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EXHIBIT 10.31
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement"), dated as of March 13,
2000, is entered into by and between XXXX.xxx LLC ("XXXX.xxx"), a Delaware
limited liability company with its principal offices at 0000 Xxxxxxxx Xxx., Xxxx
Xxx, Xxx Xxxxxx 00000, and i3 Mobile, Inc. ("i3"), a Delaware corporation, with
its principal offices at 000 Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000.
1. DEFINITIONS.
(a) "Content" means all information and material, whether or not
protected by copyright, including but not limited to text, images, and other
multimedia data, provided or made available to i3 by third parties as part of
the Service.
(b) "Content Provider" means a third party from whom i3 acquires the
right to distribute Content provided or made available as part of the Service.
(c) "Designated Resellers" means AT&T Wireless Services, SBC
Communications and such other third parties approved in writing by XXXX.xxx
through which i3 distributes the Headlines to Users, subject to the terms of
this Agreement.
(d) "Headlines" means brief text headlines of articles, each of which
may include a synopsis of such article, consisting of no more than 100
characters each, which are selected by XXXX.xxx from stock and/or market related
articles appearing on the XXXX.xxx site.
(e) "Service" means i3's delivery of personalized information to
users of wireless devices such as mobile phones, pagers and personal digital
assistants through our distribution relationships with wireless network
operators.
(f) "Users" means all third parties to whom i3 may license, sell,
transfer, make available or otherwise distribute the Service.
2. GRANTS OF LICENSE.
(a) Headlines. Subject to the terms and conditions of this Agreement,
XXXX.xxx grants i3 a non-exclusive, non-transferable license to distribute the
Headlines to the Designated Resellers and Users in North America solely for the
purpose of being viewed on cellular telephones. Each Designated Reseller shall
have the right to market and distribute the Headlines solely to such Designated
Reseller's subscribers.
(b) Trademarks. Subject to the terms and conditions of this
Agreement, XXXX.xxx grants i3 a non-exclusive, non-transferable license to use
and display the XXXX.xxx Marks solely in connection with the marketing and
promotion of the distribution of the Headlines through the Service; provided,
that XXXX.xxx shall have final right of approval over any use of the XXXX.xxx
Marks in connection with such marketing and promotion. i3 agrees that the
XXXX.xxx Marks are and will remain the sole property of XXXX.xxx and/or its
affiliates and agrees to do nothing inconsistent with such ownership and that
all use of the XXXX.xxx Marks, including all goodwill generated by i3's use
thereof, shall accrue and inure to the benefit of and be on behalf of XXXX.xxx,
(ii) not to register or apply for registration of any element of the XXXX.xxx
Marks, (iii) not to assert any adverse claim against XXXX.xxx based upon its use
of the XXXX.xxx Marks, (iv) not to challenge or contest XXXX.xxx's ownership of
the XXXX.xxx Marks, the validity of the XXXX.xxx Marks, or any element of the
XXXX.xxx Marks, or the validity of the license granted herein; and (v) to assist
XXXX.xxx in recording this Agreement with appropriate government authorities and
in procuring any desired registration for the XXXX.xxx Marks as may be requested
by XXXX.xxx (at XXXX.xxx's sole expense). XXXX.xxx reserves all rights to
control the use of the XXXX.xxx Marks, and i3 shall not use, change, or modify
the XXXX.xxx Marks in any manner without prior written authorization from
XXXX.xxx. i3 shall (1) cause the appropriate designation "TM" or the
registration symbol "(R)" to be placed adjacent to XXXX.xxx Marks in connection
with each use or display thereof and to indicate such additional information as
XXXX.xxx shall reasonably specify from time to time concerning the use of
XXXX.xxx Marks, and (2) comply with all applicable laws pertaining to trademarks
in force. Except as expressly granted in this Agreement, i3 shall have no other
rights of any kind in the XXXX.xxx Marks. Under no circumstances will anything
in this Agreement be construed as granting, by implication, estoppel or
otherwise, a license to any of XXXX.xxx's intellectual property other than the
use of the XXXX.xxx Marks and the Headlines in
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accordance with the terms of this Agreement. i3 acknowledges that the XXXX.xxx
Marks are the sole property of XXXX.xxx and/or its affiliates, and this
Agreement only grants i3 a limited right to use the XXXX.xxx Marks under the
terms and conditions of this Agreement.
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3. OBLIGATIONS OF i3.
(a) Grant of Warrant. In consideration of the execution and delivery
of this Agreement, and in advance of a second phase content distribution
arrangement between the parties, simultaneously with the execution and delivery
of this Agreement, and as a condition to XXXX.xxx's obligations hereunder, i3
is issuing to XXXX.xxx a Warrant to Purchase Common Stock of i3 Mobile, Inc.
(the "Warrant") which shall entitle XXXX.xxx to purchase Ten Thousand (10,000)
shares of the Common Stock, par value $0.01 per share at an exercise price of
Ten Dollars ($10.00) per share.
(b) Additional Warrant. Pursuant to Section 4 of the letter
agreement, dated December 29, 1999, between i3 (formerly Intelligent Information
Incorporated) and NBC Interactive Media, Inc. (the "Letter Agreement"), each NBC
Entity (as defined in the Letter Agreement) which enters into a Distribution
Agreement (as defined in the Letter Agreement) with i3 shall receive a fully
vested warrant to purchase up to 20,000 shares of i3's common stock. In
addition, in the event the first Distribution Agreement is executed on or before
March 31, 2000, such warrant shall be for 30,000 shares. In the interest of
accelerating the deployment of XXXX.xxx content on i3's wireless platform, the
parties have agreed that XXXX.xxx shall provide a more limited amount of content
than originally contemplated, and in return receive a warrant to purchase only
10,000 shares of i3's common stock, rather than the 30,000 shares provided for
in the Letter Agreement. Notwithstanding the foregoing, if this Agreement is the
first distribution agreement executed between i3 and an NBC Entity, and XXXX.xxx
and i3 enter into a second Distribution Agreement on or before April 30, 2000,
then XXXX.xxx shall receive an additional warrant to purchase 20,000 shares of
common stock of i3 on the terms specified in the Letter Agreement. If this
Agreement is not the first distribution agreement executed between i3 and an NBC
Entity, and XXXX.xxx and i3 enter into a second Distribution Agreement at any
time after the date hereof, then XXXX.xxx shall receive an additional warrant to
purchase 10,000 shares of common stock of i3 on the terms specified in the
Letter Agreement. i3 shall provide written notification to XXXX.xxx, immediately
after receiving XXXX.xxx's executed copy of this Agreement, as to whether this
Agreement is the first Distribution Agreement so as to enable XXXX.xxx to
receive a warrant to purchase 20,000 additional shares of i3 upon execution and
delivery of a subsequent Distribution Agreement.
(c) Attribution to XXXX.xxx. i3 shall include attribution to XXXX.xxx
with respect to each Headline made available to Users hereunder. Such
attribution shall consist of the phrase "XXXX.xxx Market Update - ", or such
other similar lead-in as may be selected by XXXX.xxx, if feasible in bold
lettering, at the beginning of each Headline, with such attribution appearing as
text that is of a point size equal to that of the related Headline. I3 shall
require that all Designated Resellers pass through such attribution to Users
without alteration.
(d) Preferred Placement. i3 guarantees that the Headlines provided by
XXXX.xxx hereunder shall be the exclusive business and finance content appearing
on each Designated Reseller's free tier of wireless data. To the extent
technically feasible within i3's wireless platform, the Headlines shall be
accorded Preferred Placement (as defined below) in the business and finance
categories on all other platforms on which the Headlines are placed; provided,
that such Preferred Placement shall not be subject to any exclusivity or
Preferred Placement for such type of content which has been contracted for prior
to the Effective Date by a third party not affiliated with i3. Preferred
Placement shall mean (i) where a link to or display of content appears on a
list, such link or content is in the default, top-most and left-most position;
or (b) when a link to or display of content appears in a format other than a
list, the link or content is more visually prominent, or at a higher rate of
exposure, than other content partners.
(e) Technology and Back-end Processing. i3 shall be responsible for
all hosting and delivery of the Headlines, technical support, contractual
arrangements with Designated Resellers and other necessary parties, customer
service and all other issues involved in managing the relationship with
Designated Resellers and Users. i3 shall ensure that all Headlines are delivered
to Designated Resellers on a timely basis, but in any event within five (5)
minutes of their receipt by i3. i3 shall use all reasonable efforts to ensure
that all Headlines are then promptly delivered to Users by the Designated
Resellers.
(f) Marketing. i3 will ensure that XXXX.xxx receives (i) marketing
support equal to that of any other content provider appearing within AT&T
Wireless' and SBC Communications' free tier of wireless data, and (ii) marketing
support equal to that made available to any other similarly situated provider on
each additional platform on which the Headlines appear. At any time during the
Term (as defined below), XXXX.xxx may request, and i3 shall promptly provide, an
officer's certificate certifying that i3 has been and remains in compliance with
this Section.
(g) Promotion. Subject to the provisions of the Letter Agreement, i3
will make an aggregate of five percent (5%) of its unused inventory of wireless
advertising taglines available to XXXX.xxx without charge. The value of this
inventory for purposes of calculating the number of taglines allocated to CNBC
under this Section shall be calculated at the i3's rate card for run of service
taglines in effect at the time such taglines are ordered. The taglines shall
promote the products and services of XXXX.xxx and its affiliates, and may not
advertise, promote or mention any other product, service, web site or third
party whatsoever without the prior written consent of i3. In addition, with
respect to the placement or delivery of such taglines on any particular wireless
network, i3 may reject such taglines if they would
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compete with or violate the rights of any other advertiser, sponsor or i3
distribution partner, as determined by i3 in its sole discretion and in good
faith.
(h) Review by XXXX.xxx. i3 shall provide XXXX.xxx with reasonable
access to i3's technology and systems for distribution of the Headlines to Users
for the purpose of reviewing i3's compliance with the terms and conditions of
this Agreement. In addition, i3 shall provide XXXX.xxx with up to six (6) full
subscriptions to receive wireless data from the Designated Resellers (as
selected by XXXX.xxx) at no charge.
(i) Reporting. i3 shall provide XXXX.xxx with monthly reports regarding user
data that is collected or otherwise received by i3 in connection with the
delivery of the Headlines to Designated Resellers and Users, including without
limitation the number of Users that elect to receive Headlines, the percentage
of all eligible Users that elect to receive Headlines, the number of Users that
receive Headlines for free versus on a subscription basis, the names and e-mail
addresses of Users who elect to receive Headlines, and any other usable data or
information that is reasonably requested by XXXX.xxx (the "User Data"). i3 shall
also provide XXXX.xxx with aggregate data as to the number of click-throughs for
the advertising campaign described in the third sentence of Section 3(i) below
that are converted to receive XXXX.xxx complimentary services. All User Data
shall be provided on both an aggregate basis and broken down by Designated
Reseller. Such User Data shall be delivered to XXXX.xxx via e-mail or FTP in a
machine readable format as reasonably specified by XXXX.xxx. XXXX.xxx may use
the User Data for its own internal purposes, and may sell, distribute or share
such User Data with its affiliates and partners; provided, that XXXX.xxx shall
be required to comply with the privacy policy of each applicable Designated
Reseller. Neither i3 nor any Designated Reseller may license, sell, distribute
or share such User Data with third parties unless such User Data is (i)
aggregated with data collected with respect to other Content Providers, it being
understood that the User Data collected hereunder shall never constitute a
majority of any aggregated pool of data licensed, sold, distributed or shared by
i3 or any Designated Reseller, and (ii) in no way traceable to or identifiable
as information of, or directly related to, XXXX.xxx or its affiliates.
(j) In consideration of both the execution of this Agreement, and in advance
of a second phase content distribution arrangement between the parties,
simultaneously with the execution and delivery of this Agreement, and as a
further condition to XXXX.xxx's obligations hereunder, i3 is entering into a
XXXX.xxx Confirmation Contract pursuant to which it shall purchase $200,000 in
advertising on XXXX.xxx. XXXX.xxx, the National Broadcasting Company, Inc.
("NBC") and i3 agree that such purchase shall be paid for by i3 by a reduction
of $200,000 in the Total Spot Value (as defined in the Advertising Letter (as
defined below)) to be provided to be provided to i3 by NBC pursuant to the
Letter Agreement Regarding Purchase of NBC-TV Advertising Inventory (the
"Advertising Letter"), dated December 22, 1999, between i3 and NBC. i3 shall use
the advertising purchased pursuant to this Section to promote sign-ups for the
XXXX.xxx complimentary services with i3's Designated Resellers. i3 shall use its
best commercial efforts to design an advertising campaign and click-through
pathway that will enable users to easily and efficiently sign-up for the
XXXX.xxx complimentary services.
4. OBLIGATIONS OF XXXX.XXX. Subject to the terms and conditions of this
Agreement, XXXX.xxx shall provide i3 with three (3) Headlines on each day that
the New York Stock Exchange is open for trading, with one (1) Headline being
made available by 7:45 a.m. Eastern time, one (1) headline being made available
at 12:45 p.m. Eastern time, and one (1) headline being made available at 4:45
p.m. Eastern time. The Headlines shall be made available to i3 via e-mail or
other mutually agreed upon electronic means. XXXX.xxx shall use commercially
reasonable efforts to maintain the timeliness of the Content; provided, that i3
acknowledges that, in part, XXXX.xxx relies on the performance of Content
Providers and technology providers outside the control of XXXX.xxx in order to
provide the Headlines.
5. EDITORIAL CONTROL. XXXX.xxx shall retain sole editorial control over the
content and presentation of the Headlines; provided, that i3 may make changes to
the formatting of the Headlines, subject to consultation with XXXX.xxx, in order
to meet wireless display equipment formats. i3 shall not edit, abridge, rewrite
or in any way alter the Headlines, or create any work derived from the
Headlines, without the prior written consent of XXXX.xxx.
6. PROPERTY AND PROPRIETARY RIGHTS. All rights in and to any and all
Headlines furnished by XXXX.xxx in connection with this Agreement, shall remain
in XXXX.xxx, and no right, title or interest in or to any of the same is
granted, transferred or assigned to i3 by this Agreement.
7. PAYMENT. Neither party shall be required to pay in fees to the other
party in connection with the services contemplated by this Agreement.
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8. TERM AND TERMINATION.
(a) Term. This term of this Agreement shall commence on the Effective
Date and shall end on March 13, 2002 (the "Term").
(b) Termination.
(i) Breach. Either party may terminate this Agreement at any
time if the other party breaches any material provision of this Agreement. Such
termination shall take effect (i) if the breach is incapable of cure, then
immediately upon the breaching party's receipt of a written notice of
termination which identifies the breach, or (ii) if the breach, capable of being
cured, has not been cured within thirty (30) days after receipt of written
notice from the non-breaching party identifying the breach, then immediately
upon receipt of a written notice of termination received within thirty (30) days
of the end or such thirty (30) day period.
(ii) Termination of AT&T or SBC Contracts. If at any time
i3's principal agreement with either AT&T Wireless Services or SBC
Communications is terminated or expires, then i3 shall promptly notify XXXX.xxx
of such event, and XXXX.xxx may terminate this Agreement at any time thereafter
upon written notice to i3.
(iii) Insolvency. Either party may terminate this Agreement
by written notice to the other if the other party becomes insolvent, makes a
general assignment for the benefit of creditors, permits the appointment of a
receiver for its business or assets, or takes steps to wind up or terminate its
business.
(iv) Obligations Upon Termination. Effective upon
termination of the Agreement, i3 shall immediately cease (A) licensing, selling,
transferring, making available or otherwise distributing the Headlines, and (B)
accessing, using or re-transmitting the Headlines. Within thirty (30) days of
termination, i3 shall either (X) erase and purge the Headlines from any on-line
and off-line storage media and certify in writing to XXXX.xxx that such erasure
and purge has been completed, or (Y) certify in writing to XXXX.xxx that certain
Content has been retained in creating back-ups during the normal course of
business and that such Content shall not be used in any manner whatsoever
without the prior consent of XXXX.xxx.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF XXXX.XXX. XXXX.xxx
represents and warrants to i3, and covenants and agrees with i3, that (a) it has
the right and authority to enter into this Agreement, (b) its performance
hereunder it shall obey all applicable laws, regulations and rules of any
government body or agency or other competent authority, (c) it has the right and
authority to grant to i3 the rights in the Headlines granted hereunder, and (d)
it is under no obligation or restriction, nor will it assume any such obligation
or restriction, that does or would interfere or conflict with its obligations
under this Agreement.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF i3. I3 represents and
warrants to XXXX.xxx, and covenants and agrees with XXXX.xxx, that (a) it has
the right and authority to enter into this Agreement and to execute, deliver and
issue the Warrant, and to carry out and perform its obligations hereunder and
under the Warrant (b) all corporate action on the part of i3, its directors and
stockholders necessary for the authorization, execution, delivery and
performance of this Agreement and the Warrant, the authorization, sale, issuance
(or reservation for issuance) and delivery of the Warrant issued hereunder and
the common stock issuable upon exercise thereof have been taken, (c) its
performance hereunder it shall obey all applicable laws, regulations and rules
of any government body or agency or other competent authority, (d) it is under
no obligation or restriction, nor will it assume any such obligation or
restriction, that does or would interfere or conflict with its obligations under
this Agreement or under the Warrant, (e) it is a party to an agreement with each
of AT&T Wireless and SBC Communications that permits i3 to distribute the
Headlines to users of AT&T Wireless' and SBC Communications' mobile phone
services, and (f) each Designated Reseller shall require each of its Users to
agree to affirmatively agree to terms and conditions embodying the provisions
set forth in Exhibit A attached hereto.
11. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, EACH
PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO
THIS AGREEMENT, PERFORMANCE UNDER THIS AGREEMENT, THE HEADLINES AND CONTENT, AND
EACH PARTY'S COMPUTING AND DISTRIBUTION SYSTEM.
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12. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO EACH PARTY'S
INDEMNIFICATION OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
NEITHER PARTY, NOR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES,
AGENGS OR SUPPLIERS, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL,
OR INDIRECT DAMAGES, OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF WARRANTY
OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND IRRESPECTIVE
OF WHETHER THE PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBLITY OF ANY SUCH
LOSS OR DAMAGE. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNTS PAYABLE
HEREUNDER ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREE THAT THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
13. INDEMNIFICATION.
(a) Infringement Indemnification. XXXX.xxx shall indemnify, defend
and hold harmless i3 from and against any and all losses, claims, liabilities,
damages, costs and expenses (including, without limitation, reasonable
attorneys' fees) arising out of or incurred by i3 as a result of any actual
claim, action, proceeding or suit (each, a "Claim") alleging that the licensing,
use, reproduction, display, publishing or distribution of the Headlines by i3 in
accordance with the terms and conditions of this Agreement constitutes an
infringement of any patent, copyright, trademark, trade secret, or other
proprietary right of any third party.
(b) Cross Indemnity. Each party (the "Indemnifying Party") shall
indemnify and hold harmless the other party, its affiliates, and their
respective officers, directors, members, employees and agents (the "Indemnified
Party") from and against any and all Claims instituted by third parties, as well
as any and all losses, liabilities, damages, costs and expenses (including
reasonable attorneys fees) arising out of or accruing from (a) any
misrepresentation or breach of the Indemnifying Party's representations and
warranties set forth in this Agreement; and (b) any non-compliance by the
Indemnifying Party with any covenants, agreements or undertakings of such party
contained in or made pursuant to this Agreement.
14. CONFIDENTIALITY.
(a) General. During the Term and for a period of two (2) years
thereafter, each party shall treat as confidential all Confidential Information
of the other party, shall not use such Confidential Information except as set
forth herein, and shall not disclose such Confidential Information to any third
party. Without limiting the foregoing, each of the parties shall use at least
the same degree of care which it uses to prevent the disclosure of its own
confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other party under this
Agreement, but in no event less than reasonable care. Each party shall promptly
notify the other party of any actual or suspected misuse or unauthorized
disclosure of the other party's Confidential Information. Upon expiration or
termination of this Agreement, each party shall return all Confidential
Information received from the other party. Any breach of the restrictions
contained in this Section is a breach of this Agreement that may cause
irreparable harm to the non-breaching party. Any such breach shall entitle the
non-breaching party to injunctive relief in addition to all legal remedies.
(b) Exclusions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which (i) was in the public domain at the time it was disclosed or has entered
the public domain through no fault of the receiving party, (ii) was known to the
receiving party, without restriction, at the time of disclosure, (iii) is
disclosed with the prior written approval of the disclosing party, (iv) was
independently developed by the receiving party without any use of the
Confidential Information, as reasonably demonstrated by the receiving party, (v)
becomes known to the receiving party, without restriction, from a source other
than the disclosing party without breach of this Agreement by the receiving
party and otherwise not in violation of the disclosing party's rights, (vi) is
disclosed generally to third parties by the disclosing party without
restrictions similar to those contained in this Agreement, or (vii) is disclosed
pursuant to the order or requirement of a court, administrative agency, or other
governmental body; provided, that the receiving party shall provide prompt
notice thereof to the disclosing party to enable the disclosing party to seek a
protective order or otherwise prevent or restrict such disclosure. Each party
shall be entitled to disclose the existence of this Agreement, but agrees that
the terms and conditions of this Agreement shall be treated as Confidential
Information and shall not be disclosed to any third party; provided, that each
party may disclose the terms and conditions of this Agreement (A) as required by
any court or other governmental body, (B) as otherwise required by law, (C) to
legal counsel of the parties, (D) in confidence, to accountants, banks and
financing
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sources and their respective advisors, (E) if necessary in connection
with the enforcement of this Agreement or rights under this Agreement, or (F) in
confidence, in connection with an actual or proposed merger, acquisition or
similar transaction.
15. MISCELLANEOUS.
(a) Binding Nature and Assignment. This Agreement shall be binding on
the parties hereto and their respective successors and assigns, but neither
party may assign this Agreement without the prior written consent of the other,
such consent not to be unreasonably withheld; provided, however, that this
Agreement may be assigned by XXXX.xxx to a direct or indirect parent, subsidiary
or affiliate without consent of i3.
(b) Compliance with Law. Each party shall comply with all applicable
laws, codes, ordinances, rules and regulations of the federal, state and local
governments, and of any and all political subdivisions and regulatory
authorities thereof. Each party shall obtain all necessary permits and licenses
required in connection with the performance of it obligations hereunder.
(c) Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier or overnight delivery service, or forty-eight (48)
hours after being deposited in the regular mail as certified or registered mail
with postage prepaid, if such notice is addressed to the party to be notified at
such party's address as set forth in the preamble of this Agreement. Either
party hereto may from time to time change its address for notification purposes
by giving the other prior written notice of the new address and the date upon
which it will become effective.
(d) Headings. The article and section headings used herein are for
reference and convenience only and shall not enter into the interpretation
hereof.
(e) Relationship of Parties. i3, in furnishing services to XXXX.xxx
hereunder, is acting only as an independent contractor and assumes full
responsibilities for each of its employees and shall be solely responsible for
the payment of compensation to its personnel. This Agreement does not constitute
either party as the agent or legal representative of the other party and does
not create a partnership or joint venture between them.
(f) Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, then both parties shall be relieved
of all obligations arising under such provision, but only to the extent that
such provision is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objective. If the remainder of this Agreement shall not be
affected by such declaration or finding and is capable of substantial
performance, then, each provision not so affected shall be enforced to the
extent permitted by law.
(g) Press Releases. Except to the extent required by applicable law
or as otherwise specified herein, any use by one party of the other party's
name, trademarks or service marks in any press releases, customer lists,
marketing materials or other announcements concerning the matters covered by
this Agreement, or for promotional, advertising or other purposes, shall require
the other party's prior written approval; provided, that XXXX.xxx shall have the
right to approve any description of XXXX.xxx and the transactions contemplated
by this Agreement which are included in any documents filed by i3 with the
Securities and Exchange Commission, such approval not to be unreasonably
withheld.
(h) Waivers. No delay or omission by either party hereto to exercise
any right or power hereunder shall impair such right or power or be construed to
be a waiver thereof. A waiver by either of the parties hereto of any of the
covenants to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. All remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise.
(i) Force Majeure. If the performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by reason of
fire or other casualty or accident, acts of God, severe weather conditions, war
or other violence, any law, order, proclamation, regulation, ordinance, demand
or requirement of any governmental
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agency, or any other act or condition beyond the reasonable control of the
parties hereto, the party whose performance is so affected shall be excused from
such performance; provided, that if either party invokes this Section for any
consecutive period of thirty (30) days or longer, then the other party may
immediately terminate this Agreement without penalty, upon written notice to
such invoking party.
(j) Survival of Terms. Termination or expiration of this Agreement
for any reason shall not terminate any rights, liabilities or obligations that
have either accrued prior to the effective date of termination of this Agreement
or which the parties have expressly agreed shall survive any such termination or
expiration.
(k) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and there
are no written or oral representations, understandings or agreements relative
hereto which are not fully expressed herein. This Agreement is intended to be
the sole and exclusive statement of the agreement between the parties hereto
with respect to the subject matter hereof and any other terms or conditions
included in any forms utilized or exchanged by the parties hereto shall be of no
force or effect and shall not be incorporated herein or be binding unless
expressly agreed to in writing by both parties hereto. No change, amendment,
waiver or discharge hereof shall be valid unless in writing and signed by an
authorized representative of the party against which such change, amendment,
waiver or discharge is sought to be enforced.
(l) Governing Law; Jurisdiction. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the state and federal courts of New York County, New
York.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, i3 and XXXX.xxx have each caused this Distribution
Agreement to be executed and delivered by its duly authorized officer, to be
effective as of the Effective Date.
i3 MOBILE, INC. XXXX.XXX LLC
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Signature Signature
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Printed Name Printed Name
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Title Title
Solely with respect to Section 3(j):
NATIONAL BROADCASTING COMPANY, INC.
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Signature
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Printed Name
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Title
8
