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4.21 Form: Promotional Bundling Agreement
This agreement is used when parties wish to "bundle" products and/or
services for marketing purposes, such as offering a free or discounted
personal computer when a user subscribes to a fee-based service.
PROMOTIONAL BUNDLING AGREEMENT
This Agreement is entered into as of this ___ day of __________,
2000 (the "Effective Date") by and between Acme Interactive Inc.
("Acme"), a Delaware corporation, having an address at 123 Main
Street, Wilmington, Delaware, 02145, and the undersigned Bundling
Partner ("Partner").
WHEREAS, Acme is a provider of interactive products and services
including Acme Interactive Service;
WHEREAS, Partner is a [manufacturer] [reseller] of the Partner
Products (as defined herein), among others; and
WHEREAS, as part of a joint marketing effort to attract additional
subscribers to the Acme Interactive Service (as defined herein) and
additional purchasers of the Partner Products, the parties have created
a program under which persons who become Acme Interactive Service
subscribers may become eligible for certain promotions and under
which Acme shall pay certain bounties to Partner in connection with
subscribers acquired through such promotions.
NOW THEREFORE, in consideration of the mutual promises
contained in this Agreement, Acme and Partner agree as follows:
1. DEFINITIONS
1.1 "Acme Icon" shall mean a clickable graphic icon in the design
provided by Acme, which will allow users to access the Acme
Software.
1.2 "Acme Marks" shall mean any logos, trademarks, service names or
trade names of Acme.
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1.3 "Acme Software" shall mean the computer programming code, in
object code (i.e., machine-readable) form only of the software and any
end user documentation to be furnished by Acme hereunder, plus all
Revisions furnished at any time by Acme to Partner under this
Agreement.
1,4 "Acme Software Displays" shall mean the marketing and
promotional materials for the Product Bundles, Promotion Program,
Acme and the Acme Interactive Service created and displayed in
accordance with this Agreement in the Retail Stores, as further
described in Section 5.3.
1.5 "Acme Interactive Service" shall mean Acme's fee-based online
interactive service.
1.6 "Partner Marks" shall mean any logos, trademarks, service names
or trade names of Partner.
1.7 "Partner Products" shall mean the Partner products identified in
Exhibit A hereto.
1.8 "Product Bundles" shall mean the Partner Products in combination
with the Acme Software in the form to be provided pursuant to the
terms of this Agreement.
1.9 "Promotion Amount" shall mean the applicable promotion amount
a Qualified Subscriber shall be entitled to receive pursuant to the terms
of the Promotion Program, as such amount is set forth in Exhibit D
hereto.
1.10 "Promotion Period" shall mean the period of time set forth in
Exhibit D.
1.11 "Promotion Program" shall mean the promotion program set forth
in Exhibit D.
1.12 "Qualified Subscribers" shall mean purchasers of the Product
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Bundles who subscribe for the applicable initial period set forth in
Exhibit D (the "Initial Period") to the Acme Interactive Service at the
applicable rate set forth in Exhibit D (the "Acme Web Rate").
1.13 "Retail Stores" shall mean the retail stores that will carry the
Product Bundles during the term of this Agreement, as such stores
shall be determined mutually by the parties.
1.14 "Sale" shall mean a customer's purchase of a Product Bundle, and
shall include financed purchases and leases of Product Bundles, if
applicable.
1.15 "Third Party Coupon Processing House" shall mean that certain
third party selected and contracted with by Acme and subject to
Partner's reasonable approval, which third party shall have the
responsibility, among others, of issuing the Promotion Amount to each
Qualified Subscriber.
2. DELIVERY AND PROVISION OF INTERACTIVE SERVICE
AND ACME SOFTWARE
2.1. Acme Software. Acme shall deliver to Partner, on or before the
Acme Software Delivery Date set forth in Exhibit B, one (1) digital-
format master copy of the Acme Software set forth in Exhibit B to
Partner.
2.2. Acme Interactive Service. As a result of a Sale, Acme will provide
an account on the Acme Interactive Service to Qualified Subscribers
for the Initial Period. At Acme's request, Partner will provide
reasonable assistance to Acme in encouraging Qualified Subscribers to
continue to subscribe to the Acme Interactive Service upon expiration
of such Initial Period.
2.3. Acme Customer Service and Administration. Acme will be solely
responsible for administration of all orders and accounts for the Acme
Interactive Service, including without limitation validation of identity
and creditworthiness, registration, managing order taking and
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processing, and billing. Acme shall provide customer service and
support to Qualified Subscribers solely in connection with their use of
the Acme Software and Acme Interactive Service.
3. PREPARATION, DISTRIBUTION AND SERVICING OF
PRODUCT BUNDLES
3.1. Preparation of Product Bundles. Using the master copy provided
by Acme, Partner will reproduce copies of the Acme Software as
necessary for pre-loading on each of the Partner Products to produce
the Product Bundles. Partner will integrate and install the Acme
Software into the Product Bundles so that prospective subscribers may
immediately access the Acme Software upon initial setup of any
Product Bundle.
3.2. Display of Acme Icon. In the event the Product Bundles hereunder
include a personal computer ("PC"), Partner shall cause the Acme Icon
to be prominently displayed on the opening screen of all Product
Bundles in a manner at least as prominent as any other icon displayed
on such opening screen. The size, shape, placement and "look and
feel" of the Acme Icon as displayed on the Product Bundles shall be
subject to Acme's prior written approval.
3.3. Distribution of Product Bundles. Partner will distribute (or cause
the distribution of) the Product Bundles to Retail Stores in accordance
with the schedule set forth in Exhibit A (the "Partner Distribution
Period"), and will deliver (or cause the delivery of) each Product
Bundle to the applicable customer within ______ (__) hours of such
customer's order.
3.4. Partner Customer Service and Administration. Partner shall be
solely responsible for providing the following services in accordance
with agreed upon procedures to customers and Qualified Subscribers
who contact Partner or order Product Bundles as a result of the parties'
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activities under this Agreement: (i) administration of all orders and
accounts with respect to the manufacture, distribution, offer and sale of
the Product Bundles, including but not limited to validation of
purchasers' identity and creditworthiness against agreed upon criteria,
setting up and managing order taking and processing services, order
processing and fulfillment, provisioning, billing and equipment
management (inventory returns and processing of warranty claims) in
connection with the Product Bundles; and (ii) E-mail and telephone
customer service and support to all Qualified Subscribers for all
inquiries regarding the Partner Products, including customer
administrative matters and Promotion Program. The level of customer
service and support services in terms of quality and responsiveness,
shall be no less than the level of those services provided by Partner to
its other customers or users.
3.5. Monthly Reports. Partner shall provide Acme on a monthly basis
with (i) the serial numbers for all Partner Products; (ii) the invoice
numbers for all Sales; (iii) all Sales conducted during the previous
month (including but not limited to the number of Product Bundles
shipped and the number of Product Bundles returned); (iv) estimates of
the quantity of the Product Bundles which Partner expects to sell
during the following month; and (v) all relevant customer data
reasonably requested by Acme in order to facilitate Acme's provision
of required information and processing of subscriber registration for
the Acme Interactive Service ("Customer Data").
4. MARKETING RIGHTS AND DUTIES
4.1. Review of Marketing Materials. All marketing and advertising
materials developed by or on behalf of Partner which (i) relate to the
Promotion Program or Product Bundles, (ii) refer to Acme, the Acme
Software, the Acme Marks or the Acme Interactive Service, or (iii) are
transmitted by means of the Acme Software or Acme Interactive
Service (collectively, "Partner Marketing Materials") shall be subject
to prior review and approval by Acme. Partner shall also provide
Acme with copies of all Partner Marketing Materials immediately
following the first distribution thereof. Partner shall make such
changes to the Partner Marketing Materials or Acme Software
Displays as Acme may reasonably request to ensure proper use of the
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Acme Marks and to avoid any statement that is, in Acme's sole
discretion, inaccurate, objectionable or misleading.
4.2. Development of Marketing Materials. Except as otherwise
expressly set forth herein, all joint promotional and marketing
programs and related materials (collectively, "Co-Marketing Programs
and Materials") shall be developed, designed and created by Acme,
including the content, size, placement and overall appearance thereof,
subject to the reasonable, written approval of Partner. At Acme's
request, Partner shall promptly prepare and provide to Acme: (i)
Partner Marketing Materials; (ii) support and assistance regarding the
design and development of the Co-Marketing Programs and Materials;
and (iii) copy direction and artwork, fulfillment and/or tracking
information and required production specifications.
4.3. Marketing of Product Bundles by Partner. During the Term,
Partner shall (i) promote in all of its advertisements for the Partner
Products and Product Bundles, Acme, the Acme Software, the
Promotion Program and Acme Interactive Service, including but not
limited to advertising prominently on Partner's print and other media
advertising, Retail Store circulars, in-store promotions, Partner's Web
site and on the boxes of all Product Bundles, and (ii) have the right to
market the Product Bundles on a joint logo basis in Partner's trade
dress with a byline identifying Acme, all in accordance with this
Article 5 and in the manner mutually agreed to by the parties.
5. LICENSE
5.1. Acme Software. Acme grants to Partner the nonexclusive right
and license to copy the Acme Software solely for inclusion in the
Product Bundles and to market and distribute copies of the Acme
Software, as included in the Product Bundles, throughout the United
States.
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5.2. Trademarks. Acme hereby grants Partner the non-exclusive, non-
transferable, revocable, limited right to display and distribute the
Acme Marks provided by Acme and the Acme Software provided by
Acme solely to promote the Product Bundles, Promotion Program,
Acme, the Acme Software and Acme Interactive Service, and on or in
connection with the Acme Software Displays, throughout the United
States. All marketing and advertising materials of Partner and all
portions of the Acme Software Displays referring to any Acme Marks
must contain a notice substantially in the following form, and Partner
agrees to include such notice in any form which may be provided or
requested by Acme:
"Copyright (c)1999 Acme Interactive Services, Inc. ALL RIGHTS
RESERVED. Acme and the Acme logo are registered trademarks and
Acme Interactive is the trademark of Acme Interactive Services, Inc."
Partner hereby grants Acme the non-exclusive right to use the Partner
Marks solely to perform its obligations under this Agreement, to
promote Acme's business, the Promotion Program, the Acme Software
and Acme Interactive Service and to indicate that Partner is an Acme
distributor or partner.
5.3. Partner Content. Except for any creative content provided by
Partner to Acme hereunder which is not specific to Acme or this
Agreement ("Partner Content") for inclusion in Co-Marketing
Programs and Materials or advertisements on such services as Acme
may offer to its subscribers, all artwork, logos, graphics, video, text,
data, animations, advertisements, computer programs and other
materials developed or used by Acme in connection with this
Agreement (the "Works") are and shall remain the sole and exclusive
property of Acme. Partner agrees that it will not at any time do or
cause to be done any act or thing contesting, impairing or intended to
impair the foregoing ownership rights of Acme to the Works.
6. OWNERSHIP AND PROTECTION
6.1. Proprietary Rights. Acme shall own all rights, title and interest in
and to (i) the Acme Software and Acme Interactive Service, (ii) the
Acme Software Displays, (iii) the Acme Marks, (iv) all data,
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information and records collected and/or maintained by Acme and the
Third Party Coupon Processing House regarding individuals who
subscribe to the Acme Interactive Service, including but not limited to
the Qualified Subscribers; and (v) any and all other materials provided
or developed by or on behalf of Acme in connection with this
Agreement. Partner shall not alter, copy or modify the Acme Software
or the Acme Software Displays, or any portion thereof, in any manner
whatsoever without the prior written consent of Acme. Partner shall
own all rights, title and interest in and to (i) the Partner Marks; and (ii)
the Partner Content.
6.2. Marketing Materials. Each Party shall maintain sole ownership of
all marketing materials developed by such party or licensed by such
party from a third party, and the other party shall have no right, title, or
interest therein. Without limitation of the foregoing, Acme will have
the right to re-use any marketing materials created or provided by or
on behalf of Acme on behalf of any other relationship entered into by
Acme during the Term or following expiration or termination of this
Agreement (exclusive of Partner Marks).
6.3. Protection of Rights. Partner agrees not to modify, reverse-
assemble, reverse-compile or reverse-engineer the Acme Software.
Partner shall obtain agreements from all employees, agents and
representatives who are given access to the Acme Software, whether
as part of the Product Bundles or otherwise, that prohibit, except as
expressly authorized in this Agreement, modification, distribution, and
reverse-engineering of the Acme Software. Partner shall use all
reasonable efforts to enforce the rights under such agreements and
otherwise to protect the ownership rights and proprietary interests of
Acme and its licensors in the Acme Software.
6.4. Cooperation. The parties shall, to the extent commercially
reasonable under the circumstances, cooperate in the enforcement of
all rights in the Acme Software against infringers and potential
infringers.
7. RELATIONSHIP OF THE PARTIES
7.1. Exclusivity. For the duration of the Term, Partner will provide to
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Acme the exclusive right to provide Interactive access or other
services to customers who have purchased a Partner Product, and
Partner shall not permit any other providers of any such Interactive
services ("Other Providers") to perform services or provide software to
such customers or participate with Partner in any promotion or rebate
type program. For the duration of the Term, Partner shall refrain from
entering into agreements with Other Providers, including but not
limited to agreements involving installing or integrating the software
or products of such Other Providers into the Partner Products or
involving advertising on or in connection with the Partner Products.
For the duration of the Term, Partner shall not distribute nor permit the
distribution of Partner Products in Retail Stores, except as part of the
Product Bundles.
7.2. Publicity. Subject to the mutual agreement and prior written
approval of the parties, Acme and/or Partner shall issue a joint press
release to announce the Promotion Program and the relationship of the
parties.
8. PAYMENTS
8.1. Payments by Acme. Acme shall enter into a contract with the
Third Party Coupon Processing House with respect to payment of
Promotion Amounts to Qualified Subscribers pursuant to the terms of
the Promotion Program, as described in Exhibit D. Acme shall pay (or
cause the Third Party Coupon Processing House to pay) the Promotion
Amount to all Qualified Subscribers.
8.2. Creation and Return of Promotion Certificates. Partner shall create
and print the Promotion Certificates and Partner shall provide a
Promotion Certificate with each Product Bundle for signature and
return by such Customer to the Third Party Coupon Processing House.
Upon Acme's request Partner shall return, or shall cause the Third
Party Coupon Processing House to return, to Acme or its designee the
Program Certificates signed by Customers and processed by the Third
Party Coupon Processing House.
8.3. Promotion Program Expenses. Partner shall be responsible for
paying the Administrative Costs directly to the Third Party Coupon
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Processing House in connection with the Promotion Program.
"Administrative Costs" shall mean all amounts payable to the Third
Party Coupon Processing House by Partner and Acme (including,
without limitation, costs associated with cutting and delivering checks
and creating and printing Promotion Certificates) to administer the
Promotion Program.
8.4. Audit Rights. Partner shall maintain complete and accurate
records of all records and transactions related to the subject matter of
this Agreement. Acme or its authorized representative shall have the
right to conduct a reasonable inspection of such records for the
purpose of verifying the accuracy of information provided to Acme or
amounts payable or paid by or to Acme hereunder. Such inspection
shall be conducted upon reasonable notice to Partner, and shall be
conducted on Partner's premises during normal business hours in such
a manner as to minimize disruption to Partner.
8.5. Expenses. Except as otherwise set forth in this Agreement, each of
the parties shall pay its own costs and expenses associated with
performing its respective obligations under this Agreement.
9. WARRANTIES, DISCLAIMER AND LIMITATION OF
LIABILITY
9.1. Warranties. The parties hereby represent and warrant that the
services provided by such party hereunder shall be of a professional
nature, performed by knowledgeable and skilled personnel, and
conform to or exceed the standards generally observed in the industry
for similar services; that it has all necessary rights and authority to
execute and deliver this Agreement and perform its obligations
hereunder, and that nothing contained in this Agreement or in the
performance of this Agreement will place such party in breach of any
other contract or obligation; and that it will comply with all applicable
laws, rules and regulations. Partner hereby represents and warrants that
neither the performance of the services or provision of the Product
Bundles (exclusive of the Acme Software as delivered to Partner),
Partner Products, Partner Marketing Materials, Partner Marks or
Partner Content by or on behalf of Partner nor the exercise of Acme's
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ownership right in and to any materials created for Acme by Partner or
transferred by Partner to Acme, will in any way constitute an
infringement or other violation of any copyright, patent, trademark,
trade secret or other proprietary or personal rights of any third party.
Acme hereby represents and warrants that neither the performance of
the services or provision of the Acme Software or Acme Marks will in
any way constitute an infringement or other violation of any copyright,
patent, trademark, trade secret or other proprietary or personal rights of
any third party.
9.2. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE
WARRANTIES BY ACME SET FORTH IN SECTION 10.1, ACME
MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED,
AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE FOR ANY INFORMATION OR SOFTWARE SUPPLIED
BY OR ON BEHALF OF ACME IN CONNECTION WITH THIS
AGREEMENT. IN ADDITION, ACME MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE ACME INTERACTIVE SERVICE, THE ACME SOFTWARE,
ANY REVISIONS, THE PRODUCT BUNDLES OR ANY OTHER
SERVICE TO BE PROVIDED BY ACME HEREUNDER,
INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. SPECIFICALLY, PARTNER ACKNOWLEDGES AND
UNDERSTANDS THAT ACME MAY ENCOUNTER TECHNICAL
OR OTHER DIFFICULTIES WHICH MAKE PROVIDING THE
ACME INTERACTIVE SERVICE UNFEASIBLE OR REQUIRE
ACME TO ALTER THE CONTENT OR STRUCTURE OF THE
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ACME INTERACTIVE SERVICE IN ITS CURRENT FORM AND
THAT ACME WILL HAVE NO LIABILITY IN CONNECTION
WITH SUCH DIFFICULTIES.
9.3. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS), EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT SHALL ACME BE LIABLE FOR OR IN
CONNECTION WITH ANY PRODUCTS, SERVICES OR
INFORMATION OFFERED OR SOLD BY OR ON BEHALF OF
PARTNER, INCLUDING BUT NOT LIMITED TO THE PARTNER
PRODUCTS, THE PRODUCT BUNDLES OR ANY CUSTOMER
SUPPORT PROVIDED BY PARTNER; NOR SHALL ACME BE
LIABLE FOR OR IN CONNECTION WITH A THIRD PARTY'S
USE OR MISUSE OF THE PARTNER PRODUCTS, PRODUCT
BUNDLES, ACME SOFTWARE OR ACME INTERACTIVE
SERVICE. EXCEPT FOR EACH PARTY'S INDEMNIFICATION
OBLIGATIONS HEREUNDER, EACH PARTY'S ENTIRE
LIABILITY FOR DAMAGES FOR ANY CLAIM ARISING UNDER
OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO
AMOUNTS RECEIVED BY PARTNER FROM ACME UNDER
THIS AGREEMENT IN THE ____ CONSECUTIVE MONTHS
IMMEDIATELY PRIOR TO THE DATE ON WHICH SUCH
CLAIM AROSE.
10. INDEMNIFICATION
10.1. Partner agrees to defend, indemnify and hold harmless Acme, its
affiliates, officers, directors, employees and agents of any of the
foregoing from and against any loss, claim, damage, obligation,
liability, cost or expense (including, without limitation, reasonable
attorneys' fees and costs of any investigation or preparation) by any
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third party (collectively, "Claims") based on or arising out of any
breach of this Agreement by Partner; any act or omission of Partner or
its employees, agents and customers; any infringement of any third
party proprietary, personal or contractual rights by the Partner Content,
Partner Marketing Materials, Partner Products, Product Bundles
(exclusive of the Acme Software as delivered to Partner), Partner
Marks or any other material or information provided by or on behalf of
Partner hereunder; and any express or implied warranty made by
Partner or its employees or agents relating to the Acme Software,
Revisions, Acme Interactive Service, Partner Products and the Product
Bundles. Acme agrees to defend, indemnify and hold harmless Partner,
its affiliates, control persons, officers, directors, employees and agents
of any of the foregoing from and against any Claims based on or
arising out of any breach of this Agreement by Acme; and any
infringement of any third party proprietary, personal or contractual
rights by the Acme Software or Acme Marks.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement shall commence upon the
Effective Date and shall continue for a period of _________ (the
"Term"), unless sooner terminated hereunder. The parties may renew
this Agreement by mutual consent and written agreement.
11.2. Termination for Default. Either party may terminate this
Agreement upon the default of the other party by providing written
notice specifying the nature of the default. Such notice shall be
effective thirty (30) calendar days after receipt thereof by the
defaulting party, unless, prior to such date, the defaulting party shall
have cured the default. If the specified default is cured, such
termination shall not take place.
11.3. Termination of Service. This Agreement shall also terminate
upon ten (10) days written notice to Partner without further liability of
Acme upon Acme's decision to discontinue offering a fee-based online
interactive service, such decision to be at Acme's sole discretion.
11.4. Effect of Termination. Partner shall return, or, with Acme's
permission, destroy all copies of the Acme Software, and each party
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shall return, or, with the other party's permission, destroy all copies of
any Confidential Information or other materials of the other party, in
its possession within thirty (30) calendar days after termination of this
Agreement for any reason.
12. GENERAL
12.1. Governing Law. This Agreement and its enforcement shall be
governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to conflicts-of-law principles. Each party
irrevocably consents to the exclusive jurisdiction of the courts of the
State of New York and the federal courts situated in the State of
Delaware in connection with any action arising under this Agreement.
12.2. Force Majeure. Neither party shall be liable for failure to perform
any obligation under this Agreement where such failure is due to fire,
flood, labor dispute, natural calamity, or acts of the government or if
such causes are otherwise beyond the control of such party.
12.3. Severability. If any provision of this Agreement is deemed by a
court of competent jurisdiction to be unenforceable or contrary to any
applicable law or regulation, such provision shall be enforced to the
maximum extent permitted by law and to effect the parties'
fundamental intentions hereunder, and the remainder of this
Agreement shall continue in full force and effect.
12.4. Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their successors and permitted
assigns. This Agreement is not assignable by either party without the
prior written consent of the other party. Notwithstanding the
foregoing, without securing such prior consent, Acme shall have the
right to assign this Agreement to any successor of Acme by way of
merger, consolidation, reorganization or the acquisition of all or
substantially all of the business and assets of Acme relating to this
Agreement.
12.5. Relationship of the Parties. The parties are independent
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contractors and nothing in the Agreement is intended to or shall be
construed to constitute or establish an agency, joint venture,
partnership, or fiduciary relationship between the parties, and neither
party shall have the right to act for or on behalf of the other party.
12.6. Subcontractors. Neither party shall subcontract any portion of its
performance under this Agreement without the prior written consent of
the other party; provided, that Partner's execution of this Agreement
constitutes consent to subcontracting by Acme in accordance with
Acme's normal course of business.
12.7. Notices. Notices and other communications hereunder shall be
sent to the parties at their respective addresses set forth beneath their
signatures below or to such other address as a party shall notify the
other in writing. Notices and communications shall be sent by
overnight mail or facsimile transmission and shall be deemed
delivered only when received by the intended recipient.
12.8. Entire Agreement. This Agreement, including the Exhibits
hereto, sets forth the entire agreement between the parties on the
subject hereof and supersedes any prior negotiations, understandings,
and agreements concerning such subject matter. No amendment or
modification of this Agreement may be made except by a writing
signed by the party to be bound thereby or the permitted assign or
successor in interest of such party.
12.9. Non-Waiver of Default. The failure of either party to insist on
the performance of any terms or conditions of this Agreement shall not
be construed as a waiver of any rights granted hereunder or of the
future performance of any such term or condition, and the obligations
of the non-performing party with respect thereto shall continue in full
force and effect.
12.10. Confidential Information. Partner and Acme recognize that, in
connection with the performance of this Agreement, each of them may
disclose to the other information about the disclosing party's business
or activities which such party considers proprietary and confidential
(including marketing concepts, business, financial and technical
information of a party), hereinafter referred to as "Confidential
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Information". The party who receives any Confidential Information
agrees to maintain the confidential status of such Confidential
Information, not to use any such Confidential Information for any
purpose other than the purpose for which it was originally disclosed to
the receiving party, and not to disclose any of such Confidential
Information to any third party (other than as may be required or
requested to be disclosed by court order or other governmental agency
or regulation after taking all reasonable steps to seek a protective order
or other similar remedy). Information shall not be considered
Confidential Information if it can be shown to the reasonable
satisfaction of the party to whom such information belongs that such
information: (i) is or has become available to the public or to persons
active in the multimedia industry from a source other than the
receiving party; (ii) is disclosed to the receiving party by a third party
who is not under any legal obligation prohibiting such disclosure; (iii)
was known by the receiving party prior to disclosure; or (iv) is
independently developed by the receiving party
12.11. Subscriptions. Acme has the right, in its sole discretion, to
determine whether to accept the subscription of any purchaser of the
Product Bundles or other person, whether to cancel the membership of
any Qualified Subscriber or other person at any time, and the terms of
subscription of any Qualified Subscriber or other person, provided that
Acme will not discriminate against Qualified Subscribers solely due to
their status as Qualified Subscribers hereunder.
12.12. Survival. The following provisions shall survive the termination
or expiration of this Agreement for any reason: Article 6, Article 8,
Article 9, Article 10, Section 11.4 and this Article 12.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed below by their duly authorized signatories.
[PARTNER NAME]
By:
Name:
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Title:
Address for notices to Partner:
ACME INTERACTIVE SERVICES, INC.
By:
Name:
Title:
Address for notices to Acme:
