WEBSITE LINKING AND PROMOTION AGREEMENT
Dated as of ("Effective Date") Agreement No. DEN-980416-5204
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NETTAXI, INC. PI GRAPHIX, INC.
("PI GRAPHIX")
Address: Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Contact: Xxxx Xxxxxxxx Contact: Xxxxxxxx Weisdorn
Phone: 000.000.0000 Ext. 102 Phone: 000.000.0000
Fax: Fax: 000.000.0000
Email Address: xxxx@xxxxxxx.xxx E-Mail Address:xxxxxxxxxxxxxxxxxx.xxx
This Agreement may refer to PI Graphix or to NetTaxi as a "Party" or PI Graphix
and NetTaxi together as "Parties" to this Agreement.
1. PURPOSE. NetTaxi provides an entertainment, education, and information
service as a part of its NetTaxi Systems ("NETTAXI SERVICE") on numerous sites
("NETTAXI SITES") on the World Wide Web ("WWW") part of the Internet. PI
Graphix provides electronic commerce systems and related information services on
the WWW ("PI GRAPHIX SITE(S)"). NetTaxi and PI Graphix desire to provide links
to the other's sites (collectively, "SITES") and engage in other activities on
the terms and conditions set forth in this Agreement.
2. RESPONSIBILITIES OF THE PARTIES.
2.1 Linking.
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(a) PI Graphix shall:
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(i) Manage, maintain, handle all electronic commerce transaction,
and provide all customer services relating to PI Graphix's sites;
(ii) Establish and maintain prominent hypertext links ("SITE
LINKS") from the PI Graphix Sites to the NetTaxi Sites maintained by PI Graphix
as mutually agreed to by the Parties;
(iii) Provide a logo and hypertext xxxx-up language ("HTML") that
together shall be displayed in the PI Graphix area of the NetTaxi Site ("PI
GRAPHIX BUTTON");
(iv) Use reasonable commercial efforts to provide NetTaxi monthly
sales, usage and demographic data available regarding use of the Sites in
relevant categories; and,
(v) Work with NetTaxi, on an ongoing basis, to identify areas
within the PI Graphix sites where it would be appropriate to provide Site links
to the NetTaxi Sites based on users seeking local information of a type included
in the NetTaxi Sites.
(b) NetTaxi shall:
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(i) In cooperation with PI Graphix, produce Co-branded versions of
the NetTaxi Sites' to be maintained on the NetTaxi servers for users to have
access to the PI Graphix Site. Such Co-branded Pages shall include a graphic
provided by PI Graphix to be displayed in the size agreed to by the Parties and
will be similar in all respects to the primary NetTaxi home pages with the
exception of the addition of the prominently placed PI Graphix logo. The
information accessed through the Co-branded Pages will include but not be
limited to: the PI Graphix 0Xxxxxxxxx.xxx areas and related information and
sites. The Co-branded Pages shall provide a Site link back to the PI Graphix
site of origin. A "Back Button" shall be used to accomplish the Site links
back. Such Back Buttons shall be
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comprised of a graphic provided by PI Graphix and shall be displayed in the size
specified by PI Graphix and agreed upon by NetTaxi;
(ii) Establish and maintain prominent Site links from its NetTaxi
Sites to PI Graphix Site including but not limited to: the PI Graphix area in
the format of the PI Graphix Button and as mutually agreed to by the Parties;
(iii) Work with PI Graphix, on an ongoing basis, to identify areas
within the NetTaxi Site where it would be appropriate to provide Site links to
the PI Graphix Sites based on users seeking information of a type included in
the PI Graphix's Sites; and
(iv) Use reasonable commercial efforts to provide PI Graphix
monthly usage and demographic data available regarding use of the PI Graphix
Sites in relevant categories.
2.2 Licenses. Each Party grants to the other Party during the term of this
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Agreement a non-exclusive, royalty-free, world-wide right and license to use its
trade names, trademarks, service names and service marks ("MARKS") in compliance
with any guidelines which may be provided from time to time. Such use shall be
solely in connection with the NetTaxi Site and PI Graphix Sites, including, but
not limited to, use for promotion and demonstration purposes. Each Party agrees
to maintain a standard of quality for any services offered under the other
Party's Marks commensurate with standards previously achieved and maintained by
the other Party or as may be set by the other Party from time to time. Each
Party has the right to inspect the services offered by the other Party under the
inspecting Party's Marks and may terminate this trademark license grant as set
forth in Section 4 of this agreement. The Parties agree to cooperate with the
other in facilitating the monitoring and control of the other's Marks. Nothing
in this Agreement shall be deemed to grant to the other Party any ownership
interest in the Marks.
2.3 Promotional Efforts.
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2.3.1 The Parties agree to work together in identifying and pursuing
promotional activities designed to enhance the value of their respective Sites.
These efforts may include the development of a joint co-marketing program that
will allow each Party to access the other's customers/clients, participation in
public relations activities, use of each other's Marks on specific targeted
creative advertising executions, press releases, agreed upon advertising
placement within each other's Sites, and other promotions that benefit both
Parties. NetTaxi will be responsible for the placement and promotion of
banners, editorials, hyperlinks, etc., within NetTaxi's local commerce
community. PI Graphix will provide NetTaxi with the graphics for the Banners
and hyperlinks and with raw data and research material.
2.3.2 Each Party will submit to the other Party, for its prior written
approval, which shall not be unreasonably withheld or delayed, any marketing,
advertising, press releases, and all other promotional materials related to the
NetTaxi Sites or the PI Graphix Sites that reference the other Party and/or its
Marks (the "MATERIALS"). Each Party shall solicit and reasonably consider the
views of the other Party in designing and implementing such Materials. Once
approved, the Materials (other than press releases) may be used by a Party for
the purpose of promoting the NetTaxi Sites or the PI Graphix Sites contained
therein and reused for such purpose until such approval is withdrawn with
reasonable prior notice. In the event such approval is withdrawn (which either
Party may do at its sole discretion), existing inventories of Material may be
depleted. Notwithstanding the foregoing, either Party may issue press releases
and other disclosures as required by law or as reasonably advised by legal
counsel without the consent of the other Party and, in such event, prompt notice
thereof shall be provided to the other Party.
2.4 General.
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2.4.1 Each Party shall be solely responsible for supplying and managing its
Site(s) at its own expense and neither Party shall have any obligations
whatsoever with respect to the Site(s) of the other. Each Party shall manage,
review, delete, edit, create, update and otherwise manage all content and
services available on or
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through its respective Site(s). Neither Party has any obligation to the other
Party to pre-screen content posted by users of its Site(s).
2.4.2 Neither Party shall be required to provide any personal information
regarding specific users, including, without limitation, their names and
addresses or any other information the provision of which could violate any
privacy or other rights of users or third-parties. Neither Party will be
required to include in any reports any information the provision of which to the
other would cause such Party to violate any law, rule or regulation or any
contractual or legal obligation of such Party to any other person.
2.4.3 Each Party shall: (1) provide the other with specified graphic files
and Site link addresses and notify the other in advance of any changes in its
URL(s) and, (ii) if developed and maintained by a Party, provide a Site link
from such Party's appropriate business alliance index (or similar link listing
index) to the other Party's Site(s).
2.4.4 Each Party shall promptly inform the other of (i) any information
related to its Site(s) that could reasonably lead to a claim, demand, or
liability of or against the other Party by any third-party; and (ii) any changes
in its Sites which would substantially change the content in any area to which
the other Party has linked.
2.4.5 Each Party retains the right, in its sole discretion, to immediately
cease linking to the other Party's Site if in such Party's opinion, the other
Party's Site(s) infringes on or violates any applicable law or regulation; any
proprietary right of any third-party; or is defamatory, obscene, offensive or
controversial. Notwithstanding any exercise of, or failure to exercise, such
right, each Party shall have the sole and exclusive responsibility for its
respective Site(s).
2.4.6 Neither Party will place advertising on the Co-branded Pages for
entities which are direct competitors of the other (such as other high-speed
Internet service providers, cable service providers or providers of locally
focused online entertainment, education and information services which are not
owned or controlled by the Party) or advertising for weapons, tobacco products,
distilled spirits, or services related to sexual themes or content.
2.4.7 PI Graphix shall retain all right, title, and interest in and to the
PI Graphix Sites. NetTaxi shall retain all right, title, and interest in and to
the NetTaxi Site. Unless otherwise agreed to in writing, if content is jointly
created by the Parties, the intellectual property rights to such content shall
be jointly owned by the Parties. Neither Party shall license to any third-party
such jointly owned content without the other's written approval.
2.5 Caching. PI Graphix hereby grants to NetTaxi during the term of
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this Agreement a nonexclusive, royalty-free, worldwide license to reproduce,
distribute, perform and display, in whole or in part, the content on the PI
Graphix Site on, from, and in connection with, any NetTaxi Sites and for
promotion and demonstration purposes provided however, that a party licensing
jointly owned content after the termination of this Agreement shall not be
required to account for, or share any royalties, license fees or other
compensation received from the license of jointly owned content.
3 FEES/PAYMENT.
3.1 The parties agree to make payments as set forth in the Fee/Payments
Schedule attached hereto.
3.2 Other than for payments of fixed amounts, payment of all amounts due
under this Agreement shall be made by the responsible Party within thirty (30)
days of the end of each quarter representing payments for the preceding calendar
quarter when such payments accumulate to or exceed REDACTED
or within thirty (30) days of from the expiration or termination of the
Agreement. Reports containing sufficient information for the calculation of
such amounts will be provided to the Party receiving payment. In the event
there is a dispute regarding the amount due, upon reasonable request, a Party
will provide copies of all records or other documentation relevant to the
calculation of such amounts. The Parties agree to maintain records supporting
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fees payable by either Party for a period REDACTED following the date that the
payment was made. The relevant portion of such records and accounts shall be
available for inspection and audit by an auditing Party or its representative
(but not more than once in REDACTED during regular business hours and upon
reasonable advance written notice.
3.3 Each Party agrees to pay directly taxes it incurs under the law.
4 TERM/TERMINATION.
4.1 The initial term of this Agreement shall begin on the Effective Date and
shall continue for a period of REDACTED from the date the Co-branded Pages
and the Back Button are operational ("INITIAL TERM"). This Agreement shall be
automatically extended for successive REDACTED periods (each a "RENEWAL
TERM") unless the Agreement has been terminated in accordance with this Section
4.
4.2 Either Party may terminate this Agreement at any time in the event of a
material breach by any of the other Parties which remains uncured after fifteen
(15) days' written notice thereof. Either Party may terminate this Agreement
for any reason, in whole or in part, without liability to the other Party upon
sixty (60) days written notice to the other Party.
4.3 Notwithstanding anything to the contrary herein, upon written notice,
either Party may immediately terminate this Agreement, in whole or in part,
without liability to the other Party if such Party cancels their Site(s) or any
component thereof necessary to offer the Site links as contemplated hereby.
5 CONFIDENTIALITY.
5.1 Each Party acknowledges and agrees that any and all information relating
to the other Party's business and not publicly known, including without
limitation, the contents of this Agreement, technical processes and formulas,
source codes, names, addresses and information about users and advertisers,
product designs, sales, costs and other unpublished financial information,
product plans, and marketing data is confidential and proprietary information.
Each Party agrees that it shall take reasonable steps, at least substantially
equivalent to the steps as it takes to protect its own proprietary information,
during the term of this Agreement, and for a period of one (1) year following
expiration or termination of this Agreement, to prevent the duplication or
disclosure of any such confidential or proprietary information, other than by or
to its employees or agents who must have access to such information to perform
such Party's obligations hereunder, who shall each treat such information as
provided herein, and as may be required by either of the Parties for public or
private financing. To the extent that such information is publicly known,
already known by, or previously in the possession of the non-disclosing Party;
is independently developed by the non-disclosing Party; is thereafter rightly
obtained by the non-disclosing Party from a source other than the disclosing
Party; or is required to be disclosed by law, regulation, or court order; then
there shall be no restriction of the use of such information.
5.2 Upon the termination or expiration of this Agreement, (i) each Party
shall promptly return or certify as to the destruction of all confidential and
proprietary information and other information, documents, manuals, equipment and
other materials belonging to the other Party; (ii) each Party shall immediately
cease using all materials of the other Party in any form, and (iii) all licenses
granted herein shall terminate. In the event of a partial termination, all
terms and conditions of this Agreement shall remain in full force and effect
with respect to rights and obligations not affected by the partial termination.
6 REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
6.1 Representations and Warranties. Each Party represents and warrants
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to the other that (i) its Site(s) are or will be functional Internet site(s)
accessible to subscribers and users of the Internet; (ii) the Sites do not and
will not knowingly contain any content, materials, advertising or services that
infringe on or violate any applicable law or regulation, any proprietary right
of any third-party (including copyright, trademark, patent, and trade secret),
or which is defamatory; (iii) it has the right and authority to enter into and
perform all obligations under this Agreement; (iv) it shall comply with all
applicable laws, statutes, ordinances, rules and regulations with respect
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to its Site(s); (v) its site and electronic commerce apparatus are "year 2000"
compliant and can process dates including year 2000 and beyond and will not
crash, slow down or fail to operate as the normal course as a result of its
inability to properly process date information. In the event of an error,
delay, defect, breakdown or failure of its Site, the Party's obligation shall be
limited to the use of reasonable diligence under the circumstances to restore
its Site(s) to operation.
6.2 Indemnity. Each Party will defend, indemnify, save and hold
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harmless the other Party's Affiliates, and their officers, directors, agents,
and employees from any and all third-party claims, demands, liabilities, costs
or expenses, including reasonable attorney's fees ("LIABILITIES"), resulting
from the indemnifying Party's breach of any material duty, representation, or
warranty contained in this Agreement, except there shall be no obligation to
indemnify, defend, save and hold harmless where Liabilities result from the
gross negligence or knowing and willful misconduct of the other Party. Each
Party agrees to (i) promptly notify the other Party in writing of an
indemnifiable claim and (ii) give the other Party the opportunity to defend or
negotiate a settlement of any such claim at such other Party's expense and
cooperate fully with the other Party, at that other Party's expense, in
defending or settling such claim. Each Party reserves the right, at its own
expense, to participate in the defense of any matter otherwise subject to
indemnification by the other Party.
6.3 PI Graphix further represents and warrants that the Electronic Commerce
Transactions by it or its assignees and transaction processing apparatus shall
be secure and no third parties or unauthorized PI Graphix employees shall have
access to, or obtain credit card numbers, bank information, account numbers or
other financial information from Nettaxi members engaging in electronic
transactions through PI Graphix Sites or Electronic Commerce apparatus.
7 LIMITATION OF LIABILITY AND DISCLAIMER.
7.1 LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY
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SET FORTH IN SECTIONS 5 AND 6.2 OF THIS AGREEMENT OR DAMAGES FOR PERSONAL INJURY
OR PROPERTY DAMAGE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR (1)
DIRECT DAMAGES IN EXCESS OF FIVE THOUSAND DOLLARS ($5,000.00); OR (2) ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS, EXCEPT THAT EITHER PARTY SHALL BE ENTITLED TO RECEIVE
CONSEQUENTIAL DAMAGES FOR A BREACH OF SECTION 5 (CONFIDENTIALITY) OR BREACH OF
ANY LICENSES GRANTED UNDER THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED FIVE
THOUSAND DOLLARS ($5,000.00).
7.2 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
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AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER
SUBJECT TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
8 GENERAL PROVISIONS.
8.1 Amendment. No change, amendment or modification of any provisions
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of this Agreement shall be valid unless set forth in a written instrument signed
by all Parties. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements, written or oral, of the Parties with respect to
the transactions set forth herein.
8.2 Assignment. Neither this Agreement, nor any rights hereunder in
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whole or in part, shall be assignable or otherwise transferable by either Party
without the express written consent of the other; provided that NetTaxi may
assign this Agreement: (i) to any successor in interest to all or substantially
all of its Service, (ii) to any parent, subsidiary, or Affiliate of NetTaxi,
and/or (iii) to any joint venture with Time Warner for the provision
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of broadband information services, if such assignee agrees in writing to be
bound by the terms and conditions of this Agreement. For purposes of this
Agreement, the term "AFFILIATE" means any entity wholly owned by NetTaxi or
which, directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, NetTaxi. For purposes of
this paragraph, "control" means (i) in the case of corporate entities, direct or
indirect ownership of more than twenty (20%) of the stock or shares entitled to
vote for the election of the board of directors or other governing body of the
entity; or (ii) in the case of non-corporate entities, direct or indirect
ownership of more than twenty (20%) of the equity interest.
8.3 Compliance with Laws. This Agreement and the Parties' actions under
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this Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental or regulatory agency orders.
8.4 Construction. In the event that any provision of this Agreement
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conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect.
8.5 Dispute Resolution. Any claim, controversy, or dispute between the
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Parties, their Affiliates, their approved assignees, agents, employees,
officers, or directors ("DISPUTE") shall be resolved by arbitration conducted by
a single arbitrator engaged in the practice of law and familiar with the subject
matter of the Dispute, under the then current rules of the American Arbitration
Association ("AAA"). The arbitrator shall have authority to award injunctive
relief and/or compensatory damages only, as allowed herein. The arbitrator's
award shall be final and binding and may be entered in any court having
jurisdiction thereof. The prevailing Party, as determined by the arbitrator,
shall be entitled to an award of reasonable attorneys' fees and costs. The
arbitration shall occur in the City and State of the Party against whom the
arbitration is brought, and the laws of the State of California shall govern the
construction and interpretation of the Agreement. It is expressly agreed that
the arbitrator shall be authorized to issue injunctive relief pending a final
arbitration decision and either Party may seek a temporary restraining order
from an appropriate court of law for a period of time needed for the designation
of an arbitrator and the arbitrator's assuming responsibility for the Dispute
including whether to issue injunctive relief pending a final arbitration
decision.
8.6 Independent Contractors. The Parties to this Agreement are
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independent contractors. No Party is an agent, representative, or partner of
the other Party. No party shall have any right, power or authority to enter
into any agreement for, or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other Party. This Agreement shall not be
interpreted or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability attributable to such
a relationship upon either Party.
8.7 No Waiver. The failure of either Party to insist upon or enforce
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strict performance by the other Party, of any provision of this Agreement, or to
exercise any right under this Agreement, shall not be construed as a waiver or
relinquishment of such Party's right to enforce any such provision or right in
any other instance.
8.8 Notice. Any notice, approval, request, authorization, direction or
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other communication under this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes (i) on the delivery
date if delivered by electronic mail; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; (iii) one (1) business day
after deposit with a commercial overnight carrier with written verification of
receipt; or (iv) five (5) business days after the mailing date whether or not
actually received, if sent by U. S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available to the Contact at the address of the Party to whom the same is
directed.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
NETTAXI PI GRAPHIX
Signatory: Signatory:
Title: Title:
Date: Date:
CONFIDENTIAL AND PROPRIETARY
The contents of this document are confidential and proprietary and may not be
disclosed to any person who does not have a need to know.
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FEE/PAYMENT SCHEDULE
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NetTaxi and PI Graphix agree to equally split the gross sales commission
received from third parties for sales of products and services from the
Co-branded pages. PI Graphix will pay NetTaxi its portion of the Commission on
a monthly basis. NetTaxi shall have administrative access into PI Graphix's
financial transaction web server for confirmation of sales reporting.
CONFIDENTIAL AND PROPRIETARY
The contents of this document are confidential and proprietary and may not be
disclosed to any person who does not have a need to know.
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