EXHIBIT 10.8
A REQUEST FOR CONFIDENTIAL TREATMENT HAS BEEN FILED WITH THE COMMISSION
WITH RESPECT TO PORTIONS OF THIS EXHIBIT AND SUCH PORTIONS HAVE THEREFORE
BEEN OMITTED, AS INDICATED BY A BRACKETED ASTERISK [*], AND FILED
SEPARATELY WITH THE COMMISSION.
LICENSING AND SERVICES OPTION AGREEMENT
THIS LICENSING AND SERVICES OPTION AGREEMENT (hereinafter "the Agreement") is
entered into as of June 18, 1998 by and between DISNEY ENTERPRISES, INC., a
Delaware corporation ("Disney") and INFOSEEK CORPORATION, a California
corporation ("Infoseek").
RECITALS
1. Pursuant to the Agreement and Plan of Reorganization By and Among Infoseek,
Infoseek Corporation, a Delaware Corporation, Starwave Corporation, and Disney
("the Agreement and Plan of Reorganization") and the Common Stock and Warrant
Agreement and a series of related transactions, each dated as of the date hereof
and referred to collectively as "the Acquisition Agreements," Disney and The
Xxxx Disney Company, a Delaware corporation, have agreed to acquire
approximately a 43% interest in the voting equity of Infoseek, subject to the
terms and conditions set forth in those agreements.
2. Pursuant to a license agreement, dated as of the date hereof ("the License
Agreement"), and as more fully set forth therein, Disney has agreed to license
to Infoseek the names and brands "Go Networks" and associated Intellectual
Property Rights for the production, distribution, operation, development and
exploitation by Infoseek of an Internet portal service named "Go Networks" or
another name mutually approved by Licensor and Licensee (hereinafter referred to
as the "Portal Products").
3. In connection with the Acquisition Agreements and the License Agreement,
Disney and Infoseek have entered into an agreement with respect to the
management and governance of the Portal Products (the "Product Management
Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, Disney and Infoseek hereby agree as follows:
1. CERTAIN DEFINITIONS
These definitions apply to this Agreement and the Exhibits attached hereto.
"ABOVE THE FOLD" means, with respect to an Image, Image Link, Link or text
that such is immediately visible to an end user, without any scrolling or
navigation on a 640 by 480 pixel page.
"AFFILIATE" means a person controlling, controlled by or under common control
of another person. Control shall mean, for the purposes of this definition,
ownership or control, directly or indirectly, of at least 50% of the outstanding
stock or other voting rights entitled to elect directors or the corresponding
non-corporate managing authority.
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"BANNER ADVERTISEMENT" means any Image displayed on a Web Page that is
intended to serve as an advertisement for a product, service or Web Page.
Banner Advertisements include, if applicable, Hyper-Links to another Web Page.
"CONTRACT YEAR" means each twelve (12) month period following the effective
date of Disney's exercise of the option to make effective the terms and
conditions of Exhibit A, Exhibit B or both Exhibit A and B.
"DERIVATIVE WORK" means (a) without limitation, any computer program, object
code, source code, work product, service, improvement supplement, modification,
alteration, addition, revision, enhancement, new version, new edition, remake,
sequel, translation, adaptation, design, plot, theme, character, story line,
concept, scene, audio-visual display, interface element or aspect, in any
medium, format, use or form whatsoever, whether interactive or linear and
whether now known or unknown, that is derived in any manner, directly or
indirectly, from any Infoseek Search Technology or Infoseek Communication
Technology, or any part or aspect thereof, or that uses or incorporates any such
Infoseek property, or any part or aspect thereof; (b) any "derivative work" of
any Infoseek Search Technology or Infoseek Communication Technology or part or
aspect of any thereof, as defined in the Copyright Laws of the U.S., Title 17
U.S.C. ` 101 et seq. ("the Copyright Law"); and (c) any material or
documentation related to any of the foregoing.
"DISNEY SERVICES" means any and all Narrowband online services or sites owned
by Disney or any Disney Affiliate and developed and operated by or on behalf of
Disney or any Disney Affiliate.
"EFFECTIVE TIME" means the time and date of the filing of the Certificates of
Merger referred to in the Agreement and Plan of Reorganization.
"HYPER-LINK" means a link to another Web Page ("URL") that sends an
instruction to a Web browser to open a designated Web Page activated when a user
selects an image or text so linked.
"IMAGE" means any bitmapped representation of a graphic or text, including
without limitation those stored in files ending in suffixes of .bmp, .gif or
.jpg.
"IMAGE LINK" means an Image that is Hyper-Linked to another Web Page.
"INFOSEEK CHANNEL" means the topical or other designations that Infoseek
devises that serve as a an organizational method for locating, organizing or
aggregating content on the Infoseek Web Presence and each is single click away
from the Infoseek home page. Infoseek currently labels these topical
designations as "channels." However designated in the future, any functional or
organizational equivalent developed or used by Infoseek shall be considered a
"channel."
"INFOSEEK COMMUNICATION TECHNOLOGY" means any and all proprietary computer
systems, software (including source code), techniques, methods, applications and
other
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technology, and related documentation, that Infoseek owns or controls as of the
date of exercise by Disney of its Exhibit A option pursuant to Section 2 for
chat applications (whereby two or more Internet users communicate by inputting
text or other transmittable data that appears in a common dialogue box or other
display medium, whether delivered over the Web or by other means). For purposes
of this definition, "control" shall mean the ability to grant the rights and
licenses set forth herein without payment of royalties or other consideration to
unrelated third parties. In the event that any Infoseek Communication Technology
would be included in this definition but for the obligations of Infoseek to pay
royalties or other consideration to an unrelated third party, then Disney shall
have the right, at its option, to pay such royalties or other consideration and
include such technology in this definition.
"INFOSEEK SEARCH TECHNOLOGY" means any and all proprietary computer systems,
software, (including source code) techniques, methods, applications and other
technology, and related documentation that Infoseek owns or controls as of the
date of exercise by Disney of its Exhibit B option pursuant to Section 2, for
the Web-crawler (referred to as a "spider") that constitutes the Infoseek Search
tool for searching the World Wide Web currently available at
xxxx://xxx.xxxxxxxx.xxx and related Web sites, including, without limitation,
the weighted service that returns Web Pages which Infoseek markets as "Extra
Search Precision," "E.S.P.", or "ESP." For purposes of this definition,
"control" shall mean the ability to grant the rights and licenses set forth
herein without payment of royalties or other consideration to unrelated third
parties. In the event that any Infoseek Search Technology would be included in
this definition but for the obligations of Infoseek to pay royalties or other
consideration to an unrelated third party, then Disney shall have the right, at
its option, to pay such royalties or other consideration and include such
technology in this definition.
"INFOSEEK WEB PRESENCE" means any and all Web Pages owned by Infoseek and
developed or operated by or on behalf of Infoseek, including Infoseek's current
Web Presence which originates at xxxx://xxx.xxxxxxxx.xxx.
"INITIAL WEB PAGE" means the first Web Page that is viewed in response to a
Web-based search, or the selection of a button, Image Link or a Hyper-Link.
When used in reference to a Web Presence, the Initial Web Page indicates the
page returned by the entry of the basic URL or root address (which for Infoseek
is currently xxxx://xxx.xxxxxxxx.xxx).
"INTELLECTUAL PROPERTY RIGHTS" means any and all (by whatever name or term
known or designated) tangible and intangible and now known or hereafter existing
(a) rights associated with works of authorship, including but not limited to
copyrights (including without limitation the sole and exclusive right to prepare
"derivative works" (as defined in the Copyright Law) of the copyrighted work and
to copy, manufacture, reproduce, distribute copies of, modify, publicly perform
and display the copyrighted work and all derivative works thereof), moral rights
(including without limitation any right to identification of authorship and any
limitation on subsequent modification) and mask-works, (b) rights in and
relating to the protection of trademarks, service marks, trade names, goodwill,
rights in packaging, rights of publicity and privacy, merchandising rights and
similar rights, (c) rights in and relating to the protection of trade secrets
and confidential information, (d) patents, designs, algorithms and other
industrial
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property rights and rights associated therewith, (e) other intellectual and
industrial property and proprietary rights (of every kind and nature however
designated) relating to intangible property that are analogous to any of the
foregoing rights (including without limitation logos, character rights, "rental
rights" and rights to remuneration), whether arising by operation of law,
contract, license or otherwise, (f) registrations, applications, renewals,
extensions, continuations, divisions or reissues thereof now or hereafter in
force throughout the universe (including without limitation rights in any of the
foregoing), and (g) rights in and relating to the sole and exclusive possession,
ownership and use of any of the foregoing throughout the universe,including
without limitation the right to license and sublicense, franchise, assign,
pledge, mortgage, sell, transfer, convey, grant gift over, divide, partition and
xxx (or not xxx) in any way any of the foregoing now or hereafter (including
without limitation any claims and causes of action of any kind with respect to,
and any other rights relating to the enforcement of, any of the foregoing).
"MOST PROMINENT PLACEMENT" shall mean, at a minimum (1) an Above the Fold
placement of an Image, Image Link, Hyper-Link or text on the Initial Web Page of
the relevant Infoseek Channel, which Image, Image Link, Hyper-Link or text shall
be at least equal in size to the largest Image, Image Link, Hyper-Link or text
featured on such Initial Web Page (excluding Banner Advertisements), and (2)
that the content, brand, icons, Images, Image Links, Hyper-Links or text of the
Disney Services referenced in Section 2 of Exhibit B shall be placed within the
appropriate Infoseek Channels with the largest size on the same page as compared
with any other content, brand, icons, Images, Image Links, Hyper-Links or text
(excluding Banner Advertisements). For example and without limitation, on the
first page seen by viewers of each section of each Infoseek Channel for sports
(e.g., sports home page, sports news page, scores pages, teams page, league
page, information pages, etc.) such page will include a link to XXXX.xxx (to the
extent that such page contains any links to content pages) that is the largest
in size. If there is a headline or scores box for sports or news headlines or
scores on a page, ABC News headlines and ESPN headlines and scores shall appear
as the first headlines/scores in the appropriate boxes. To the extent that any
such page includes content (e.g., sports headlines, columnists, polls, scores,
specialized league information), XXXX.xxx content shall have most prominent
placement on any such page, subject to availability of appropriate content
(i.e., if XXXX.xxx does not have original content on high school football, if
there is a sports page featuring high school football, such page shall not be
required to feature content from XXXX.xxx).
"NARROWBAND" means programming that does not require transmissions at date
rates which would enable real time, full motion video at equal to or better than
the NTSC broadcast resolution.
"PERSONAL START PAGE" means the Initial Web Page on the Infoseek Web Presence
that results from the user customizing the display and search features of
Infoseek. Infoseek currently provides limited customization of the Personal
Start Page under the option "personalize." The phrase "Personal Start Page"
includes more robust customization that Infoseek may undertake in the future.
"URL" means Uniform Resource Locator and indicates the address of a Web Page.
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"WEB" means the World Wide Web, the designation for the viewing of integrated
text, graphics, sound and other media through software known as a browser over
the Internet, a world-wide network of computers communicating using standard
protocols. Web also includes any future enhancement to the browsing software or
Internet backbone and protocols that deliver such content.
"WEB PAGE" means a single file displayed through Web browser software and made
available for viewing, by means of a download to local cache memory, over the
Internet through a common protocol.
"WEB PRESENCE" means any number of associated Web Pages.
2. OPERATION AND EFFECT
(a) If Infoseek is required to pay a termination fee to Starwave pursuant to
Sections 8.3(a) or 8.3(b) of the Agreement and Plan of Reorganization and if
Disney is not then in material breach of the Agreement and Plan of
Reorganization, Disney shall have the sole, exclusive, irrevocable option to
make effective the terms and conditions of the license attached as Exhibit A or
the service agreement and license attached as Exhibit B or both the license
attached as Exhibit A and the service agreement and license attached as Exhibit
B by providing written notice of the exercise of such option to Infoseek. Such
option shall be exercised, if at all, with respect to either or both such
license and service agreement and license, by written notice given to Infoseek
within sixty (60) days following the date on which such a termination fee
becomes payable (the "Option Period"). From the date hereof until Disney's
exercise of the option or expiration of the Option Period, Infoseek shall not
take any action that would interfere with or preclude its performance of the
terms or conditions of the license attached as Exhibit A or the service
agreement and license attached as Exhibit B except as may be set forth on the
Schedule attached to Exhibit B.
(b) This Agreement shall terminate upon the earlier of (i) the expiration of
the Option Period (if either or both of the options are not exercised by Disney
prior thereto), and (ii) the Effective Time.
3. REPRESENTATIONS AND WARRANTIES
CONFLICTING AGREEMENTS. Except as set forth in the Schedule attached to
Exhibit B, each party represents and warrants that it has not and will not enter
into any agreement with any third party which inhibits, precludes or adversely
affects performance of any of its obligations under this Agreement or Exhibits A
and B hereto or its compliance with any of the terms hereof and thereof.
STATUS. Disney is a corporation in good standing under the laws of the state
of Delaware, and has the full right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. Infoseek is a
corporation in good standing under the laws of
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the state of California, and has the full right, power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
AUTHORITY: NO CONFLICT: CONSENTS. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Disney and
Infoseek and no further action is required on the part of either Disney or
Infoseek to authorize the Agreement. This Agreement has been duly executed and
delivered by Disney and Infoseek, and, assuming the due authorization, execution
and delivery by each to the other constitutes the valid and binding obligations
of Disney and Infoseek, enforceable in accordance with the terms of this
Agreement, except as such enforceability may be limited by principles of public
policy and subject to the laws of general application relating to bankruptcy,
insolvency and the relief of debtors and to rules of law governing specific
performance, injunctive relief or other equitable remedies. The execution and
delivery by Disney and Infoseek, each unto the other, of this Agreement does
not, and the performance and consummation of the transactions contemplated
hereby will not, result in any conflict with or violation of (i) any provision
of the Articles or Certificate of Incorporation or Bylaws of either Disney or
Infoseek, (ii) any material, contract, or license to which either Disney or
Infoseek, or any of their properties or assets, are subject (except as set forth
on the Schedule attached to Exhibit B) or (iii) any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Disney or Infoseek or
their respective properties or assets. No consent, waiver, approval, order or
authorization of, or registration, declaration or filing with any governmental
body or third party is required by or with respect to Disney or Infoseek in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, except for (i) such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws, (ii) or any
other filings or approvals as may be required under California or Delaware law.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND ITS
EXHIBITS, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND
ITS EXHIBITS, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
4. GENERAL PROVISIONS
REFERENCED URLS (WEB ADDRESSES): All URLs referenced in this Agreement or
Exhibits A or B may be changed upon written notification by Disney to Infoseek.
Infoseek shall immediately update all such referenced URLs on the Infoseek Web
Presence or on any Web Page, Banner Advertisement, Image Link or Link where any
such URL was utilized. For Disney Web Pages referenced without provision of a
URL, Disney shall provide Infoseek with appropriate URLs following commencement
of the operation of this Agreement.
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INTERPRETATION. The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
COUNTERPARTS. This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that all parties need not
sign the same counterpart.
ENTIRE AGREEMENT: ASSIGNMENT. This Agreement and the Exhibits hereto (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings both written
and oral, among the parties with respect to the subject matter hereof; (b) are
not intended to confer upon any other person any rights or remedies hereunder,
and (c) no party shall, directly or indirectly, assign this Agreement to any
third party, except that either party may assign this Agreement to its parent
corporation or any entity of which its parent owns at least 80% of the voting
equity.
SEVERABILITY. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
SPECIFIC PERFORMANCE. Disney and Infoseek expressly agree that this Agreement
will be specifically enforceable in any court of competent jurisdiction in
accordance with its terms by each party hereto.
OTHER REMEDIES. Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
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INDEMNIFICATION. Infoseek shall defend, at its sole expense, any claim, suit
or proceeding brought against Disney by any third party (a) which if true would
be a breach of any of the representations, warranties or agreements made by
Infoseek under this Agreement or Exhibits attached hereto, or (b) a claim that
the Infoseek Search Technology or Infoseek Communication Technology, when used
as permitted herein, violates or infringes any copyright of any third party
(each, a "Disney Claim"). Infoseek shall pay any damages and costs finally
awarded against Disney and/or any settlement amounts entered into with respect
to such Disney Claim to the extent based upon such a Disney Claim, provided that
(a) Disney shall promptly notify Infoseek of any Disney Claim for which
indemnification is sought pursuant to this paragraph by Disney and provide
Infoseek with a copy of each communication, notice or other action relating to
said claim; (b) Infoseek shall have the exclusive right to control the defense
and/or settlement of such Disney Claim and (c) Disney shall have provided
Infoseek with all information and assistance reasonably requested by Infoseek in
connection with such claim or suit. If it is adjudicatively determined, or if
Infoseek believes, that the Infoseek Search Technology or the Infoseek
Communication Technology infringes any copyright, or if the license or use of
the Infoseek Search Technology or Infoseek Communication Technology, or any part
thereof, is, as a result, enjoined, then Infoseek may, at is election, option
and expense either (i) replace the Infoseek Search Technology and/or the
Infoseek Communication Technology or any part thereof, as applicable, with other
noninfringing suitable technology; or (ii) modify the Infoseek Search Technology
or the Infoseek Communication Technology or any part thereof, as applicable, to
become noninfringing. Infoseek shall keep Disney informed of, and consult with
Disney in connection with the progress of each Disney Claim and Infoseek shall
not have any right, without Disney's written consent, to settle any Disney Claim
if such settlement arises from or is part of any criminal action, suit or
proceeding or contains an acknowledgement of any liability on the part of Disney
or any Disney Affiliate. Disney shall have the right, in its absolute
discretion, to employ attorneys of its own choice at its expense and to
participate in the defense of any Disney Claim. Infoseek's obligations pursuant
to this paragraph shall survive the termination of this Agreement or the
Exhibits attached hereto. Infoseek is not obligated to indemnify Disney for
claims based solely on Disney's modifications or Derivative Works to the
Infoseek Search Technology or the Infoseek Communication Technology and Disney
shall indemnify Infoseek for copyright infringement by such modifications
according to the same terms as apply to Infoseek's indemnity obligations under
this Section.
ATTORNEY FEES. If any action or other proceeding relating to the enforcement
of any provision of this Agreement is brought by any party hereto, the
prevailing party shall be entitled to recover reasonable attorneys' fees, costs
and disbursements (in addition to any other relief to which the prevailing party
may be entitled).
WAIVERS STRICTLY CONSTRUED. With regard to any power, remedy or right
provided herein or otherwise available to any party hereunder (a) no waiver or
extension of time shall be effective unless expressly contained in a writing
signed by the waiving party; and (b) no alteration, modification or impairment
shall be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
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IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ITS EXHIBITS FOR ANY LOSS OF PROFIT OR ANY OTHER INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY
NATURE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION THE BREACH OF THIS
AGREEMENT OR ITS EXHIBITS EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THE FOREGOING PARAGRAPH SHALL NOT OPERATE TO LIMIT EITHER
PARTY'S INDEMNITY OBLIGATIONS EXPRESSLY ASSUMED IN THIS AGREEMENT OR THE
EXHIBITS.
NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally or by commercial messenger or
courier service, or mailed by registered or overnight mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice), provided however that notices sent by
mail will not be deemed given until received:
(a) If to Infoseek, to:
Infoseek
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, President
Xxxxxx X. Xxxxxx, Esq.
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
(b) If to Disney, to:
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
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with a copy to:
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone No: (000) 000-0000
Telephone No: (000) 000-0000
IN WITNESS WHEREOF, the duly authorized representative of each party have
executed this Agreement as of the day and year first written above.
DISNEY ENTERPRISES, INC. INFOSEEK CORPORATION
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------- -------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Sr. Vice President Title: President and CEO
By: /s/ Xxxx X. Xxxx
-------------------
Name: Xxxx X. Xxxx
Title: Vice President
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EXHIBIT A
LICENSE OF INFOSEEK TECHNOLOGY TO DISNEY
1. Grant of License
(a) Infoseek grants to Disney and all of its Affiliates a non-exclusive,
non-transferable (except as permitted under "Assignment" in Section 7 below),
worldwide, license to use the Infoseek Search Technology and Infoseek
Communication Technology in any manner in connection with the production,
distribution, operation, development and exploitation of the Disney Services,
including without limitation to do on its behalf and/or authorize others to do
on its behalf, in any medium now known or hereafter developed, the following:
(1) to use, reproduce, distribute, transmit, make, sell, market and
publicly perform and publicly display the results of any Infoseek Search
Technology or Infoseek Communication Technology within or in association
with the Disney Services;
(2) to sublicense the Infoseek Search Technology and Infoseek
Communication Technology, but only to the extent necessary or desirable for
the production, distribution, operation, development and exploitation of
the Disney Services on behalf of Disney or its Affiliates;
(3) to design, develop, manufacture, and create technology
incorporating or based upon the Infoseek Search Technology and Infoseek
Communication Technology, but only to the extent necessary or desirable for
the production, distribution, operation, development and exploitation of
the Disney Services on behalf of Disney or its Affiliates; and
(4) to modify, improve and prepare derivative works incorporating or
based upon the Infoseek Search Technology and Infoseek Communication
Technology, but only to the extent necessary or desirable for the
production, distribution, operation, development and exploitation of the
Disney Services on behalf of Disney or its Affiliates; provided, however,
that Disney shall not sublicense or provide all or any part of the Infoseek
Search Technology or Infoseek Communication Technology to any competitor of
Infoseek, where "competitor" means Yahoo, Excite, Lycos, CNET, Microsoft,
AOL, Netscape and their respective Affiliates and successors and any other
company where a substantial portion of such company's revenues is derived
from internet or intranet search and directory activities.
(b) Without limiting the foregoing, Disney shall have the right pursuant
to this license to fully integrate the Infoseek Search Technology and the
Infoseek Communication Technology into all Disney Services.
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(c) Disney shall own any Derivative Works created by Disney or its
Affiliates based on the licensed Infoseek Search Technology and
Infoseek Communication Technology, provided, however, that the
underlying original Infoseek Search Technology and Infoseek
Communication Technology shall remain owned by Infoseek and its
licensors.
2. Consideration. In consideration of the rights granted hereunder, Disney
shall pay Infoseek [*] per Contract Year, payable in equal quarterly
installments on or before the fifth day after the start of each quarter. The
amount shall be prorated for periods of less than a full quarter. If Disney
desires to receive updates pursuant to section 3(b) below during any Contract
Year, Disney shall pay an additional 15% of the yearly consideration provided
for in this paragraph for such Contract Year, payable in equal quarterly
installments on or before the fifth day after the start of each quarter.
3. Maintenance and Support
(a) Infoseek personnel shall provide Disney reasonable and timely technical
assistance in utilizing Infoseek Search Technology and Infoseek Communication
Technology up to 80 person-hours of Infoseek personnel time per month. In
consideration for such assistance, Disney shall pay to Infoseek $100 per person
per hour of time provided, payable within 15 days after Disney's receipt of
Infoseek's invoice.
(b) Infoseek shall provide Disney with updates to the Infoseek Search
Technology and Infoseek Communication Technology as soon as Infoseek implements
or makes use of such updated technology as part of Infoseek's services other
than for internal development purposes.
4. Access to Source Materials
Within thirty (30) days of the effective date of this license, Infoseek
shall provide Disney a complete copy of all source code and object code for the
Infoseek Search Technology and Infoseek Communication Technology and all
documentation reasonably sufficient to permit technical personnel skilled in the
relevant art to, including without limitation, modify, enhance, maintain and
otherwise create Derivative Works from the Infoseek Search Technology and the
Infoseek Communication Technology, provided, however, that Infoseek is under no
obligation to create any such documentation not already available for internal
Infoseek use.
5. Confidentiality
Disney agrees to keep confidential all Infoseek Search Technology and all
Infoseek Communication Technology, not to use any Infoseek Search Technology or
Infoseek Communication Technology except as set forth herein, and, except to the
extent necessary to exercise Disney's rights specifically granted in Section 1
above (which disclosure shall be subject to confidentiality provisions and the
right of Infoseek to audit such third party's compliance with all applicable
confidentiality provisions), not to disclose any Infoseek Search
A-2
Technology or any Infoseek Communication Technology to any third party. Without
limiting the foregoing, Disney shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance (which, in the case of source code, is of the utmost importance) to
prevent the disclosure of Infoseek Search Technology or Infoseek Communication
Technology. Disney shall promptly notify Infoseek of any actual or suspected
misuse or unauthorized disclosure of Infoseek Search Technology or Infoseek
Communication Technology. Disney shall not have any obligation to keep
confidential: (i) information that is within the public domain or becomes part
of the public domain through no fault of Disney, (ii) information received by
Disney from a third party that, to Disney's knowledge, is not by such disclosure
violating a written confidentiality agreement between such third party and
Infoseek, (iii) information independently developed by Disney without the use of
or reference to the Infoseek Search Technology or Infoseek Communication
Technology by persons who have not had access to the Disney Search Technology or
Disney Communication Technology, (iv) information that Infoseek consents
specifically in writing with reference to this agreement to the disclosure
thereof, and (v) information that is required to be disclosed by any applicable
law, regulation, ordinance, decree, order or any other legal process; provided,
that Disney shall promptly notify Infoseek if it becomes aware of any such
requirement and assist Infoseek in obtaining protective orders.
6. Termination
This license shall continue for a period of five years from the effective
date of Disney's exercise of its option to make the license herein effective
pursuant to the Licensing and Services Option Agreement. Each party shall have
the right to terminate this license at any time in the event of a material
breach by the other party not cured within sixty (60) days after written notice
thereof and Disney shall further have the right to terminate this license for
any reason at the end of any Contract Year, provided Disney has provided
Infoseek with written notice at least sixty (60) days prior to the end of that
Contract Year. Notwithstanding the foregoing, the provisions contained in
section 5 of this Exhibit shall survive the termination or expiration of this
license. In the event of expiration or termination of this Agreement for any
reason, (i) all rights and licenses granted herein shall automatically
terminate, (ii) Disney shall ship to Infoseek, within thirty (30) days, all
tangible items in its possession which contain any Infoseek Search Technology or
Infoseek Communication Technology and shall promptly erase all copies of the
Infoseek Search Technology and Infoseek Communication Technology from computer
memory, and (iii) Disney and its sublicensees shall cease to utilize any
Infoseek Search Technology and Infoseek Communication Technology.
7. Representations, Warranties and General Provisions
All of the Representations and Warranties and General Provisions set forth
in the Licensing and Services Option Agreement ("the Agreement") to which this
Exhibit is attached are hereby incorporated by reference into this license of
Infoseek Search Technology and Infoseek Communication Technology to Disney,
except as the same are modified by the provisions in this section within this
license. Where the Representations, Warranties and General
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Provisions set forth in this license, or any of them, conflict with those of the
Agreement, the express provisions of this license supersede those of the
Agreement.
ASSIGNMENT. This license shall not be assigned by either party WITHOUT THE
WRITTEN CONSENT of the other party but may be assigned by Disney to any Disney
Affiliate or by either party in connection with any sale of all or substantially
all of such party's business or assets to which this agreement relates, whether
by merger, acquisition or otherwise, and in the case of any such sale the seller
shall require the purchaser to agree in writing to be bound by this license.
The party making an assignment provided for in this paragraph shall timely
notify the other party thereof. Notwithstanding the foregoing, Disney may not
assign this license, by operation of law or otherwise, to a competitor of
Infoseek (as defined in Section 1 above).
TITLE. Infoseek warrants that (i) it has the right to grant the rights to
Disney as set forth in this license, (ii) Disney shall not be obligated to pay
any consideration for using the Infoseek Search Technology or the Infoseek
Communication Technology other than as specifically set forth in this license or
as contemplated by the definitions of Infoseek Search Technology and Infoseek
Communication Technology and (iii) there are no pending or, to the best of
Infoseek's knowledge, threatened lawsuits concerning any aspect of the
Intellectual Property Rights in and to the Infoseek Search Technology and the
Infoseek Communication Technology, except as may be disclosed in the Acquisition
Agreements.
PERFORMANCE. Infoseek warrants that the Infoseek Search Technology and the
Infoseek Communication Technology will function substantially in accordance with
the level of functionality and performance Infoseek provides with respect to any
of its Web Pages. Infoseek shall undertake to correct any programming errors in
the Infoseek Search Technology or the Infoseek Communication Technology and
shall complete such repair within a reasonable period of time commensurate with
the severity of the malfunction after notice of such condition by Disney.
SPECIFIC PERFORMANCE. Disney and Infoseek expressly agree that this license
will be specifically enforceable in any court of competent jurisdiction in
accordance with its terms by each party hereto.
A-4
EXHIBIT B
SERVICE AGREEMENT AND LICENSE BETWEEN INFOSEEK AND DISNEY
1. License Grant by Disney to Infoseek
Subject to the terms and conditions of this Agreement, Disney hereby grants
Infoseek the non-exclusive, world-wide, royalty-free right to reproduce and
display all material which is the subject of any Disney or Disney Affiliate
Intellectual Property Rights, including logos, trademarks, trade names and
similar identifying material, relating to the Disney Services, solely for the
purpose of fulfilling the terms of this Agreement and provided that any such
material so used is in no way altered, changed or modified by Infoseek without
Disney's consent. Such use must conform to the advertising and content policies
in force for the Disney Services. Upon Disney's request, Infoseek will make
available samples of any uses of any such Disney or Disney Affiliate material
for approval by Disney. Such approval is within Disney's sole and exclusive
discretion. Disney shall retain all right, title and interest in and to all
such material displayed and/or reproduced by Infoseek.
2. Provision of Web Services by Infoseek
Infoseek will provide the following services to Disney provided that the
referenced service is a Disney Service:
a. Most Prominent Placement
Xxxxxx.xxx (xxxx://xxx.xxxxxx.xxx), Xxxxxx.xxx (xxxx://xxx.xxxxxx.xxx),
Disney's Daily Blast (xxxx://xxx.xxxxxxxxxxx.xxx), XXX.xxx (xxxx://xxx.xxx.xxx),
XXXXxxx.xxx (xxxx://xxxxxxx.xxx), XXXX.xxx (xxxx://xxxx.xxx) and Mr. Showbiz
(xxxx://xxx.xxxxxxxxx.xxx) will each be provided Most Prominent Placement.
XXXXxxx.Xxx will be provided with Most Prominent Placement on Infoseek's
News Channel (or its replacement), and any of the Infoseek Channels containing
news-related content on the Infoseek Web Presence. Infoseek's use and display of
such content must meet Disney's then-current advertising and content policies,
which will be provided by Disney to Infoseek.
XXXX.xxx (xxxx://xxxx.xxx) will be provided with Most Prominent Placement on
Infoseek's Sports Channel (or its replacement), and any of the Infoseek Channels
containing predominantly sports-related content on the Infoseek Web Presence.
Infoseek's use and display of such content must meet Disney's then current
advertising and content policies, which will be provided by Disney to Infoseek.
XXX.xxx and Mr. Showbiz will each be provided with Most Prominent Placement
on Infoseek's Entertainment Channel (or its replacement), and any of the
Infoseek Channels containing predominantly entertainment-related content on the
Infoseek Web Presence.
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Infoseek's use and display of such content must meet Disney's then current
advertising and content policies, which will be provided by Disney to Infoseek.
Xxxxxx.xxx (xxxx://xxx.xxxxxx.xxx), Disney's Daily Blast, and Xxxxxx.xxx
(xxxx://xxx.xxxxxx.xxx) will each be provided with Most Prominent Placement on
Infoseek's Kids and/or Family Channels, (or their replacements) and any of the
Infoseek Channels containing predominantly kids or family content on the
Infoseek Web Presence.
3. Consideration. In consideration of the rights granted by Infoseek
hereunder, Disney shall pay Infoseek [*] per Contract Year, payable in equal
quarterly installments on or before the fifth day after the start of such
quarter. Such amounts shall be prorated for periods of less than one quarter.
4. Confidentiality
"Confidential Information" shall mean, for purposes of this service
agreement and license, records or information in the possession or under the
control of a party relating to the technical, marketing, product and/or business
affairs or proprietary and trade secret information of that party in oral,
graphic, written, electronic or machine readable form, clearly marked as
"confidential," or if disclosed orally, information identified as confidential
at the time of disclosure.
Each party to this services agreement and license shall take reasonable
steps to protect the Confidential Information (herein defined) of the other
party, using methods at least substantially equivalent to the steps it takes to
protect its own proprietary information, but not less than a reasonable
standard, and shall prevent the duplication or disclosure of Confidential
Information, other than by or to its employees who must have access to the
Confidential Information to perform such party's obligations hereunder, provided
that each party shall make such employees aware of the restrictions of this
section.
The following information shall not be considered "Confidential
Information": (i) information that is within the public domain or becomes part
of the public domain through no fault of either party, (ii) information received
by either party from a third party that, to the receiving party's knowledge, is
not by such disclosure violating a written confidentiality agreement between
such third party and the other party to this services agreement and license,
(iii) information independently developed by either party without the use of any
material or information disclosed pursuant to this service agreement and
license, (iv) information that either Party consents to the disclosure thereof,
and (v) information that is required to be disclosed by any applicable law,
regulation, ordinance, decree, order or any other legal process.
5. Termination
This service agreement and license shall continue for a period of five years
from the effective date of Disney's exercise of its option to make the license
herein effective pursuant to the Licensing and Services Option Agreement. Each
party shall have the right to terminate this
B-2
service agreement and license at any time in the event of a material breach by
the other party and Disney shall further have the right to terminate this
license for any reason at the end of any Contract Year, provided Disney has
provided Infoseek with written notice at least sixty (60) days prior to the end
of that Contract Year.
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6. Representations, Warranties and General Provisions
All of the Representations and Warranties and General Provisions set forth
in the Licensing and Services Option Agreement ("the Agreement") to which this
Exhibit is attached are hereby incorporated by reference into this service
agreement and license between Infoseek and Disney, except as the same are
modified by the provisions in this section within this service agreement and
license. Where the Representations, Warranties and General Provisions set forth
in this service agreement and license, or any of them, conflict with those of
the Agreement, the express provisions of this service agreement and license
supersede those of the Agreement.
ASSIGNMENT. This service agreement and license shall not be assigned by
either party without the written consent of the other party but may be assigned
by Disney to any Disney Affiliate or by either party in connection with any sale
of all or substantially all of such party's business or assets to which this
agreement relates, whether by merger, acquisition or otherwise, and in the case
of any such sale the seller shall require the purchaser to agree in writing to
be bound by this service agreement and license. The party making an assignment
provided for in this paragraph shall timely notify the other party thereof.
TITLE. Except as set forth the Schedule to this Exhibit, Infoseek warrants
that (i) it has the necessary rights to provide the services set forth in this
service agreement and license, (ii) Disney shall not be obligated to pay any
consideration for the performance of the services except as specifically set
forth herein, and (iii) there are no pending or, to the best of Infoseek's
knowledge, threatened lawsuits which would adversely affect Infoseek's provision
of the services to be provided hereunder.
Disney warrants that (i) it has the necessary rights to license the materials
subject to Disney's Intellectual Property Rights licensed in this service
agreement and license, (ii) Infoseek shall not be obligated to pay any
consideration for such material except as specifically set forth herein, and
(iii) there are no pending or, to the best of Disney's knowledge, threatened
lawsuits which would adversely affect Disney's licensing of the material subject
to Disney's Intellectual Property Rights herein licensed.
PERFORMANCE. Infoseek warrants that the display of any material subject to
any Disney or Disney Affiliate Intellectual Property Rights on any Infoseek Web
Page pursuant to the terms of this services agreement and license will be made
available on substantially similar hardware, using substantially similar
software and bandwidth or Internet connectivity, to that which Infoseek uses for
the delivery of those Web Pages associated with the Infoseek search engine
available on Infoseek's Initial Web Page, which will be substantially in
accordance with the levels of performance that Disney may require in the
ordinary and reasonable operation of the Disney Services. Infoseek shall
immediately undertake to repair any malfunctions that hinder Infoseek's
provision of the services provided herein and shall complete such repair within
a reasonable period of time commensurate with the severity of the malfunction
after notice of such condition.
B-4
QUALITY. Infoseek agrees to maintain a consistent level of quality in any use
of any material subject to any Disney or Disney Affiliate Intellectual Property
Rights pursuant to this service agreement and license equal to that found on
Disney's existing Web Presence and further agrees to maintain a level of quality
in connection with its use of any such material that is consistent with general
industry standards and Disney's then-current advertising and content policies.
Infoseek acknowledges that Disney shall periodically monitor Infoseek's use of
the material subject to Disney and Disney Affiliate Intellectual Property Rights
in fulfillment of this service agreement and license. Upon request by Disney,
Infoseek shall provide Disney with representative samples of each such use prior
to the time any material which is subject to Disney or Disney Affiliate
Intellectual Property Rights is used in fulfillment of this Agreement.
INDEMNIFICATION. Disney shall indemnify, defend and hold harmless Infoseek,
its officers, employees, and agents with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to the extent
it is based upon a claim by a third party for infringement of its Intellectual
Property Rights by reason of Infoseek's use in accordance with the terms hereof
of the material subject to Disney's Intellectual Property Rights herein licensed
for use by Infoseek pursuant to this service agreement and license. In claiming
indemnification hereunder, Infoseek shall provide Disney with written notice of
any claim which Infoseek believes falls within the scope of this provision.
Disney shall control the defense and all negotiations relative to the settlement
of any such claim.
SPECIFIC PERFORMANCE. Disney and Infoseek expressly agree that this services
agreement and license will be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against each of the parties hereto.
USE OF NAMES. Infoseek shall not have the right to use the name, likeness or
voice of Xxxx Disney, the words "Disney," "ABC," "ESPN," or any Disney animated
character or any other trademark, tradename or logo of Disney for any manner
whatsoever without the prior consent of Disney or ABC, as appropriate, excepting
only in its provision of the services to be provided pursuant to this Exhibit in
accordance with the terms and conditions hereof.
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