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EXHIBIT 10.16
CONFIDENTIAL
AUCTION SERVICES AGREEMENT
This Auction Services Agreement (this "Agreement") is entered into as of
September 15, 1999 ("Effective Date"), by and between Ticketmaster
Online-CitySearch, Inc., a Delaware corporation located at 000 X. Xxxxxxxx
Xxxx., Xxxxx 000, Xxxxxxxx, XX 00000 ("TMCS"), and FairMarket, Inc., a Delaware
corporation located at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("FairMarket").
RECITALS
A. FairMarket and TMCS have entered into the Stock Purchase Agreement
dated as of September 15, 1999 (the "Purchase Agreement") pursuant to which, on
the Closing Date thereunder, TMCS is purchasing from FairMarket a specified
amount of shares of FairMarket's Series D Preferred Stock.
B. TMCS owns and controls a number of websites on the Internet
(collectively, the "TMCS Sites").
C. FairMarket is in the business of designing, developing, and hosting
web sites for third parties in connection with which FairMarket provides private
label auction services ("FairMarket Auction Services").
D. TMCS and FairMarket wish to develop a number of co-branded versions
of the FairMarket Auction Services that will be developed and maintained by
FairMarket on an integrated basis with the TMCS Sites (the websites utilizing
the FairMarket Auction Services, when developed and launched, being collectively
referred to as the "Private Label Auction Sites") on the terms and conditions
set forth below.
E. The execution and delivery of this Agreement by TMCS and FairMarket
is a condition precedent to consummation of the transactions contemplated by the
Purchase Agreement to be consummated at the Closing thereunder.
NOW, THEREFORE, in consideration of the foregoing recitals, the
following covenants and promises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. CO-BRANDED PRIVATE LABEL AUCTION SERVICES
a) FairMarket will develop, host, and maintain, at its expense and
at no additional charge to TMCS, the Private Label Auction Sites
in accordance with the technical and content specifications set
forth in Exhibit A hereto and as otherwise agreed by FairMarket
and TMCS.
b) FairMarket will be responsible for all system operation software
costs, hardware costs and operation costs incurred in connection
with the development, operation and maintenance of the Private
Label Auction Sites. The Private Label Auction
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Sites shall utilize the functional specifications described in
FairMarket's "Community AuctionPlace Features, version 4.0",
which is attached hereto as Exhibit C, and as may be changed from
time to time. FairMarket shall use commercially reasonable
efforts to make the Private Label Auction Sites available to
applicable users 24 hours per day, seven days per week. However,
FairMarket makes no representation that access to such sites will
be uninterrupted nor error free. TMCS shall have the right to
terminate this Agreement upon ten business days prior written
notice in the event that the server is not available at least 98%
(excluding scheduled downtime) of any calendar month, provided
that TMCS has been given prompt notice of any service outages
during such calendar month, and a reasonable opportunity to cure.
c) FairMarket and TMCS will work together to develop and launch the
Private Label Auction Sites in accordance with the schedule
detailed in Exhibit B.
d) TMCS will display prominent links to the Private Label Auction
Sites in a variety of locations across the TMCS Sites. At a
minimum, TMCS will provide links from appropriate TMCS Site
homepages, TMCS Site toolbars, and other contextually relevant
areas within the appropriate TMCS Sites.
2. ADVERTISING ON PRIVATE LABEL AUCTION SITES
a) TMCS will sell and serve all advertising on the Private Label
Auction Sites (collectively "Auction Site Advertising"). TMCS
will have the right to sell and serve all Auction Site
Advertising on all pages within the Private Label Auction Sites.
b) TMCS will pay FairMarket, on a quarterly basis within thirty (30)
days after the end of each calendar quarter, thirty per cent
(30%) of Gross Advertising Revenue collected by TMCS during such
quarter. For the purposes hereof, "Gross Advertising Revenue"
means the aggregate amount of payments actually collected by TCMS
during a specified period in respect Auction Site Advertising
sold by TMCS. In the case of websites that are owned or
controlled, directly or indirectly, by TMCS or USA Networks, Inc.
("USA"), TMCS will not run advertising for such sites without
cash compensation except to the extent that TMCS has available
inventory not purchased by third party advertisers.
c) Each quarterly payment made pursuant to Section 2(a) shall be
accompanied by an Advertising Services Revenue Statement in
respect of the prior calendar quarter. For purposes hereof,
"Advertising Services Revenue Statement" means the statement in
mutually agreed format setting for the Gross Advertising Revenue
realized during the prior calendar quarter.
d) TMCS will keep accurate records and books of account relating to
the calculation and reporting of the Gross Advertising Revenue
throughout the term of this Agreement and for at least two years
thereafter. During such period, FairMarket
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shall have the right to cause an audit and/or inspection to be
made of TMCS's applicable records by an independent certified
public accountant in order to verify the Advertising Services
Revenue Statements. Except as specified herein, FairMarket shall
be responsible for all costs related to such audits. Such audits
shall be made no more often than once every twelve (12) months.
In the event that any underpayment is discovered as a result of
any such audit, TMCS shall promptly make an adjusting payment to
rectify the underpayment. If an audit reveals that TMCS has
underpaid FairMarket by ten percent (10%) or more of the amounts
due for any audited period of time, TMCS agrees, in addition to
making prompt payment to the auditing party of all amounts due to
pay the auditing party in respect of any underpayment, to pay all
reasonable costs and expenses incurred by the auditing party in
conducting such audit.
e) TMCS will not sell advertising on the Private Label Auction Sites
to "FairMarket Named Competitors". FairMarket may notify TMCS of
FairMarket Named Competitors or add to or replace company names
on the list of FairMarket Named Competitors under the following
conditions: (i) TMCS must approve any such names or changes, such
approval not to be unreasonably withheld, (ii) the total number
of FairMarket Named Competitors shall in no event exceed five
companies, and (iii) the list may not be changed more than once
per calendar quarter. The parties agree that websites featuring
online auction functionalities now or in the future owned or
controlled, directly or indirectly, by USA will be allowed to
advertise on the Private Label Auction Sites.
3. TRANSACTION REVENUE
a) "FairMarket Network" shall mean the network of all websites of
FairMarket customers for whom FairMarket hosts Private Label
Auction Services.
b) "Seller(s)" shall mean a user who lists product(s) or service(s)
for sale on the FairMarket Network.
c) "Buyer(s)" shall mean a user who successfully bids for product(s)
or service(s) on the FairMarket Network.
d) "Transaction Fees" shall mean any fee charged to Sellers or
Buyers that become payable upon the consummation of a sale of a
product or service through the FairMarket Network.
e) "Listing Fees" shall mean any fee charged to a Seller for placing
any listing of products or services on a Private Label Auction
Site.
f) "Gross Transaction Revenue" shall mean one hundred per cent
(100%) of Listing Fees charged to Sellers on each Private Label
Auction Site, plus fifty per cent (50%) of all Transaction Fees
(using such Private Label Auction Site's then-current transaction
fee schedule) resulting from transactions in which a Seller
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used such Private Label Auction Site (regardless of whether the
Buyer uses such Private Label Auction Site or another site within
the FairMarket Network), plus fifty per cent (50%) of all
Transaction Fees (using such Private Label Auction Site's
then-current transaction fee schedule) resulting from
transactions in which the Buyer used such Private Label Auction
Site (regardless of whether the Seller uses such Private Label
Auction Site or another site within the FairMarket Network).
g) "Net Transaction Revenue" shall mean actual Gross Transaction
Revenue less actual returns or similar credits and credit card
and other processing costs (collectively not to exceed 5.0% of
Gross Transaction Revenue regardless of actual processing costs).
h) "Shared Transaction Revenue" shall mean seventy per cent (70%) of
Net Transaction Revenue recognized by FairMarket during a
specified period.
i) FairMarket and TMCS will jointly determine the amount, if any, of
Transaction Fees and Listing Fees for each Private Label Auction
Site. The parties will take into consideration current industry
pricing and the competitive environment when setting pricing, and
will establish pricing comparable to that charged by leading
independent auction sites and other leading portals.
j) FairMarket will pay TMCS, on a quarterly basis, the Shared
Transaction Revenue within thirty (30) days following the end of
each quarter.
k) Each quarterly payment made pursuant to Section 3(j) shall be
accompanied by an Transaction Revenue Statement in respect of the
prior calendar quarter. For purposes hereof, "Transaction Revenue
Statement" means the statement in mutually agreed format setting
for the Net Transaction Revenue recognized during the prior
calendar quarter.
l) FairMarket will keep accurate records and books of account
relating to the calculation and reporting of the Net Transaction
Revenue throughout the term of this Agreement and for at least
two years thereafter. During such period, TMCS shall have the
right to cause an audit and/or inspection to be made of
FairMarket's applicable records by an independent certified
public accountant in order to verify the Transaction Revenue
Statements. Except as specified herein, TMCS shall be responsible
for all costs related to such audits. Such audits shall be made
no more often than once every twelve (12) months. In the event
that any underpayment is discovered as a result of any such
audit, FairMarket shall promptly make an adjusting payment to
rectify the underpayment. If an audit reveals that FairMarket has
underpaid TMCS by ten percent (10%) or more of the amounts due
for any audited period of time, FairMarket agrees, in addition to
making prompt payment to the auditing party of all amounts due to
pay the auditing party in respect of any underpayment, to pay all
reasonable costs and expenses incurred by the auditing party in
conducting such audit.
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4. ADVERTISING ON THE TMCS SITES AND USA NETWORK
a) In the one-year period beginning on the Effective Date, TMCS will
provide FairMarket, at no cost to FairMarket, $2 million of
advertising services on the TMCS Sites, valued at a "Most Favored
Nations" discount (the "TMCS Advertising Services"). The parties
will work together to select mutually agreeable locations for the
TMCS Advertising Services. Placement and timing of the TMCS
Advertising Services will be on an "as available" basis and may
be preempted for paid advertising or promotion, provided however
that TMCS will act in good faith and use commercially reasonable
efforts to accommodate the reasonable requests of FairMarket. The
TMCS Advertising Services will be made available only during the
one-year period beginning on the Effective Date, and following
the expiration of such one-year period TMCS shall have no further
obligation to provide any TMCS Advertising Services.
b) All advertising featured on the TMCS Websites and provided in
accordance with Section 4(a) above will refer to "CityAuction
Auctions" or such other similar wording as TMCS may use in its
discretion following consultation with FairMarket (it being
understood that, notwithstanding such consultation, the use of
such wording shall be subject to the final determination of
TMCS), and will be directed to click through to the Private Label
Auction Sites.
c) FairMarket will develop at FairMarket's expense the creative
materials to be used in the TMCS Advertising Services. All such
creative materials will be utilized subject to TMCS's approval,
such approval not to be unreasonably withheld.
d) In the one-year period beginning on the Effective Date, TMCS will
cause USA to provide to FairMarket, at no cost to FairMarket, $3
million of television and cable advertising services, valued at
"standard" discounts to USA's rate card, across the USA family of
properties. The parties will work together to select mutually
agreeable locations for the USA Advertising Services ("USA
Advertising Services"). Placement and timing of USA Advertising
Services will be on an "as available" basis and may be preempted
for paid advertising or promotion, provided however that USA will
act in good faith and use commercially reasonable efforts to
accommodate the reasonable requests of FairMarket. The USA
Advertising Services must be used during the one-year period
beginning on the Effective Date, and following the expiration of
such one-year period TMCS shall have no further obligation to
provide any TMCS Advertising Services. FairMarket will develop at
its sole expense the creative materials to be used in the USA
Advertising Services.
5. EXCLUSIVE AUCTION SERVICES PROVIDER
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a) TMCS will not form a relationship with any affiliate or third
party company, other than FairMarket, to provide private label,
co-branded, or other person-to-person or merchant-to-person
online auction services for the TMCS Sites, except that the
parties agree that 1) ticket sales where TMCS is an agent and 2)
relationships with auction sites that are owned by USA or its
affiliates will be excluded from this exclusivity provision.
b) If TMCS decides to offer tickets at auction, the parties agree 1)
to use their respective best efforts to reach an agreement for
FairMarket to provide auctions services for such auctions and 2)
that FairMarket will have a right of first offer and a right to
match any offer to provide ticket auctions to TMCS.
c) TMCS will use commercially reasonable efforts to cause USA to
negotiate in good faith with FairMarket to provide FairMarket
with an opportunity to be the primary provider of auction
services for all USA Internet properties, including but not
limited to XXX.xxx, FirstAuction, FirstJewelry, and FirstOutlet.
d) FairMarket shall promote TMCS's participation as a partner in its
private label program in ongoing press materials, and in
marketing collateral related to such program; provided that all
uses of TMCS Marks in marketing and promotional materials shall
require the prior review and approval of TMCS. In addition, in
its sole discretion and to the extent reasonably practicable,
FairMarket shall feature TMCS on the FairMarket home page in a
manner similar to that in which other FairMarket customers are
featured.
e) TMCS shall promote TMCS's participation as a partner in the
FairMarket Network in ongoing press materials for the Private
Label Auction Sites that are launched pursuant hereto, and in
printed marketing collateral for such Private Label Auction
Sites; provided that all uses of FairMarket Marks in marketing
and promotional materials shall require the prior review and
approval of FairMarket.
6. TERM
a) The term of the Agreement shall begin on the Effective Date and
will continue for three (3) years (the "Initial Term").
b) Following the expiration of the Initial Term, and unless earlier
terminated pursuant to Section 7 hereof, this Agreement will
automatically renew at the end of the Initial Term and each
renewal term for an additional twelve (12) month term unless
cancelled in writing by either party at least thirty (30) days
prior to the end of the then-current term.
7. TERMINATION
a) Either party may terminate this Agreement if the other party
breaches any material obligation hereunder and such breach
remains uncured for thirty (30) days
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following the receipt of written notice to the breaching party of
the breach and the notifying party's intention to terminate.
b) TMCS may terminate this Agreement effective upon written notice
to FairMarket following the occurrence of a Change of Control
Involving a Competitor. For purposes hereof, (x) a "Change of
Control Involving a Competitor" means (i) the sale, lease,
conveyance or other disposition of all or substantially all of
FairMarket's assets to a TMCS Competitor; or (ii) any transaction
or series of related transactions that results in any TMCS
Competitor becoming the beneficial owner, directly or indirectly,
of more than 50% of the aggregate voting power of all classes of
common equity of FairMarket; and (y) a "TMCS Competitor" means
any direct competitor of TMCS that TMCS may identify in writing
from time to time (it being understood that it is the
responsibility of FairMarket to confirm with TMCS in writing
whether a particular entity that may acquire such shares or
assets is then deemed to be a TMCS Competitor for purposes
hereof).
c) Except as set forth in the License Agreement of even date
herewith, upon termination of this Agreement, (i) TMCS and the
TMCS Sites shall immediately discontinue all use of each Private
Label Auction Site and return to FairMarket, or destroy, all
tangible materials embodying intellectual property belonging to
FairMarket, and (ii) FairMarket and the Private Label Auction
Sites will discontinue all use of the User Data and return to
TMCS, or destroy, all tangible materials embodying intellectual
property belonging to TMCS.
d) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within
thirty (30) days of such termination or expiration.
e) The provisions of Section 11 (Confidentiality), Section 12
(Warranty and Indemnity), Section 13 (Limitation of Liability),
Section 14 (Dispute Resolution) and Section 6(b) of Exhibit A
shall survive any termination or expiration of the Agreement.
8. USAGE REPORTS AND USER DATA
a) FairMarket will make usage reports made available to TMCS via the
Administrative Module (as defined in Exhibit A).
b) For the purpose of this Agreement, "User Data" shall mean all
information submitted by a user of any Private Label Auction Site
("User") to such Private Label Auction Site. "Individually
Identifiable User Data" shall mean User Data which can be
reasonably used to identify a specific individual such as their
name, address, phone number, etc.
c) Both parties acknowledge that any individual user of the Internet
could become a customer of TMCS and/or FairMarket through the use
of a TMCS Website or
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website owned or controlled by FairMarket that is unrelated to
this Agreement. Both parties further acknowledge that any data
gathered about such Internet users unrelated to this Agreement
shall not be considered User Data.
d) TMCS shall retain all rights to any User Data. TMCS will have
full and continuous access to all User Data via the
Administrative Module (as defined in Exhibit A).
e) TMCS hereby grants FairMarket a limited license to aggregate and
use the User Data as follows: In the case of User submitted
listings, TMCS grants FairMarket the right to aggregate and
distribute such listings across the FairMarket Network. TMCS
agrees that FairMarket shall be able to utilize, at its sole
discretion, aggregated data from each Private Label Auction Site
when aggregated with data from FairMarket's other customers.
9. SERVICE OWNERSHIP AND LICENSE
a) FairMarket will retain all right, title and interest in and to
the FairMarket Auction Services worldwide (including, but not
limited to, ownership of all copyrights and other intellectual
property rights therein); provided that TMCS will retain all
right, title and interest in and to the design and look and feel
of each Private Label Auction Site (other than the Auction
Content Area) and the User Interface thereof (including, but not
limited to, ownership of all copyrights and other intellectual
property rights in such User Interface).
b) During the term of this Agreement, and subject to the terms and
conditions of this Agreement, FairMarket hereby grants to TMCS,
its affiliates and assigns a non-exclusive, non-transferable,
irrevocable, royalty-free, worldwide right and license to use,
distribute, transmit, publicly display, advertise and promote the
FairMarket Auction Services and the listing data therein in
connection with the Private Label Auction Sites and to the extent
necessary for TMCS to fulfill its obligations under this
Agreement. In addition, FairMarket grants to TMCS the right to
sub-license the FairMarket Auction Services included in each
Private Label Auction Site to TMCS's wholly-owned subsidiaries or
joint ventures in which TMCS participates for the sole purpose of
using, distributing, transmitting and publicly displaying such
Private Label Auction Site in accordance with this Agreement.
c) During the term of this Agreement, and subject to the terms and
conditions of this Agreement, TMCS hereby grants to FairMarket a
non-exclusive, non-transferable, irrevocable, royalty-free,
worldwide right and license to use, distribute, transmit and
publicly display the look and feel of each Private Label Auction
Site and the User Interface thereof in accordance with this
Agreement.
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10. TRADEMARK OWNERSHIP AND LICENSE
CONFIDENTIAL
a) FairMarket will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide, subject
to the limited license granted to TMCS hereunder.
b) TMCS will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to
the limited license granted to FairMarket hereunder.
c) Each party (each a "Licensor" as to the trademarks, service marks
and trade names licensed by it hereunder) hereby grants to the
other a non-exclusive, limited license to use Licensor's
trademarks, service marks or trade names only as specifically
described in this Agreement. All such use shall be in accordance
with Licensor's reasonable policies regarding advertising and
trademark usage, as shall be established or changed from time to
time, in each party's sole discretion.
d) Upon the expiration or termination of this Agreement, each party
will cease using the trademarks, service marks and/or trade names
of the other except:
i. As the parties may agree in writing; or
ii. To the extent permitted by applicable law.
11. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's (or its
suppliers') business or activities that is proprietary and
confidential, which shall include all business, financial,
technical and other information of a party marked or designated
by such party as "confidential" or "proprietary"; or information
which, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as confidential.
b) Confidential Information will not include information that (i) is
in or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party
without restriction on disclosure and without breach of a
nondisclosure obligation or (iii) the receiving party knew prior
to receiving such information from the disclosing party or
develops independently.
c) Each party agrees (i) that it will not disclose to any third
party or use any Confidential Information disclosed to it by the
other except as expressly permitted in this Agreement and (ii)
that it will take all reasonable measures to maintain the
confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality of
its own information of similar importance.
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d) Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court of
competent jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a "need-to-know" basis
under an obligation of confidentiality to its legal counsel,
accountants, banks and other financing sources and their
advisors.
e) The terms and conditions of this Agreement will be deemed to be
the Confidential Information of each party and will not be
disclosed without the written consent of the other party, except
as may be required by law.
f) The parties' obligations under this Section 11 shall survive any
termination or expiration of the Agreement.
12. WARRANTY AND INDEMNITY
a) Each of FairMarket and TMCS warrants that it owns, or has
obtained all necessary rights to distribute and make available as
specified in this Agreement, any and all information, service or
content that will be provided to the other party or made
available to third parties in connection with this Agreement,
including without limitation in the case of FairMarket, the
FairMarket Auction Services.
b) FairMarket warrants to TMCS that: (i) each Private Label Auction
Site will comply with the description and technical
specifications as contemplated by this Agreement and all
Exhibits; (ii) FairMarket will use its best efforts to ensure
that the Private Label Web Sites will be accessible on a
continuous, unlimited basis and will take measures consistent
with industry standards to ensure such access in the event of a
server crash, power outage, maintenance, service or other
interruption to the FairMarket Auction Service; and (iii) the
Private Label Auction Sites will continue to comply with all
terms, specifications and conditions hereunder, notwithstanding
the processing of dates including the years 2000 through 2100
("Year 2000 Data"), as follows: neither the Private Label Auction
Sites nor their hosting servers will freeze, cease to function,
generate incorrect data or produce incorrect results as a result
of inputting, processing, calculating, comparing, converting, or
presenting Year 2000 Data in calendar or system date; and the
Private Label Auction Sites will recognize and present dates
without ambiguity as to century in connection with sending Year
2000 Data to other automated or computerized systems.
c) Each of FairMarket and TMCS will indemnify, defend and hold
harmless the other party, and the other party's affiliates,
officers, directors, employees, consultants and agents from any
and all third party claims, liability, damages and/or costs
(including, but not limited to, reasonable attorneys' fees)
arising from:
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i. The breach of any warranty, representation or covenant by
such party, in this Agreement;
ii. Any claim that any Private Label Auction Site or any or all
information, service or content provided by such party to
the other party or made available to third parties by such
party, in connection with this Agreement infringes or
violates any third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or
contains any defamatory content; or
iii. Any claim based on property damage or personal injury
resulting from the gross negligence or willful or reckless
misconduct of such party.
A party seeking indemnification hereunder will promptly notify
the other party of any and all such claims and will reasonably
cooperate with such other party in the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices
or detrimentally impacts the indemnified party in any way and
such obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require the
indemnified party's written consent (not to be unreasonably
withheld or delayed) and the indemnified party may, at its sole
cost and expense, have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
d) EXCEPT AS SPECIFIED IN THIS AGREEMENT, INCLUDING ALL EXHIBITS,
NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT AND HEREBY SPECIFICALLY DISCLAIMS ANY
AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING
SUCH SUBJECT MATTER.
13. LIMITATION OF LIABILITY
EXCEPT FOR THE CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS OF EACH PARTY
UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT FOR THE
CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS OF EACH PARTY UNDER THIS
AGREEMENT, THE LIABILITY OF A PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT
EXCEED, THE AMOUNT ACTUALLY PAID, IN CASH OR IN KIND, BY THE OTHER PARTY TO SUCH
PARTY HEREUNDER.
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14. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality would result in irreparable injury for
which there is no adequate remedy at law. Therefore, in the event
of any breach or threatened breach of a party's obligations
regarding trademarks, service marks or trade names or
confidentiality, the aggrieved party will be entitled to seek
equitable relief in addition to its other available legal
remedies in a court of competent jurisdiction. For the purposes
of this section only, the parties consent to venue in either the
federal or state courts of the Commonwealth of Massachusetts.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names and/or confidentiality, the parties
will first attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot be resolved
through good faith negotiation, the parties will refer the
dispute(s) to a mutually acceptable mediator for hearing in
Boston, Massachusetts.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks,
service marks or trade names and/or confidentiality, cannot be
resolved through good faith negotiation and mediation, the
parties will refer the dispute(s) to the American Arbitration
Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration
Association's rules applicable to commercial disputes. The
arbitration will be held in Boston, Massachusetts.
15. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or
in part, without the other party's written consent (which will
not be unreasonably withheld), except that no such consent will
be required in connection with a merger, reorganization or sale
of all, or substantially all, of such party's capital stock or
assets or the sale of all or substantially all of that portion of
a party's business to which this Agreement pertains; in the case
of FairMarket, so long as in each case the entity purchasing such
stock or assets is not a TMCS Competitor. Any attempt to assign
this Agreement other than as permitted above will be null and
void.
b) Governing Law. This Agreement will be governed by and construed
in accordance with the internal, substantive laws of the State of
Delaware, notwithstanding the actual state of residence or
incorporation of FairMarket.
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c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail,
return receipt requested, and will be deemed given upon personal
delivery, one (1) day after deposit with express courier, upon
confirmation of receipt of facsimile or email or five (5) days
after deposit in the mail. Notices will be sent to a party at its
address set forth below or such other address as that party may
specify in writing pursuant to this Section.
d) No Agency. The parties are independent contractors and will have
no power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not
be construed to create or imply any partnership, agency or joint
venture.
e) Force Majeure. Any delay in or failure of performance by either
party under this Agreement caused by any occurrence beyond the
reasonable control of such party including, but not limited to,
acts of God, power outages and governmental restrictions will not
be considered a breach of this Agreement and such performance
will be excused for the number of days such occurrence reasonably
prevents performance, but in no case will such excuse extend
beyond six (6) months.
f) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will remain
in full force and effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement
may only be modified, or any rights under it waived, by a written
document executed by both parties.
13
14
CONFIDENTIAL
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the Effective Date.
Ticketmaster Online-CitySearch, Inc. FairMarket, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
-------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
------------------------------ ----------------------------
Title: V.P. Title: CEO
----------------------------- ---------------------------
Date: 9/15/99 Date: 9/15/99
------------------------------ ----------------------------
CONFIDENTIAL
14
