1
4.20 Form: Enhanced CD Agreement
Enhanced CDs are often used for cross-promotional purposes and may
contain software (application software for a personal computer or
internet access software) plus music, audiovisual, or interactive
material. The packaging of the CD often contains information and
logos of both parties.
AGREEMENT
This Agreement (the "Agreement"), effective as of _______________,
2000 (the "Effective Date"), by and between XYZ Interactive Inc.
("XYZ"), a Delaware corporation with its principal place of business
at 123 Main Street, Baltimore, Maryland, 20815, and ISP Services Inc.
(the "Company"), a California corporation with its principal place of
business at 1 Service Way, San Jose, California, 95121. (XYZ and
Company are sometimes individually referred to herein as a "Party" or
collectively referred to herein as the "Parties").
WHEREAS, Company provides Internet access services through its
Corporate America service (the "Service");
WHEREAS, the Service is initially accessed by means of proprietary
sign up software developed by Company for use in connecting to the
Service (the "Client Software");
WHEREAS, XYZ is the producer and distributor of audio and
audiovisual products; and
WHEREAS, XYZ and Company desire to work together to integrate
their products to enhance the value of each and to increase the sales of
their respective products and services pursuant to the terms and
conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Definitions.
2
1.1. Advance. The term "Advance" shall mean the one-time
recoupable, nonrefundable payment made by Company to XYZ as
described in Exhibit C.
1.2. Bounty Fees. The term "Bounty Fees" shall mean the fees paid to
XYZ for New Members (as defined herein) as set forth in Exhibit C.
1.3. Client Software. The term "Client Software" shall mean
executable proprietary sign up software developed by Company for
subscribing to the Service, which when installed on an end-user
computer, shall accept a user password (or bring an end-user through
the registration process) and generally access the Service.
1.4. Confidential Information. The term "Confidential Information"
shall include all information that is not known by, or generally
available to, the public at large and that concerns the business or
affairs of a Party hereto, including, but not limited to, this Agreement
and its terms. "Confidential Information" shall not include information
that is (a) already lawfully known to or independently developed by
the receiving party, (b) disclosed in published materials, (c) generally
known to the public, (d) lawfully obtained from any third party, or (e)
required or reasonably advised to be disclosed by law.
1.5. Distribution Fees. The term "Distribution Fees" shall mean the
fees paid to XYZ by Company for all Products distributed pursuant to
this Agreement as set forth in Exhibit C.
1.6. Documentation. The term "Documentation" shall mean the
Company's documentation as set forth in Exhibit A, which provides
the instructions for accessing and operating the Client Software, to be
provided in accordance with Section 2.9.
1.7. Enhanced CD. The term "Enhanced CD" shall mean an audio or
audio-visual device manufactured or distributed by XYZ, including
any such device consisting only of audio or audio-visual content and
the Client Software.
3
1.8. GM. The term "GM" shall mean the Gold Master of the Client
Software used to integrate the Client Software into the Products.
1.9. Insertion Fee. The term "Insertion Fee" shall mean the fee paid to
XYZ by Company as set forth in Exhibit C, for the cost of inserting
additional materials into the Product packaging.
1.10. ISP. The term "ISP" shall mean Internet Service Provider.
1.11. New Member. The term "New Member" shall mean end-users
who sign on to the Service through the Products and make at least one
(1) monthly payment to Company or its designees for the Service.
1.12. Product Notice. The term "Product Notice" shall mean the
written communication through which XYZ notifies Company that it
intends to make an Enhanced CD available to Company for integration
with the Client Software under this Agreement. The Product Notice
shall contain the information set forth in Section 2.2.
1.13. Products. The term "Products" shall mean the integrated
products, consisting of Enhanced CDs integrated with Client Software
and any other materials which may be distributed under this
Agreement.
1.14. Target Platforms. The term "Target Platforms" shall mean the
computer systems on which the Products can be operated. The Target
Platforms are set forth in Exhibit B.
1.15. User. The term "User" shall mean someone who uses the
Products and who may sign on to the Service from the Client Software
integrated into the Products.
1.16. User Information. The term "User Information" shall mean the e-
mail addresses, names and other personal information gathered by
Company from Users and New Members who access the Service from
the Products.
4
2. Rights and Obligations of the Parties.
2.1 Selection of Titles. XYZ shall determine in its sole discretion
which of its Enhanced CDs shall be made available to Company for
integration under this Agreement.
2.2. Notice of Opportunity to Participate. XYZ shall notify Company
in writing of any Enhanced CD which XYZ elects to make available to
Company for integration under this Agreement (the "Product Notice").
The Product Notice shall include, for the Enhanced CD: (i) the
anticipated title of the Enhanced CD; (ii) the estimated number of units
to be initially shipped; (iv) the date by which XYZ needs the Gold
Master; and (v) the number of copies of Documentation which XYZ
will initially need.
2.3. Company Response. Company shall respond in writing or
electronically, via e-mail, to the Product Notice within five (5)
business days of receiving such Product Notice from XYZ, indicating
that either (i) it accepts the offer to integrate the Client Software into
the Enhanced CD named thereon; or (ii) it does not accept the offer.
Upon acceptance by Company as described above of the opportunity
set forth in the Product Notice, XYZ shall have the right to incorporate
the Client Software onto such Enhanced CDs as set forth herein.
2.4. Software License. Company grants to XYZ a non-exclusive,
royalty-free license to: (a) reproduce the Client Software and
incorporate the Client Software into the mutually agreed upon
Enhanced CDs; (b) market, promote, display and distribute the Client
Software (including any enhancements, upgrades or updates thereto)
and Documentation; and (c) allow a third party to duplicate the Client
Software as part of such third party's duplication of the Product for
distribution through direct sales and other channels. Such license shall
include all then-current and available versions or formats of the Client
Software that are available for external release for the Target
Platforms.
2.5. Delivery and Integration of Gold Master. Company shall ship to
5
XYZ in a manner expected to cause delivery of the GM to XYZ no
later than the date set forth on the Product Notice, a GM of the most
current production version of the Client Software for the Target
Platforms and XYZ or its agents shall integrate the Client Software
with the Enhanced CD. In the event that XYZ does not receive a GM
to be integrated into a particular Product by the GM shipping date
specified in the Product Notice for that Product, XYZ shall have the
right to either (a) integrate a GM previously used for the same Target
Platform or (b) distribute the CD without the Client Software, in which
case Company shall reimburse XYZ for any reasonable out-of-pocket
expenses incurred in connection with XYZ's preparation for
distributing the Client Software on the Enhanced CD, including
without limitation the reasonable cost of corrective labeling and
recalls.
2.6. Network Performance and Technical Support. The Parties
understand that XYZ is entering into this Agreement based on
Company's established position as a leader in network quality and
level of technical support. Company shall use reasonable efforts to
continue to provide, at all times during the Term of this Agreement,
the same or better level of network performance and technical support
as that which has come to be associated with the Service. If the
network quality and level of technical support drop below this
standard, or if Users who properly attempt to complete the registration
process are frequently unable to access the Service, XYZ shall have
the right to terminate this Agreement upon thirty (30) days written
notice. Company shall provide at no cost commercially reasonable
levels of technology and technical support to XYZ in order to assist
XYZ in the production process associated with integrating the Client
Software and other promotional materials into the Products and to
perform its other obligations hereunder.
2.7. Notice of Revisions. Company shall notify XYZ thirty (30) days
in advance of the release date of any new version of the Client
Software, so that XYZ may adjust its production schedule accordingly
if it, in its sole discretion, determines to do so. XYZ agrees to use
commercially reasonable efforts to integrate the most recent version of
the Client Software which Company has made available to it into the
Products.
6
2.8. Compatibility and Quality Assurance. Company warrants that any
GM it provides for integration with an XYZ Enhanced CD will meet
all detailed specifications and be fully functional and capable of being
launched from the Enhanced CD. XYZ shall have the right to test the
GM, or to designate a third party to test the GM, at XYZ's expense,
prior to distribution of any Product. XYZ shall provide a written
approval or rejection of the GM within five (5) business days of
receipt of the GM by XYZ. If the GM is rejected for cause by XYZ,
XYZ shall have the right to either (i) release the Enhanced CD at issue
using a previously supplied GM for the same Target Platform or (ii)
issue the Enhanced CD at issue without the Client Software. If such
GM is rejected for cause, Company shall reimburse XYZ for its
reasonable out-of-pocket costs associated with the testing process and
for any reasonable out-of-pocket expenses incurred in connection with
XYZ's preparation for distributing the Client Software on the
Enhanced CD, including without limitation the cost of corrective
labeling and recalls.
2.9. Documentation. After delivery of its acceptance of a Product
Notice, Company shall, at its expense, provide to XYZ sufficient
quantities of Documentation regarding the Service for XYZ to include
such Documentation in each Product to be distributed by XYZ
hereunder. Documentation shall be provided in a form mutually agreed
to by the Parties to accompany the Enhanced CD. Documentation shall
be provided to XYZ by Company no later than the date set forth on the
Product Notice, and XYZ shall insert, at Company's cost as specified
in Exhibit C, the Documentation (which shall be subject to XYZ's
prior approval) in the Product for distribution.
3. Fees and Reporting.
3.1. Fees. Company shall pay XYZ the fees as set forth in Exhibit C,
and such fees shall be due and payable in accordance with the terms in
Exhibit C.
3.2. Tracking and Reporting. Company shall use a unique product
identifier for the Client Software embedded in each Product distributed
7
hereunder. This product identifier shall be a component of the Client
Software that can be automatically detected by the Service when a
User signs on through the Client Software provided with the Product.
Company shall track by product identifier, the number of Users, New
Members, Products distributed and Products sold or other agreed upon
promotions as specified above, and Company shall keep detailed
records of such information. Company shall provide quarterly reports
which indicate, by product identifier, how many Users signed on to the
Service during that quarter, how many New Members were recorded
during the same quarter for the Products (along with the original
registration dates associated with the New Members), the number of
Products distributed and the number of Products sold of each type
during that quarter, and any other information gathered or collected by
Company with respect to the Products. For purposes of market
research only, the quarterly reports shall also indicate which Products,
as identified by means of product identifiers, were used to access the
Service initially.
4. User Information.
4.1. Collection of User Information. Subject to applicable law,
Company shall provide to XYZ the User Information gathered by
Company indicating which Users have requested that they not receive
mail at sign-up and which Users have requested that they not receive
mail in the future. Such User Information shall be provided monthly
by a method to be agreed upon by the Parties.
4.2. Ownership of User Information. User Information acquired by
Company which is linked to the Products shall be the property of
Company, provided however that XYZ shall have the right to use this
information for marketing and sales purposes, which shall include the
right to solicit individual Users directly for the sale of products.
5. Promotion.
5.1. Licenses. XYZ hereby grants to Company a non-exclusive, non-
transferable license, without the right to sublicense to: (i) use,
reproduce and display XYZ's trademarks, service marks, logos and the
like (the "XYZ Marks") in connection with the marketing, advertising
8
and promotion of the Products, in any medium now known or
hereinafter to become known, and solely for the purposes specified in
this Agreement and subject to XYZ's written consent in each instance.
Company hereby grants to XYZ a worldwide, royalty-free license to
use, reproduce and display Company's trademarks, service marks,
logos and the like (the "Company Marks") in connection with the
marketing, advertising and promotion of the Products or the Service in
any medium now known or hereinafter to become known, and solely
for the purposes specified in this Agreement. XYZ retains any and all
rights and interest in and to XYZ's Marks and Company retains any
and all rights and interest in and to Company's Marks.
5.2. Promotion. Each Party shall promote the other Party and the
Products and Service on its Web pages and elsewhere only to the
extent and in the manner to be agreed upon by the Parties. Such
promotion shall include, but not be limited to, the ability to link to a
Company area/site which may provide a download of the then-current
Client Software, a direct link to a Company Web page, the featuring of
the Company Marks and any other mutually agreed upon promotional
activity. In each instance, each Party will submit to the other Party for
its prior written approval (which shall not be unreasonably withheld or
delayed), any press releases related to the activities described herein or
any marketing or promotional activities as contemplated herein which
references the other Party and/or the XYZ Marks or Company Marks,
as the case may be.
5.3. Limits on Promotions. Company shall not include any
commercials, advertisements, endorsements, promotions or other
promotional material in, or as part of, the Client Software that is
integrated into the Enhanced CDs. Nothing herein shall limit
Company's right to place commercial, advertisements, endorsements,
promotions or promotional materials on the Service. The inclusion of
any other software or content in the Client Software shall require the
prior written approval of XYZ.
6. Additional Rights and Duties.
9
6.1. Links. Any links from the Products (including links from the
Client Software) to Web sites or online areas shall be at XYZ's sole
discretion.
6.2. Auditing Rights. Company shall maintain complete, clear and
accurate records of all information related to the calculation of any
fees payable to XYZ under this Agreement and all User, New
Member, Products distributed and Products sold information. XYZ
shall maintain copies of all statements by third party distributors and
direct sales operations related to the number of any Products sold
through such means. All such records of both Parties shall be
maintained during the Term and for a minimum of five (5) years
following termination of this Agreement. For the sole purpose of
ensuring compliance with this Agreement, the Parties shall have the
right, at their expense, to hire an independent agent to conduct a
reasonable copying and inspection of portions of the records of the
other Party which are directly related to amounts payable, numbers of
Products sold, User Information, Users and New Members. Any such
audit may be conducted upon fifteen (15) business days prior written
notice.
6.3. Customer Service. During the Term of this Agreement, Company
will at all times deploy and provide its then-standard customer support
with respect to end-users of the Products using the Client Software and
to New Members.
6.4. Expenses. Unless otherwise agreed upon by the Parties or
specified herein, each Party shall be solely responsible for all costs and
expenses incurred in performing its obligations hereunder.
6.5. Quarterly Meetings. The Parties shall make commercially
reasonable efforts to engage in quarterly meetings at which issues
relating to this Agreement, the Products and the programs described
and contemplated herein shall be discussed.
7. Term.
10
7.1. Length of Term. The initial term of this Agreement shall be
[_____] years from the Effective Date of this Agreement (the "Initial
Term"), unless the Agreement has been terminated in accordance with
the procedures described below. Renewal of this Agreement shall be
for additional [___] year periods (each a "Renewal Period," and
together with the Initial Term, the "Term"), upon the mutual written
agreement of the Parties at least sixty (60) days prior to the end of the
then-current Term.
7.2. Conditions for Termination. Either Party shall have the right to
terminate this Agreement upon written notice to the other if the other
Party breaches any material provision of this Agreement and such
failure is not remedied within thirty (30) days after written notice
specifying such condition has been given by the non-breaching Party,
or if the other Party becomes subject to bankruptcy or insolvency or
similar proceeding which is not dismissed within sixty (60) days, or if
such other Party's assets are assigned for the benefit of a creditor or
receiver.
7.3. Effect of Termination or Expiration. Upon termination or
expiration of this Agreement for any reason, all licenses, grants of
rights and other conditions hereunder shall terminate and XYZ shall no
longer be required to include the Client Software and Documentation
as part of the Product. Notwithstanding termination of this Agreement:
(a) Company shall continue to make any payments due to XYZ arising
from the distribution of any Product occurring prior to or after the
effective date of the termination (the "Termination Date") if such
Product was produced hereunder before the Termination Date, (b)
Company shall continue to make any payments due to XYZ arising
from the registration of New Members occurring prior to or after the
Termination Date that relate to distribution prior to or after the
Termination Date if such Product was produced hereunder before the
Termination Date, and (c) all licenses granted to XYZ for the
duplication and distribution of Products hereunder shall remain in
force and effect. During the twelve (12) month period after the
Termination Date, in the event that the Service is not accessible from
the Products, Company will supply a message to be agreed upon by
the Parties. All inserts, booklets, or any other promotional material
11
produced or distributed by Company promoting the Products or the
availability of the Client Software on the Products, will prominently
state that the opportunity to access the Service using the Products is a
limited time offer. Notwithstanding anything herein to the contrary,
XYZ shall have the right to distribute any copies of the Product which
it has in its inventory on the Termination Date or expiration and in no
event shall XYZ be required to recall any Products or promotional
materials which have already been distributed as of the Termination
Date.
8. Proprietary Rights and Confidential Information.
8.1. Ownership. Company agrees and acknowledges that, subject only
to Company's ownership of all rights, title and interest in and to the
Client Software and the Documentation to such Client Software, XYZ
shall own all right, title and interest in and to the Products. XYZ
acknowledges and agrees that it does not own the Client Software and
Documentation and such shall remain the exclusive property of
Company. Except as expressly described in this Agreement, XYZ shall
not copy, use, reverse engineer, reproduce, display, modify, create
derivative works from or transfer the Client Software or
Documentation. XYZ owns and shall retain any and all rights, title and
interest in and to XYZ's Marks and Company owns and shall retain
any and all rights, title and interest in and to Company's Marks.
8.2. Confidential Information. Each Party acknowledges that
Confidential Information may be disclosed to the other Party during
the course of performing their respective obligations hereunder and
their cooperation under this Agreement. Each Party agrees that it shall
take reasonable steps, at least substantially equivalent to the steps it
takes to protect its own proprietary information, during the Term of the
Agreement and for a period of [___] years following expiration or
termination of this Agreement, to prevent the duplication or disclosure
of Confidential Information, other than by or to its employees or
agents who must have access to the Confidential Information to
perform such Party's obligations hereunder, provided that each Party
12
shall make such employees and agents aware of the restrictions of this
Section 8.2.
9. Indemnification.
9.1. Company agrees to defend, indemnify and hold harmless XYZ
and the officers, directors, employees, agents, subsidiaries and
affiliates of XYZ from and against any loss, damage, cost or expense
arising out of or in connection with any third-party claim, suit, action
or proceeding of any kind (except those resulting from the gross
negligence of XYZ) by any person based on or arising out of (i) any
breach of this Agreement by Company, including, without limitation,
the representations and warranties made by Company herein, (ii) any
express or implied warranty made by Company or its employees or
agents to any third-party (for the purposes of this Agreement, the term
"third-party" shall include any and all governmental entities),
including without limitation relating to any advertisement promoting
the Products made or distributed hereunder or otherwise relating to the
Products based on the Client Software or otherwise, (iii) the use or
operation of the Client Software or the ability to access or use the
Service; (iv) the contractual or other relationship between Company
and any third party, including without limitation subscribers and
governmental entities; (v) the provision of any goods and services by
Company, the Service or any Affiliate of Company or third party
through the medium of the Service; (vi) Company's violation of any
law, regulation or order; or (vii) any and all current or pending claims,
actions, litigation, lawsuits, settlements or preliminary settlements in
which Company is a party or to which Company is currently on notice.
9.2. If a claim, suit, action or proceeding is brought against XYZ that
is covered by this provision (i) XYZ shall use reasonable efforts to
notify Company within thirty (30) business days thereof, (ii) XYZ
shall have the right to terminate this Agreement immediately, and (iii)
XYZ may discontinue any distribution and/or promotion of the
Product(s).
9.3. With respect to any claim by a third party as to which XYZ is
entitled to indemnification under this Agreement, Company shall have
the right at its own expense, to participate in or assume control of the
13
defense of such claim through counsel of its own choosing, and XYZ
shall cooperate fully with Company. If Company elects to assume
control of the defense of any third-party claim, XYZ shall have the
right to participate in the defense of such claim at its own expense
provided that XYZ shall not be entitled to reimbursement for any costs
incurred, including any attorneys fees. XYZ shall not pay or settle any
claim over which Company has assumed control of the defense and
agreed to indemnification hereunder. Notwithstanding the foregoing,
XYZ shall have the right to pay or settle any such claim, provided that
in such event it shall waive any right to indemnity therefor by
Company. If Company does not elect to assume control or otherwise
participate in the defense of any third-party claim, it shall be bound by
the results obtained by XYZ with respect to such claim.
9.4. XYZ agrees to defend, indemnify and hold harmless Company
and the officers, directors, employees, agents, subsidiaries and
affiliates of Company from and against any loss, damage, cost or
expense arising out of or in connection with any third-party claim, suit,
action or proceeding of any kind (except those resulting from the gross
negligence of Company) by any person based on or arising out of (i)
any breach of this Agreement by XYZ, including without limitation,
the representations and warranties made by XYZ herein, (ii) any
express or implied warranty made by XYZ to any third party relating
to a Product not based on the Client Software, (iii) the use or operation
of a Product not based on the Client Software; (iv) the contractual or
other relationship between XYZ and any third party; (v) the provision
of any goods and services by XYZ or any Affiliate of XYZ; or (vi) any
and all current or pending claims, actions, litigation, lawsuits,
settlements or preliminary settlements in which XYZ is a party or to
which XYZ is currently on notice. If a claim, suit, action or proceeding
is brought against Company that is covered by this provision,
Company shall use reasonable efforts to notify XYZ within fifteen
business days thereof.
9.5. With respect to any claim by a third party as to which Company is
entitled to indemnification under this Agreement, XYZ shall have the
right at its own expense, to participate in or assume control of the
defense of such claim through counsel of its own choosing, and
Company shall cooperate fully with XYZ. If XYZ elects to assume
14
control of the defense of any third-party claim, Company shall have
the right to participate in the defense of such claim at its own expense
provided that Company shall not be entitled to reimbursement for any
costs incurred, including any attorneys fees. Company shall not pay or
settle any claim over which XYZ has assumed control of the defense
and agreed to indemnification hereunder. Notwithstanding the
foregoing, Company shall have the right to pay or settle any such
claim, provided that in such event it shall waive any right to indemnity
therefor by XYZ. If XYZ does not elect to assume control or otherwise
participate in the defense of any third-party claim, it shall be bound by
the results obtained by Company with respect to such claim.
10. Warranties.
10.1. XYZ Representations and Warranties. XYZ represents and
warrants to Company that: (i) it has the full right, power and authority
to enter into and perform this Agreement and its performance will not
violate the rights of any third party, including without limitation any
governmental entity; (ii) the Enhanced CDs (specifically excluding
any software, the Client Software, Documentation or other material
provided by Company) do not infringe or misappropriate the
copyright, patent, trademark, trade secret, or any other proprietary
right of any third party, violate any third party contractual right or
right of publicity, privacy or similar right or defame or libel any third
party and that they do not violate any law, regulation or ordinance
related to this Agreement. XYZ further represents that the Enhanced
CDs will be free of viruses.
10.2. Company Warranties and Representations. Company warrants
and represents that (i) it has the full right, power and authority to enter
into and perform this Agreement and its performance will not violate
the rights of any third party, including without limitation any
governmental entity; (ii) the Service is a functional online computer
network; (iii) the Client Software, Documentation and other material
provided by Company does not infringe or misappropriate the
copyright, patent, trademark, trade secret, or any other proprietary
right of any third party, violate any third party contractual right or
right of publicity, privacy or similar right or defame or libel any third
party and that they do not violate any law, regulation or ordinance
15
related to this Agreement; (iv) the Client Software will conform with
all functional and design specifications; (v) the Client Software is fully
operational when integrated into the Products; and (vii) the Client
Software will be free of viruses.
10.3. Disclaimer. EXCEPT AS EXPLICITLY PROVIDED HEREIN,
NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE CLIENT SOFTWARE, THE
ENHANCED CDs, THE DOCUMENTATION OR THE SERVICE
TO THE OTHER PARTY AND EACH PARTY HEREBY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, EXCEPT AS EXPLICITLY
PROVIDED HEREIN, NEITHER PARTY MAKES ANY
REPRESENTATION OR WARRANTY TO THE OTHER NOR,
EXCEPT AS EXPLICITLY PROVIDED HEREIN, SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR THE FAILURE OF
PERFORMANCE OF ITS PRODUCTS OR SERVICES (EXCEPT
WITH RESPECT TO A BREACH OF SUCH PARTY'S
OBLIGATIONS, EXPRESS REPRESENTATIONS OR
WARRANTIES HEREUNDER). Nothing in this Section 10 shall be
construed as limiting a Party's liability for third-party claims
(including without limitation claims for indemnity asserted by one of
the Parties hereto against the other) as specified in Section 9 hereto.
11. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
WHETHER ARISING IN TORT (INCLUDING WITHOUT
LIMITATION, NEGLIGENCE), CONTRACT OR BY OPERATION
OF LAW OR OTHERWISE. Nothing in this Section 11 shall be
construed as limiting a Party's liability for third-party claims
(including without limitation claims for indemnity asserted by one the
of the Parties hereto against the other) as specified in Section 9 hereto.
12. General Provisions.
16
12.1. Force Majeure. Neither Party shall be liable for, or be considered
in breach of or default under this Agreement on account of, any delay
or failure to perform as required by this Agreement as a result of any
causes or conditions which are beyond such Party's reasonable control
and which such Party is unable to overcome by the exercise of
reasonable diligence.
12.2. Independent Contractors. The Parties to this Agreement are
independent contractors. Neither Party is an agent, representative or
partner of the other party. Neither Party shall have any right, power or
authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an
association, agency, joint venture or partnership between the Parties or
to impose any liability attributable to such a relationship upon either
Party.
12.3. Notice. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing
and shall be deemed to have been delivered and given for all purposes:
(i) when transmitted to the applicable fax number specified in this
Section 12.3 to the extent receipt is confirmed; (ii) on the delivery date
if delivered personally to the Party to whom the same is directed; or
(iii) one business day after deposit with a commercial overnight
carrier, with written verification of receipt to the address of the Party
to whom the same is directed as set forth above.
12.4. No Waiver. The failure of either Party to insist upon or enforce
strict performance by the other Party of any provision of this
Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment to any extent of such Party's
right to assert or rely upon any such provision or right in that or any
other instance; rather, the same shall be and remain in full force and
effect.
17
12.5. Survival. The following provisions of this Agreement shall
survive the completion, expiration, termination or cancellation of this
Agreement: Sections 1, 3, 4, 6.2, 7.3, 8, 9, 10, 11 and 12.
12.6. Entire Agreement. This Agreement sets forth the entire
agreement, and supersedes any and all prior agreements of the Parties
with respect to the transactions set forth herein. Neither Party shall be
bound by, and each Party specifically objects to, any term, condition or
other provision which is different from or in addition to the provisions
of this Agreement (whether or not it would materially alter this
Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound
thereby specifically agrees to such provision in writing.
12.7. Amendment. No change, amendment or modification of any
provision of this Agreement shall be valid unless set forth in a written
instrument signed by both Parties.
12.8. Assignment. Neither Party shall assign this Agreement without
the prior written consent of the other Party, except that either Party
may, upon written notice to the other Party, assign all of its rights and
obligations under this Agreement to any person or entity acquiring all
or substantially all of that Party's assets. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and
assigns.
12.9. Change of Control. XYZ shall have the right to terminate this
Agreement with thirty (30) days notice upon any change in control of
Company (whether by merger, stock transfer or otherwise), provided
however that XYZ shall notify Company of its intention to terminate
no later than sixty (60) days after the date on which such change of
control takes effect.
12.10 Construction. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction
over the Parties to this Agreement, such provision shall be deemed to
be restated to reflect as nearly as possible the original intentions of the
18
Parties in accordance with applicable law, and the remainder of this
Agreement shall remain in full force and effect.
12.11. Applicable Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, without reference to its conflicts of laws provisions.
Jurisdiction for litigation of any dispute, controversy or claim arising
out of or in connection with this Agreement, shall be only in a Federal
or the State Court having subject matter jurisdiction located in San
Francisco, California.
12.12. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XYZ Interactive Inc.
By:
Name:
Title:
ISP Services Inc.
By:
Name:
Title:
