AGREEMENT
This document entered into between the Parties as of the 17th day of
November,
1999, constitutes a valid and binding agreement between Ford Motor
Company, a
Delaware corporation with its principal place of business at The
American Road,
Dearborn, Michigan 49121 ("Ford") and BOLT, Inc., a Delaware corporation
with
its principal place of business at 304 Hudson Street, New York , New
York 10013
("Bolt") (Ford and Bolt herein being referred to as the "Parties"). The
Parties
have agreed as follows:
1. Scope
Ford has agreed to purchase media from Bolt on the Bolt.com web
site,
which purchase will include: having Bolt create and maintain a
Cars.Bolt.com component of Bolt's web site; purchasing from
Bolt
certain interactive content and interactive service elements;
having
Bolt provide certain exclusive interactive features; and having
Bolt
conduct certain market research through Bolt's Business
Intelligence
Group.
2. Term
The term of this agreement ("Term") shall commence on January
1, 2000
and will continue through December 31, 2002 unless terminated
earlier
pursuant to paragraph 4.(c), below; provided, however, that
Ford and
Bolt will both have the option to terminate this agreement (i)
effective December 31, 2000 or (ii) December 31, 2001, by
giving the
other party written notice of termination at least 60 days
prior to
December 31, 2000 (in the case of (i) above) or at least 60
days prior
to December 31, 2001 (in the case of (ii) above).
3. Exclusivity
During the Term hereof Bolt agrees that Ford [*] and that Bolt
[*].
For purposes of this Agreement, the term 'affiliates' shall be
deemed
to include any wholly or partially owned subsidiary of Ford as
well as
any Ford, Lincoln, Mercury, Volvo, Jaguar, Aston Martin, Mazda,
or
Think! new or used vehicle dealer. Furthermore, Ford shall have
exclusivity within the automotive category on "bolt.com" and
its
affiliated websites and Bolt shall
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not accept content and/or advertising from any third parties
with
respect to any and all promotion of cars, trucks, or other
motor
vehicles; motor vehicle parts and accessories; services for
motor
vehicles; credit or financing for motor vehicles; and the sale
or
leasing of motor vehicles.
[*].
In addition, for one (1) year following the expiration or
termination
of this agreement, Bolt agrees that any automotive website that
it is
associated with will not duplicate specific applications
developed for
or by Ford, or distinctive elements that are solely and
exclusively
used by (for example, the "Build Your Own Dream Car" feature)
the
Ford/Bolt Cars.Bolt.com website.
4. Payment Terms and Minimum Impressions Guarantee
(a) Ford will pay Bolt the sums set forth below for all
media,
services, rights and materials provided by Bolt:
(1) the sum of $[*] within 45 days following the
execution and delivery of this agreement by
both
parties,
(2) the sum of $[*] for the calendar year 2000,
payable
in equal monthly installments of $[*] to be
invoiced
at the end of each month and payable by Ford
within
20 business days of receipt of Bolt's
invoice,
(3) the sum of $[*] for the calendar year 2001
(provided
this Agreement is not terminated pursuant to
Section
2), payable in equal monthly installments of
$[*] to
be invoiced at the end of each month and
payable by
Ford within 20 business days of receipt of
Bolt's
invoice,
(4) the sum of $[*] for the calendar year 2002
(provided
this Agreement is not terminated pursuant to
Section
2), payable in equal monthly installments of
$[*] to
be invoiced at the end of each month and
payable by
Ford within 20 business days of receipt of
Bolt's
invoice.
(5)
(b) The payment of all sums by Ford shall be conditioned
upon
Bolt meeting certain impression guarantee levels. An
impressions breakdown for calendar year 2000 has been
provided by Ford to Bolt
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and is included in Exhibit A and serves as further
definition
to Bolt's Insertion Order in Exhibit B. At least 60
days
before the end of calendar year 2000 Ford shall
provide Bolt
with an impressions breakdown for calendar year 2001
and such
impressions breakdown will then become fully
incorporated
into this agreement; and at least 60 days before the
end of
calendar year 2001 Ford shall provide Bolt with an
impressions breakdown for calendar year 2002 and such
impressions breakdown will then become fully
incorporated
into this agreement.
It is understood and agreed that distribution/banner
delivery
may not increase or decrease by more than +/- 10%
margin
bi-weekly. It is further understood and agreed that no
overages for any two-week period may be applied by
Bolt
against a shortfall in any succeeding two-week period
and no
shortfalls for any two-week period may be applied by
Ford
against an overage in any succeeding two-week period.
In the
event impression guarantees are not achieved as
determined by
Ford, Bolt will provide Ford with make-goods with a
[*]%
bonus or at Ford's option, Ford may take a credit
against the
next monthly payment due under 4(a) above; provided,
however,
that the calculation of impression guarantees with
respect to
Interactive Service Elements and Exclusive Interactive
Features shall be made only after the launch of such
elements
and features. Not withstanding the foregoing, the
impressions
guaranteed for the first year, as detailed in Exhibit
A, are
to be to be delivered prorated on a minimum,
cumulative basis
of 15%, 35%, 65% and 100% for each of the quarters
ended
March 31, June 30, September 30, and December 31.
(c) It is understood and agreed that all impression
guarantees
will be measured against a third party adserver to be
selected by Ford, to track this buy, and measurement
by this
third party will be used to conclusively determine if
impression guarantees have been met/ Tracking reports
(proof
of performance) must be sent bi-weekly to Doug Weiland
at
Ford's media buying agency Ford Motor Media, via fax
to
313-964-2315 or e-mailed to
doug.weiland@fordmotormedia.com,
with copies of tracking reports to be sent to Jamie
Allison,
Internet & New Media Group, Ford Motor, via fax to
313-323-8170 or e-mailed to jalliso1@ford.com.
Subject to Section 5(a) herein, Ford reserves the
right to
terminate this agreement in its entirety immediately
in the
event impression
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guarantees are not met by Bolt for four (4)
consecutive
tracking periods, i.e., 8 weeks, such periods of
calculation,
as they relate to a particular element or feature set
forth
on Exhibit A attached hereto, to commence upon the
launch of
such element or feature.
(d) Amounts paid after their due date shall bear interest
at the
rate of one and-one half percent (1 1/2%) per month
(or the
highest rate permitted by law, if less) until paid in
full.
In the event of any failure by Ford to make payment,
Ford
will be responsible for all reasonable expenses
(including
attorneys' fees) incurred by Bolt in collecting such
amounts.
All payment amounts in this Agreement are in U.S.
dollars and
are exclusive of any applicable taxes and shall be
made free
and clear of, without reduction for, (and Advertiser
shall be
responsible for and shall indemnify Bolt against) any
applicable taxes pertaining to the payments under this
Agreement (excluding taxes based upon the net income
of
Bolt), provided that Bolt notifies Ford in writing of
such
taxes within 6 months after the applicable invoice
date.
Ford shall promptly furnish Bolt with tax receipts
evidencing
the payment of any taxes referred to in the preceding
sentence.
5. Design, Implementation and and Content of "Cars.bolt.com"
Website
(a) Creation of the "Cars.bolt.com" Website.
Bolt shall be primarily responsible for the creation
of the
"Cars.bolt.com" website. Bolt agrees that it will
consult
with Ford concerning the design, implementation,
maintenance
and initial content of the "Cars.bolt.com" website;
which
shall be subject to approval rights as set forth
below, and
will ensure that the "Cars.bolt.com" website contains
the
general topics set forth in the attached Exhibit A or
other
features that the parties may agree upon from time to
time.
Notwithstanding and without limiting the foregoing,
the
Parties agree that the "Cars.bolt.com" website shall
(i)
display the "Ford Oval" and/or other trademarks
designated by
Ford "above the fold" and in a manner approved by
Ford, and
(ii) shall contain privacy related statements and
links to
privacy policies mutually agreed upon by the Parties
and
consistent with other portions of this Agreement.
Further,
Bolt agrees to use its best efforts to ensure that no
Bolt
supplied content appearing on the "Cars.bolt.com"
website
adversely impacts Ford's brand in any material
respect. Prior
to the initial launch of, and any modifications to,
the
"Cars.bolt.com"
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website, Bolt shall place such pages on a non-public
server
and provide such individual as is designated by Ford
with
notice thereof and access thereto. Ford shall have the
right
to notify Bolt of its disapproval of any changes to
content
(which shall include, without limitation, links to
other
sites) and any material changes to other content which
Ford
reasonably believes is harmful or detrimental to Ford
or its
brand for a period of two business days (at least 48
hours)
from the time of receipt of notice from Bolt. Upon
Bolt's
receipt of any such disapproval notice from Ford, Bolt
will
delay the implementation of such disapproved changes
until
the Parties resolve the appropriate issues raised in
such
disapproval notice.
(b) Interactive Content Elements.
Bolt will develop certain chat rooms, moderated
message
boards, and other interactive content in the normal
course of
business and as otherwise mutually agreed upon by the
Parties. All such chat rooms, message boards and the
like
shall be located on Bolt's servers and Bolt shall
retain all
responsibility for maintenance, liability and support
therefore. Bolt expressly acknowledges and agrees that
it
will not develop or endorse any message board, chat
room,
other interactive element that contains any of Ford's
trademarks in its name (or that uses a trademark which
is
likely to be confused with any of Ford's trademarks)
or
otherwise undermines Ford's intellectual property
rights.
(c) Launch Date
The site will be launched in accordance with the
timetable
set forth in Exhibit A.
(d) Consumer Questions and Complaints
Bolt shall be responsible for all customer service
relative
to the operation of the Cars.bolt.com website (which
shall
include handling and resolution of any customer
questions or
complaints) which it will perform in a prompt,
courteous and
professional manner. Bolt will provide Ford with
periodic
summaries of the nature of complaints received.
Notwithstanding the foregoing, any automotive product
or
service related issues or concerns shall remain the
responsibility of Ford.
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(e) Availability
The Cars.bolt.com website shall be publicly available
to
users approximately twenty-four (24) hours each day,
excepting necessary website maintenance and Internet
performance issues outside the reasonable control of
Bolt.
(f) Traffic Reporting
Bolt shall provide Ford with aggregate periodic
traffic/website performance reports in a manner
mutually
agreed upon by both Parties.
(g) Security
Each Party shall take all reasonable measures to
prevent
unauthorized access to consumer data obtained through
the
operation of the website, and any databases or other
sensitive material generated from or used in
conjunction with
the website. Each Party shall immediately notify the
other
Party of any known security breaches, and take all
necessary
actions to promptly notify affected consumers and to
remedy
such breach.
(h) Website Backup
Bolt.com will provide daily and permanent backups of
the
information detailed in this Agreement and housed on
its
servers. All data shall be backed up daily to two
locations -
network storage and DAT. The DATs shall be stored off-
site in
a fire-proofed, secure tape library. The network data
shall
be stored for three weeks, and be available for
content
replacements. Each Party shall also maintain a
development
environment copy of web data for rapid content
replacement.
6. Accuracy of Information Published on Bolt.com and Cars.Bolt.com
Each Party shall be responsible for the quality and accuracy of
information and content supplied by it contained on Bolt.com
and
Cars.Bolt.com and any additional related sites or links which
may be
created from time to time by Bolt.com. Ford shall use its
commercially
reasonable efforts to provide content and advertising media for
the
Cars.Bolt.com website in order to facilitate the impression
guarantees
set
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forth on Exhibit A attached hereto. Ford acknowledges that it
will
forfeit its right to terminate the agreement pursuant to
Section 4(c)
herein in the event that it fails to provide such content and
advertising media.
7. Information Obtained From Consumers
[*]. Notwithstanding the foregoing, Bolt will not sell,
transfer, or
otherwise provide such information to any third parties without
the
prior written consent of Ford. All information shall be used
only as
authorized by the user that provided the information, and in
strict
compliance with Bolt's and Ford's privacy policies, as it may
be
amended from time to time. Bolt will provide a link to such
policies
governing the protection and use of user data on the "home
page" of
the website as well as on those pages of the website where
users are
required to provide personally identifying information. Any
non-conforming use of such information by either party shall
constitute a material breach of this Agreement and shall give
such
party due cause to terminate this Agreement.
8. Intellectual Property
(a) Bolt Intellectual Property
As between the Parties, Bolt is, and shall remain, the
owner
of all right, title and interest in and to the
Bolt.com
website and the Cars.Bolt.com website (the "Bolt
Intellectual
Property"), including, without limitation, all
trademarks and
copyrights claimed by Bolt and all software, programs,
text,
audio, images, graphics, "look and feel", animation,
sound,
video, and other content associated with the Bolt
Intellectual Property, other than the Ford Content (as
defined below).
(b) Ford Intellectual Property
As between the parties, Ford is, and shall remain, the
owner
of all right title and interest in and to all
materials (such
as research reports) provided to Bolt by Ford in the
course
of this Agreement (the "Ford Intellectual Property"),
including without limitation, all custom templates,
and all
software, programs, text, images, graphics, "look and
feel",
animation, sound, video, and other content associated
with
the Ford Intellectual Property (the "Ford Content").
Upon
execution and delivery of this Agreement, Bolt assigns
to
Ford all right, title and interest in and to the
content
created by Bolt (i.e., its employees, agents, or
contractors), and intellectual property
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rights thereto (but will not be construed to include
software
to develop such content) used solely and exclusively
in the
Cars.Bolt.com channel in the course of this Agreement.
Bolt
agrees to execute any and all necessary further
documents
that Ford may reasonably request to fully vest any
intellectual property rights created in furtherance of
this
Agreement and, if requested, to reasonably assist
Ford, at
Ford's expense, to register such rights.
Bolt expressly agrees that any trademarks or
applications
developed for use solely in association with the
Cars.Bolt.com website (i) will not combine any
trademark of
Ford's with and trademark of Bolt (or of any third
party),
and (ii) shall be the property of Ford, other than the
Cars.Bolt.com trademark (for example, any trademark
that is
developed to identify a feature unique to this site
and which
is not applicable to other Bolt channels, such as the
"Design
Your Own Dream Car" feature).
(c) Trademark Licenses
Each Party grants to the other, during the Term of
this
Agreement, a royalty-free, non-exclusive license to
use,
reproduce and display the trademarks, service marks,
and
design marks listed on the attached Exhibit E
(collectively,
the "Marks") in connection with this Agreement. Each
Party
may amend the list of trademarks it is licensing to
the
other, at any time, upon written notice to the other
Party.
Use of all Marks licensed pursuant to this Agreement
shall
reflect the licensor's standards of quality.
Furthermore, the
Party licensing the Marks shall have the right from
time-to-time, by prior arrangement of the Parties, to
assess
the quality of services offered under the Marks and to
review
advertising and promotional materials bearing the
Marks to
ensure that these quality standards are upheld. Each
of Bolt
and Ford expressly acknowledges and agrees that except
as
expressly provided herein, no right, title, license or
interest in or to any mark owned by the other Party
(or the
other party's Affiliates) is intended to be given to
or
acquired by the other Party by the execution of or
performance of this Agreement. Each of Bolt and Ford
expressly agrees that it will not use any Mark of the
other
Party for any purpose or activity except as expressly
authorized or contemplated herein.
9. Representations and Warranties
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Each of Bolt and Ford represents and warrants that: (1) it is a
corporation duly organized and validly existing and in good
standing
under the laws of the state of its incorporation, (2) it has
the full
power and authority to enter into and perform its obligations
under
this Agreement, (3) it has obtained all permits, licenses, and
other
governmental authorizations and approvals required for its
performance
under this Agreement, and (4) the services to be rendered and
the
materials provided by each Party neither infringe nor violate
any
patent, copyright, trade secret, trademark, or other
proprietary right
of any third party.
10. Provision of Advertising Materials
The content of all Ford advertisements will be supplied, or
must be
approved in advance, by Ford. It is further understood and
agreed that
no Ford advertisements may appear on any pages with content
that in
Ford's judgment is inappropriate or otherwise inconsistent with
Ford's
advertising and business policies. Bolt reserves the right to
reject
or cancel any advertisement at any time if in Bolt's reasonable
judgment such advertisement may subject Bolt to civil or
criminal
liability. In such case Bolt will discuss the matter with Ford
and
allow Ford the opportunity to revise or replace the
advertisement. All
banners from which minimum guaranteed impressions are
calculated shall
be placed "above the scroll" at a screen resolution of 800 x
600 using
the Netscape or MSIE browsers v. 3.0 or better; provided,
however,
that Bolt may place additional advertising "below the scroll".
The
positioning of advertisements on any and all web pages shall be
mutually agreed upon by Bolt and Ford.
Bolt agrees that in addition to the restrictions set forth in
this
agreement, it will not place any advertisements or links for
"adult
sites" or advertisements, or sites that are generally
considered
offensive, on any page containing a Ford advertisement. If Ford
determines that an advertisement is offensive, Bolt shall
remove such
advertisement from such page within 4 hours of receiving notice
from
Ford during normal business hours and 24 hours of receiving
notice
from Ford at all other times.
11. Additional Bolt Obligations
(a) Bolt.com will place a static front page link to
Cars.Bolt.com
prominently on the front page of Bolt.com throughout
the Term
of this Agreement.
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(b) Bolt will provide Ford with quarterly market research
studies
conducted by the BOLT Media, Inc. market research team
working closely with the Ford (or its designated
advertising/buying agency) market research team to
ensure
optimum methodology before field work commences;
provided,
that Ford will collaborate with Bolt.com on initial
approach
and methodology and that such methodology shall
require a
minimum sampling of 1,000 online interviews.
(c) Cars.bolt.com will place a static link to
YoungDrivers.com or
its designated affiliates as identified by Ford for
the
purposes of encouraging participation in drivers
education.
(d) Bolt.com will render the disclaimer listed in Exhibit
D on a
user's screen prior to any user entering the Design
Your Own
Dream Car section of the cars.bolt.com channel. The
user will
have to accept these terms before they are allowed
access to
content in the Design Your Own Dream Car section.
12. Limitation of Liability
In the event that Bolt fails to publish an advertisement in
accordance
with this Agreement, in the event that Bolt fails to deliver
the
number of guaranteed impressions required herein, or in the
event of
any other failure, technical or otherwise of such advertisement
to
appear as provided herein, to the extent that such failures are
not
due to a breach, directly or indirectly, of the terms herein by
Ford,
the sole liability of Bolt and exclusive remedy of Ford shall
be
limited to, at Ford's discretion, either the immediate
termination of
this agreement, or placement of the advertisement at a later
time in a
comparable position, or extension of the Term hereof until the
total
impressions are delivered. SUBJECT TO SECTION 14 HEREOF, IN NO
EVENT
SHALL BOLT BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL
SPECIAL LOST PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED
IN
CONTRACT, TORT OR OTHERWISE, EVEN IF BOLT HAS BEEN ADVISED OF
THE
POSSIBILITY OF SUCH DAMAGES. BOLT'S AGGREGATE LIABILITY UNDER
THIS
AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY
BOLT FROM
FORD PURSUANT TO THIS AGREEMENT. NOR SHALL FORD BE LIABLE UNDER
THIS
AGREEMENT FOR ANY CONSEQUENTIAL SPECIAL LOST PROFITS, INDIRECT
OR
OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE,
EVEN IF
FORD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FORD'S
AGGREGATE LIABILITY UNDER THIS
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AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAYABLE BY
FORD TO
BOLT PURSUANT TO THIS AGREEMENT.
13. Confidentiality
During the Term of this Agreement, and for a period of two
years
following any end date, neither party will use or disclose any
Confidential Information of the other party, except as
specifically
contemplated herein. The foregoing restriction does not apply
to
information that (i) has been independently developed by the
receiving
party without access to the other party's Confidential
Information;
(ii) has become publicly known through no breach of this
Section 11 by
the receiving party, (iii) has been rightfully received from a
third
party authorized to make such disclosure, or (iv) is required
to be
disclosed by law; provided that the disclosing party shall use
its
best efforts to redact from such disclosure all information not
necessary to comply with such law. "Confidential Information"
shall
mean (i) advertisements, prior to publication: (ii) the
financial
terms of this Agreement and any Bolt statistics marked as
"Confidential" or "Proprietary" that shall be deemed Bolt
Confidential
Information; and/or (iii) any information designated in writing
or
identified orally at time of disclosure, by the disclosing
party as
"confidential" or "proprietary" and confirmed as such by the
furnishing party in a written instrument delivered to the
receiving
party within ten (10) working days after such oral delivery
(such
confirmatory instrument specifically describing the relevant
Confidential Information and the date of its oral delivery).
14. Indemnification
Bolt and Ford agree to indemnify, defend, and hold harmless the
other
Party (and its parents, subsidiaries, affiliates, successors,
and
assigns) from and against all losses, liabilities, damages,
actions,
claims, expenses and costs (including reasonable attorneys'
fees)
which result or arise out of or in connection with any breach
of this
Agreement or out of or in connection with any material supplied
to the
other in furtherance of this Agreement.
15. Publicity
The Parties agree that no press releases, announcements or
statements
of any kind will be made regarding this Agreement without the
prior
written consent of the other Party, which consent shall not be
unreasonably withheld.
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16. Dispute Resolution
If a dispute arises between the parties that cannot be resolved
otherwise, the following procedure shall be implemented before
either
Party pursues other available remedies except that nothing
contained
herein shall prevent either Party from seeking injunctive
relief from
a court where appropriate in order to maintain the status quo
while
this procedure is being followed or to seek injunctive relief
or any
other equitable or judicial remedy, in any applicable forum
which
either Party deems necessary to protect its intellectual
property
rights:
(a) Initial Meeting
The Parties shall hold a meeting promptly, attended by
persons with decision-making authority regarding the
dispute,
to attempt in good faith to negotiate a resolution of
the
dispute; provided, however, that no such meeting shall
be
deemed to vitiate or reduce the obligations and
liabilities
of the Parties hereunder or be deemed a waiver by a
Party
hereto of any remedies to which such Party would
otherwise be
entitled hereunder.
(b) Mediation
If, within ten (10) business days after such meeting,
the
Parties have not succeeded in negotiating a resolution
of the
dispute, they agree to submit the dispute to mediation
in
accordance with the then-current rules of the Center
for
Public Resources ("CPR"). The Parties will jointly
appoint a
mutually acceptable mediator, seeking assistance in
such
regard from the CPR if they have been unable to agree
upon
such appointment within 10 days from the conclusion of
the
negotiation period.
(c) Arbitration
The Parties agree to participate in good faith in the
mediation and negotiations related thereto for a
period of
ten (10) business days. If the Parties are not
successful in
resolving the dispute through the mediation, then the
Parties
agree to submit the matter to binding arbitration in
accordance with the then-current commerical rules of
the
American Arbitration Association, by a sole
arbitrator.
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(d) Procedure
Mediation or arbitration shall take place in Dearborn,
Michigan unless otherwise agreed by the Parties. The
substantive and procedural law of the State of
Michigan shall
apply to the proceedings, to the extent not
inconsistent with
the then current commercial rules of the American
Arbitration
Association. Equitable remedies shall be available in
any
arbitration. Punitive damages shall not be awarded.
This
clause is subject to the Federal Arbitration Act, 9
U.S.C.A.
Section 1 et seq. and judgment upon the award rendered
by the
Arbitrator, if any, may be entered by any court having
jurisdiction thereof.
17. Miscellaneous
(a) No Agency or Partnership Relationship
In no event shall the Parties be deemed to have any
agency or
partnership relationship between them as a result of
this
Agreement.
(b) Assignment
This Agreement has been executed in consideration of
the
Parties involved and therefore may not be assigned or
transferred to a third party without the prior written
consent of the other Party, such approval not be
unreasonably
withheld. Notwithstanding the foregoing, Ford may
assign this
Agreement without the prior consent of Bolt to any
wholly or
partially owned subsidiary of Ford Motor Company.
(c) Entire Agreement, Amendment, Waiver
This Agreement embodies the entire agreement of the
Parties
and supersedes any other agreements or understandings
between
them, whether oral or written, relating to this
subject
matter. No amendment or modification or waiver of a
breach of
any term or condition of this Agreement shall be valid
unless
in a writing signed by each of the Parties. The
failure of
either Party to enforce, or the delay by either of
them in
enforcing, any of their respective rights under this
Agreement will not be deemed a continuing waiver or a
modification of any rights hereunder and either Party
may,
within the time provided by applicable law and
consistent
with the provisions of
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this Agreement, commence appropriate legal proceedings
to
enforce any or all of its rights.
(d) Notices
Any notice or other communication hereunder must be
given in
writing and either (a) delivered in person, (b)
transmitted
by facsimile transmission or other telecommunications
mechanism, (c) sent by nationally recognized overnight
courier service or (d) mailed by certified mail,
postage
prepaid, receipt requested as follows:
If to Ford:
Ford Motor Company
Attn: Corporate Secretary
The American Road
Dearborn, MI 48121
If to Bolt:
Bolt, Inc.
Attn: Corporate Secretary
304 Hudson Street
New York, NY 10013
All notices personally delivered shall be deemed
received on
the date of delivery. Any notice sent via facsimile
transmission shall be deemed received on the date
shown on
the confirmation advice. Any notice by certified mail
shall
be deemed to have been given on the date of receipt or
refusal thereof. The date of any notice by overnight
mail
service shall be the date the airbill is signed by the
recipient. Either Party may change its address for the
receipt of notices by giving notice thereof to the
other.
(e) Excusable Delays
Neither Party shall be liable for a failure to perform
any of
its obligations hereunder that arise from causes or
events
beyond its reasonable control and without its fault or
negligence.
(f) Partial Invalidity
Any provision of this Agreement which is found to be
invalid
or unenforceable by any court in any jurisdiction
will, as to
that
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jurisdiction, be ineffective to the extent of such
invalidity
or unenforceability, and the invalidity or
unenforceability
of such provision will not affect the validity or
enforceability of the remaining provisions hereof.
(g) Title and Headings
Titles and headings of articles and sections of this
Agreement are for convenience only and will not affect
the
construction of any provision of this Agreement.
(h) Survival
Notwithstanding anything to the contrary contained herein, any
representations and warranties made by the Parties
shall
survive the term of this Agreement for a period of six
(6)
years.
(i) Counterparts
This Agreement may be executed in counterparts each of which
will be
deemed an original, but all of which taken together
will
constitute one and the same instrument.
(j) Governing Laws
This Agreement is governed by the internal laws of the
State
of Michigan.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and
year first above written.
BOLT Media, Inc. FORD MOTOR COMPANY
By: /s/ Frank M. Harrison By: /s/ James C. Schroer
------------------------------
------------------------------
Name: Frank M. Harrison Name: James C. Schroer
----------------------------
----------------------------
Title: Sr. VP Finance Title: VP-Marketing
---------------------------
---------------------------
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