representative to perform its
obligations hereunder. Representative shall not disclose Confidential Information to any employee
of Representative unless such employee has signed a non-use and non-disclosure agreement in content
at least as protective as the provisions hereof, prior to any disclosure of Confidential
Information to such employee. Representative will exercise the same degree of care in protecting
Confidential Information from unauthorized use and disclosure as it exercises in protecting its own
information of a similar nature, but in no event less than reasonable care. The provisions of this
Section 9 shall survive any expiration or termination of this Agreement for a period of three (3)
years after the effective date of such expiration or termination. Notwithstanding the foregoing,
either party may disclose the existence and terms of the Agreement to investors and prospective
investors and their counsel and other advisors under a similar confidentiality obligation in
connection with any private placement of securities, in connection with a merger, acquisition or
sale of all or substantially all of its assets.
(c) Remedies. Representative agrees that any violation or threatened violation of
this Section 9 will cause irreparable injury to LiveWorld, entitling LiveWorld to obtain injunctive
relief in addition to all other legal remedies.
(a) Trademarks. During the term of this Agreement, Representative shall have the
non-exclusive right to indicate to the public that it is an authorized representative of LiveWorld
Services and to advertise and promote such LiveWorld Services under the trademarks, marks, and
trade names of LiveWorld that LiveWorld may adopt from time to time (“LiveWorld
Trademarks”); provided, however, that upon [***] days prior written notice to Representative,
LiveWorld may substitute alternative marks for any or all of the
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
LiveWorld Trademarks. All representations of LiveWorld Trademarks that Representative intends
to use shall first be submitted to LiveWorld for approval (which shall not be unreasonably
withheld) of design, color and other details or shall be exact copies of those used by LiveWorld.
In addition, Representative shall fully comply with all reasonable guidelines, if any, communicated
by LiveWorld concerning the use of LiveWorld Trademarks.
(b) Use. Except as set forth in this Section 10, nothing contained in this Agreement
shall grant or shall be deemed to grant to Representative any right, title or interest in or to any
LiveWorld Trademarks. All uses and benefits of LiveWorld Trademarks will inure solely to the
benefit of LiveWorld, and Representative shall obtain no rights with respect to any LiveWorld
Trademarks, other than the right to solicit orders for and promote LiveWorld Services as set forth
herein. Representative irrevocably assigns to LiveWorld all such right, title and interest, if
any, in and to any LiveWorld Trademarks. Representative shall not use any LiveWorld Trademark or
any similar xxxx in Representative’s name or in any other manner use any LiveWorld Trademark to
identify Representative’s business. At no time during or after the term of this Agreement shall
Representative attempt to register any trademarks, marks or trade names confusingly similar to
those of LiveWorld.
(a) Term. This Agreement will commence on the Effective Date and shall continue for a
term of [***] years unless earlier terminated as set forth herein or by mutual agreement. The
Agreement shall renew automatically for additional terms of [***] year unless either party gives
written notice of intent to terminate at least [***] days prior to the expiration of the
then-current term.
(b) Termination for Insolvency. Either party may terminate this Agreement immediately
upon written notice if: (i) a receiver, administrator, or similar officer is appointed over all or
any part of the assets or undertaking of the other party and is not discharged within [***] days of
such appointment; (ii) the other party makes an assignment for the benefit of or a composition with
its creditors, or another arrangement of similar import; or (iii) a petition is presented, or a
meeting is convened for the purpose of considering a resolution, or other steps are taken, for the
winding up of the other party (or, if the other party is not a company, for its bankruptcy); (iv)
anything analogous to any of the foregoing under the laws of any jurisdiction occurs in relation to
the other party; or (v) the other party ceases to carry on its business in the ordinary course.
(c) Termination for Cause. If either party materially breaches any provision of this
Agreement, the other party may terminate this Agreement by giving [***] days’ prior written notice
to such party; provided, however, that with respect to breaches capable of cure, this Agreement
shall not terminate if such party has cured the breach prior to the expiration of such [***] day
period.
(a) Additional Commissions. Following termination, subject to all the provisions of
this Agreement and to Representative’s compliance with Section 12(c) below, LiveWorld shall pay
commissions to Representative on all purchases of LiveWorld Services meeting all of the following
requirements: (i) the purchase of LiveWorld Services was primarily attributable to Representative’s
efforts during the period prior to termination of this Agreement such as the Representative having
arranged the signing of the contract or made a substantive introduction and recommendation that
specifically led to the signing of a contract (as
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
opposed to a casual referral); (ii) the Revenue is recognized by LiveWorld on its accounting
books within the [***] day period after the effective termination date of this Agreement; and (iii)
LiveWorld actually collects the cash payment for such Revenue within the specified time period set
forth in the contract for such purchases of LiveWorld Services; provided however that LiveWorld
shall have the right to equitably divide such commissions with succeeding representatives to the
extent such succeeding representatives render services with respect to such transactions. If
LiveWorld is owed any amounts by Representative, LiveWorld shall have the right, in its absolute
discretion, to offset any commission payable by LiveWorld to Representative by such obligation owed
to LiveWorld by Representative.
(b) Warrants. For the purpose of calculating the JV Net Revenue Contribution Portion
(as defined in the Warrant Purchase Agreement), LiveWorld revenue that meets all the requirements
set forth in Section 12(a) above shall be considered Revenue.
(c) Return of Materials. All trademarks, trade names, patents, copyrights, designs,
drawings, formulas or other data, financial information, business plans, photographs, samples,
literature, and sales aids of every kind shall remain the property of LiveWorld. After the
termination of this Agreement, Representative shall prepare all such items in its possession for
shipment, as LiveWorld may direct. Representative shall not make or retain any copies of any
Confidential Information that may have been entrusted to it. Effective upon the termination of
this Agreement, Representative shall cease to use LiveWorld Trademarks. Any listing by
Representative of LiveWorld’s name in any telephone book, directory, and public record or like
publication shall be removed by Representative as soon as possible, but no later than the
subsequent issue of such publication.
(d) No Liability. NEITHER LIVEWORLD NOR REPRESENTATIVE SHALL, BY REASON OF THE
EXPIRATION OR TERMINATION OF THIS AGREEMENT, BE LIABLE TO THE OTHER FOR COMPENSATION,
INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS OR
ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE IN
CONNECTION WITH THIS AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE HEREUNDER.
(e) Survival. The provisions of Sections 4(b)(ii), 5, 8, 9, 12 and 13 shall survive
the termination or expiration of this Agreement for any reason. All other rights and obligations
of the parties shall cease upon the effective termination date of this Agreement.
(a) Governing Law. This Agreement is governed by the laws of the State of California,
USA, without regard for conflict of law provisions. Any mediation, court action, or other
adjudicative proceeding arising out of or relating to this Agreement shall be held in the
appropriate state or federal jurisdiction in the United States of America or, if such proceeding
cannot be lawfully held in such location, as near thereto as applicable law permits.
(i) Mediation. Except as otherwise specifically provided in this Agreement, if any
controversy or claim arises out of this Agreement, the parties will attempt in good faith to
resolve such controversy or claim through non-binding mediation in accordance with the American
Arbitration Association Commercial Mediation Rules before resorting to litigation. The mediation
shall be held within
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
thirty (30) days of the end of such negotiation period. The costs of mediation shall be
shared equally by the parties to the mediation.
(ii) Other Adjudicative Proceedings. In the event that the parties are unable to
resolve the dispute through mediation, and either party initiates a court action or other
adjudicative proceeding, the prevailing party in such proceeding arising out of or relating to this
Agreement shall be reimbursed by the party who does not prevail for their reasonable attorneys,
accountants and experts fees and related expenses (including reasonable charges for in-house legal
counsel and related personnel) and for the costs of such proceeding. In the event that two or more
parties are deemed liable for a specific amount payable or reimbursable under this Section
13(a)(ii), such parties shall be jointly and severally liable therefor.
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
governing exports and reexports in effect from time to time. Representative agrees that
unless prior written authorization is obtained from the Bureau of Export Administration, or the
Export Administration Regulations explicitly permit reexport without such written authorization, it
will not export, reexport, or transship, directly or indirectly, the LiveWorld Services or any
technical data disclosed or provided to Representative, or the direct product of such technical
data, to country groups Q, S, W, Y or Z (as defined in the Export Administration Regulations), or
to any other country as to which the United States Government has placed an embargo against the
shipment of products, which embargo is in effect during the terms of this Agreement.
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
LiveWorld Corporation | Representative | |||||
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PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
EXHIBIT A
Commission Schedule
Sales commission (prior to any applicable adjustment pursuant to Section 3(b) or 3(g)):
[***]
PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
EXHIBIT B
Processes for Representative
I. OPPORTUNITIES COMING DIRECTLY FROM REPRESENTATIVE
1. | Preliminary Screening. When Representative identifies or learns of an opportunity to provide LiveWorld Services through WPP or a WPP Affiliate and/or to client thereof (“Opportunity”), Representative will screen the Opportunity, qualify it as worthwhile, commit to allocating time to pursuing it and, if applicable, present LiveWorld’s services as a solution to WPP or the WPP Affiliate and/or to the client. | |
2. | Notification of LiveWorld. Representative will give written notification to the LiveWorld CEO, or the designated agent thereof, of an Opportunity. | |
3. | LiveWorld Response. Within [***] days of said notification, LiveWorld will notify Representative in writing as to whether or not Representative is authorized to pursue such Opportunity on behalf of LiveWorld, which determination shall be in LiveWorld’s sole discretion pursuant to Section 4(e) in the Agreement. In the absence of such notification, LiveWorld shall be deemed to have authorized Representative to pursue the Opportunity. Without limiting the foregoing, LiveWorld may direct Representative not to pursue an opportunity for any of the following reasons: the specific Opportunity (i) is already being pursued by LiveWorld; (ii) involves an existing relationship that LiveWorld has with a particular WPP Affiliate or client; or (iii) would create a conflict of interest or violate an obligation of LiveWorld. | |
4. | Pursuing the Opportunity. Representative will pursue such approved Opportunity in conjunction with WPP and/or the WPP Affiliate and/or directly with the client of WPP or such WPP Affiliate. | |
5. | LiveWorld Involvement. Without limiting any of Representative’s obligations under Sections 4 and 5 in the Agreement, Representative will involve LiveWorld as appropriate in all discussions and follow LiveWorld’s direction with regard to recommendation and description of services, pricing, contract terms and conditions, and timing for campaigns. | |
6. | Agreements. Representative will close the Opportunity by arranging for an agreement to be signed between (i) LiveWorld and WPP or the WPP Affiliate or (ii) LiveWorld and the client of WPP or the WPP Affiliate | |
7. | Ongoing Relationship. Representative will manage the ongoing account relationship resulting from such Opportunity with WPP or the WPP Affiliate and/or the client as appropriate, which includes but is not limited to taking responsibility for: (i) maintaining the business relationships (ii) maintaining and growing the revenue as a result of renewals, volume growth, price increases, additional services, positive customer relationships and satisfaction, and (iii) resolving problems and identifying new Opportunities within that client account and within WPP or the WPP Affiliate. In general (but not necessarily) it is expected that WPP or the WPP Affiliate involved will collaborate with Representative as to the conduct these same activities relative to the client. It is part of Representative’s responsibilities to enlist the support of WPP or the WPP Affiliate on such matters as appropriate. | |
8. | LiveWorld Authority. LiveWorld shall work in good faith with Representative on the above process; provided however, that as set forth in Section 4(e) in the Agreement, LiveWorld shall, in its sole discretion, have the authority to accept or reject any Opportunity for any reason or no reason. Additionally, in the event that LiveWorld rejects an Opportunity and later pursues the same Opportunity (where “same” means the same client and the same specific project), LiveWorld will |
PORTIONS DENOTED WITH [***] HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
follow the protocol set forth in the chart below entitled “Opportunities Coming Through LiveWorld to Representative” with respect to such Opportunity. LiveWorld shall also at anytime have the right to withdraw Representative’s authority to work on any Opportunity; provided, however, that LiveWorld shall only do so at (i) a client’s request or (ii) if LiveWorld reasonable and in good faith believes that Representative and/or WPP and/or the WPP Affiliate cannot or will not effectively and in a timely manner pursue and/or manage the Opportunity, and as a result the Opportunity is in jeopardy of being lost or damaged. |
1. | LiveWorld Screening. If LiveWorld identifies an Opportunity that it believes is appropriate to pursue in conjunction with Representative along with a WPP and/or a WPP Affiliate, LiveWorld may notify Representative in writing of such Opportunity. | |
2. | Representative Response. Representative shall respond to LiveWorld of its decision with respect to such Opportunity in writing within [***] days from Representative’s receipt of LiveWorld’s notice. In the absence of such notification, Representative shall be deemed to have rejected the Opportunity. | |
3. | Rejected Opportunities. Without limiting the rights reserved by LiveWorld in Section 2(c) in the Agreement, if Representative does not accept an Opportunity, then LiveWorld, in its sole discretion, may pursue or not pursue the opportunity in any manner it chooses. | |
4. | Following Acceptance. If Representative accepts an Opportunity, then items 4-8 of the chart above entitled “Opportunities Coming Directly from Representative” shall apply. |
Special Dispute Resolution. In the event of a dispute among the parties regarding the
implementation of the processes described in this Exhibit B, prior to any formal dispute resolution
proceedings, the parties will escalate the dispute to LiveWorld’s and WPP’s corporate management
for discussion. In the event that the parties’ corporate management cannot resolve the dispute,
either party may initiate mediation, pursuant to Section 13(a) in the Agreement.
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