6.11 Web Content and Distribution AgreementWeb Content and Distribution Agreement Web Content and Distribution Agreement (this "Agreement"), dated as of
________, 20__ (the "Effective Date"), is made by and between ________, a
________ corporation, ("Provider"), with offices at _________, and _________, a
________ corporation ("Conduit"), with offices at _____________. RECITALS
This Agreement is entered into with reference to the following facts:
A. Provider maintains on certain locations of the Provider Web Sites
(as defined below) and makes available to Internet users certain content,
resources, archives, indices, software, catalogs and collections of information
(collectively, such materials are identified in Exhibit A and referred to herein
as the "Content"); and
B. Provider wishes to grant certain rights and licenses to Conduit
with respect to access to the Content and certain other matters, and Conduit
wishes to grant certain rights and licenses to Provider with respect to the
Conduit Web Sites (as defined below) and certain other matters, as set forth in
this Agreement. AGREEMENT
The parties hereby agree as follows:
1. Definitions. As used herein, the following terms have the following defined meanings:
1.1. "Banner Advertisement" means a rotating banner advertisement of up to
approximately 468 x 60 pixels located at the top and/or bottom of a Web Page, or
other advertisements, sponsorships or promotions on or related to a Personal
Desktop Portal Page, as may be designated by Provider.
1.2. "Co-Branded Pages" means, collectively, Query Pages, Results Pages
and Personal Desktop Portal Pages.
1.3. "Conduit Marks" means those Trademarks of Conduit set forth on
Exhibit hereto and such other Trademarks (if any) of Conduit which Conduit may
own or use from time to time.
1.4. "Conduit Web Sites" means, collectively, all Web Sites maintained by
or on behalf of Conduit and its affiliates.
1.5. "Graphical User Interface" means a graphical user interface, to be
designed by Conduit and Provider and implemented by Provider pursuant to the
terms of this Agreement, that contains or implements branding, graphics,
navigation, content or other characteristics or features such that a user
reasonably would conclude that such interface is part of the Conduit Web Sites.
1.6. "Impression" means a user's accessing of any discrete screen of a Co-
Branded Page containing any Banner Advertisement.
1.7. "Provider Marks" means those Trademarks of Provider set forth on
Exhibit C hereto and such other Trademarks (if any) as Provider may from time to
time notify Conduit in writing to be "Provider Marks" within the meaning of this
Agreement.1.8. "Provider Web Sites" means, collectively: (1) the Web Sites, the
primary home page of which is located at http://www.Provider.com; and (2) other
Web Sites maintained by Provider and its affiliates.
1.9. "Intellectual Property Rights" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
1.10. "Person" means any natural person, corporation, partnership, limited
liability company or other entity.
1.11. "Personal Desktop Portal Application" (or PDP, Desktop Portal, or
the like used herein) means a version (as designated by Provider) of a
downloadable software application currently known as "The Provider Personal
Desktop Portal" whereby end users are able to access and display certain
content, and any successors and/or revisions to such application as Provider may
designate in its sole discretion.
1.12. "Personal Desktop Portal Page" means any page hosted on the Provider
Web Sites, and served to an end user who accessed such page through a version of
the Personal Desktop Portal Application that such end user downloaded from a
Query Page or Results Page, which may incorporate a Graphical User Interface
and/or to which users may input queries and searches relating to the Content.
1.13. "Query Page" means any page hosted on the Provider Web Sites which
may incorporate the Graphical User Interface and/or on which users clicking
directly from the Conduit Web Sites may input queries and searches relating to
the Content or may include download of or access to Content.
1.14. "Results " means any page hosted on the Provider Web Sites which may
incorporate the Graphical User Interface and/or displays Content in response to
queries and searches made on a Query Page or Personal Desktop Portal Page.
1.15. "Trademarks" means any trademarks, service marks, trade dress, trade
names, corporate names, proprietary logos or indicia and other source or
business identifiers.
1.16. "Web Site" means any point of presence maintained on the Internet or
on any other public data network. With respect to any Web site maintained on the
World Wide Web, such Web site includes all HTML pages (or similar unit of
information presented in any relevant data protocol) that either (1) are
identified by the same second-level domain (such as Provider.com) or by the same
equivalent level identifier in any relevant address scheme; or (2) contain
branding, graphics, navigation or other characteristics such that a user
reasonably would conclude that the pages are part of an integrated information
or service offering.
2. Certain Rights Granted.
2.1. Provider Grant. Subject to the terms and conditions of this
Agreement, Provider hereby grants to Conduit the following rights:
2.1.1. The right to include on the Conduit Web Sites hypertext links
(whether in graphical, text or other format) which enable "point and click"
access to locations of the Provider Web Sites specified by Provider (and subject
to change by Provider from time to time); and2.1.2. The right to permit users to link to Results Pages via Query
Pages and/or to Personal Desktop Portal Pages hosted on the Provider Web Sites.
2.2. Conduit Grant. Subject to the terms and conditions of this Agreement,
Conduit hereby grants Provider the following rights:
2.2.1. The right to include on the Provider Web Sites hypertext
links (whether in graphical, text or other format) which enable "point and
click" access to locations of the Conduit Web Sites specified by Conduit (and
subject to change by Conduit from time to time);
2.2.2. The right to sell and serve Banner Advertisements and other
promotions on the Co-Branded Pages; and
2.2.3. The right to track the number of Impressions.
2.3. Limitations. Conduit and its affiliates shall have no right to
reproduce or sub-license, re-sell or otherwise distribute all or any portion of
the Content to any Person, including via the Internet (including the World Wide
Web) or any successor public or private data network. This Agreement and
delivery of the Content or any portion hereunder to Conduit shall not cause
Provider to be in violation of any law of any jurisdiction or third party
agreement, and Provider may at any time modify its grant of rights to the extent
necessary to ensure compliance. Provider may from time to time issue additional
guidelines with respect to use or display of any of the Content, or issue
requirements based upon Provider's obligations to third- party Content
providers, and Conduit will implement such requirements. Conduit shall
implement and/or cooperate with Provider in its implementation of bug fixes,
updates, and minimum build requirements for any Content supplied by Provider,
promptly upon the request of Provider. Conduit shall not have any right to:
(1) edit or modify any Banner Advertisements submitted for Co-Branded Pages; (2)
"frame" Content unless expressly allowed by Provider; or (3) remove, obscure or
alter any legal notices, including notices of Intellectual Property Rights
appearing in or on any materials (including Banner Advertisements). No Banner
Advertisements for a Co-Branded Page shall advertise or promote a direct
competitor of Conduit or Provider.
2.4. Conduit Marks License. Subject to Section 2.6, Conduit hereby grants
Provider the right to use, reproduce, publish, perform and display the Conduit
Marks: (1) on the Provider Web Sites in connection with the posting of
hyperlinks to the Conduit Web Sites; (2) in and in connection with the
development, use, reproduction, modification, adaptation, publication, display
and performance of the Graphical User Interface, Results Pages and (if
applicable) the Personal Desktop Portal Pages; and (3) in promotional and
marketing materials, content directories and indexes, and electronic and printed
advertising, publicity, press releases, newsletters and mailings about Provider.
2.5. Provider Marks License. Subject to Section 2.6, Provider hereby
grants the right to use, reproduce, publish, perform and display the Provider
Marks: (1) on the Conduit Web Sites in connection with the posting of hyperlinks
to the Provider Web Sites; and (2) in and in connection with the development,
use, reproduction in promotional and marketing materials, content directories
and indexes, and electronic and printed advertising, publicity, press releases,
newsletters and mailings about Conduit.2.6. Approval of Trademark Usage. Provider shall not use or exploit in any
manner any of the Conduit Marks, and Conduit shall not use or exploit in any
manner any of the Provider Marks, except in such manner and media as the other
party may consent to in writing, which consent shall not be the unreasonably
withheld or delayed. Either party may revoke or modify any such consent upon
written notice to the other party.
2.7. Preferred Content Provider. Provider will be the primary and
preferred content provider for the Conduit.net portal in content categories
where Provider provides content; provided that Provider will not be exclusive
content provider. Conduit may add enhanced vertical content to complement
existing Provider content, and Conduit may fulfill any current contractual
content obligations. Provider shall have first right of consideration on all
technology solutions that Conduit may implement on its portal site.
3. Certain Obligations of the Parties.
3.1. Graphical User Interface and Co-Branded Pages. To the extent provided
in this Agreement, Conduit and Provider will cooperate to design the user-
perceptible elements of the Graphical User Interface, with the goals of: (1)
conforming the display output of the "look and feel" associated with the
applicable Conduit Web Sites; and (2) maximizing the commercial effectiveness
thereof. Following agreement by the parties upon the design specifications
thereof, Provider will use commercially reasonable efforts to develop the
Graphical User Interface and to implement the same on Co-Branded Pages. Provider
shall have no liability or obligation for failure to develop or implement the
Graphical User Interface or any Co-Branded Pages as contemplated by this Section
3.1, or for any nonconformity with the design specifications agreed upon by the
parties, provided Provider has used commercially reasonable efforts to develop
and implement the same as provided in this Section 3.1. The URL for the Co-
Branded Pages shall not include Conduit's domain name. Any re-designs or non-
standard designs requested by Conduit (beyond the initial single standard
template design contemplated by this Section 3.1) shall be charged at Provider's
then-current rates.
3.1.1 Provider and Conduit Development Efforts. Provider and Conduit
shall use commercially reasonable efforts to complete the development and mutual
distribution activities set forth in Exhibit D.
3.2. Conduit Obligations. Conduit shall integrate links to pages of the
Provider Web Sites determined by Provider (and subject to change by Provider
from time to time) on the primary home page for each of the Conduit Web Sites.
In addition, and unless otherwise designated by Provider, the Provider logo and
at least one other link pointing to pages of the Provider Web Sites specified by
Provider (and subject to change by Provider from time to time) will be present
on all Co-Branded Pages. Each link contemplated by this Section 3.2 shall be:
(1) prominent in relation to links to other Web Sites on the applicable page
(and in any event at least as prominent as any link to any third party Web
Site); and (2) above-the-fold (i.e., immediately visible to any user accessing
the applicable page without the necessity of scrolling downward or
horizontally).
3.2.1. Re-sale of Content Services. During the term, Conduit will
distribute Content services (e.g., the Personal Desktop Portal Application), or
appropriate portions thereof as agreed by Provider and Conduit, to Conduit
Affiliates ("Conduit Affiliates" shall include only Web Sites of companies who
are referred directly by Conduit for provision of the Content and which would
comply with all provisions of this Agreement). Conduit and Conduit Affiliates
shall agree to all terms and conditions of Provider's provision of the Content.
Conduit shall comply with all other reasonable requirements, guidelines, terms
and conditions that Provider may from time to time advise with respect to all
aspects of the resale to Conduit Affiliates. Provider reserves at all times the
right to refuse to provide access to all or any portion of the content to any
Conduit Affiliate(s) under this Agreement. Conduit shall keep records of
distribution of the Content to Conduit Affiliates, and provide them quarterly to
Provider, attention: Accounting. Provider may request that Conduit provide co-
branded navigation elements (customized header and/or footer) for the co-
branding of Web Sites of Conduit's Affiliates. Provider may incorporate these
co-branded navigational elements into the sites of Conduit Affiliates who enter
into an agreement with Provider for the provision of the Content. Unless
otherwise specified, the Conduit Affiliate sites will receive standard templates
designed for Conduit and will involve only basic changes (which Conduit will
supply). Provider reserves the right to charge the requesting party (Conduit or
its affiliate, as the case by be), a fee for any special requested additional
changes by a Conduit Affiliates to the templates.3.3. Accessibility of Web Sites. Each party will use commercially
reasonable efforts to maintain accessibility of its Web Sites.
3.4. Impression Information. Provider shall track and allow Conduit to
access remotely in electronic form information maintained by Provider concerning
the number of Impressions.
3.5. Publicity. The parties may work together to issue publicity and
general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall have
any obligation to do so. In addition, neither party shall issue such publicity
and general marketing communications concerning their relationship without the
prior written consent of the other party (not to be unreasonably withheld).
Neither party shall disclose the terms of this Agreement to any third party
other than its outside counsel, auditors, and financial advisors, except as
required by law.
4. Advertising and Revenue.
4.1. Placement of Banner Advertisements. In addition to the terms and
conditions otherwise set forth in this Agreement, Banner Advertisements sold on
the Co-Branded Pages shall be governed by the terms and conditions set forth on
Exhibit E.
4.2. Remuneration; Collection. Conduit will pay to Provider the amounts as
set forth on Exhibits D and E. Any amount not paid when due, or as invoiced,
will be subject to a finance charge equal to one and one-half percent (1.5%) per
month or the highest rate allowable by law, whichever is less, determined and
compounded daily from the date due until the date paid. Payment of such finance
charges will not excuse or cure any breach or default for late payment. Provider
may accept any check or payment without prejudice to its rights to recover the
balance due or to pursue any other right or remedy. No endorsement or statement
on any check or payment or letter accompanying any check or payment or elsewhere
will be construed as an accord or satisfaction. Unless explicitly stated on
Exhibits D or E, all amounts payable under this Agreement are denominated in
United States dollars, non-refundable, and Conduit will pay all amounts payable
under this Agreement in lawful money of the United States. In the event Conduit
fails to make timely payment, Provider shall have the right, in addition to all
other rights under this Agreement, to terminate, after ten days prior written
notice, all links, content, or services provided to Conduit under this
Agreement. If Conduit fails to make timely payment, Conduit will be responsible
for all reasonable expenses (including attorney fees) incurred by Provider in
collecting such amounts.
5. Warranties, Indemnification and Limitation of Direct Liability.5.1. Warranties. The parties to this Agreement represent and warrant as
follows:
5.1.1. Each party warrants that it has the full corporate right,
power and authority to enter into this Agreement and to perform the acts
required of it hereunder;
5.1.2. Each party warrants that its execution of this Agreement by
such party and performance of its obligations hereunder, do not and will not
violate any agreement to which it is a party or by which it is bound; and in
performance under and related to this Agreement, the parties shall comply with
all applicable laws, rules and regulations (including, without limitation,
privacy, export control and obscenity laws);
5.1.3. Each party warrants that when executed and delivered, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms; and
5.1.4. Each party warrants that its Web Sites and the content
contained therein, and all Banner Advertisements served or submitted for the Co-
Branded Pages, as the case may be, will not contain any material that is
obscene, pornographic, profane, fraudulent, libelous or defamatory, or
infringing of any third-party Intellectual Property Rights.
5.2. Indemnification. Each party (the "Indemnifying Party") will defend,
indemnify and hold harmless the other party (the "Indemnified Party"), and the
respective directors, officers, employees and agent of the Indemnified Party,
from and against any and all claims, costs, losses, damages, judgments and
expenses (including reasonable attorneys' fees) arising out of or in connection
with any third party claim alleging any breach of such party's representations
or warranties or covenants set forth in this Agreement. The Indemnified Party
agrees that the Indemnifying Party shall have sole and exclusive control over
the defense and settlement of any such third party claim. The Indemnified Party
shall promptly notify the Indemnifying Party of any such claim of which it
becomes aware and shall: (1) at the Indemnifying Party's expense, provide
reasonable cooperation to the Indemnifying Party in connection with the defense
or settlement of any such claim; and (2) at the Indemnified Party's expense, be
entitled to participate in the defense of any such claim. The Indemnifying Party
shall not acquiesce to any judgment or enter into any settlement that adversely
affects the Indemnified Party's rights or interests without prior written
consent of the Indemnified Party.
5.3. Limitation of Liability; Disclaimer.5.3.1. Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OR REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NEITHER
PROVIDER NOR CONDUIT'S LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE
AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED),
PRODUCT LIABILITY OR STRICT LIABILITY OF SUCH PARTY) UNDER THIS AGREEMENT OR
WITH REGARD TO ANY OF THE PRODUCTS OR SERVICES RENDERED BY EITHER PARTY UNDER
THIS AGREEMENT (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER
ITEMS USED OR PROVIDED BY PROVIDER, CONDUIT, OR ANY THIRD PARTIES IN CONNECTION
WITH HOSTING THE CO-BRANDED PAGES OR PROVIDING CONTENT), THE PROVIDER WEB SITES
AND ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT. IN NO EVENT WILL
PROVIDER OR CONDUIT'S AGGREGATE LIABILITY TO THE OTHER UNDER THIS AGREEMENT
EXCEED THE COMPENSATION PAID BY CONDUIT TO PROVIDER UNDER THIS AGREEMENT.5.3.2. No Additional Warranties. EXCEPT AS SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN
EACH CASE, REGARDING THEIR WEB SITES, ANY PRODUCTS OR SERVICES DESCRIBED
THEREON, ANY BANNER ADVERTISEMENTS, ANY SOFTWARE, OR ANY OTHER ITEMS OR SERVICES
PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, CONDUIT AND PROVIDER ACKNOWLEDGE THAT THEIR RESPECTIVE WEB SITES AND
THE CONTENT (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER
ITEMS USED OR PROVIDED BY THE PARTIES OR ANY THIRD PARTIES IN CONNECTION WITH
HOSTING THE WEB SITES OR THE CONTENT OR PERFORMANCE OF ANY SERVICES HEREUNDER)
ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. CONDUIT AND PROVIDER
ACKNOWLEDGE THAT NEITHER PROVIDER NOR CONDUIT MAKE ANY WARRANTY THAT IT WILL
CONTINUE TO OPERATE ITS WEB SITES OR OFFER THE CONTENT IN ITS CURRENT FORM, THAT
ITS WEB SITES OR THE CONTENT WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE
SITES OR THE CONTENT WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF THE OTHER
PARTY, OR THAT THE CONTENT, SOFTWARE OR ANY OTHER ANY MATERIALS ON ITS WEB SITES
OR THE SERVERS AND SOFTWARE THAT MAKES ITS WEB SITES AVAILABLE ARE FREE FROM
ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS.
6. Term and Termination.
6.1. Term. The term of this Agreement is as set forth in Exhibit E
(Exhibit D regarding E-mail services).
6.2. Termination. Either party may terminate the Term upon not less than
thirty (30) days' prior written notice to the other party of any material breach
hereof by such other party; provided that such other party has not cured such
material breach within such thirty- (30-) day period.
6.3. Effect of Termination. Upon termination or expiration of the Term for
any reason, all rights and obligations of the parties under this Agreement shall
be extinguished, except that: (1) all accrued payment obligations hereunder
shall survive such termination or expiration; and (2) the rights and obligations
of the parties under Sections 5, 6, 7 and 8 shall survive such termination or
expiration.
7. Intellectual Property.
7.1. Conduit. As between the parties, Conduit retains all right, title and
interest in and to the Conduit Web Sites (including, without limitation, any and
all content, data, URLs, domain names, technology, software, code, user
interfaces, "look and feel." Trademarks and other items posted thereon or used
in connection or associated therewith; but excluding any Content or other items
supplied by Provider) and the Conduit Marks along with all Intellectual Property
Rights associated with any of the foregoing. All goodwill arising out of
Provider's use of any of the Conduit Marks shall inure solely to the benefit of Conduit.7.2. Provider. As between the parties, Provider retains all right, title
and interest in and to the Content and the Provider Web Sites (including,
without limitation, any and all content, data, URLs, domain names, technology,
software (including, without limitation, the Personal Desktop Portal
Application), code, user interfaces, "look and feel." Trademarks and other items
posted thereon or used in connection or associated therewith; but excluding any
items supplied by Conduit), user data gathered from or through any Provider
tools or applications, and the Provider Marks, along with all Intellectual
Property Rights associated with any of the foregoing. All goodwill arising out
of Conduit's use of any of the Provider Marks shall inure solely to the benefit
of Provider.
7.3. Copyright Notices. All Co-Branded Pages will include the following
acknowledgment, along with the Provider logo.
"Powered by Provider" or "Powered by Provider.com"
Provider and Conduit acknowledge that the Co-Branded pages may also contain
copyright and patent notices of copyrighted or copyrightable works, including
those of Provider Content providers. Provider will be given credit in
advertisements of Conduit which promote the Content services provided by
Provider in a manner such as "brought to you by Provider.com" or similar text.
7.4. Other Trademarks. Provider shall not register or attempt to register
any of the Conduit Marks or any Trademarks that Conduit reasonably deems to be
confusingly similar to any of the Conduit Marks. Conduit shall not register or
attempt to register any of the Provider Marks or any Trademarks that Provider
reasonably deems to be confusingly similar to any of the Provider Marks.
7.5. Further Assurances. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 7.
8. General Provisions
8.1. Confidentiality. Each party (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or, by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that each
party may disclose the terms and conditions of this Agreement to its immediate
legal and financial consultants in the ordinary course of its business. Each
party agrees to use commercially reasonable efforts to protect Confidential
Information of the other party, and in any event, to take precautions at least
as great as those taken to protect its own confidential information of a similar
nature. Conduit acknowledges that the terms of this Agreement and user
information are Confidential Information of Provider. The foregoing restrictions
shall not apply to any information that: (1) was known by the receiving Party
prior to disclosure thereof by the other party; (2) was in or entered the public
domain through no fault of the Receiving Party; (3) is disclosed to the
Receiving Party by a third party legally entitled to make such disclosure
without violation of any obligation of confidentiality; (4) is required to be
disclosed by applicable laws or regulations (but in such event, only to the
extent required to be disclosed); or (5) is independently developed by the
Receiving Party without reference to any Confidential Information of the other
party. Upon request of the other party, or in any event upon any termination or
expiration of the Term, each party shall return to the other all materials, in
any medium, which contain, embody, reflect or reference all or any part of any
Confidential Information of the other party. Each party acknowledges that breach
of this provision by it would result in irreparable harm to the other party, for
which money damages would be an insufficient remedy, and therefore that the
other party shall be entitled to seek injunctive relief to enforce the
provisions of this Section 8.1.8.2. Independent Contractors. Conduit and Provider are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Conduit and Provider. Neither party has any authority to enter into agreements
of any kind on behalf of the other party.
8.3. Assignment. Conduit may not assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of Provider; except that either party may, without the other
party's consent, assign this Agreement or any of its rights or delegate any of
its duties under this agreement: (1) to any affiliate of such party; or (2) to
any purchaser of all or substantially all such party's assets or to any
successor by way of merger, consolidation or similar transaction. Subject to the
foregoing, this Agreement will be binding upon, enforceable by, and inure to the
benefit of the parties and their respective successors and assigns.
8.4. Choice of Law; Forum Selection. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of __________ without
reference to its choice of law rules. Conduit hereby irrevocably consents to
exclusive personal jurisdiction and venue in the state and federal courts
located in __________, __________ with respect to any actions, claims or
proceedings arising out of or in connection with this Agreement, and agrees not
to commence or prosecute any such action, claim or proceeding other than in the
aforementioned courts.
8.5. No Waiver. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof, and no waiver shall be effective unless
made in writing and signed by an authorized representative of the waiving party.
8.6. Force Majeure. Neither party shall be deemed to be in default of or
to have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly or
indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, failure of equipment and/or software, other
catastrophes or any other occurrences which are beyond such party's reasonable control.
8.7. Notices. Any notice or other communication required or permitted to
be given hereunder shall be given in writing and delivered in person, mailed via
confirmed facsimile or E-mail, or delivered by recognized courier service,
properly addressed and stamped with the required postage, to the individual
signing this Agreement on behalf of the applicable party at its address
specified in the opening paragraph of the agreement and shall be deemed
effective upon receipt. Either party may from time to time change the individual
to receive notices or its address by giving the other party notice of the chance
in accordance with this Section 8.7. In addition, a copy of any notice sent to
Provider shall also be sent to the following address:________________________________________
________________________________________
________________________________________
________________________________________
8.8. Savings. In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. If any provision of
this Agreement shall, for any reason, be determined by a court of competent
jurisdiction to be excessively broad or unreasonable as to scope or subject,
such provision shall be enforced to the extent necessary to be reasonable under
the circumstances and consistent with applicable law while reflecting as closely
as possible the intent of the parties as expressed herein.
8.9. Integration. This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements or negotiations between Provider and Conduit
concerning the subject matter hereof, and cannot be amended except by a writing
signed by both parties. This Agreement does not constitute an offer by Provider
and it shall not be effective until signed by both parties.
8.10. Counterparts; Electronic Signature. This Agreement may be executed
in counterparts, each of which will be deemed an original, and all of which
together constitute one and the same instrument. To expedite the process of
entering into this Agreement, the parties acknowledge that Transmitted Copies of
the Agreement will be equivalent to original documents until such time as
original documents are completely executed and delivered. "Transmitted Copies"
will mean copies that are reproduced or transmitted via photocopy, facsimile or
other process of complete and accurate reproduction and transmission.
9. Press Releases. Both Parties agree to issue a mutually agreed-upon press
release within a reasonably prompt time after the mutual execution of this
Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the Effective Date. Provider:
Signed:________________________
Printed name:__________________
Title:_________________________
Date:__________________________ Conduit:
Signed:________________________
Printed name:__________________
Title:_________________________
Date:___________________________
EXHIBIT A CONTENTThe Content consists of, but is not limited to, the following indexes,
directories and other items and services (as the same may be updated, revised or
modified by Provider in its sole discretion from time to time):
1. Yellow Pages.
2. White Pages.
3. Search Engine.
4. Classified.
5. City Guides.
6. Finance. 7. News.
8. Sports Headlines.
9. Community (standard network chat).
10. Government.
11. Internet Shopping.
12. International Listings.
13. Business Services.
14. Entertainment.
15. Provider "Personal Desktop Portal."
16. Web Page Creator.
17. Event Manager.
18. Forums.
19. Web-based E-mail.
20. Address Book.21. Chat.
22. Other items and services that may from time to time be added to
certain of the Provider Web Sites by Provider (in its sole discretion).
The above listed Content is limited to the Content that Provider makes
available on the Provider Web Site, the primary home page of which is
http://www.Provider.com, but excludes content that is only available on country-
specific Provider Web Sites, such as the __________ Web Site, the primary home
page of which is located at http://www.__________.com/mexico. The actual name
of these services may change. Conduit must obtain the prior approval of
Provider if Conduit desires to change the name of any of these services. EXHIBIT B
CONDUIT TRADEMARKS
[All Conduit marks and logos, or Conduit to supply list.] EXHIBIT C
PROVIDER TRADEMARKS
[All Provider marks and logos, or Provider to supply list.] EXHIBIT D
DEVELOPMENT
1. E-mail Services. Provider will build, in cooperation with Conduit, a
customized E-mail solution for Conduit, as follows:1.1. Provider will provide a IMAP Web-mail solution that allows for the
mail storage functionality to remain at Conduit. Conduit shall pay for and
provide a dedicated VPN to Provider data center.
1.2. Both in-coming and out-going e-mails will go through a Conduit.net
gateway. This will maximize Conduit's flexibility to filter, modify and
customize the transmission of e-mails to its users.
1.3. Included in this functionality, Provider will build up to __________
unique co-brands with unique domain names for Conduit's private labeled Conduit
Affiliates Web Site customers. Each additional co-brand beyond the __________,
will incur a one time cost of $__________.
1.4. Provider will allow for the provision of each of the Conduit users
their own personal calendar as part of the application.
1.5. Maximum Size per Account: __________ megabytes.
1.6. Pricing for E-mail Services. $__________ upon Closing and $__________
thereafter, according to the following schedule:
____________________________
Conduit will pay Provider $__________ for each e-mail account in excess of
__________.
1.7. Product Specifications for Provider E-mail Service. The following is
an overview of Provider e-mail Service features. These features may be modified
or enhanced by Provider at any time:
1.7.1. Generally. Provider's E-mail Module is a flexible,
customizable e-mail solution that satisfies the messaging needs of Web
communities. The E-mail Module enables individual members of a community to set
up free, comprehensive Web-based e-mail accounts under the umbrella of the
community site. All e-mail accounts use the communitie's domain name in order to
promote the site and increase site traffic. Provider's e-mail also enables
messages to be downloaded from multiple POP Mail accounts. E-mail folders can be
added to the individual users Start Page to access information easily. In
addition, users can add their favorite contacts to their Start Page to access
that contact's information easily or to e-mail that contact directly from the
Start Page. Provider's E-Mail Module supports and manages user-generated e-mail
lists, auto-subscribe and unsubscribe to newsletters, as well as newsletter
subscription confirmations. Synchronize Outlook-TM- with Provider.com e-mail
service to easily access e-mail, calendars and contacts from anywhere.
1.7.2. Specific Features. Specific Features of Provider's E-mail
Module are as follows:
1. Secure, password protected, Web-based service.
2. Manages POP accounts.
3. Branding: customer defined layout and navigation.
4. Scalable.
5. Customers can create a unique domain name for community.
6. Large inbox capacity __________ megabytes.
7. Saves sent messages as well as drafts of messages and
permanent message archiving Time stamps messages.
8. Customizable & expandable mail folders.
9. Standard mail features: reply, reply to all, forward, cc,
bcc.
10. Attachments-no larger than ________ megabytes.
11. Personalized signature setting.
12. Preview messages prior to sending.
13. Microsoft OutlookTM synchron ization.
14. Customer defined Stock Messages-New Member Welcome,
Password Reminder, etc.
15. Customer defined footer advertising your organization and
free e-mail accounts.
16. Integrates with relationship manager for easy addressing
and management of contacts.
17. List management allows user to create and manage group e-
mails easily.
18. Message sent confirmation.
2. Re-seller Distribution of Provider Products. Provider's Personal Desktop
Portal products and other Content, as provided in this Agreement, shall be
__________ content and commerce offering to Conduit's customer base when Conduit
offers co-branded or private labeled portal solutions to its customers.
3. Re-sell Conduit's Product. Provider will in consideration for the
compensation below offer "free Internet access" to the segments of its customer
base for which Provider has appropriate arrangements in place. 3.1. If Provider is instrumental in the referral to Conduit of a co-brand
Partner who enters into an Agreement with Conduit, the parties hereto shall
agree upon a satisfactory referral fee payable to Provider.
3.2. Conduit shall compensate Provider for distribution of its "free
Internet access" product, in addition to other compensation under the Agreement,
as follows:3.2.1. Conduit will pay Provider $__________ that a "free Internet
access" product user-generated through Provider remains an "Active User." For
the purposes of this Agreement, an "Active User" is defined as a Conduit Product
User who has logged on through the __________ Client for at least __________.
Provider at its sole discretion may use any promotions to encourage new user of
Conduit's product offering. EXHIBIT E
ADVERTISING TERMS AND CONDITIONS
1. Term. The term of this Agreement shall commence on the Effective Date and,
unless earlier terminated or extended as provided below, shall end upon the
__________ anniversary of this Agreement (with the exception of e-mail services,
as set forth in Exhibit D, which shall terminate __________ months after the
Effective date) ("Term"); provided that the Term shall automatically be renewed
for successive one-year periods unless either party provides written notice of
termination to the other party at least thirty (30) days prior to the end of the
then-current Term.
2. Banner Advertisements. Provider and Conduit shall have the right to sell
Banner Advertisements on the E-mail Co-Branded Pages. Provider shall serve all
Banner Advertisements on the E-mail Co-Branded pages. In addition, Provider may
sell and retain the gross revenue of up to __________% of the available Banner
Advertisements Inventory for the E-mail Co-Branded pages. The appearance of the
Banner Advertisements will be as reasonably determined by Provider; provided,
that either party may reject any Banner Advertisement if such Banner
Advertisement would materially adversely affect the download time or performance
of such E-mail Co-Branded page; or advertises or promotes a competitor of
Conduit or Provider. Neither party will submit for any E-mail Co-Branded Page
any Banner Advertisement that contains any material that is libelous or
defamatory or that infringes any Intellectual Property Right or other right of
any third party.
3. Conduit Right to Sell Banner Advertisements. Conduit shall have the right to
sell up to ______% of the available Banner Advertisement Inventory on the E-mail
Co-Branded Pages. All available inventory of Banner Advertisements sold by
Conduit for the E-mail Co-Branded Pages shall be "run of site" (e.g., not
targeted to any specific type or area of the E-mail Co-Branded Pages). Each
party shall be entitled to retain all sums received by such party from any such
Banner Advertisement sales.
4. Records and Audit; Late Payments. During the Term Conduit shall maintain
accurate records of the fees payable to Provider under the Agreement. Provider
may, upon ten (10) days' advance notice to Conduit, examine and audit such
records of Conduit in order to verify the figures reported in any quarterly
reports made to Provider and any amounts owed to Provider by Conduit under this
Agreement. Any such audit shall be conducted, to the extent possible, in a
manner that does not interfere with the ordinary business operations of Conduit.
In the event that any audit shall reveal an underpayment of more than five
percent (5%) of the amounts due to Provider for any quarter, Conduit will
reimburse Provider for the actual costs of such audit.
