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EXHIBIT 10.31
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS AND
ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
REALNAME ADDRESS PREFIX AGREEMENT
BETWEEN CENTRAAL CORPORATION AND XXXXXXX.XXX, INC.
This Agreement (this "Agreement") is entered into as of July 23, 1999
("Effective Date") by and between Centraal Corporation, a Delaware corporation
with offices at 0 Xxxxxx Xxxx Xxx, 0xx Xxxxx, Xxx Xxxxxx, XX 00000-0000
("Centraal"), and Xxxxxxx.xxx, Inc. a Delaware corporation with offices at 0000
XxxXxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000 ("Company" and, together
with Centraal, the "Parties").
WHEREAS, Company desires to have the use of a designated prefix to be
used in the RealNames Service on the terms and conditions set forth below.
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS.
1.1 "REALNAME PREFIX" means RealName addresses in the form of a
unique phrase to be used as a prefix followed by a rules-based dynamic syntax
query to be applied at Company's Web site. Centraal's resolvers will recognize
the format of a RealName Prefix from an Internet user's query, transform the
RealName Prefix into an appropriate query for the Company Web site, and,
following such Company Web site query, redirect the Internet user directly to
the Company URL appropriate to such RealName Prefix or, if appropriate, to an
intermediary Company Web site listing relevant directory results to such
RealName Prefix query (e.g. the prefix "ZZZ", to form RealNames Addresses such
as "ZZZ drowse" or "ZZZ sleep").
1.2 "REALNAMES ADDRESS" means the proprietary natural language
address assigned by Centraal to a third party subscriber which can be translated
into a URL address through Resolution (as herein defined).
1.3 "REALNAMES SERVICE" means Centraal's subscriber-based Internet
addressing system that utilizes unique RealName addresses to direct Internet
users to URLs determined by Centraal, which is described with greater
specificity in Centraal's representations in Exhibit A hereto, the terms of
which are incorporated herein by reference.
All other capitalized terms used herein will have the meanings assigned
to them herein.
2. REALNAME SUBSCRIPTION.
2.1 REALNAME SUBSCRIPTION. Subject to the terms and conditions of
this Agreement, Company hereby subscribes to the exclusive use (during the term
of this Agreement) of (i) the RealName Prefix for the terms "ticket", "tickets",
and "xxxxxxx.xxx" (the "Prefixes") in the RealNames Service and (ii) the
RealNames Addresses set forth on Exhibit A hereto (the "Company Addresses") for
the term of this Agreement. Through the use of the RealName Prefixes, Internet
users may type "ticket", "tickets" or "xxxxxxx.xxx" followed by event category,
city, artist name or other relevant terms and be directed directly to the
Company World Wide Web site page specifically relevant to such search query, or
such other location as the Company may reasonably specify.
2.2 OWNERSHIP. As between the Parties, subject to Section 4 below,
Centraal will retain all rights, titles, and interests in the RealName Prefixes
and RealNames Addresses; except that for the term hereof, Company is the
exclusive licensee of the Prefixes Company agrees that all goodwill in any
RealName Prefix or RealNames Address as an address in the RealNames Service
belongs exclusively to Centraal. Company's use of the RealNames Service confers
no property rights upon Company. Company understands and agrees that Centraal
has the right to compile usage statistics and other data regarding use of
Centraal's RealNames Service and to sell and provide any and all such aggregated
(as opposed to personal) data to third parties.
2.3 RESERVATION. Company agrees that allocation of RealName Prefixes
and RealNames Addreses by Centraal is subject to Centraal's discretion. Centraal
may at any time, with notice to Company that is reasonable in the circumstances
(including immediate notice when that is appropriate) withdraw a RealName Prefix
or RealNames Address previously or currently used by Company. However, Centraal,
and any entity acting at its direction, may not allocate, re-allocate, or
license the Prefixes to any entity other than the Company during the term
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hereof. Company understands and agrees that Centraal requires absolute
discretion over the allocation of RealName Prefixes and RealNames Addresses (1)
in light of the uncertain and often conflicting principles and law that are at
work in the current state of the Internet and (2) to exercise its own judgment
as to what constitutes an optimal service and system and that Centraal may apply
standards of decision regarding withdrawal of RealName Prefixes or RealNames
Addresses that evolve or change over time. Company agrees and acknowledges that
Centraal may withdraw approval of a RealName Prefix or RealNames Address. If
Centraal withdraws approval of a RealName Prefix or RealName Address , Centraal
will attempt to provide an alternative RealName Prefix or RealNames Address, as
applicable, that is acceptable to both Parties. However, Company is under no
obligation to accept any changes to the Prefixes, and in such event may, at its
discretion, elect to terminate this Agreement in accordance with Section 5.1(c).
If such termination occurs during a payment period (as opposed to at the
conclusion thereof) the fees owing Centraal hereunder shall be prorated. Company
accords to Centraal the right to make decisions that it deems best in each
context.
3. COMPENSATION.
3.1 SUBSCRIPTION FEES. During the term of this Agreement, Company
will pay a non-refundable fee, except as set forth in Paragraph 2.3, to Centraal
as follows:
(a) $[***] per calendar quarter for the period of Effective
Date to September 30, 1999;
(b) $[***] per calendar quarter for the period of October 1,
1999 to December 31, 1999;
(c) $[***] per each calendar quarter for the period of
January 1, 2000 to June 30, 2000;
(d) $[***] per each calendar quarter for the period of July
1, 2000 to December 31, 2000; and
(e) $[***] for the calendar quarter for the period of
January 1, 2001 to March 31, 2001.
(f) $[***] for the calendar quarter for the period of April
1, 2001 to June 30, 2001.
(g) $[***] for the calendar month for the period of July 1,
2001 to July 31, 2001.
3.2 PRICE PER RESOLUTION FEES. In addition to the fees set forth in
Section 3.1 above, during the term of this Agreement, Company will pay Centraal
a price per Resolution of $[***]; provided, however, that for each calendar
quarter beginning on July 1, 1999 through June 30, 2001, such fees will be due
and payable only in respect of Resolutions exceeding:
(a) [***] Resolutions delivered by Centraal for the calendar
quarter beginning on Effective Date through September 30, 1999;
(b) [***] Resolutions delivered by Centraal for the calendar
quarter beginning on October 1, 1999 through December 31, 1999;
(c) [***] Resolutions delivered by Centraal for each
calendar quarter during the period of January 1, 2000 through December 31, 2000;
and
(d) [***] Resolutions delivered by Centraal for each
calendar quarter during the period of January 1, 2001 through June 30, 2001.
A "Resolution" occurs each time Internet user uses a RealNames
Address or RealName Prefix subscribed by Company to navigate to a Company owned
or controlled uniform resource locator through the RealNames Service.
3.3 PAYMENT. At the end of each calendar quarter, Centraal will
submit to Company invoices of the fees due and payable to Centraal by Company
for such quarter under Sections 3.1 and 3.2 of this Agreement. Company shall pay
such invoices within thirty (30) days of receipt.
4. USE OF COMPANY NAMES. Either party may, upon the written permission of
the owner, use applicable trade names and brand names of Company (collectively,
the "Trademarks") in connection with the relationship envisioned herein. Nothing
herein will grant either party any right, title or interest in the other's
Trademarks. Any and all good will arising from either party's use of the other's
Trademarks will inure solely to the benefit of the owner. Notwithstanding the
foregoing, Company gives Centraal permission to utilize the applicable Company
Trademarks in connection with the provision of the RealNames Service as
contemplated herein.
5. TERM AND TERMINATION.
5.1 TERM AND TERMINATION.
(a) This Agreement will commence on the Effective Date and
continue for an initial term that will expire on June 30, 2001, unless earlier
terminated as set forth herein. Thereafter, this
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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Agreement will be automatically renewed for successive one (1) year terms,
unless, at least thirty (30) days prior to the commencement of an additional one
(1) year term, a Party notifies the other Party in writing of its intention not
to renew this Agreement. Notwithstanding the foregoing, if Centraal elects not
to renew the Agreement, Centraal shall inform the Company in writing of its
intent, if any, to allocate, reallocate, or license the RealName prefixes
"ticket", "tickets", or "xxxxxxx.xxx" to another entity. Upon receipt of such
notice Company will have a thirty (30) day right of first refusal to renew the
subscription agreement for the Prefixes upon the terms being offered by such
other entity, or upon such other terms as Centraal and the Company may agree.
The right of first refusal granted by the preceding sentence shall terminate one
year following the non-renewal of this Agreement by Centraal.
(b) This Agreement may be terminated immediately for cause
by either Party on written notice to the other Party in the event that the other
Party: (i) ceases to function as a going concern or to conduct its operations in
the normal course of business; or (ii) is in material default of its obligations
under this Agreement and fails to cure such default within thirty (30) days
after written notice thereof.
(c) In the event that Centraal removes the RealName Prefix
"ticket", "tickets", or"xxxxxxx.xxx" from the RealNames Service, and fails to
replace such RealName Prefix with a substitute RealName Prefix acceptable to
Company, Company may terminate this Agreement if Centraal fails to cure the
deficiency upon ten (10) days' written notice to Centraal.
(d) In the event that Centraal reasonably believes that
Company's use of a RealName Prefix or a Company Address may result in imminent
liability to Centraal, Centraal may terminate this Agreement upon five (5)
business days' written notice to Company if the Parties are unable to cure such
threat during the same period.
(e) Centraal shall maintain a ninety-nine percent (99%)
uptime (net of network latency time, which is beyond the control of Centraal)
for the RealNames Service provided hereunder 24 hours per day, seven days per
week during each month of the term of this Agreement (with the exception of any
scheduled maintenance performed by Centraal). Service uptime means that a search
result will promptly return an accurate RealNames Address to URL link when that
link is applicable. If Centraal fails to meet such uptime performance standards,
Centraal shall have seventy-two (72) hours to correct the problem and restore
the system to ninety-nine percent (99%) uptime functionality. If any such
failure is not corrected within seventy-two (72) hours from written notification
to Centraal by Company, or if Centraal fails to meet such uptime performance
standards on more than three (3) occasions in any sixty (60) day period, Company
may immediately terminate this Agreement upon written notice to Centraal, or,
alternatively, elect to receive a pro rata refund for each day during such
period for which Centraal failed to meet the ninety-nine percent (99%) uptime
standard.
5.2 NO LIABILITY. Except as expressly required by law, in the event
of termination of this Agreement by either Party in accordance with its terms,
neither Party shall be liable to the other for compensation, reimbursement or
damages resulting from such termination and resulting from (i) the loss of
prospective profits or anticipated sales; or (ii) expenditures, inventory,
investments, leases or commitments in connection with the business or goodwill
of the Parties.
5.3 SURVIVAL. In the event of termination or cancellation of this
Agreement, Sections 1, 2.2, 2.3, 3, 4, 5.2, 5.3, 6, 7 and 8 shall survive and
shall continue to apply in accordance with their terms.
6. WARRANTY AND INDEMNITY.
6.1 WARRANTY AND DISCLAIMER. Company agrees that Subscription OF A
REALNAme PREFIX OR REALNAMES ADDRESS does not confer immunity from objection to
either the subscription or use of the RealNames PREFIX OR REALNAMES ADDRESS BY
THIRD PARTIES, HOWEVER, CENTRAAL WILL INDEMNIFY COMPANY AGAINST THE SAME.
COMPANY ACKNOWLEDGES AND AGREES THAT THE SERVICES OF CENTRAAL AND THE REALNAME
PREFIX AND THE REALNAMES ADDRESSES) (COLLECTIVELY, THE "SERVICES") ARE BEING
PROVIDED "AS IS," WITH "ALL FAULTS," AND THAT CENTRAAL MAKES NO REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY
DISCLAIMS, ON ITS OWN BEHALF ON AND BEHALF OF ITS AFFILIATED PARTIES, ANY
WARRANTIES AS TO THE USEFULNESS, ACCURACY, RELIABILITY, NON-INFRINGEMENT OR
EFFECTIVENESS OF SUCH SERVICES, OR THAT ANY OF SUCH SERVICES WILL BE
UNINTERRUPTED, ERROR FREE, OR WILL MEET THE NEEDS OF ANY
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PARTY. WITHOUT LIMITING THE FOREGOING, CENTRAAL DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL CENTRAAL
BE LIABLE TO THE COMPANY FOR ANY FAILURE, DISRUPTION, DOWNTIME, INCORRECT
LINKAGE OR OTHER NON PERFORMANCE OF THE REALNAMES SERVICE.
6.2 INDEMNITY. Both parties, at their own expense, will defend,
indemnify and hold the other, its officers, directors, employees, agents and
successors harmless against any liability, or any litigation cost or expense
(including attorneys' fee), arising out of third-party claims as a result of the
other party's negligence proximately in connection with performance of this
Agreement.
7. CONFIDENTIALITY. Each Party may disclose the existence of this
Agreement, but agrees that the terms and conditions of this Agreement will be
treated as Confidential Information; provided, however, that each Party may
disclose the terms and conditions of this Agreement: (i) as required by any
court or other governmental body; (ii) as otherwise required by law; (iii) to
legal counsel of the parties; (iv) in confidence, to accountants, banks, and
financing sources and their advisors; (v) in connection with the enforcement of
this Agreement or rights under this Agreement; or (vi) in confidence, in
connection with an actual or proposed merger, acquisition, or similar
transaction.
8. GENERAL.
8.1 MISCELLANEOUS. Nonperformance of either Party will be excused to
the extent that performance is rendered impossible by any other reason where
failure to perform is beyond the reasonable control and not caused by the gross
negligence or willful misconduct of the non-performing Party. The relationship
of Centraal and Company established by this Agreement is that of independent
contractors. This Agreement will be governed by and construed under the laws of
the State of California without reference to conflict of law principles. This
Agreement, together with all exhibits and attachments hereto, set forth the
entire agreement and understanding of the Parties relating to the subject matter
herein and merges all prior discussions between them. No modification of or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
will be effective unless in writing signed by the Parties to the changes, and
the waiver of any breach or default will not constitute a waiver of any other
right hereunder or any subsequent breach or default. Company may not assign this
Agreement, or assign or delegate any right or obligation hereunder, without the
prior written consent of Centraal, except in connection with a sale of
substantially all the assets of the Company. If any provision in this Agreement
is found invalid then such provision will be construed, if feasible, so as to
render the provision enforceable, and if no feasible interpretation would save
such provision, it will be severed from the remainder of this Agreement, and the
parties will negotiate, in good faith, a substitute, valid and enforceable
provision that most nearly effects the Parties' intent in entering into this
Agreement. This Agreement will be binding upon the successors or the parties
hereto.
8.2 DISPUTES. In the event that Company's subscription of the
RealName Prefix, the Company Addresses, or any other aspect of the RealNames
Service, or any conduct by the Company results in any challenge, claim, demand,
or action to or against Centraal by any third party, Company agrees that
Centraal shall have the right to decide in its sole discretion what actions to
take, including without limitation whether to continue to provide Company's
subscription to the RealName Prefix or the Company Address, reservation or any
other aspect of the RealNames Service affected by such claim. Company
understands and agrees that it has no vested interest or right in any procedures
or rules of dispute resolution.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
XXXXXXX.XXX, INC.
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
CENTRAAL CORPORATION
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
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EXHIBIT A
Centraal represents that, as of the date hereof, it has entered into the
following principal agreements with respect to distribution of RealNames
Service:
1. LICENSE AND MARKETING AGREEMENT BETWEEN CENTRAAL AND MICROSOFT
CORPORATION DATED JUNE 2, 1999.
TERM: Two years; may be renewed for subsequent one-year periods.
TYPE OF IMPLEMENTATION: RealNames Service will be implemented on both,
"MSN Search" and "AutoSearch" search properties.
EXPECTED IMPLEMENTATION: Microsoft will endeavor to implement the
RealNames Service on MSN Search by September 1, 1999 and on AutoSearch
by August 1, 1999.
ASSIGNMENT: Binding upon any successor and lawful assign of Microsoft;
provided, however, that Microsoft may not assign to any competitor of
Centraal.
2. REALNAMES SERVICES AGREEMENT BETWEEN CENTRAAL AND INKTOMI DATED JANUARY
12, 1999.
TERM: Will expire on December 31, 2000. Renewable for two-year periods
thereafter upon the written consent of both parties.
EXPECTED IMPLEMENTATION: By August 1, 1999. Second implementation:
Q4'99.
ASSIGNMENT: Binding upon Inktomi's successor by merger/sale of assets,
provided that Inktomi may not assign the agreement to any competitor of
Centraal.
3. REALNAMES SERVICE AGREEMENT BETWEEN CENTRAAL AND INFOSEEK CORPORATION
DATED MAY 5, 1999.
TERM: One year, may be renewed for additional one-year terms upon the
prior written consent of the parties.
EXPECTED IMPLEMENTATION: Mid-August, 1999.
ASSIGNMENT: Binding upon Infoseek's successor by merger/sale of assets,
provided that agreement may not be assigned to a competitor of Centraal.
4. REALNAMES SERVICE AGREEMENT BETWEEN CENTRAAL AND XXXXXX & XXXX
ELECTRONIC MEDIA SERVICE GMBH (FIREBALL) DATED MARCH 19, 1999.
TERM: Initial term - 3 years; renewable thereafter for one-year periods
upon mutual written consent of the parties.
ASSIGNMENT: Binding upon G&J's successor by merger/sale of assets.
EXPECTED IMPLEMENTATION: Done.
5. REALNAMES SERVICE AGREEMENT BETWEEN CENTRAAL AND ALTAVISTA COMPANY DATED
APRIL 1, 1999.
TERM: Will expire on December 31, 2000. Subsequent renewal for one-year
periods.
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EXPECTED IMPLEMENTATION: Fully integrated. Second implementation planned
by October 1, 1999.
ASSIGNMENT: Binding upon AltaVista's successor by merger/sale of assets.
6. REALNAMES SERVICE AGREEMENT BETWEEN CENTRAAL AND BRITISH
TELECOMMUNICATIONS, PLC. DATED JUNE 21, 1999.
TERM: Two years, will be automatically renewed for one-year terms
thereafter.
EXPECTED IMPLEMENTATION: Mid-September, 1999.
ASSIGNMENT: Binding upon BT's successor by merger/sale of assets,
provided that agreement may not be assigned to a competitor of Centraal.
7. REALNAME SERVICE AGREEMENT BETWEEN CENTRAAL AND LOOKSMART LTD. DATED
SEPTEMBER 25, 1998.
TERM: 2 years with automatic renewal thereafter for one-year terms.
EXPECTED IMPLEMENTATION: Fully implemented.
ASSIGNMENT: Binding upon LookSmart's successor by merger/sale of assets,
provided that agreement may not be assigned to a competitor of Centraal.
