Exhibit 10.3
PRIVATE LABEL WEB SITE AND CROSS PROMOTION AGREEMENT
This PRIVATE LABEL WEB SITE AND CROSS PROMOTION AGREEMENT ("Agreement"), by
and between XX.Xxx, Inc, a Nevada corporation, with a principal place of
business located at 0000 Xxxx Xxxxxxx Xxxxxx, XXX 000, Xxxx, XX 00000
("XX.XXX"), and Community IQ, Inc., d.b.a. as Xxxxx.xxx, a Washington
corporation with a principal place of business located at 00000 Xxxxxxx Xxxx,
Xxxxx 000 Xxxxxxxx X, Xxxxxxx, XX 00000 ("XXXXX.XXX"), is effective as of Sept.
18, 2001 (the "EFFECTIVE DATE").
RECITALS
WHEREAS, Xxxxx.xxx owns and operates an internet-based Web Site creation
and hosting service currently known as "Xxxxx.xxx," with a Home Page currently
located at xxxx://xxx.Xxxxx, which develops and hosts personalized websites for
small business owners ("Vista, corn's Web Site").
WHEREAS, XX.Xxx owns and operates a Web Site currently known as "XX.Xxx and
Xxxxxx-Xxxx.Xxx," with a Home Page currently located at xxxx://xxx.XX.Xxx and
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Xxxxxx-Xxxx.Xxx, which provides the tools and media that allow businesses the
ability to contribute Intelligent Intuitive Information to the online
information marketplace.
WHEREAS, the parties desire that Xxxxx.xxx develop, host, and maintain a
private label service to allow XX.Xxx to resell Xxxxx.xxx's Services to small
business owners and to other web site operators for resale to their small
business owners. Also, the parties desire to cross promote and sell the service
offerings of both Xxxxx.xxx and XX.Xxx through the xxxxx.xxx Network.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
"BRAND FEATURES" means any trademarks, service marks, logos, trade names or
other identifying names or marks, which are proprietary to a party and which are
used by that party to identify its business, products and/or services.
"CONFIDENTIAL INFORMATION" means any information, oral or written,
disclosed by either party to the other pursuant to this Agreement except as
excluded below. "Confidential Information" includes, without limitation, the
terms and conditions of this Agreement, registration information, security
measures, information relating to released or unreleased services, marketing or
promotion of any service or product, business policies or practices, suppliers,
customer base, customer information, YP Net Materials or information received
from others that a party is obligated to treat as confidential. "Confidential
Information" will not include information that: (i) is or becomes generally
known or available by publication, commercial use or otherwise through no fault
of the receiving party: (ii) is known and has been reduced to tangible form by
the receiving party at the time of disclosure and is not subject to restriction;
(iii) is independently and rightfully developed or learned by the receiving
party; (iv) is lawfully obtained from a third party that has the right to make
such disclosure; or (v) is made generally available by the disclosing party
without restriction on disclosure. This paragraph supersedes any other provision
in this agreement.
"XX.XXX BRAND FEATURES" means any trademarks, service marks, logos, trade
names or other identifying names or marks, which are proprietary to XX.Xxx and
which are used to identify its business, products and/or services.
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"XX.XXX MATERIALS" means any information and materials provided xxXX.Xxx to
Xxxxx.xxx under this Agreement
"XX.XXX PRIVATE LABEL SERVICE" means a Private Label Service offered
xxXX.Xxx to SBOs and to XX.Xxx Tier 2 Associates (for resale to their SBOs),
which allows SBOs to create and maintain their own web sites.
"XX.XXX SBO" means a small business owner or other end user to whom XX.Xxx
sells the XX.Xxx Private Label Service pursuant to this Agreement.
"XX.XXX TIER 2 ASSOCIATE" means a Tier 2 Associate to whom XX.Xxx sells
Private Label Services for resale to the Associate's SBOs.
"GROSS REVENUES" means the fees or other sums collected by Xxxxx.xxx from
the sale of XX.Xxx Private Label Services pursuant to this Agreement, without
deduction for Transaction Fees and applicable taxes.
"HOME PAGE" means the initial Web Page of a Web Site seen by a user once
the user has directed web browsing technology to access the Web Site's URL.
"LINK" means an embedded icon, object, graphic or text within a Web Page
that consists of a hypertext pointer to the URL address of a Web Page.
"NET REVENUES" means Gross Revenues collected by Xxxxx.xxx from the sale
xxXX.Xxx Private Label Services pursuant to this Agreement after the deduction
of Transaction Fees and applicable taxes.
"PARTNERS" means all Tier 1 Partners and Tier 2 Associates.
"PARTNER SERVICES" means the services offered by any Partners via the
Xxxxx.xxx Network, but excluding any services provided by Xxxxx.xxx.
"PRIVATE LABEL SERVICE" means the web services offered by any Partners to
SBOs through the Xxxxx.xxx Network, which allow the SBOs to create and maintain
their own web sites and which consist of (i) Xxxxx.xxx Basic Services,
"SBOS" means those small business owners or other end users of any Private Label
Service. "SERVICES" means the Xxxxx.xxx Basic Services.
"SPECIFICATIONS" means the content and technical specifications for the
XX.Xxx Private Label Service attached hereto as Exhibit A. as such may be
amended by mutual agreement of the parties from time to time.
"TIER 1 PARTNER" means the operator of a web site, to whom Xxxxx.xxx has
granted the right to offer a Private Label Service directly to SBOs and to Tier
2 Associates. XX.Xxx is a Tier 1 Partner.
"TIER 2 ASSOCIATE" means the operator of a web site, to whom a Tier 1
Partner has granted the right to offer a Private Label Service to that website
operator's own SBOs. However, a Tier 2 Associate cannot sell Services to either
a Tier 1 Partner or other Tier 2 Associate.
"TRANSACTION FEE" means the actual amount of the credit card processing fee
charged to Xxxxx.xxx at the time of processing of any order placed through the
Xxxxx.xxx Network.
"MONTHLY SERVICE FEE" means the monthly cost of Xxxxx.xxx's Basic Services
to XX.Xxx.
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"USER INFORMATION" means both Aggregate Information and Personal
Information pertaining to an SBO. "Aggregate Information" means information that
describes the habits, usage patterns and/or demographics of SBOs as a group but
does not identify any individual SBO by name nor provide information in a form
which would enable the recipient of that information to identify the SBO.
"Personal Information" means information about and which identifies an
individual SBQ and which may include without limitation the SBO's (i) name, (ii)
address, and (iii) data about a specific transaction that identifies the SBO
involved,
"XXXXX.XXX BASIC SERVICEs" means the web site development and hosting
services as changed from time to time and offered on the Xxxxx.xxx Web Site,
which includes all services listed in Exhibit B.
"XXXXX.XXX CONTENT" means any articles or other editorial content provided
by Xxxxx.xxx under this Agreement and taken from the Xxxxx.xxx Network.
"XXXXX.XXX NETWORK" means Xxxxx.xxx's Web Site, private label Web Sites,
and any other Web Sites that provide Services to SBOs.
"XXXXX.XXX SERVICES" means those services offered by Vista com and
consisting of the Xxxxx.xxx Basic Services.
"WEB PAGE" means content in the World Wide Web portion of the Internet
accessed via a single URL, and excluding content on other Web Pages accessed via
Links in said content.
"WEB SITE" means a collection of Web Pages related in some manner and
interconnected via Links, including all successor versions thereof that may
evolve throughout the Term of this Agreement, regardless of whether or not
marketed or promoted under the same name.
Other Terms. All other initially capitalized terms will have the meanings
assigned to them in this Agreement, including its Exhibits.
2. XX.XXX PRIVATE LABEL SERVICE.
2.1 DEVELOPMENT AND MAINTENANCE. Xxxxx.xxx will develop, operate,
maintain, and host the XX.Xxx Private Label Service in accordance with this
Section 2 and the Specifications, XxxXX.Xxx Private Label Service will provide
XX.Xxx's Tier 2 Associates and SBOs access to (i) the Xxxxx.xxx Basic Services.
2.2 LAUNCH. The parties will cooperate in good faith to make the XX.Xxx
Private Label Service available to XX.Xxx SBOs according to the schedule as set
forth in the Specifications (the "Launch Date").
2.3 XXXXX.XXX BRANDING. The XX.Xxx Private Label Service will be
branded with a "Fueled by Xxxxx.xxx" logo as more specifically described in
Exhibit A, which branding may be subject to periodic changes upon prior written
notice by Xxxxx.xxx to XX.Xxx, and written approval by XX.Xxx.
2.4 DOMAIN NAME. XX.Xxx will be solely responsible for registering and
maintaining as a domain name the URL, at which the XX.Xxx Private Label Service
will be located and which the parties anticipate will be substantially similar
to xxxx://xxx.XXX.XX Net. Any changes to that registered domain name during the
Term shall be subject to agreement by the parties, XX.Xxx and Xxxxx.xxx will
each receive full Media Metrix traffic credit for the XX.Xxx Private Label
Service.
2.5 XX.XXX BRAND FEATURES. XX.Xxx will provide Xxxxx.xxx with such
XX.Xxx Brand Features as it determines in its sole discretion and any
navigational elements associated with each, as necessary to permit Xxxxx.xxx to
create the XX.Xxx Private Label Service and to comply with its obligations under
this Agreement. XX.Xxx will provide Xxxxx.xxx with the XX.Xxx Brand Features in
an electronic format as reasonably requested by Xxxxx.xxx, Xxxxx.xxx will
provide the content necessary to
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integrate the Xxxxx.xxx Basic Services into the XX.Xxx Private Label Service.
Notwithstanding the obligations set forth in this Section, neither party will be
obligated to provide to the other party any content or services or include any
content or services in the XX.Xxx Private Label Service or for any other Web
Site, if doing so would put such party in breach of an existing contractual
obligation.
2.6 RESPONSIBILITY FOR THE XX.XXX PRIVATE LABEL SERVICE. As between
Xxxxx.xxx and XX.Xxx, and except as expressly provided otherwise in this
Agreement or in any related support services agreement, Xxxxx.xxx will develop,
operate, maintain and host the XX.Xxx Private Label Service and all content
contained therein, excluding user registration as provided under Section 2.7.
XxxXX.Xxx Private Label Service will be maintained and operated by Xxxxx.xxx in
accordance with the membership terms of service attached hereto as Exhibit C
(the "Membership Terms of Service"): which shall at all times be substantially
similar to the then-current membership agreement on the Xxxxx.xxx Web Site,
XX.Xxx may modify these terms at their sole discretion.
2.7 USER REGISTRATION. During the Term commencing with the Launch Date,
XX.Xxx will be responsible for registering users of the XX.Xxx Private Label
Service on YP. Net's Web Site. Such registration process will require users to
consent to the Membership Terms of Service, and XX.Xxx will ensure that any user
who does not consent to the Membership Terms of Service may not create a
personalized web site through the XX.Xxx Private Label Service. In addition,
XX.Xxx will make efforts to ensure that the registration process for the XX.Xxx
Private Label Service requires verification that the user is over the age of
eighteen (18) and prohibits users under the age of eighteen (18) from creating a
personalized Web Site through that Private Label Service.
2.8 PARTNER SUPPORT. Xxxxx.xxx will support XX.Xxx, as set forth in
Exhibit E. Additionally, Vista shall provide Private Label Customer support as
part of Vista's Basic Service, with services delivered through a 900-support
line. If the 900-support volume does not cover the ongoing cost of the 900 line,
then Xxxxx.xxx may choose to discontinue, this method of support xxXX.Xxx
customers.
2.9 USER INFORMATION. Xxxxx.xxx and XX.Xxx will jointly own any and all
User Information collected by either party from XX.Xxx SBOs ("XX.Xxx Private
Label Service User Information"). XX.Xxx Private Label Service User Information
will be collected, disclosed, or used by the parties only in accordance with the
privacy policy for the XX.Xxx Private Label Service to be mutually agreed upon
by the parties and attached hereto as Exhibit D (the "Privacy Policy") and in
accordance with all applicable laws. After the Launch Date, Xxxxx.xxx will
provide XX.Xxx Private Label Service User Information to XX.Xxx on a monthly
basis via an online reporting service. XX.Xxx may modify this policy at their
sole discretion.
3. XXXXX.XXX NETWORK OFFERINGS.
3.1 XX.XXX'S SALES OF SERVICE: As a reseller of Xxxxx.xxx Services,
XX.Xxx may sell the Xxxxx.xxx Basic Service to XX.Xxx SBOs via the XX.Xxx
Private Label Service. XX.Xxx will have sole discretion to set and determine the
price at which it sells Services to XX.Xxx SBOs.
3.2 TIER 2 ASSOCIATES SIGN-UP. XX.Xxx may sell the Private Label
Services to Tier 2 Associates. Tier 2 Associates may sell to its own SBOs the
Xxxxx.xxx Basic Services. The Private Label Service that XX.Xxx may sell to Tier
2 Associates will be primarily branded with the branding of the Tier 2 Associate
and will include a "Fueled by Xxxxx.xxx' logo. Such Private Label Service will
be hosted and maintained by Vista, com at a URL owned by such Tier 2 Associate.
XX.Xxx will have sole discretion to set and determine the price at which it
sells the Private Label Service to Tier 2 Associates and the Tier 2 Associate
will have sole discretion at which it sells the Private Label Service to SBOs.
Xxxxx.xxx shall charge XX.Xxx a setup fee in the amount of one thousand dollars
($1.000) for each XX.Xxx Tier 2 Associates who signs up for the Private Label
Service.
4. MARKETING. During the Term, XX.Xxx will use commercially reasonable
efforts to promote and market the XX.Xxx Private Label Service. Throughout the
Term, the parties will use commercially
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reasonable efforts to meet periodically and create collaborative business
development strategies to market and promote the XX.Xxx Private Label Service
and the Services, Those marketing efforts that have been identified and agreed
upon by the parties are set forth in Exhibit E.
5. BILLING, COLLECTIONS, PAYMENTS AND ACCOUNTING
5.1 PAYMENT. During the Term of this Agreement, XX.Xxx agrees to pay
Xxxxx.xxx in accordance with the following formulas.
5.1.1 XXXXX.XXX BASIC SERVICES FORMULA. In connection
with Xxxxx.xxx Basic Services created each month during the Term by XX.Xxx or
XX.Xxx's Tier 2 Associates, XX.Xxx will be obligated to pay Xxxxx.xxx the
Monthly Service Fee (as set forth in Exhibit F) xxxXX.Xxx SBO or XX.Xxx Tier 2
Associate SBO, who are registered to receive those Services each month.
Additionally, XX.Xxx agrees to pay Xxxxx.xxx five thousand dollars (55,000) for
the setup of the Private Label Service. This setup fee will be invoice upon
contract execution xxxXX.Xxx will have ten (10) Business days to pay such
invoice.
5.1.2 PAYMENT. In the event Xxxxx.xxx does not collect
sufficient Net Revenues, Transaction Fees, or applicable taxes from YP.NetSBOs
and XX.Xxx Tier 2 Associate SBOs: to cover the amounts owed by XX.Xxx to
Xxxxx.xxx as calculated in this Section 5.1, then Xxxxx.xxx will invoice XX.Xxx
for the difference. XX.Xxx will pay Xxxxx.xxx within thirty (30) days from the
date of such invoice. Invoices not paid within such time period shall be subject
to a late payment charge of 1.5% per month (or the maximum rate permitted by
law, whichever is lower) on the outstanding balance thereof, accruing from the
due date, in the event that after a reconciliation per 5.3 below. Xxxxx.xxx owes
money to XX.Xxx irrespective to the provisions of 5.3. XX.Xxx can invoice
Xxxxx.xxx for that money & Xxxxx.xxx must pay within 30 days from date of said
invoice in like manners kind to Xxxxx.xxx's rights under this clause
5.2 BILLING AND COLLECTION. XX.Xxx hereby appoints Xxxxx.xxx, and
Xxxxx.xxx accepts such appointment, to be XX.Xxx's billing and collection agent
for billing and collecting Gross Revenues from XX.Xxx SBOs, and XX.Xxx Tier 2
Associate SBOs. Xxxxx.xxx will xxxx and collect said Gross Revenues on XX.Xxx's
behalf pursuant to Sections 3.1 and 3.2. XX.Xxx may at any time and at its sole
discretion, decided not to use the billing and collection services of Xxxxx.xxx
without penalty to XX.Xxx.
5.3 REMITTANCE. Xxxxx.xxx will retain an amount equal to the payment
owed by XX.Xxx to Xxxxx.xxx as calculated by the formulas set forth in Sections
5.1.1 and 5.1.2 above and will use commercial reasonable efforts to remit to
XX.Xxx XX.Xxx's share of Net Revenues and applicable taxes via electronic funds
transfer within thirty (30) business days following any month in which those Net
Revenues have been collected. If at any time XX.Xxx owes Xxxxx.xxx any amount
based upon a reconciliation of a prior month's billing, then Xxxxx.xxx may
retain an additional amount equal to the underpayment Likewise, if after a
reconciliation Xxxxx.xxx owes XX.Xxx, Xxxxx.xxx will include such amount with
the next month's remittance.
5.4 REPORTING. Within ten (10) days after the end of each month during
the Term, Xxxxx.xxx will furnish XX.Xxx with a statement itemizing the total
amount of Gross and Net Revenues collected that month, the total amount of
Transaction Fees incurred that month, and, during that same month, applicable
taxes collected, from all services for which XX.Xxx is entitled to a share of
the resulting Net Revenues. XX.Xxx will be solely responsible for remitting any
amounts due and owing to XX.Xxx's Tier 2 Associates as agreed between XX.Xxx and
its Associates and as documented in the statement.
5.5 CHARGEBACKS AND REFUNDS. in the event that an SBO stops payment or
"charges back" its credit card for Services on the XX.Xxx Private Label Service,
then Xxxxx.xxx may recoup any Net Revenues and applicable taxes remitted to
XX.Xxx for the Services that the SBO stopped payment. In the event an SBO
requests a refund for Services not yet rendered (e.g., the SBO has pre-paid for
1 year of service and requests a refund after six months), then Xxxxx.xxx will
provide a pro-rated refund and
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Xxxxx.xxx may recoup that portion of Net Revenues and applicable taxes remitted
to XX.Xxx for the refunded time period. In the event that an SBO requests a
refund for Services due to a failure to provide requested Services, and
Xxxxx.xxx agrees that it failed to provide such Services, then Xxxxx.xxx will
refund SBO's payment and Xxxxx.xxx may recoup that portion of Net Revenues and
applicable taxes remitted to XX.Xxx for those Services. In the event an SBO
requests a refund for Services that were provided, then Xxxxx.xxx may, in its
discretion, decide whether to provide a refund to that SBO and if Xxxxx.xxx
decides to provide such refund, then Xxxxx.xxx may recoup that portion of Net
Revenues and applicable taxes remitted to XX.Xxx for those Services.
5.6 AUDIT. During the Term and for a period of two (2) years following the
termination or expiration of the Agreement, the parties agree to keep all usual
and proper records and books of account and all usual and proper entries and
other documentation relating to any and all transactions contemplated by this
Agreement (collectively, "Business Records"). During the Term and for a period
of two (2) years following the expiration or termination of this Agreement, each
party will have the right to cause an audit and/or inspection to be made of the
other party's records relevant to this agreement in order to verify statements
issued by the other party and compliance with the terms of this Agreement. Any
such audit will be conducted by an independent certified public accountant
selected by the auditing party (other than on a contingent fee basis) and
reasonably acceptable to the audited party. Any audit or inspection is to be
conducted during regular business hours at the audited party's facilities upon
at least ten (10) days written notice. Such audits may not be made more often
than once in any twelve (12) month period. If any such audit reveals an
underpayment of more than five percent (5%) related to the time period under
audit, the reasonable costs and expenses to conduct such audit will be paid by
the audited party and the audited party will pay such costs together with the
amount of such underpayment within thirty (30) days from receipt of an invoice
or statement therefore, itemizing the amounts of said underpayment and audit
costs and including copies of relevant supporting documentation. All information
disclosed or obtained in the course of conducting an audit will be Confidential
Information of the audited party and used solely for the purpose of verifying
compliance with the terms of this Agreement.
6. LICENSE GRANT.
6.1 During the Term and thereafter pursuant to Section B.S, XX.Xxx
hereby grants Xxxxx.xxx a worldwide, nonexclusive, royalty-free, fully paid-up,
and, subject to Section 13.3, nontransferable license to use, reproduce,
digitize, distribute, transmit, and publicly xxxxxxxXX.Xxx Materials and XX.Xxx
Brand Features, as necessary for the development, operation, maintenance, and
support of the XX.Xxx Private Label Service and XX.Xxx upon review and prior
written approval of use by XX.Xxx
6.2 During the Term and thereafter pursuant to Section 8,5, XX.Xxx
hereby grants Xxxxx.xxx a worldwide, nonexclusive, royalty-free, fully paid-up
and, subject to Section 13.3, license to use, reproduce, digitize, distribute,
transmit, and publicly display and xxxxxxxxxxXX.Xxx Materials over the Xxxxx.xxx
Network, including without limitation, on Xxxxx.xxx's Web Site and all SBO Web
Sites , Partner Private Label Web Sites, and their SBO Web Sites, provided that
XX.Xxx has provided written approval. Such materials will be removed upon
termination of this Agreement.
6.3 The parties agree that, except as expressly licensed to XX.Xxx by
this Agreement or by a separate license agreement as between the parties,
Xxxxx.xxx will retain all right, title, and interest in the XX.Xxx Private Label
Service, the Xxxxx.xxx Network, Xxxxx.xxx Basic Services, and all data, content,
technologies and other property furnished by Xxxxx.xxx to XX.Xxx hereunder.
Notwithstanding the foregoing, the parties agree that except as expressly
licensee! to Xxxxx.xxx in this Agreement or a separate license agreement, XX.Xxx
will retain all right, title, and interest in the YP Net Web Site, XX.Xxx
Materials, XX.Xxx Brand Features, XX.Xxx Services and the XX.Xxx Private Label
Service domain name and all data, content, technologies and other property
furnished by XX.Xxx to Xxxxx.xxx hereunder. Neither party will have any rights,
title or interest in any materials, content or technology provided by the other
party hereunder except as specifically provided in this Agreement and will not
alter, modify, copy,
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edit, format, translate, create derivative works of or otherwise use any
materials, content or technology provided by the other party except as
explicitly provided herein or approved in advance in writing by the other party.
7. Confidentiality
7.1 Each party will protect the other's Confidential Information
from unauthorized dissemination and use with the same degree of care that such
party uses to protect its own like information. Neither party will use the
other's Confidential Information for purposes other than those necessary to
directly further the purposes of this Agreement. Each party may disclose the
terms and conditions of this Agreement to its employees, affiliates and its
immediate legal and financial consultants on a need to know basis as required in
the ordinary course of that party's business, provided that such employees,
affiliates and/or legal and /or financial consultants agree in advance of
disclosure to be bound by this Section 7. A party may disclose Confidential
Information as required by government or judicial order, provided each party
gives the other party prompt notice of such order and complies with any
protective order (or equivalent) imposed on such disclosure.
7.2 Each party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure or use of Confidential Information
and that each party may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent
jurisdiction.
8. TERM; TERMINATION
8.1 The term of this Agreement will be three (3) years from the
Effective Date subject to automatic, successive renewal terms of one (1) year
each, unless either Xxxxx.xxx xxXX.Xxx gives the other party written notice of
its intent not to renew at least ninety (90) days prior to the expiration of the
initial term or any succeeding term (collectively the "Term"),
8.2 TERMINATION FOR BANKRUPTCY. Either party may terminate this
Agreement by written notice given to the other party, in the event the other
party (i) files a petition in bankruptcy; or (ii) has a petition in bankruptcy
filed against it by any third party, which is not dismissed within sixty (60)
days. Termination pursuant to this Section shall take effect on the date notice
by the terminating party is deemed given.
8.3 TERMINATION FOR CAUSE. In addition to any other rights or remedies
that either party may have under the circumstances, all of which are expressly
reserved, either party may terminate this Agreement at any time, if the other
party is in material breach of any warranty, representation, term, condition or
covenant of this Agreement, and fails to cure that breach within sixty (60) days
after written notice given, outlining all reasons for said termination,
8.4 EFFECTS OF TERMINATION. Upon the termination or expiration of this
Agreement except to the extent provided pursuant to Section 8.5 below, (i) all
rights and licenses granted hereunder and dl obligations and covenants imposed
hereunder will immediately cease; and (ii) except as expressly set forth herein,
each party will: (A) stop using all Confidential Information of the other party
then in its possession; (B) erase or destroy all such Confidential Information
then residing in any computer memory or data storage apparatus in its possession
or control; (C) at the option of such other party, either destroy or return to
such other party all such Confidential Information in tangible form and all
copies thereof; (D) remove all of the other party's Brand Features from the web
sites and the Xxxxx.xxx Network; and (E) Xxxxx.xxx will remove all XX.Xxx
Materials, including XX.Xxx Editorial Content from the Xxxxx.xxx Website and
Xxxxx.xxx Network, except that Xxxxx.xxx is not required to remove XX.Xxx
Materials from any SBO's Website out of control of Xxxxx.xxx. In the event of
termination of this Agreement, for any reason each and every clause which by its
nature is intended to survive the termination of this Agreement including,
without limitation, Sections 1, 2.4, 2, 8, 5 (only to the extent that
transactions are authorized prior to expiration or termination), 5.2, 7, 8,9,10,
11, 12, and 13 will survive termination or expiration.
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8.5 TRANSITION,
8.5.1 VISTA DEFAULT. Upon termination of this Agreement by
XX.Xxx pursuant to Section 8.2 or 8.3, Xxxxx.xxx will use commercially
reasonable efforts to assist XX.Xxx in transitioning the XX.Xxx SBOs off the
Vista Network to a third-party web-hosting site or XX.Xxx's own site as
designated by XX.Xxx For the purpose of this section Commercially Reasonable
Efforts shall mean "documentation relating to XX.Xxx SBO Web Sites and customer
data files, and the site images, logos, banners, html content, (collectively
"Transition Deliverables"). The Transition Deliverables are stored in an Oracle
database and on an NFS file server. Vista shall provide the Transition
Deliverables to XX.Xxx in the form of a data snapshot on CD-ROM. An Oracle
export fie will be provided on CD-ROM for each database. The Oracle export file
contains the database schema and all database data related xxXX.Xxx SBO
Websites". If Xxxxx.xxx Services are still maintained on the Xxxxx.xxx Network,
then YP Net's obligation to pay, and Xxxxx.xxx's obligation to provide the
services and billing and collection, shall continue as necessary for such
transition.
8.5.2 XX.XXX DEFAULT. Upon termination of this Agreement by
Vista pursuant to Section 8.2 or 8.3, XX.Xxx will use commercially reasonable
efforts to xxxxxxXxxxx.xxx in transitioning the XX.Xxx SBOs from the URL
designated for the XX.Xxx Private Label Service pursuant to Section 2.4 to a URL
maintained by Xxxxx.xxx. Specifically, XX.Xxx will for up to six (6) months
following termination or expiration maintain all of its SBO URLs and redirect
such URLs to a URL agreed to by Xxxxx.xxx and XX.Xxx.
8.3.1 EXPIRATION. Upon expiration pursuant to Section 8.1,
XX.Xxx and XX.Xxx's Tier 2 Associates will no longer be entitled to sell
Services to SBOs. Xxxxx.xxx will continue to provide existing SBOs Services in
accordance with the current Membership Agreement and the terms of this Agreement
for up to two (2) additional years and pay XX.Xxx there portions of the
collected revenue as if this agreement was still in effect. In the event of
expiration of this Agreement, Sections 1, 2.1, 2.3-2.5, 2.5, 2.8, 2.9,6, 7, 8,
9,10,11,12, and 13 will survive expiration for the two additional years.
9. INDEMNITY
9.1 BY XXXXX.XXX
9.1.1 Xxxxx.xxx shall indemnify, hold harmless and, at its sole
expense, defend XX.Xxx and any of XX.Xxx's subsidiaries, affiliates, directors,
officers, employees, agents and independent contractors from and against any and
all third-party claims, suits, proceedings, costs and expenses (including
attorneys' fees), liabilities, losses and damages (collectively, "Third-Party
Claims") arising out of, or in any way related to:
(i) Any actual or alleged breach of this Agreement or
violation of applicable U.S. xxxxxXxxxx.xxx;
(ii) Any Xxxxx.xxx Content or Xxxxx.xxx Brand Features,
regardless of where located; or
(iii) The development, operation, maintenance and hosting of
the XX.Xxx Private Label Service, excluding user
registration for that Service and any XX.Xxx Materials
or XX.Xxx Brand Features displayed in connection
therewith,
9.1.2 Xxxxx.xxx's obligations under Section 9.1.1 shall be
contingent on XX.Xxx
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(i) Providing Xxxxx.xxx with reasonably prompt written
notice of any such Third-Party Claim, for which it is
seeking a defense and/or indemnification hereunder;
(ii) Fully cooperates with, and provides information or
other assistance to, Xxxxx.xxx upon request and at
Xxxxx.xxx's expense; and
(iii) Allows Xxxxx.xxx to control the defense and resolution
of any such Third-Party Claim with legal counsel of
Xxxxx.xxx's choice.
Notwithstanding Section 9.1.2(iii) above, XX.Xxx shall have the right to approve
the settlement of any Third-Party Claim, which involves an admission or
commitment by or on behalf of XX.Xxx, other than the payment of money to be
fully indemnified hereunder by Xxxxx.xxx. Such approval shall not be
unreasonably withheld or delayed.
9.1.3 In the event Xxxxx.xxx settles or otherwise resolves a
Third-Party Claim for which it is obligated to indemnify XX.Xxx hereunder,
Xxxxx.xxx agrees not to publicize said resolution without first obtaining
XX.Xxx's written permission, which permission will not be unreasonably withheld,
9.2 BY XX.XXX
9.2.1 XX.Xxx shall indemnify, hold harmless and, at its sole
expense, defend Xxxxx.xxx and any of Xxxxx.xxx's subsidiaries, affiliates,
directors, officers, employees, agents and independent contractors from and
against any and all Third-Party Claims (as defined in Section 9.1.1 above),
arising out of, or in anyway related to:
(i) Any actual or alleged breach of this Agreement by
XX.Xxx;
(ii) Any YP Net Materials or XX.Xxx Brand Features,
including in connection therewith infringement of any
third-party's intellectual property rights, trade
secrets or other proprietary rights; or
(iii) Violation of applicable U.S. law, regulation or
Xxxxx.xxx policy by XX.Xxx, by any XX.Xxx Tier 2
Associate, or by the SBOs of either said party.
9.2.2 XX.Xxx's obligations under Section 9.2.1 shall be contingent
on Xxxxx.xxx:
(i) Providing XX.Xxx with reasonably prompt written notice
of any such Third-Party Claim, for which it is seeking
a defense and/or indemnification hereunder;
(ii) Fully cooperates with, and provides information or
other assistance to, XX.Xxx upon request and at
XX.Xxx's expense; and
(iii) Allows XX.Xxx to control the defense and resolution of
any such Third-Party Claim with legal counsel of
XX.Xxx's choice,
Notwithstanding Section 9.2.2(iii) above, Xxxxx.xxx shall have the right to
approve the settlement of any Third-Party Claim, which involves an admission or
commitment by or on behalf of Xxxxx.xxx, other than the payment of money to be
fully indemnified hereunder by XX.Xxx. Such approval shall not be unreasonably
withheld or delayed.
9
9.2.3 In the event XX.Xxx settles or otherwise resolves a
Third-Party Claim for which it is obligated to indemnify Xxxxx.xxx hereunder,
XX.Xxx agrees not to publicize said resolution without first obtaining
Xxxxx.xxx's written permission, which permission will not be unreasonably
withheld.
10. DISCLAIMER OF WARRANTIES. EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES
OR REPRESENTATIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PARTY WARRANTS THAT ACCESS TO OR USE OF ANY WEB SITE, INCLUDING THE
XX.Xxx PRIVATE LABEL SERVICE, WILL BE UNINTERRUPTED OR ERROR-FREE,
OR THAT ANY SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF
PERFORMANCE OR QUALITY.
ALSO, THERE IS NO WARRANTY OF TITLE OR NON-INFRINGEMENT OR QUIET ENJOYMENT WITH
RESPECT TO ANY CONTENT, SERVICES OR WEB SITES REFERENCED OR PROVIDED UNDER THIS
AGREEMENT.
11. LIMITATION OF LIABILITIES. EXCEPT FOR OBLIGATIONS OF CONFIDENTIALITY
UNDER SECTION S AND OBLIGATIONS OF DEFENSE AND INDEMNITY PURSUANT TO SECTION 10,
BOTH PARTIES AGREE THAT (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES,
ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND (ii) THE TOTAL LIABILITY OF THE PARTIES TO EACH
OTHER, AND EACH PARTY'S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS
RELATING TO OR ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID
HEREUNDER, WITH EACH PARTY RELEASING THE OTHER FROM ALL OBLIGATIONS, LIABILITY,
CLAIMS OR DEMANDS IN EXCESS OF THAT AMOUNT.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 11 SHALL NOT
RESTRICT EITHER PARTY'S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF.
12. TAXES.
12.1 The amounts to be paid by XX.Xxx to Xxxxx.xxx herein do not
include any foreign, U.S. federal, state, local, municipal or other governmental
taxes, duties, levies, fees, excises or tariffs, arising as a result of or in
connection with the transactions contemplated under this Agreement including,
without limitation, any state or local sales or use taxes or any value added tax
or business transfer tax now or hereafter imposed on the provision of goods and
services to XX.Xxx by Xxxxx.xxx under this Agreement, regardless of whether the
same are separately stated by Xxxxx.xxx. All such taxes (and any penalties,
interest, or other additions to any such taxes), with the exception of taxes
imposed on Xxxxx.xxx's income or with respect to Xxxxx.xxx's property ownership,
shall be the financial responsibility xxXX.Xxx. XX.Xxx agrees to indemnify,
defend and hold Xxxxx.xxx harmless from any such taxes or claims, causes of
action, costs (including, without limitation, reasonable attorneys' fees) and
any other liabilities of any nature whatsoever related to such taxes.
12.2 XX.Xxx will pay all applicable value added, sales and use taxes
and other taxes levied on it by a duly constituted and authorized taxing
authority on the software or services provided under this Agreement or any
transaction related thereto in each country in which the services and/or
property are being provided or in which the transactions contemplated hereunder
are otherwise subject to tax, regardless of the method of delivery. Any taxes
that are owed by XX.Xxx, (i) as a result of entering into this Agreement and the
payment of the fees hereunder, (ii) are required or permitted to be collected
from XX.Xxx by Xxxxx.xxx under applicable law, and (iii) are based upon the
amounts payable under this
10
Agreement (such taxes described in (i), (ii), and (iii) above the "Collected
Taxes'), shall be remitted by XX.Xxx to Xxxxx.xxx, whereupon, upon request,
Xxxxx.xxx shall provide to XX.Xxx tax receipts or other evidence indicating that
such Collected Taxes have been collected by Xxxxx.xxx and remitted to the
appropriate taxing authority. XX.Xxx may provide to Xxxxx.xxx an exemption
certificate acceptable to Xxxxx.xxx and to the relevant taxing authority
(including without limitation a resale certificate) in which case, after the
date upon which such certificate is received in proper form, Xxxxx.xxx shall not
collect the taxes covered by such certificate.
12.3 If, alters determination by foreign tax authorities, any taxes are
required to be withheld, on payments made by XX.Xxx to Xxxxx.xxx, XX.Xxx may
deduct such taxes from the amount owed Xxxxx.xxx and pay them to the appropriate
taxing authority; provided however, xxxxXX.Xxx shall promptly secure and deliver
to Xxxxx.xxx an official receipt for any such taxes withheld or other documents
necessary to enable Xxxxx.xxx to claim a U.S. Foreign Tax Credit. XX.Xxx will
make certain that any taxes withheld are minimized to the extent possible under
applicable law.
12.4 This tax section shall govern the treatment of all taxes arising
as a result of or in connection with this Agreement notwithstanding any other
section of this Agreement.
13. GENERAL PROVISIONS
13.1 INDEPENDENT CONTRACTORS. The parties are independent contractors
with respect to each other, and nothing in this Agreement will be construed as
creating an employer-employee relationship, a partnership, or a joint venture
between the parties, The only agency relationship created by this Agreement is
created in Section 5.2 regarding the provision of billing and collection
services by Xxxxx.xxx.
13.2 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Arizona, excluding choice of law rules. The parties agree to
jurisdiction and venue in the state and federal courts sitting in Maricopa
County, Arizona. In any action or suit to enforce any right or remedy under
this Agreement or to interpret any provision of this Agreement, the prevailing
party will be entitled to recover its costs, including reasonable attorneys'
fees.
13.3 ASSIGNMENT. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party,
except that either party will be permitted, without the other party's prior
written consent, to assign its rights and obligations to an acquiring or
successor entity in connection with a merger, a sale of its business or a sale
of all or substantially all of its assets, upon prompt written notice thereof
given to the other party once said assignment becomes certain and provided such
successor is not a direct competitor of the other party. All terms and
provisions of this Agreement will be binding upon and inure to the benefit of
the parties hereto and their respective permitted transferees, successors and
assigns.
13.4 COSTS. Except as otherwise expressly provided herein, each
party: (a) will be responsible for all costs associated with the performance
obligations expressly undertaken by such party under this Agreement, and (b)
will have no right to obtain reimbursement or other payment from the other
party.
13.5 CONSTRUCTION. In the event that any provision of this Agreement
conflicts with governing law or if any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent Jurisdiction, (i) such
provision will be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable law, and (ii)
the remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect. This Agreement has been negotiated by
the parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party. The section headings used in this Agreement are intended
for convenience only and will not be deemed to affect in any manner the meaning
or intent of this Agreement or any provision hereof.
11
13.6 NOTICES. All notices arid requests in connection with this
Agreement will be given in writing and will be deemed given on the date of first
attempted delivery (whether successful or not) to the intended recipient's last
known address by messenger, delivery service, or in the United States of America
mail, postage prepaid, certified or registered, return receipt requested, and
addressed as follows:
12
To Xxxxx.xxx: To XX.Xxx:
Xxxxx.xxx XX.Xxx, Inc.
00000 Xxxxxxx Xxxx. Xxx. 000 4340 E. Jasmine St., Ste 105
Redmond, WA9S1052 Xxxx, XX 00000
Attention: Xxxxxx Mall Attention: Xxx Xxxxxx
Phone: (000) 000-0000 Phone: 000-000-0000
Fax: (000) 000-0000 Fax: 000-000-0000
Copy to: Copy to. Xxxxxx Xxxxx
Preston, Gates & Xxxxx
Fax: (000) 000-0000
or to such other address as the applicable party may designate pursuant to this
notice provision.
13.7 ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements or
communications. This Agreement will not be modified except by a written
agreement dated subsequent to the date of this Agreement and signed on behalf of
Xxxxx.xxx and XX.Xxx by their respective duly authorized representatives. No
waiver of any breach of any provision of this Agreement will constitute a waiver
of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by an authorized representative of the waiving party.
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
XXXXX.XXX XX.XXX, INC.
By /s/ Xxxx X. Xxxxxx By /s/ Xxxxxx Xxxxx, Chairman
---------------------------- --------------------------------
Name (Print) Xxxx X. Xxxxxx Name (Print) Xxxxxx Xxxxx
----------------- ---------------------
Title Vice President, Sales Title Chairman of the Board
------------------------- ---------------------------
Date 9/19/01 Date 9-18-01
------------------------- ----------------------------
13
EXHIBIT A SPECIFICATIONS
I. DESIGN SPECIFICATIONS
- Xxxxx.xxx Basic Service as described in EXHIBIT B with the following
modifications.
- Xxxxx.xxx to provide an XML API to externally create e-generated sites
based upon the transfer of user data collected through XX.Xxx's
sign-up process.
- Xxxxx.xxx will host the Private Label Sign-Up process with YP .Net's
unique branding requirements.
- Vista .com will enable the service for private labeling.
URL will be private labeled as "XXX.XX.Xxx".
XX.Xxx Icon position in Management Console.
XX.Xxx specific tab in the Management Console.with link to
YP.Netwebsite
- Xxxxx.xxx will provide a Partner Dashboard for:
Reporting
Managing
II. TECHNICAL SPECIFICATIONS
- BASIC SERVICE: Xxxxx.xxx's Basic Service allows for the automatic
generation of industry specific e-businesses for SBOs. Xxxxx.xxx
provides a cutting edge eBusiness solution which includes an
integrated, comprehensive and diverse suite of services designed to
allow small business owners to create a robust and professional online
presence, promote their business, conduct secure e-commerce, service
their customers, and measure the success of their business online.
- XML API: This capability allows XX.Xxx to send specific SBO
information to Xxxxx.xxx in a format that allows Xxxxx.xxx to create
sites for XX.Xxx SBOs. There are two types of XML defined for inbound
and outbound traffic: request XML and response XML. The request XML
contains information such as partner information, customer
information, company name, and desired url for the site. The response
XML, sent in response to the receipt and processing of request XML,
contains status information about the processing of site creation.
- PRIVATE LABEL SIGN-UP: Private label sign-up process includes; custom
offer & pricing page, online sign-up form, sample sites, and guided
tour accessed through the YP.Netwebsite.
- PRIVATE LABEL SERVICE: XX.Xxx SBOs will feel like they are using a
service offering xxxxXX.Xxx. The SBO's URL will say SBO is at XX.Xxx.
When the customer administers their site, they will seethe XX.Xxx logo
prominently placed at the top of the Management Console and they will
see the XX.Xxx tab in the Management Console offering specific XX.Xxx
services and information.
- PARTNER DASHBOARD: This capability allows XX.Xxx to manage the
relationship with their SBOs. The Partner Dashboard is a key element
of the easy to use functionality that allows XX.Xxx to manage these
relationships using the very same Xxxxx.xxx technology that XX.Xxx
SBOs will be using. The Partner Dashboard will only be available to
Partners, XxxXX.Xxx and their Tier 2 Associates, and includes the
ability to run pre-built reports for tracking the customer
relationship. The Partner Dashboard also contains applications that
allow XX.Xxx to manage their SBO's. All of these capabilities are
accessible via the XX.Xxx Partner Dashboard.
III. XX.XXX PRIVATE LABEL SERVICE MOCK-UP
14
[GRAPHIC OMITTED]
II. BRANDING GUIDELINES
Every Management Console of the XX.Xxx Private Label Service will contain the
following "Fueled by Xxxxx.xxx' logo xxxxxxxXxxxx.xxx as maybe updated by Vista
from time to time (the "Logo"):
[GRAPHIC OMITTED]
III. SCHEDULE
Both parties agree to use commercially reasonable efforts to complete the work
specified byOctober15, 2001
15
EXHIBIT B
Xxxxx.xxx Basic Services
Xxxxx.xxx reserves the right to change the Vista Basic Service, and/or replace
services upon reasonable notice to Customers. The Xxxxx.xxx Basic Services
include the following:
- Web Site Creation
Web Site Set-up
Web Site Hosting
- Content Offerings
Content Editor
Images
Weather
Maps
Driving Directions
Logo Creator
Calculator
- Marketing Services
Search Engine Placement
Domain Registration
Banner Ad creation
Banner Ad Exchange
E-forms
Message Templates
Broadcast email
- Commerce Services
Online Store
Inventory Management
Secure Shopping Cart
Auto Tax Calculator
Auto Shipping Calculator
Order Processing
Merchant Account Services
Auctions
- Community Services
Events Calendar
Reservations
Appointments
Polls
Message Boards
Chat
- Management Services
Query Reporting
Analysis
Custom Reports
Management Console
Notification
- Storage
20MB of Disk Space
16
EXHIBIT C
MEMBERSHIP TERMS OF SERVICE
Welcome to xxx.XX.Xxx! XX.Xxx, Inc. ("XX.Xxx"), a Corporation,
-------------
provides the web site XX.Xxx and all services offered through the web site
(collectively the "Site"), subject to the following Web Site Access Agreement
("Agreement"). Your access to and use of the Site is governed by this Agreement.
As used in this Agreement "XX.Xxx" "We," "Us," or "Our" refers to XX.Xxx, Inc.
"You" or "Your" refers to you, a small business owner subscribing this Site.
TABLE OF CONTENTS
----------------------------------------------------------------------------
| 1. ELECTRONIC TRANSACTIONS 11. LINKS |
| |
| 2. DESCRIPTION OF SERVICE 12. WARRANTIES |
| |
| 3. LICENSE TO USE THE SITE 13. DISCLAIMER OF WARRANTIES |
| |
| 4. PROTECT YOUR PASSWORD: 14. LIMITATION OF LIABILITY |
| YOU AUTHORIZE ALL USES |
| MADE OF IT |
| |
| 5. XX.XXX'S PRIVACY POLICY 15. THIRD PARTY BENEFICIARY |
| |
| 6. CONDUCT ON THE SITE 16. EXPORT CONTROLS |
| |
| 7. CONTENT SUBMITTED TO 17. AMENDING THIS AGREEMENT |
| THE SITE |
| |
| 8. INDEMNITY 18. FEES; PAYMENTS |
| |
| 9. RECORD RETENTION 19. GENERAL INFORMATION: |
| WASHINGTON CHOICE OF |
| LAW, JURISDICTION & VENUE; |
| ONE YEAR STATUTE OF |
| LIMITATIONS |
| |
| 10 TERMINATION |
----------------------------------------------------------------------------
1. ELECTRONIC TRANSACTIONS
------------------------
Communications and transactions at this Site are conducted electronically.
XX.Xxx may provide all communications, disclosures, and notices electronically
including, without limitation, in text on a web page or via email to any email
address you may provide. If you do not wish to deal with XX.Xxx electronically,
please do not use this Site.
All electronic records are deemed sent when properly addressed and when they
enter an information processing system outside the control of the sender. All
electronic records are deemed received when the record enters an information
processing system that the recipient has designated or uses for the purpose of
receiving electronic records of the type sent, in a form capable of being
retrieved from that system.
17
2. DESCRIPTION OF SERVICES
-------------------------
The Site currently permits small business owners to maintain a business presence
on the lnternet via personalized web pages. Unless explicitly stated in any
offer xxxxXX.Xxx to amend this Agreement, any new features that augment or
enhance the current Site, including the release of xxxXX.Xxx features and
services, are subject to this Agreement.
3. LICENSE TO USE THE SITE
---------------------------
XX.Xxx hereby grants you a non-exclusive, non-transferable, personal license to
access and use the Site solely as necessary to create and manage personalized
web pages solely in connection with the operation of a licensed business
("Account"), Except for the license in this Section 3, XX.Xxx retains all right,
title, and interest in and to the Site. Subject to applicable law, XX.Xxx
reserves the right to suspend or deny, at its sole discretion, your access to
all or any portion of the Site with or without notice. You may not access or use
the Site or any portion of the Site if such access would violate any law. We
advise you to retain a copy of this Agreement. Permission to reprint or
electronically reproduce any content available on the Site, in whole or in part
for any purpose other than as necessary to create and manage your Account is
expressly prohibited, unless you have obtained prior written consent xxxxXX.Xxx.
The Site is protected by copyrights, trademarks, service marks, patents or other
proprietary rights and laws under both United States and foreign laws. All
rights not expressly granted herein are reserved to XX.Xxx and its licensors.
4. PROTECTYOURPASSWORD; YOU AUTHORIZE ALL USES MADE OF IT.
-------------------------------------------------------------
You are responsible for maintaining the confidentiality of the password that you
choose to access and use the Site and your Account. Subject to applicable law,
you agree to be liable for all uses of your Account whether or not actually
authorized by you, including but not limited to access to your Account
information through the "Manage yourSite" feature. This means that you should
not supply your password to anyone who is not authorized to take actions for
you.
5. XX.XXX PRIVACY POLICY
-----------------------
Our Privacy Policy is a part of this Agreement and its terms are incorporated by
this reference. Please read it now (by clicking on "Privacy Policy"). The policy
explains how certain information about you may be used.
6. CONDUCT ON THE SITE
----------------------
You understand that all information, data, text, files, software, music, sound,
photographs, graphics, video, messages or other posted or transmitted by you
through your Account and the Site, are your sole responsibility. This means that
you, and not XX.Xxx, are entirely responsible for all content that you or users
of your web site upload, post or otherwise transmit via the Site. XX.Xxx does
not control the content on this Site and does not guarantee the accuracy,
integrity or quality of any content. You understand that by using the Site, you
may be exposed to content that is offensive, indecent or objectionable. Further,
you agree to not use the Site to:
(a) upload, post or otherwise transmit any content that is unlawful,
harmful, threatening, abusive, harassing, tortuous, defamatory, slanderous,
vulgar, obscene, libelous, invasive of another's privacy, hateful, embarrassing,
or racially, ethnically or otherwise objectionable to any other person or entity
as determined by XX.Xxx in its sole discretion;
(b) impersonate any person or entity, including, but not limited to, a
XX.Xxx staff, or falsely state or otherwise misrepresent your affiliation with a
person or other entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise
the origin of any content transmitted through the Site or develop restricted or
password-only access pages, or hidden pages or images (those not linked to from
another accessible page);
18
(d) upload, post or otherwise transmit any content that you do not have a
right to transmit under any law or under contractual or fiduciary relationships
(such as inside information, proprietary and confidential information learned
or disclosed as part of employment relationships or under nondisclosure
agreements);
(e) upload, post or otherwise transmit any content that infringes any
patent, trademark, trade secret, copyright or other intellectual property or
proprietary rights of any party or the privacy or publicity rights of
others;
(f) upload, post or otherwise transmit any unsolicited or unauthorized
advertising, promotional materials, "Junk mail," "spam," "chain letters,"
"pyramid schemes," or any other form of solicitation;
(g) upload, post or otherwise transmit any content that contains viruses or
any other computer code, files or programs which interrupt, destroy, limit the
functionality of, or cause damage to any computer software or hardware or
telecommunications equipment;
(h) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than
other users of the Site are able to type, or otherwise act in a manner that
negatively affects other users' ability to engage in real time exchanges;
(i) interfere with or disrupt the Site or servers or networks connected to the
Site, or fail to comply with any requirements, procedures, policies or
regulations of networks connected to the Site;
(j) intentionally or unintentionally violate any applicable local, state,
national or international law, including, but not limited to, regulations having
the force of law;
(k) "stalk," harass, or otherwise harm another;
(1) collect or store personal data in violation of any laws governing privacy;
(m) promote or provide instructional information about illegal activities,
promote physical harm or injury against any group or individual, or promote any
act of cruelty to animals;
(n) use your Account as storage for remote loading or as a door or signpost to
another home page, whether inside or beyond the Site;
(o) reproduce, duplicate, copy, sell, resell or exploit any portion of the Site,
use of the Site, or access to the Site.
(p) engage in any other conduct that inhibits any other person from using or
enjoying the Site;
(q) engage in any other behavior on the Site, which in XX.Xxx's sole
discretion is unacceptable.
XX.Xxx may (but is not obligated) to remove your content and terminate your
Account and access to the Site for any reason, with or without notice to you,
including without limitation, your web page or any listings on your web page
that do not conform with the rules for the Site,
7. CONTENT SUBMITTED TO THE SITE
---------------------------------
By submitting content to the Site for any purpose, including use in connection
with your Account, you grant XX.Xxx a world-wide, royalty-free, perpetual,
irrevocable, non-exclusive license to use, copy, reproduce, modify, create
derivative works from, adapt, and publish, edit, translate, sell, distribute,
publicly perform and display the content without any limitation and in any media
or any form now know or later developed for the purpose of providing you
services under this Agreement. You acknowledge that XX.Xxx does not pre-screen
content, but that XX.Xxx and its designees will have the right (but not the
obligation) in their sole discretion to refuse or remove any content that is
available via the Site. You agree that you must evaluate and bear all risks
associated with, the use of any content, including any reliance on the accuracy,
completeness, or usefulness of such content.
19
8. INDEMNITY
---------
You agree to defend, indemnify and hold harmless YP Net, and its subsidiaries,
affiliates, officers, directors, agents, co-branders or other partners, and
employees, harmless from any claim or demand, including reasonable attorneys'
fees, due to or arising out of your content, your use of the Site or your
Account, your violation of the this Agreement or any third party's rights.
XX.Xxx reserves the right, at its own expense, to participate in the defense of
any matter otherwise subject to indemnification from you, but shall have no
obligation to do so. You shall not settle any such claim or liability without
the prior written consent of XX.Xxx if the settlement would affect YP. Net's
ability to provide the Site.
9. TERMINATION
-----------
XX.Xxx may terminate this Agreement and your access to the Site upon thirty (30)
days notice with or without cause. XX.Xxx may terminate this Agreement and your
access to the Site immediately if you breach this Agreement. In the event that
XX.Xxx terminates this Agreement without cause and you have prepaid for
services, you may request a refund of any undisputed prepaid fees.
10. LINKS
-----
We may provide, or third parties may provide, links to other Internet sites or
resources. XX.Xxx is not responsible for and does not endorse the informational
content or any products or services available through other Internet sites or
resources, and does not make any representations regarding its content or
accuracy. We do not control any third party Internet sites and we are not
liable for any technological, legal, or other consequences that arise out of
your visit or transactions there. Your use of third party Internet sites is at
your own risk and subject to the terms and conditions of use for such sites.
This means that we are not your agent and will not be a party to any agreement
that you may enter at third party Internet sites.
11. WARRANTIES
----------
You represent and warrant for the benefit of XX.Xxx and XX.Xxx's licensors,
suppliers, and any third parties mentioned on the Site that: (a) you possess the
legal right and ability to enter into and make the representations and
warranties contained in this Agreement; (b) all information that you submit to
us is true and accurate; (c) you will Keep your registration information
current; (d) you will be responsible for all use of your Account even if such
use was conducted without your authority or permission; (e) you will not use the
Site for any purpose that Is unlawful or prohibited by this Agreement; and (f)
all content submitted to the Site is owned by you and XX.Xxx's use of the
content does not infringe or violate the intellectual property or other rights
of any third parties; and (g) you have a valid business license.
12. DISCLAIMER OF WARRANTIES
--------------------------
THIS SITE AND ALL INFORMATION ACCESSIBLE ON OR THROUGH IT IS PROVIDED "AS IS,"
"AS AVAILABLE," "WITH ALL FAULTS," AND WITHOUT WARRANTY OF ANY KIND. XX.Xxx
GIVES NO EXPRESS WARRANTIES AND DISCLAIMS: (A) ALL IMPLIED WARRANTIES,
INCLUDING. BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE; AVAILABILITY OF THE SITE; LACK OF VIRUSES, WORMS, TROJAN
HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES;
ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY
CONTENT ON THE SITE; AND (B) ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT
OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE OR CONTENT AVAILABLE ON IT.
THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN
CONNECTION WITH THE SITE AND CONTENT AVAILABLE ON IT IS BORN BY YOU.
IN ADDITION, XX.Xxx DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, OR
QUIET ENJOYMENT IN CONNECTION WITH THE SITE AND INFORMATION AVAILABLE ON IT.
13. LIMITATION OF LIABILITY
-------------------------
IN NO EVENT WILL XX.Xxx BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES (INCLUDING, WITHOUT
20
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
DATA, PERSONAL INJURY, FAILURE TO MEET ANY DUTY INCLUDING ACTS OF GOOD FAITH OR
OF REASONABLE CARE, LACK OF NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER
LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE THIS SITE
AND ANY INFORMATION AVAILABLE ON IT, THE DELAY OR INABILITY TO USE THE SITE OR
ANY INFORMATION, EVEN IN THE EVENT OF= FAULT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY XXXX.Xxx AND EVEN IF
YP Net HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THESE LIMITATIONS
AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT XXXXXX.Xxx BE LIABLE FOR ANY AMOUNT
IN EXCESS OF THE AMOUNT PAID BY YOU TO US FOR USE OF THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 14 MAY NOT APPLY
TO YOU.
14. THIRD PARTY BENEFICIARY
-------------------------
Community IQ, Inc., d/b/a Xxxxx.xxx is Washington State corporation located at
00000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxx X, Xxxxxxx XX 00000, which will provide
the web site development and maintenance services for XX.Xxx as anticipated
under this Agreement. You hereby xxxxxxxxxXxxxx.xxx, is a third party
beneficiary to this Agreement and will enjoy all the rights and privileges
xxXX.Xxx as set forth herein.
15. EXPORT CONTROLS
----------------
You agree to abide by U.S. and other applicable export control laws and not to
transfer, by electronic transmission or otherwise, any content or software
subject to restrictions under such laws to a destination prohibited under such
laws, without first obtaining, and then complying with, any requisite government
authorization. You further agree not to upload to your web site(s) hosted
xxXX.Xxx any data or software that cannot be exported without prior written
government authorization, including, but not limited to, certain types of
encryption software.
16. AMENDING THIS AGREEMENT
-------------------------
This Agreement constitutes the entire agreement between you and XX.Xxx about
this Site and your use of it and it supercedes any prior or contemporaneous
communications or displays whether electronic, oral, or written between you and
XX.Xxx regarding the Site (including, but not limited to, any prior versions of
the Agreement). Except as described below in Section 17 regarding changes to
fees, this Agreement may not be amended except by a specific offer from XX.Xxx
designated as an offer to amend its terms which is accepted by you in the manner
indicated in the offer, if you accept the amended terms, they supercede any
previous terms in the Agreement (or any amended version of the Agreement). If
you do not accept the amended terms, you may terminate the Agreement and request
a refund of any undisputed prepaid fees.
17. FEES; PAYMENT
--------------
Your use of the Site and your Account is subject to fees that XX.Xxx sets from
time to time. Click here to see the current fee schedule for the services
offered at the Site. XX.Xxx reserves the right to change its services or any
fees charged for them upon 30 days' notice. If you do not agree to changes in
fees, you may terminate your Account. You are responsible to pay XX.Xxx for ail
fees, duties, taxes, and assessments arising out of your use of this Site and
your Account. Current applicable charges for the services are due in advance of
each month for which the services are provided. If any service, other than the
basic service plan, is selected by you, payment shall be due in full upon
ordering the service. Only
21
valid credit cards acceptable to YP Net may be used for orders placed at the
site, and all refunds will be credited to the same card. By submitting your
order for processing, you authorize us to charge your order (including taxes and
any amounts shown to you before submission) to your card. If your card cannot be
verified, is invalid, or is not otherwise acceptable, your order will be
suspended automatically and we will send you an e-mail notice. You must resolve
any problem within the time stated in the email notification or your order will
be cancelled without further notice. You will also be liable for all attorney
and collection fees arising from XX.Xxx's efforts to collect any unpaid balance
of your Account(s).
18. GENERAL INFORMATION
--------------------
This Agreement does not create any agency, employment, partnership, joint
venture, franchise or other similar or special relationship between you and
XX.Xxx. Neither party will have the right or authority to assume or create any
obligations or to make any representations, warranties or commitments on behalf
of the other party or its affiliates, whether express or implied, or to bind the
other party or its affiliates in any respect whatsoever.
Your rights and obligations under this Agreement shall not be transferred or
assigned directly or indirectly without the prior written consent of XX.Xxx.
This Agreement and the relationship between you and XX.Xxx is governed by the
laws of the State of Arizona without regard to its conflict of law provisions.
You and XX.Xxx agree to submit to the personal and exclusive jurisdiction of the
courts located within the county of Maricopa, Arizona. The failure of XX.Xxx to
exercise or enforce any right or provision of this Agreement will not constitute
a waiver of such right or provision.
If any provision of this Agreement is found by a court of competent jurisdiction
to be unenforceable, then the provision (or portion) will be deemed superseded
by valid enforceable language that most clearly matches the intent and
allocation of risk in the original provision (or portion), and the other
provisions of this Agreement remain in full force and effect. You agree that
regardless of any statute or law to the contrary, any claim or cause of action
arising out of or related to use of the Site or this Agreement must be filed
within one (1) year after such claim or cause of action arose or be forever
barred. The section titles in the Agreement are for convenience only and have no
legal or contractual effect
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EXHIBIT D
PRIVACY POLICY
XX.XXX USER PRIVACY POLICY
This Privacy Statement describes how XX.Xxx, Inc. may collect and uses
information through xxx.XX.Xxx ("Site").
WHAT INFORMATION MIGHT XX.XXX COLLECT FROM USERS OF THE SITE?
XX.Xxx and XX.Xxx's service providers might collect information that you provide
that personally identifies you when you use the Site. Such information may
include, but is not limited to, your name, e-mail alias, user identification
password and other information which can be connected to you via use of cookies
(described below) (collectively "Personal Information"). Additionally, in the
event that you purchase products or services from the Site you will need to
disclose financial information such as a credit card to pay for such products or
services ("Financial Information"). XX.Xxx may collect "Aggregate information"
which does not indicate the identity of any particular user, but describes the
habits, usage patterns and/or demographics of users as a group.
WHAT ARE COOKIES AND HOW ARE THEY USED?
A cookie is a very small text file placed on your hard drive by a computer
server. It serves as your identification card and is uniquely yours. Cookies
tell us that you returned to a specific web page on our Site and help us track
your preferences and transactional habits. Cookies recognize your password and
help us personalize your experience at the Site by permitting our computer
server to "remember" who you are.
By modifying your browser preferences you may chose to accept all cookies, to be
notified when a cookie is set, or to reject all cookies. If you choose to reject
all cookies you may be unable to use those XX.Xxx services that require
registration in order to participate. Generally, we might use cookies to:
(1) Remind us of who you are. This cookie is set when you register or "Sign In"
and is modified when you "Sign Out" of xxxXX.Xxx services.
(2) Estimate our audience size. Each browser accessing XX.Xxx is given a unique
cookie which is then used to determine the extent of repeat usage, usage by a
registered user versus by an unregistered user, and to help target
advertisements based on user interests and behavior.
(3) Measure certain traffic patterns, which areas of XX.Xxx you or your page
visitors have visited, and those visiting patterns in the aggregate. We use this
research to understand how our users' habits are similar or different from one
another so that we can make each new experience on XX.Xxx a better one. We may
use this information to better personalize the content, banners and promotions
that you and other users may see on our sites.
(4) XX.Xxx might also collects IP addresses for system administration and to
report aggregate information to our advertisers.
HOW MIGHT XX.XXX USE AND SHARE MY PERSONAL INFORMATION?
For Small Business Owners.
-----------------------------
XX.Xxx and XX.Xxx's service providers might use your Personal Information to
operate the Site, provide you services, open your Account, and enforce or
investigate your Membership Terms of Service and claims regarding it. We also
collect and store Personal Information regarding users that access your
personalized web pages (your Account).
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For General Users Visiting Small Business Owner Web Pages.
-----------------------------------------------------------------
XX.Xxx and XX.Xxx's service providers might use your Personal Information to
operate the Site provide you services, and to enforce or investigate our User
Terms of Service and claims regarding it. Your Personal Information may be
stored and it may be shared with the small business owners whose web pages you
visit. XX.Xxx does not control the use of your Personal Information made by any
small business owner-so please contact them directly if you have questions about
their policies concerning the use of your Personal Information.
PROMOTIONAL OFFERS FROM XX.XXX AND FROM THIRD PARTIES
We may send you information from time to time about XX.Xxx's promotional
offerings and we may share your Personal Information with third parties who wish
to send you promotional offerings. Your consent to receipt of promotional
offerings may be given to us via or in response to an email communication
requesting your consent or otherwise during registration for use of the Site in
the appropriate check boxes (if any) within the Site signifying your consent. To
stop delivery of pro motional information from XX.Xxx please send e-mail to
xxxxxxxxxxxxxx@XX.Xxx. You may also be able to stop delivery of promotional
---------------------
offerings from others by contacting them directly.
OTHER SITUATIONS IN WHICH PERSONAL INFORMATION MAY BE DISCLOSED
We store and disclose Personal Information as allowed or required by applicable
law or when deemed advisable in XX.Xxx's discretion. This means that we may make
disclosures that are necessary or advisable to conform to legal and regulatory
requirements or processes and to protect the rights, safety and property of
XX.Xxx, users of the Site and the public.
FINANCIAL INFORMATION: Generally, we do not share Financial Information with
outside parties except to the extent necessary to provide you with any product
or service that you may have purchased.
AGGREGATE INFORMATION: XX.Xxx and XX.Xxx's service providers reserve the right
to freely use and distribute all Aggregate Information collected at this Site.
WHAT IS XX.XXX' POLICY ABOUT ALLOWING ME TO UPDATE OR CORRECT MY PERSONAL
INFORMATION?
You may update or edit your Personal Information at any time, if you are a small
business owner, by accessing your Account, or if you are a user of the Site
generally by sending email to xxxxxxxxxxxxxx@XX.Xxx.
---------------------
WHAT SECURITY PRECAUTIONS ARE IN PLACE TO PROTECT THE LOSS, MISUSE, OR
ALTERATION OF MY INFORMATION?
We take reasonable steps to protect Personal Information and use encryption
technology to help ensure security at the Site. However, no data transmission
over the Internet or any wireless network can be guaranteed to be 100% secure.
As a result, while we strive to protect your Personal Information XX.Xxx cannot
ensure or warrant the security of any information communicated to the Site.
QUESTIONS, COMMENTS, CONCERNS
If you have any questions or comments about our use of Personal Information,
please contact us at xxxxxxxxxxxxxx@XX.Xxx.
---------------------
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EXHIBIT E
MARKETING
XXXXX.XXX OBLIGATIONS:
1. Provide position statements, marketing data, and branding requirements to
XX.Xxx to promote the Private Label Service,
2. Promote Private Label Service via:
2.1. A mutually agreed upon press release
2.2. Additional marketing promotions will be mutually agreed upon by the
parties
2.3. Email, Newsletter
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EXHIBIT F
MONTHLY SERVICE FEE
Maximum Number Monthly Per Site
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of Pages Per Site Charge
----------------------- ---------------------
56 $6.50
26
