EXHIBIT 10.19
REVISED MASTER SERVICE AGREEMENT
This Master Service Agreement, dated as of August 29, 2003 (the "REVISED
EFFECTIVE DATE"), is between WebSideStory, Inc., a Delaware corporation located
at 00000 Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, XX 00000 ("WSS") and the remaining
undersigned entities (collectively, "WDIG"), having a principal place of
business at 000 Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000-0000. WSS
and WDIG are collectively referred to herein as the Parties.
A. WHEREAS, WSS hosts, maintains, operates, and provides the
HitBox Enterprise Web analytics service (the "ENTERPRISE
SERVICE") and other services ("OTHER SERVICES");
B. WHEREAS, WDIG operates the WDIG Sites (as defined below);
C. WHEREAS, the Parties entered into several agreements pursuant
to which WSS made the Enterprise Service available to WDIG;
D. WHEREAS, the Parties wish to revise the terms of such
agreements and extend the terms of certain of such agreements;
E. WHEREAS, to effectuate such purpose, the Parties are hereby
entering into a new agreement;
NOW, THEREFORE, in consideration of the terms, covenants, and
conditions herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1.0 DEFINITIONS.
"ACCOUNT" means any web site or portion thereof or combination
of web sites or collection of web site pages for which WDIG requests a
single, unified set of Statistics and all other types of accounts
including, but not limited to, accounts for the Enterprise Service,
Rollups, Traffic Rollups and Global Rollups (as defined in Exhibit 1).
"AGREEMENT" means this Master Service Agreement, any Service
Orders, and any addenda, exhibits, schedules or attachments attached to
this Master Service Agreement or any Service Orders.
"COMMERCE SERVICE" means real-time reporting to WDIG of
browser transactions on WDIG's web site, including navigational paths,
new customers, repeat customers, order frequency, products purchased
and all such other information that WSS makes available to other
customers of the HitBox Commerce service. The Commerce Service is an
Other Service.
"CONFIDENTIAL INFORMATION" has the meaning set forth in
Section 11.2
"CONSULTING SERVICE" means professional services regarding use
of Services and interpretation of resulting data.
CERTAIN MATERIAL INDICATED BY ASTERISKS HAS BEEN OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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"DELIVERABLES" has the meaning set forth in Section 4.2.
"DOWNTIME" has the meaning set forth in Exhibit D.
"REVISED EFFECTIVE DATE" has the meaning set forth in the
preamble to this Agreement.
"EIV AFFILIATES" has the meaning set forth in Section 11.5
"ENTERPRISE SERVICES" has the meaning set forth in Recital A.
"HitBox Enterprise Statistics" are Statistics (as defined
below) derived from or relating to the HitBox Enterprise Service.
"HTML CODE" is as defined in Section 2.1.1.
"OTHER SERVICES" has the meaning set forth in Recital A.
"PAGES" is as defined in Section 2.1.
"CUSTOM REPORT CONSULTING SERVICE" has the meaning set forth
in Exhibit C.
"REPORTS" means reports of the Statistics.
"REPRESENTATIVES" has the meaning set forth in Section 11.1.
"SERVICE ORDER" means an order from WDIG to WSS for the
provision of specified services on defined terms.
"SERVICES" means those of the Enterprise Service and/or Other
Services covered by Service Orders.
"STATISTICS" means real-time reporting of web site statistics
and any data collected and retained by WSS relating thereto, if any.
HitBox Enterprise Statistics are a subset of Statistics.
"SUBCONSULTANTS" has the meaning set forth in Exhibit B.
"TERM" has the meaning set forth in Section 8.1
"TOTAL VIEWS" has the meaning set forth in Section 2.1.
"WDIG"' has the meaning set forth in the preamble to this
Agreement.
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"WDIG SITES" means the web sites, including the pages that
comprise such sites, owned, operated, and/or maintained by or for WDIG,
The Xxxx Disney Company, and any parent, subsidiary, or affiliate
thereof, including but not limited to non-owned affiliate television
stations.
"WSS" has the meaning set forth in the preamble to this
Agreement.
2.0 WSS OBLIGATIONS.
2.1 ENTERPRISE SERVICE. To the extent that Enterprise Services are
included in any Service Order, the following shall apply: WSS will
provide real-time reporting to WDIG of browser accesses, (no minimum or
maximum unique web site pages per Account but WDIG will use
commercially reasonable efforts to notify WSS if WDIG believes when it
creates an Account that the Account will exceed 50,000 unique web site
pages; however, WDIG's failure to so notify WSS will not constitute a
breach of the Agreement), via a web based interface of the same general
nature (unless otherwise mutually agreed) as that which is provided to
WSS' other clients, to such web pages owned or operated by WDIG or its
parent, subsidiary, related or affiliate entities, as determined by
WDIG, and that are part of web sites listed on a Service Order made a
part of this Agreement (the "PAGES"), including page views, unique
visitors, repeat visitors, frequency of visits, peak-volume traffic
periods (all available for time periods that may be specified by WDIG)
and all such other information (including, without limitation, any
upgrades thereof) that WSS makes available to other clients of the
Enterprise Service. There is no limit on Total Views as to any Account
made pursuant to this Agreement (for example, there is no threshold of
Total Views whereby WDIG will be charged any additional amounts for
passing that threshold). As used in this Agreement, the phrase "TOTAL
VIEWS" includes all browser page views and browser reloads. In the
event that WSS offers to include and WDIG wishes to include file
downloads, exit links, and similar web site traffic events that WSS
counts and reports on among the things about which WSS provides reports
to WDIG, WDIG shall submit a Service Order to WSS accordingly, with
such events to be thereafter included as "Total Views" as though
originally defined as such herein. Attached as EXHIBIT E to this
Agreement is a list of the statistics presently included in the
Enterprise Service. WSS may freely add statistics at its own discretion
[***].
2.1.1 CODE. Within three business days after a Service
Order for a site is received by WSS, for each Service Account
to which WDIG subscribes, WSS
will deliver and license to WDIG for the term of this
Agreement a unique account number and a copy of HitBox
customer-side, HTML code ("HTML CODE") for use in connection
with the web sites specified in the Service Order.
Notwithstanding the foregoing, if WDIG reasonably believes
that
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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special circumstances require that the HTML Code be provided
earlier, WDIG shall so indicate on the applicable Service
Order. For the term of this Agreement, WSS grants WDIG a
limited right to copy HTML Code for insertion in WDIG's Pages.
WSS is not granting any other rights to the HTML Code. WSS
retains ownership and all rights to the HTML Code, HitBox
logos, trademarks, software, and trade secrets.
2.1.2 DATA & STATISTICS. WSS will process and provide
HitBox Enterprise Statistics) to WDIG as part of the
Enterprise Service, subject to Section 2.9.
2.1.3 SERVICES HOSTING. WSS shall provide, operate,
maintain and support the necessary software and equipment to
make the Services available for access to WDIG.
2.1.4 CHANGING THE STATUS OF ACCOUNTS; ADDITIONS AND
DELETIONS. The procedure for adding and deleting Accounts and
declaring Accounts to be inactive or suspended are set forth
in Exhibit A.
2.1.5 SECURITY. WSS represents and warrants that, as of the
Revised Effective Date and throughout the Term, it takes at
least the following security measures: (a) maintaining
commercially reasonable physical, electronic and managerial
security measures to protect the loss, misuse and alteration
of the information under WSS' control, (b) using Secure Socket
Layer (SSL) connections with 128-bit encryption for certain
transactions and confidential data, including but not limited
to the pages of the Services displaying or through which one
could access Statistics regarding the WDIG Sites, (c) securing
and maintaining with a digital certificate issued by a third
party certification authority the secure pages on its web
sites, (d) continually monitoring system and application
activity logs to identify any unusual activity, from
authorized and/or unauthorized individuals accessing its
systems and/or making changes to stored information, (e)
performing preventative system maintenance and monitoring to
ensure the security of its data systems, (f) maintaining its
servers in secure facilities subject to monitoring 24 hours
per day, seven days per week, (g) creating backup tapes daily
and transports them off site, and (h) requiring all employees
to sign confidentiality agreements and only allows its
employees who need information to perform their job and who
have passed background checks to be granted access to
personally identifiable information or any other confidential
data.
2.2 TRAINING. WSS shall provide training as set forth in the
applicable Service Orders. Training will be provided by WSS employees
with appropriate functional and technical backgrounds.
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2.3 SUPPORT. WSS shall make qualified personnel available to WDIG
by telephone or email, in the English language, on a twenty-four hours
per day, seven days per week basis for technical support. WSS shall use
all commercially reasonable best efforts to correct technical issues
during such telephonic conferences. Notwithstanding the foregoing, WSS
shall provide error correction and response in accordance with the
service levels set forth below:
PROBLEM PRIORITIES
PRIORITY CRITICALITY DESCRIPTION
-------- ----------- -----------
1 CRITICAL The Service is not counting.
2 SERIOUS The Service is counting but the use of or access to the
Reports is severely restricted.
3 LOW / Information request or the user can easily work around
REQUEST an existing problem and use of the Service or Reports
is only slightly limited or affected or not at all
PROBLEM/BUG/ERROR RESOLUTION
CLASSIFICATION ACKNOWLEDGEMENT RESOLVED
-------------- --------------- --------
Critical 1 Hour Up to 1 Work Day
Serious 2 Hours Up to 3 Work Days for Resolution
Low 2 Work Days Up to 5 Work Days (1)
2.4 VERSIONS. During the term of the Agreement, WSS will make
available to WDIG the most current version of the Services that are
generally made available to WSS' other customers.
2.5 ESCROW. The parties previously established an escrow with DSI
Technology Escrow Services for the code and other materials necessary
(but subject to the second to last sentence of this paragraph) for WDIG
to operate the
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Services and generate Reports. The purpose of such escrow is to protect
WDIG in the event that WSS ceases to do business, becomes insolvent, or
files or has filed against it any bankruptcy proceeding, which purpose
shall be reflected in the conditions for the release of the escrow
materials. WSS represents and warrants that the materials deposited in
the escrow account includes all source and object code, binaries, tools
and other elements that WSS periodically backs-up to operate the
Services and generate reports, as well as documentation that it
possesses related thereto ("Necessary Materials"). The escrow agreement
shall also provide for the verification of the deposit materials and
the deposit of updates. WSS represents and warrants that a company
utilizing persons skilled in the art of information technologies
relating to real time monitoring and counting of web site activities;
utilizing the hardware, software, and other materials set forth in the
deposited documentation; and entering into contracts for the requisite
materials, infrastructure and telecommunications services with the
appropriate vendors could operate the Services and generate Reports
using the materials deposited by WSS under this Section 2.5. WSS
represents and warrants that is has and will continue to deposit
updates of the Necessary Materials for each new version of the
Necessary Materials created by WSS.
2.6 SERVICE LEVEL GUARANTY. WSS shall satisfy the requirements set
forth in the Service Level Guaranty, attached hereto as EXHIBIT D.
2.7 SERVICE ORDER NUMBERING. Service Orders shall be numbered
sequentially.
2.8 OTHER SERVICES. WSS will provide Other Services, such as
consulting, in accordance with Service Orders submitted by WDIG and
agreed to by WSS, and in accordance with such terms as the parties
shall agree in writing.
2.9 STATISTICS. WDIG will own all the Statistics, and, without
limitation, can copy, archive, export, backup, publish, distribute and
use the Statistics for any legal purposes. WSS will keep all the
Statistics confidential in accordance with the requirements of or
rights of the parties contained in this Agreement and shall not use
(except as permitted by this Section), nor permit any third party to
use, any such Statistics for any purpose other than for the performance
of WSS' obligations under this Agreement. Notwithstanding the
foregoing, and subject in all respects to compliance with any
applicable laws and regulations, WSS shall not be precluded by this
Agreement from publishing Internet-wide statistics through its
Statmarket Service based upon raw data aggregated from all of its
accounts it deems to represent typical accounts (excluding, for
example, free accounts or adult-themed accounts) (but in no event less
than most of its accounts in terms of Total Views), including WDIG's
HitBox Enterprise Statistics, provided that WSS provides WDIG with
access to the Statmarket Service throughout the Term to ensure
verification of WSS' compliance with this Section, but WSS does not
have any right to, and shall not, publish WDIG's HitBox Enterprise
Statistics separately or publish any other specific information about
or derived from WDIG's audience, Pages, or HitBox Enterprise
Statistics, or to
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publish any Internet-wide statistics, HitBox Enterprise Statistics or
any portion thereof that would in any manner identify, or permit the
identification of, WDIG, WDIG's web site(s) or WDIG's products or
services. In connection with the Services, WDIG will not provide, and
WSS will not collect, any personally identifiable information from
WDIG's web site visitors. The limitations on the collection and use of
Statistics and other information by WSS set forth in this Section 2.9
shall apply to all Services provided by WSS to WDIG, including but not
limited to the HitBox Enterprise Service. Nothing in this Section 2.9
shall limit WSS' right to continue to provide the Benchmarker Service
to third parties, provided that none of the information provided in or
through the Benchmarker Service regarding the WDIG Sites is derived in
any way from information that WSS has about WDIG pursuant to the
relationship set forth in this Agreement and further provided that the
information provided about WDIG Sites shall be no more comprehensive
than the information provided about any other website.
3.0 INVOICES, PAYMENTS, REPORTS & EXPENSES.
3.1 GENERAL. The fees, invoicing and payment terms will be as set
forth on a Service Order attached to this Agreement as EXHIBIT A and
such Service Order is hereby incorporated into this Agreement and made
a part of it. Any subsequent Service Orders entered into between the
parties for the purpose of adding web sites to this Agreement or for
Other Services will become part of this Agreement and will be governed
by this Agreement. WSS will invoice WDIG in advance on a monthly basis
for all monthly usage fees, and payments on all invoices shall be due
within 30 days of receipt. Any set-up fees or implementation fees that
may be set forth in any Service Order made a part of this Agreement are
non-refundable.
3.2 LIMITED EXPENSE REIMBURSEMENT. When WSS provides Services
pursuant to a Service Order, certain expenses may be reimbursable. The
total of all expenses payable pursuant to a Service Order shall not
exceed the amount authorized in such Service Order. Unless otherwise
set forth in a Service Order or a written agreement between the
parties, all expenses incurred in the performance of a Service Order
shall be subject to the Reimbursable Expense Guidelines attached to
this Agreement as EXHIBIT B. Reimbursable expenses will be detailed,
and WSS shall provide WDIG with original receipts or other documents to
substantiate expenditures. Expenses shall be invoiced by WSS at their
actual cost. Under no circumstances will the reimbursement for expenses
exceed the amount specified in the applicable Service Order unless the
Service Order is modified in a writing signed by authorized
representatives of both parties. If a Service Order does not specify
that expenses will be reimbursed, then there are no reimbursable
expenses for that Service Order.
3.3 NON-FIXED PRICE REIMBURSEMENT. If WSS is to be reimbursed for
costs and expenses incurred in connection with any services or for any
services performed on other than a fixed-price basis, WSS shall
maintain comprehensive books and records to substantiate both the
services and expenses. Such books and
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records will be retained by WSS for a period of at least two years from
and after the completion of such services. WDIG, or its authorized
representatives, shall have the right to audit such records at all
reasonable times upon prior notice to WSS.
3.4 ADDRESS FOR INVOICES. WSS shall send all invoices to the
attention of:
Xxxx Disney Internet Group
[***]
Attention: [***] (or such other individual as WDIG may
designate in writing)
3.5 MONTHLY REPORTS. Within fifteen (15) days of the end of each
calendar month, WSS shall provide to WDIG a true and correct monthly
activity report listing the open Accounts for such month and the Total
Views for each such Account for such month. Such monthly activity
report shall be sent via email to [***] at [***] or such other
individual as WDIG may designate in writing.
4.0 PROPRIETARY RIGHTS.
4.1 HTML CODE. For the term of this Agreement, WSS grants WDIG a
limited license to copy the HTML Code for insertion in WDIG's Pages.
WSS retains ownership and all rights to the HitBox logos, trademark,
software, and trade secrets, and WDIG retains ownership and all rights
to the WDIG web sites, Pages, logos, trademarks, software and trade
secrets, as well as the Statistics.
4.2 WORKS. Unless otherwise specified in a Service Order or as set
forth with respect to customized reports in Exhibit C, WDIG will solely
own all Confidential Information, WDIG intellectual property or
derivatives of WDIG intellectual property that may be contained in any
deliverables specified in a Service Order for Consulting Services, or
arising out of such Consulting Services (the "DELIVERABLES"), except
that to the extent the Deliverables contain any intellectual property
that was owned by WSS prior to development of the Deliverables, or any
derivatives thereof, WSS will continue to solely own the same and
hereby provides to WDIG an irrevocable, non-exclusive, transferable,
fully paid, perpetual license to use same in connection with the
Deliverables.
4.3 DELIVERY OF WORKS. WSS shall deliver all Deliverables to WDIG
promptly upon their completion or the sooner termination of WSS'
services hereunder. WSS agrees to execute any and all documents as
requested by WDIG to further evidence any of the transfers or
assignments provided for herein.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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5.0 CUSTOMER REPRESENTATIVE; STAFFING. WSS will assign a qualified member
of WSS' staff to be WDIG's primary source of contact on topics relating to WDIG
satisfaction, service billing, future WSS software and service direction,
coordination of WSS training programs, and information on general best practices
in using the Services. WSS may not employ any contractors or consultants to
provide any on-site consulting services or directly interact with or provide
services for WDIG without the prior written permission of WDIG. By means of
example and not limitation, WSS may utilize contractors or consultants to
provide information services, but not to serve as the account representatives
for WDIG.
6.0 INSURANCE.
6.1 INSURANCE. WSS and anyone performing services under a
contract, either oral or written pursuant to this Agreement shall,
throughout the performance of its services maintain: (i) Commercial
General Liability Insurance to include contractual and
products/completed operations, (which must be maintained for three
years following completion of the work) with minimum limits of [***]on
an occurrence form basis, and Automobile Liability coverage with
minimum combined single limits of [***] protecting it and WDIG from
claims for personal injury (including bodily injury and death) and
property damage which may arise from or in connection with the
performance of WSS' services hereunder or from or out of any negligent
act or omission of WSS, its officers, directors, agents, subcontractors
or employees; (ii) Workers' Compensation Insurance as required by
applicable law and Employer's Liability Insurance with minimum limits
of [***] per occurrence; and (iii) Professional Liability Insurance to
include contractual coverage when WSS would have liability in the
absence of such contract, with a minimum limit of [***] per claim,
protecting it and WDIG from errors and omissions of WSS in connection
with the performance of WSS' services during and for a period of at
least three years after the completion of said services.
6.2 INSURANCE PROCEDURES. All such insurance required in Section
6.1 shall be with companies and on forms acceptable to WDIG and shall
provide that the coverage thereunder may not be reduced or canceled
unless 30 days' prior written notice thereof is furnished to WDIG. All
insurance shall be primary and not contributory with regard to any
other available insurance to WDIG. All insurance shall be written by
companies with a BEST Guide rating of B+ VII or better. Certificates of
insurance (or copies of policies, if required by WDIG) shall be
furnished to WDIG, and such policies shall include WDIG, its parent,
related and affiliated companies as additional insureds to the extent
that claims are made against such companies in connection with the
performance of WSS' services hereunder or from or out of any negligent
act or omission of WSS, its officers, directors, agents, subcontractors
or employees and WSS would be liable for any such claims in the absence
of this Agreement. The additional insured requirement applies to all
coverages except Workers' Compensation and Employer's Liability. The
waiver of subrogation applies to all coverages.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7.0 CUSTOMER DATA & PRIVACY POLICY. WSS will not gather, request, record,
require, or collect any Internet users' personal identifying information from
WDIG or from its Pages. WSS may use cookies and other anonymous identifiers
previously disclosed in writing to WDIG to better record audience behavior at
the web sites and Pages solely for purposes consistent with the last sentence of
Section 2.1.2. WSS may create visitor profiles associated with cookies or such
other anonymous identifiers solely for purposes consistent with the last
sentence of Section 2.1.2, but WSS will not associate user profiles (or any
other information) with personal identifying information from any source. WSS
will comply with all applicable privacy laws and its privacy policies stated at
xxx.xxxxxxxxxxxx.xxx/xxxxxxx related to its collection of data from WDIG's web
sites and Pages. WDIG understands that WSS' privacy center enables individual
Internet users to "opt out" of receiving WSS cookies. WDIG will have and abide
by its privacy policy and will comply with all applicable laws relating to the
collection of information from visitors to WDIG's websites. WDIG may notify
visitors to its web sites that it is using WSS' HitBox service. WDIG may, if it
chooses, include a link to WSS' privacy policy within WDIG's own privacy policy
8.0 TERM & TERMINATION.
8.1 TERM. The term of this Agreement (the "TERM") shall commence
on [***] and continue to [***].
8.2 TERMINATION. In addition, (i) either party may terminate this
Agreement immediately upon written notice to the other party if the
other party commits a material breach of this Agreement and fails to
cure such breach within thirty (30) days after receipt of written
notice setting forth in reasonable detail the nature of such breach,
(ii) either party may terminate this Agreement if the other party is
unable to generally pay its debts as due, or enters into or files (or
has filed or commenced against it) a petition, arrangement, action or
other proceeding seeking relief or protection under the bankruptcy laws
of the United States or similar laws of the United States or any state
of the United States, and (iii) WDIG may terminate this Agreement on
thirty (30) days' prior written notice if an audit performed by an
independent auditor that is expert in evaluating real-time ASP based
web site statistical services (e.g., Ernst & Young) (the cost of which
audit shall be borne by WDIG, and which audit WSS shall cooperate with
in all reasonable respects) certifies that any Statistics provided by
WSS vary by more than 15% over a 30-day period from the results of such
audit obtained using specifications for collecting and reporting such
Statistics as set forth in WSS' then current "User Manual", unless (a)
with respect only to the first such occurrence, WSS has, during such 30
day notice period, cured the cause or condition giving rise to such
variance or the cause, (b) with respect only to the first such
occurrence, WSS commits to correct such error or bug by a mutually
agreed deadline, (c) the condition giving rise to such variance is a
cause attributable to WDIG, or (d) WSS has reasonably requested and
WDIG has granted one or more seven (7) day extensions of the cure
period set forth in subsection (c) hereof due to causes within a third
party's control. In order to preserve uninterrupted collection of
Statistics in event that WDIG is late in paying fees, WSS also
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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reserves the right and option to deny viewing access to WDIG's Accounts
at any time for WDIG's failure to pay any fees within forty (40) days
of when such fees are due, without terminating the Agreement, after
providing five (5) business days written notice to WDIG. If WSS denies
viewing access under this Section 8.2 without terminating the
Agreement, WSS may continue the Service in its discretion for up to
sixty (60) days and WDIG will remain obligated to pay any related fees
incurred during such time. WSS and WDIG will have no other right to
terminate this Agreement except as set forth in this Agreement.
8.3 TERMINATION FOR CHANGE OF CONTROL. WDIG shall have the right
to terminate the Agreement if there has been a change of control of WSS
with the result that (a) WSS is controlled by a competitor of WDIG
listed on Exhibit F, (b) WSS is controlled by a company, partnership,
other entity, or natural person involved with the design, creation,
manufacture, sale, distribution, or marketing of pornography, firearms,
tobacco, alcohol, or gambling (or other businesses that might be
incompatible with a business involved in children's entertainment), or
(c) WDIG reasonably concludes the change of control will materially
diminish the value of the Services or is inconsistent with WDIG's
corporate interests, with notice from WDIG of such termination or
consent to such change of control being delivered no later than 30 days
after the date of WSS' written notice of an impending control change,
and, further, with any such termination to be effective upon a date set
forth in the notice provided by WDIG. Any such notice of termination
may be conditional in WDIG's discretion on closing of the change of
control. Under this provision, if WDIG consents to such change of
control, WDIG will have the option, in its sole discretion, to renew
the extended Agreement on the same terms, including but not limited to
pricing, in effect as of the change in control for an additional two
(2) years from the date the extended Agreement would otherwise expire.
8.4 EFFECT OF TERMINATION. Upon any termination or expiration of
this Agreement, WSS will cease providing the Service, and WDIG will
delete all copies of WSS' HTML Code from all Pages. For all of WDIG's
prepaid fees, upon any termination by WDIG for WSS' breach or
bankruptcy, WDIG will receive a refund of any unused portion of such
prepaid usage fees. In the event of any termination by WSS for WDIG's
breach under Section 8.2, (a) WDIG shall be entitled to any refunds of
any prepaid usage fees or any other fees that have been paid to be
returned on a prorated basis and (b) any unpaid undisputed payment
obligations for Services rendered through the date of termination will
be immediately due and payable in full.
9.0 REPRESENTATIONS & WARRANTIES.
9.1 BY EACH PARTY. Each Party represents and warrants to the other
that: (a) such Party has all necessary right, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder; and (b) the execution of this Agreement by such Party and
its performance of its obligations hereunder do not and will not
violate any agreement by which such Party is bound.
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9.2 BY WSS.
9.2.1 GENERAL. WSS represents and warrants that (a) its Services
will be provided in a timely and professional manner and that
it has the experience and skill to perform the services
required to be performed by it hereunder; (b) its Services
will conform substantially to descriptions relating to the
Statistics contained from time to time in the online help
files and other online documentation for the Services; (c)
there is no claim, litigation or proceeding pending or
threatened with respect to the Services or any component
thereof as of the Revised Effective Date; (d) the Services and
its components, and the operation and use thereof in
accordance with the terms of this Agreement, do not infringe
or violate any patents, or infringe or violate any copyrights,
mask work rights, trademarks, trade secrets or other
proprietary rights of any third party; (e) it shall comply
with all applicable federal, state and local laws in effect at
the time services are performed; and (f) it is adequately
financed to meet any obligation it may be required to incur
hereunder. Further, WSS represents and warrants to WDIG that
WSS has (and will have throughout the Term) all necessary
rights in and to its services and HTML Code to allow WSS to
make them available to WDIG as contemplated by this Agreement.
9.2.2 PERFORMANCE WARRANTY. WSS represents and warrants that (a) the
Services shall substantially conform to and will operate in accordance
with the specifications for collecting and reporting such Statistics as
set forth in WSS' then current user manual, (b) there are no material
defects or any material limitations in the Services which would render
it essentially unsuitable for use, (c) WSS will uses all commercially
reasonable efforts to promptly correct or replace the Services if the
Services do not conform to the requirements of clauses (a) or (b)
above. If WSS fails to correct or replace any portion of the Services
that does not meet the foregoing warranties within a reasonable period
of time, WDIG shall have the option of terminating its use of the
Services, and receiving a refund of any unused amounts received by WSS
for prepaid usage fees.
9.2.3 YEAR 2000. WSS further represents and warrants that the
Services will process dates correctly prior to, during and after the
calendar year 2000. This shall include, but not be limited to, century
recognition, calculations that accommodate same century and
multicentury formulas and date values, and interface values that
reflect the century. In the event WSS becomes aware that the Services
will not or does not process data containing any date subsequent to the
year 1999 correctly, WSS shall immediately notify WDIG of that fact
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and promptly correct or replace the Services to eliminate such
processing problem. If WSS fails to correct or replace any portion of
the Services that does not meet the foregoing warranty within a
reasonable period of time, WDIG shall have the option of terminating
its use of the Services, and receiving a full refund of the fees paid
hereunder by WDIG.
9.2.4 WARRANTY AGAINST ILLICIT CODE. WSS represents and warrants
that: (a) the Services shall contain no computer instructions whose
purpose is (i) to disrupt, damage or interfere with WDIG's or its
Affiliates' use of any of their data, programs or computer or
telecommunications facilities for their commercial purposes; (ii) to
perform functions which are not an appropriate part of the
functionality of the computer programs, documentation or other
deliverables and whose result is to disrupt the use or operation of
such computer programs, documentation or other deliverables. WSS shall
immediately notify WDIG of any such illicit code and promptly correct
or replace the Services to eliminate any illicit code. If WSS fails to
correct or replace any portion of the Services that does not meet the
foregoing warranty within a reasonable period of time, WDIG shall have
the option of terminating its use of the Services, and receiving a full
refund of the fees paid hereunder by WDIG.
10.0 LIMITATIONS ON LIABILITY & INDEMNIFICATION
10.1 CAP ON LIABILITY. EXCEPT FOR THOSE ARISING DUE TO WSS' BREACH
OF ITS REPRESENTATIONS AND WARRANTIES IN SECTIONS 9.1 and 9.2.1(c),
(d), and (e) HEREIN, CONFIDENTIALITY OR WSS' INDEMNIFICATION
OBLIGATIONS HEREUNDER OR WSS' INTENTIONAL MISCONDUCT, LIABILITY FOR ALL
CLAIMS OR INDEMNITIES ARISING OUT OF THESE TERMS AND CONDITIONS,
WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED[***].
10.2 INDEMNIFICATION BY WSS. WSS shall indemnify, defend and hold
harmless WDIG and its parent and subsidiary companies and their
respective officers, agents, directors, employees and authorized
representatives from and against any costs, losses, liabilities and
expenses, (including court costs, reasonable expenses and reasonable
attorney's fees) arising from any legal action, arbitration or other
claim by a third party to the extent caused by (a) any breach of any of
the representations or warranties made by WSS under Section 9.1 or
9.2.1(d) of this Agreement; (b) WSS' activities hereunder; or (c) any
allegations that the use of ' the Services, Reports or HTML code as
permitted hereunder violates any intellectual property rights of any
third party or is defamatory or violates any privacy or publicity
rights of any third party. If WDIG makes an indemnification request to
WSS, WDIG shall permit WSS to control the defense, disposition or
settlement of the matter at its own expense; provided that WSS shall
not, without the consent of WDIG enter into any settlement or agree to
any
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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13
disposition that imposes an obligation on WDIG that is not wholly
discharged or dischargeable by WSS, or imposes any conditions or
obligations on WDIG other than the payment of monies that are readily
measurable for purposes of determining the monetary indemnification or
reimbursement obligations of WSS. WDIG shall notify WSS promptly of any
claim for which WSS is responsible and shall cooperate with WSS in
every commercially reasonable way to facilitate defense of any such
claim; provided that the WDIG's failure to notify WSS shall not
diminish WSS' obligations under this section except to the extent that
WSS is materially prejudiced as a result of such failure. WDIG shall at
all times have the option to participate in any matter or litigation
through counsel of its own selection and at its own expense.
Notwithstanding any other provision of these Terms or the Subscription
Agreement to the contrary, in the event of a third party claim that is
subject to indemnification under this paragraph, WDIG will have the
right to terminate the Agreement and the services, effective
immediately.
10.3 INDEMNIFICATION BY WDIG. WDIG shall indemnify, defend and hold
harmless WSS and its officers, agents, directors, employees and
authorized representatives from and against any costs, losses,
liabilities and expenses, (including court costs, reasonable expenses
and reasonable attorney's fees) arising from any legal action,
arbitration or other privacy related claim by a third party claimant
against WSS to the extent asserting any privacy related claim arising
from the association by WDIG of any personally identifiable information
with data delivered by WSS to WDIG as part of the data feed services
violates any statutory or common law right of any third party or any
applicable law or governmental regulation. If WSS makes an
indemnification request to WDIG, WSS shall permit WDIG to control the
defense, disposition or settlement of the matter at its own expense;
provided that WDIG shall not, without the consent of WSS enter into any
settlement or agree to any disposition that imposes an obligation on
WSS that is not wholly discharged or dischargeable by WDIG, or imposes
any conditions or obligations on WSS other than the payment of monies
that are readily measurable for purposes of determining the monetary
indemnification or reimbursement obligations of WDIG. WSS shall notify
WDIG promptly of any claim for which WDIG is responsible and shall
cooperate with WDIG in every commercially reasonable way to facilitate
defense of any such claim; provided that WSS' failure to notify WDIG
shall not diminish WDIG's obligations under this section except to the
extent that WDIG is materially prejudiced as a result of such failure.
WSS shall at all times have the option to participate in any matter or
litigation through counsel of its own selection and at its own expense.
Notwithstanding any other provision of these Terms or the Subscription
Agreement to the contrary, in the event of a third party claim that is
subject to indemnification under this paragraph, WSS will have the
right to terminate the Agreement and the services, effective upon 90
days prior written notice to WDIG.
10.4 LIMITATION OF LIABILITY. WITHOUT LIMITING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, (I) WSS' SERVICES ARE PROVIDED
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ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND (II) EXCLUDING THE
INDEMNITIES PROVIDED IN SECTIONS 10.2 AND 10.3, IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, BUSINESS INTERRUPTION, OR
OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES
ARISING FROM OR IN RELATION TO THESE TERMS & CONDITIONS OR THE USE OF
THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.
THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS
AWARE OF THE POSSIBILITY OF SUCH DAMAGES. ANY WSS SERVICE OBLIGATIONS,
WARRANTIES OR SERVICE LEVEL GUARANTIES INCLUDED IN THIS AGREEMENT ARE
MADE TO WDIG AND ITS PARENTS, SUBSIDIARIES, AND AFFILIATES ONLY, AND
NOT TO ANY OTHER PERSON OR ENTITY AND ARE CONDITIONED UPON WDIG'S USE
OF THE MOST RECENT HTML CODE AND HITBOX SERVICES VERSION PROVIDED BY
WSS TO WDIG FOR WDIG'S USE UNDER THE TERMS SET FORTH HEREIN OR IN A
MUTUALLY-EXECUTED SERVICE ORDER.
11.0 CONFIDENTIALITY
11.1 DUTY TO PROTECT. Except as otherwise required by law or the
regulations of any securities exchange, the parties agree not to
disclose Confidential Information (defined below) of the other party to
any third party other than its respective directors, officers,
employees and agents, advisers (including legal, financial and
accounting advisers) and other persons directly or indirectly engaged
to do work therefor and, with respect to WDIG, to the WDIG Affiliates
(collectively, "REPRESENTATIVES"), as needed for the purposes of this
Agreement. Each party agrees to protect Confidential Information
disclosed by the other party from unauthorized disclosure with at least
the same degree of care as it normally exercises to protect its own
Confidential Information of a similar nature. Each party hereto further
agrees to restrict the use of the other party's Confidential
Information to use solely for the purposes contemplated by this
Agreement.
11.2 DEFINITION. "CONFIDENTIAL INFORMATION" means all non-public,
confidential or proprietary information that one party or its
Representatives make available to the other party or its
Representatives in connection with this Agreement. "Confidential
Information" includes, without limitation, the terms of this Agreement,
as well as information related to the past, present and future plans,
ideas, business strategies, marketing programs, activities, customers
and suppliers of WDIG and the WDIG Affiliates or WSS, as the case may
be. It is expressly understood that the disclosure of Confidential
Information hereunder is not a public disclosure thereof, nor a sale or
offer for sale of any product, equipment, process or service.
11.3 EXCLUSIONS. "CONFIDENTIAL INFORMATION" shall not include
information that: (a) was, at the time of its disclosure hereunder to
the receiving party, already
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15
in the possession of the receiving party free of obligation to the
other party to keep it confidential; (b) is or becomes generally
available to the public other than as a result of a breach of this
Agreement by the receiving party or its Representatives; (c) becomes
available to the receiving party on a non-confidential basis from a
source other than the disclosing party or its Representatives, provided
that such source is not, to the knowledge of the receiving party, bound
by a confidentiality agreement or other legal or fiduciary obligation
of secrecy to the disclosing party; or (d) is developed independently
by the receiving party.
11.4 RESPONSIBILITY FOR REPRESENTATIVES. The parties agree that
they shall be responsible for any disclosure of Confidential
Information by their respective Representatives that would constitute a
breach of this Agreement.
11.5 AFFILIATES. WDIG may disclose Confidential Information to
ESPN, Inc., The Xxxx Disney Company or any related, affiliated and
subsidiary company thereof (collectively, the "EIV AFFILIATES"). EIV
Affiliates to whom Confidential Information is disclosed under this
Agreement shall be bound by this "Confidentiality" Section.
11.6 RIGHT TO INJUNCTIVE RELIEF. In the event of any breach of this
"Confidentiality" Section, the non-breaching party will be entitled, in
addition to any other remedies that it may have at law or in equity, to
seek injunctive relief or an order of specific performance.
11.7 SURVIVAL. The provisions of this Section 11 and the
obligations of the parties hereunder shall survive the termination of
this Agreement for a period of two (2) years.
12.0 PUBLICITY
12.1 NO USE OF NAME. WSS shall acquire no right under this
Agreement to use, and shall not use, the names "Disney," "ABC" or
"ESPN" (either alone or in conjunction with or as a part of any other
word or name) or any fanciful characters or designs of The Xxxx Disney
Company or any of its Affiliates in any advertising, publicity or
promotion or other disclosures, or to express or imply any endorsement
of WSS' products or services, or in any manner or for any purpose
whatsoever. The provisions of this Section shall survive termination or
expiration of this Agreement or any determination that this Agreement
or any portion is void or voidable. Notwithstanding the foregoing, WSS
may list the "Xxxx Disney Internet Group" as a customer on its web site
and in customer lists, along with, and of equal prominence with, other
customers of WSS, to be listed in alphabetical order, in a manner not
unduly singled out. Before WSS includes references to "Xxxx Disney
Internet Group" on WSS' web site or on any customer list, WSS must
receive the prior written approval of WDIG in each instance, which
approval may be granted or withheld by WDIG for any reason whatsoever,
in WDIG's sole discretion.
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12.2 NO PUBLICITY. Neither party will issue or cause to be issued
any press release or publicity regarding the other party or this
Agreement, without prior coordination with and approval by the other
party.
12.3 PROCESS. The Parties may agree to certain limited publicity in
a Service Order executed in advance by each of the Parties.
13.0 MISCELLANEOUS
13.1 CONFLICTS. To the extent of any conflict among the this Master
Services Agreement, any Service Orders, and any addenda attached to the
Service Orders, the Service Order supersedes these terms and conditions
but these terms and conditions supersede any provisions of any purchase
order drafted by WDIG and all related proposals and communications,
written or oral.
13.2 CONSTRUCTION, CHOICE OF LAW, VENUE. This Agreement will be
construed and enforced in accordance with the laws of the State of
California without regard to its conflict of laws principles. Exclusive
venue for any dispute under this Agreement will be Los Angeles County,
California.
13.3 ENTIRE AGREEMENT. This Agreement, including the appendices,
Service Orders, exhibits, schedules and attachments attached hereto and
incorporated herein by reference, constitutes the complete, final and
exclusive understanding and agreement between the parties with respect
to the transactions contemplated herein, and supersedes any and all
prior or contemporaneous oral or written representation, understanding,
agreement or communication between the parties concerning the subject
matter hereof. The Agreements that are superceded include, but are not
limited to, the following: The Master Service Agreement dated as of
September 27, 2002 between WSS and WDIG and all related appendices,
Service Orders, exhibits, schedules, attachments and amendments related
thereto.
13.4 AMENDMENTS. All amendments or modifications of this Agreement
shall be binding upon the parties so long as the same shall be in
writing and executed by each of the parties hereto. It is expressly
understood and agreed that no regular practice or method of dealing
between the parties hereto shall be used to modify, interpret,
supplement or alter in any manner the express terms of this Agreement
or any part hereof.
13.5 HEADINGS. The titles and headings of this Agreement and the
attachments hereto, and the various sections and paragraphs thereof,
are intended solely for reference and are not intended for any other
purpose whatsoever or to explain, modify, or place any construction on
any of the provisions of this Agreement.
13.6 ASSIGNMENT. This Agreement, including the parties' rights and
obligations hereunder, may not be assigned by either party, except (a)
to the
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17
transferee of substantially all of the business operations of such
party (whether by asset sale, stock sale, merger or otherwise); or (b)
to any entity that is controlled by, or is under common control with,
such party. WSS shall not subcontract the performance of any of the
Services hereunder to any third party without the prior written consent
of WDIG.
13.7 RELATIONSHIP OF PARTIES. This Agreement does not create a
joint venture, partnership or principal/agent relationship between the
parties hereto, nor imposes upon either party any obligations for any
losses, debts or other obligations incurred by the other party except
as expressly set forth herein. WSS shall in no event be entitled to
participate in, or to receive any benefits from, any of WDIG's benefit
or welfare plans, specifically including, but not limited to, coverage
under WDIG's workers' compensation program. WSS shall be solely
responsible for the payment of all Federal and state income taxes,
social security taxes, Federal and state unemployment insurance and
similar taxes and all other assessments, taxes, contributions or sums
payable with respect to WSS and/or its employees and any subcontractors
as a result of or in connection with the services performed hereunder.
13.8 SEVERABILITY. If any restriction, covenant or provision of
this Agreement shall be adjudged by a court of competent jurisdiction
to be void as going beyond what is reasonable in all the circumstances
for the protection of the interests of the party seeking to enforce
such restriction, covenant or provision, such restriction, covenant or
provision shall apply with such modifications as may be necessary to
make it valid and effective. In the event that any provision of this
Agreement should be found by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
13.9 FACSIMILE SIGNATURES. This Addendum may be executed by
facsimile transmission. Facsimile signatures shall hold the same force
and effect as an original signature for purposes of binding the parties
to this Addendum.
13.10 NOTICE. All notices will be transmitted by private courier or
facsimile transmission (with a hard copy to follow via regular mail),
and will be deemed given as of the date of a written courier's receipt
or electronic facsimile confirmation report. The addresses for notice
to each of the parties are as follows:
FOR WSS:
WebSideStory, Inc.
00000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
ATTN: CEO
Phone: 000-000-0000/Fax: 000-000-0000
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With a copy to:
WebSideStory, Inc.
00000 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
ATTN: Legal Counsel
Phone: 000-000-0000/Fax: 000-000-0000
FOR WDIG:
Xxxx Disney Internet Group
[***]
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omitted portions.
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ATTN: [***] (or such other individual as WDIG may designate in
writing)
WITH A COPY TO:
Xxxx Disney Internet Group
[***]
IN WITNESS WHEREOF, the duly authorized representatives of each of the Parties
hereto have executed this Agreement as of the day and year first written above.
WEBSIDESTORY, INC.
By: /s/ Xxxx Xxxxxxxx
Printed Name: Xxxx Xxxxxxxx
Title: CEO
Date: 9-4-03
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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BUENA VISTA INTERNET GROUP
By: /s/ [***]
--------------------------------
Name: [***]
Title: Executive Vice President
ESPN INTERNET VENTURES
By: Online Investments, Inc., as
its General Partner
By: /s/ [***]
--------------------------------
Name: [***]
Title: Executive Vice President
ABCNEWS INTERNET VENTURES
By: DOL Online Investments, Inc. as
its General Partner
By: /s/ [***]
--------------------------------
Name: [***]
Title: Executive Vice President
INFOSEEK CORPORATION
By: /s/ [***]
--------------------------------
Name: [***]
Title: Executive Vice President
ABC MULTIMEDIA, INC.
By: /s/ [***]
--------------------------------
Name: [***]
Title: Executive Vice President
XXXX DISNEY PARKS & RESORTS ONLINE
By: /s/ [***]
--------------------------------
Name: [***]
Title: VP Fin
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT A
SERVICE ORDER
[ATTACHED]
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EXHIBIT 1
MASTER AGREEMENT SERVICE ORDER NO. 1
BETWEEN WSS AND WDIG
(HITBOX ENTERPRISE)
1 GENERAL DEFINITIONS
1.1 All defined terms shall have the meanings set forth in the
Agreement, unless otherwise provided herein.
1.2 "BU Contact" means an individual listed on Attachment B
hereto.
1.3 "Training/Consulting Days" has the meaning set forth in
Section 3.5 of this Exhibit.
1.4 "Content Monthly Uniques Functionality" means a workaround
solution that has been provided to XXXX.xxx with a way to
track monthly uniques to their various content categories.
1.5 "DataFeed" [***]. DataFeed includes the fields set forth in
Attachment C to this Exhibit 1.
1.6 "DataFeed Plus [***].
1.7 "Legacy Account" means an Account in effect as of [***]
(including all types of accounts including, but not
limited to, accounts for the Enterprise Service, Rollups,
Traffic Rollups and Global Rollups). The Legacy Accounts
include, but are not limited to, the Accounts listed on
Attachment A to this Exhibit 1.
1.8 "New Account" means an Account that is not a Legacy Account
but will become and be treated as a Legacy Account once the
required set up fee is paid.
1.9 "Report Builder" means software and related services for an
Excel XP "plug-in" that allows HitBox data to be incorporated
directly into an Excel spreadsheet. [***]. A Report Builder
license is required for each computer the Report Builder
software is used by WDIG to generate Reports, though WDIG is
allowed to keep one additional copy of the Report Builder
software for archival and/or backup purposes. .
1.10 "Rollup Account" [***].
1.11 "Traffic Rollup Account" [***].
1.12 "Global Rollup Account" [***].
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.13 All references to "Accounts" in this Service Order shall be to
Accounts for the Enterprise Service, including, but not
limited to, Legacy Accounts, New Accounts, Rollup Accounts,
Traffic Rollup Accounts, and Global Rollup Account unless
expressly provided otherwise.
2 TERMS FOR LEGACY ACCOUNTS AND THE MONTHLY FEE
Pursuant to this Attachment, WSS shall provide Enterprise Services and certain
Other Services for all the Legacy Accounts at the fees set forth in this Section
2 hereof. In consideration of the fees set forth in this Section 2, as a part of
the Enterprise Services, WSS will also continue to provide WDIG with [***].
2.1 Monthly Fee. The cost for the Enterprise Services and the
certain Other Services described herein for all Legacy
Accounts for each 12 month period after the Effective Date is
[***] per year. This amount will be divided and payable each
month of such 12-month periods in [***] increments. The static
payment for the [***] Term of this Agreement for the services
related to the Legacy Accounts described in herein, therefore,
is [***] a month for [***] ("Monthly Fee").
2.2 No limit on Total Views. Total Views across the Legacy
Accounts are unlimited meaning there will be no additional or
other overage charges associated with any minimum or maximum
amount of Total Views. WDIG will use reasonable efforts to
notify WSS in advance of any anticipated extraordinary traffic
volume peaks, though its failure to do so will not constitute
a breach of the Agreement.
2.3 [***] Maintenance [***]. There will be [***] maintenance or
[***] for the Legacy Accounts.
2.4 Management of Legacy Accounts. If a Legacy Account is
terminated, (1) WDIG will lose all historical data of the
Legacy Account unless WDIG seeks to, and the parties, using
reasonable efforts, are able to save and store the historical
data elsewhere (for example, by using the Report Builder); and
(2) WDIG will be entitled to an additional [***]
Complimentary Account to replace the terminated Legacy Account
(for example, if WDIG were to terminate a Legacy Account prior
to using any of the [***] Complimentary Accounts described in
Section 2.5.1, below, WDIG will be entitled to [***]
Complimentary Accounts instead of [***]). Legacy Accounts may
be terminated only upon the prior written approval of the BU
Contact and [***] (or such other designee of WDIG). Suspended
or inactive Accounts (Accounts that are not terminated by WDIG
but are not showing any activity such as counting traffic for
more than one full billing month because WDIG has
affirmatively untagged the Pages related to that Account) that
are not terminated will not be charged any maintenance fee,
but WSS may give [***] (or such other designee of WDIG) at
least ten (10) days prior written notice and WDIG shall use
reasonable efforts to either re-tag Pages related to that
Account within such notice period or terminate the Account
(though it may be reopened in the future by WDIG at [***]).
Legacy
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omitted portions.
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Accounts may be transferred between WDIG Sites at [***] to
WDIG and at WDIG's discretion upon the prior written approval
of the BU Contact and [***] (or such other designee of
WDIG). The approvals set forth in this Section shall be
evidenced by the submission to WSS of the completed forms
described in Attachment E hereto, and such forms shall be
sequentially numbered.
2.5 Services and other Matters[***]. For the Term of the Agreement
WSS [***] and/or any other [***] by WDIG and the [***] will
completely [***] the following:
2.5.1 Complimentary Accounts. [***] Accounts
("Complimentary Accounts") that will be treated as
Lecacy Accounts after they are created.
2.5.2 Commerce Service. WSS shall provide [***] Commerce
Service Accounts for the Term of the Agreement at
[***] to WDIG.
2.5.3 HitBox Report Builder. WSS shall provide [***] Report
Builder licenses for the Term of the Agreement at
[***] to WDIG.
2.5.4 HitBox Data Feed. WSS shall provide [***] for [***]
Accounts for the Term of the Agreement at [***] to
WDIG.
2.5.5 Legacy Custom Reports. Legacy Custom Reports are set
forth in Attachment D to this Exhibit 1. WSS shall
provide all maintenance for the Legacy Custom Reports
for the Term of the Agreement at [***] to WDIG.
2.5.6 Content Monthly Uniques. Content Monthly Uniques
functionality for [***] shall be provided by WSS for
the Term of the Agreement at [***] to WDIG.
2.5.7 New Accounts. Once the [***] is paid for a New
Account pursuant to Section 3.1, below, WSS shall
provide all services and maintenance related to such
New Account for the Term of the Agreement at [***] to
WDIG and treat the New Account thereafter as if it
were a Legacy Account.
2.5.8 Training/Consulting Days. WSS shall provide [***]
Training/Consulting Days [***] for the Term of the
Agreement at [***] to WDIG. If WDIG does not use the
[***] allotted [***] Training/Consulting Days, the
unused Training/Consulting Days will [***] and [***]
by WDIG in the [***] of the Term of this Agreement at
[***] to WDIG. The [***] Training/Consulting Days do
not include[***], which [***] must be preapproved by
WDIG, subject to the Agreement, including Exhibit B
thereof.
2.5.9 The Complimentary Accounts, Commerce Service
Accounts, Report Builder licenses, and
Training/Consulting Days described in this Section
2.5 may be [***] during the Term of this Agreement at
WDIG's discretion but will not be created and/or used
without the prior written approval of [***] (or such
other designee of WDIG).
3 TERMS FOR NEW ACCOUNTS AND SERVICES
3.1 Terms for New Accounts. Beyond the Complimentary Accounts,
WDIG may request that WSS establish New Accounts only with the
prior written approval of the Business Contact and [***] (or
such other designee of WDIG). WDIG shall not be obligated to
pay any fees for any New Accounts established without such
prior
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written approval. For those properly-established New Accounts,
the fees for each New Account (no matter what type of account
including, but not limited to "regular", Traffic Rollup, and
Global Rollup Accounts) shall be a one time [***] set up fee
("One Time Fee"). Once the One Time Fee is paid for a New
Account, that New Account will thereafter become part of and
be treated as a Legacy Account and [***] will accrue (except
that WDIG will continue to pay the Monthly Fee of [***] which
shall cover the costs and maintenance of all Legacy Accounts
including any added New Account that has become a Legacy
Account after the applicable One Time Fee is paid).
3.2 WDIG may purchase "bulk" New Accounts at the following rates:
3.2.1 [***] New Accounts at the rate of [***] per New
Account (total [***])
3.2.2 [***] New Accounts at the rate of [***] per
New Account (total [***])
If WDIG purchases bulk New Accounts there is no set time period that
such bulk New Accounts must be set up in (by example, if WDIG buys a
bulk of [***] New Accounts at [***] it could have [***] New Accounts
set up immediately, and the other [***] New Accounts set up two months
later or at some other time).
3.3 HitBox Other Services. WDIG may add other HitBox Commerce
Service accounts, HitBox DataFeed Plus, and/or Other Services
to the services provided by WSS pursuant to Section 2.8 of the
Agreement.
3.4 Custom Reports and Hit Box Report Builder licenses. As set
forth in Exhibit C of the Agreement, the charge for WSS to
develop new Reports (as opposed to updating the information
contained in currently-provided Reports) shall be no more than
[***]. This [***] charge shall also apply to significant
changes to currently-provided Reports (such as changes that
would cause WSS to incur more than [***] in costs),
significant changes in the type of Statistics to be included
in currently-provided Reports, or the creation of a
significant number of any Excel macros. There will be [***]
charges for any Custom Reports ordered, including [***]
additional management and/or maintenance fees. WDIG may add
HitBox Report Builder licenses during the term of the
Agreement in addition to the [***] ones set forth in Section
2.5.3, for the annual [***] of [***] per license.
3.5 Consulting and Training. Upon request by WDIG, WSS will
provide consulting and/or training to WDIG at a cost of [***]
per full day (defined as [***] hours)("Training/Consulting
Days"), [***] preapproved by WDIG, subject to the Agreement,
including Exhibit B thereof. WDIG will be billed separately
for reasonable travel, lodging and Video Teleconferencing
expenses pre-approved by WDIG and incurred in accordance with
Exhibit B of the Agreement. Less than full day Consulting
and/or Training engagements will be negotiated on a
case-by-case basis.
4.0 PUBLICITY
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4.1 Case Study. WDIG will allow WSS to work with certain of its
business units to develop and publish one case study per
quarter (up to 12 for the 3 year Term). WDIG shall make
commercially reasonable efforts to make personnel at such
business units available to WSS. No such case study may take
more than a reasonable amount of time or effort on the part of
WDIG, its business units, or any of their respective
personnel. In addition, WSS shall request time from such
resources with reasonable notice, and shall provide the case
study to WDIG for review prior to distribution. No case study
shall be distributed without WDIG's prior written approval in
each instance, which approval may be granted or withheld in
WDIG's sole discretion for any reason whatsoever. Case studies
may be distributed by WSS in hard copy, via email, or in
response to inquiries (made online or otherwise) for case
studies; provided, however, that any distribution of case
studies by WSS must be to select third parties and may not be
included in any mass distribution. Under no circumstances may
any case study be posted on a website. WDIG, at its
discretion, may require WSS to distribute case studies without
identifying WDIG and/or any Disney company in the case study.
4.2 Reference Account. WDIG will act as a reference account for at
least one potential HitBox Enterprise customer per quarter at
the sole discretion of WDIG.
5.0 SERVING OF JS FILES
All WDIG Sites serve and shall continue to serve their own JS
files or will have entities other than WSS serve the JS files
for them.
6.0 INVOICES AND PRICING
6.1 WSS will send a single invoice to WDIG one month in advance
and on a monthly basis for all monthly usage fees. By means of
example and not limitation, WSS shall send an invoice to WDIG
on November 1, 2003 for Services to be provided in the month
of December 2003. Such invoice would be payable on December 1,
2003.
CONFIDENTIAL
27
ATTACHMENT A
LEGACY ACCOUNTS
Attached is a list of the Legacy Accounts with name, Account number, WDIG
business unit and monthly Total Views as well as the type of Account they
represent (Regular, Rollup, Global, etc.).
[***]
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL
28
ATTACHMENT B
BUSINESS UNIT CONTACTS
The following individuals are authorized to open new Accounts, close existing
Accounts, transfer existing Accounts, and create new user Accounts (for their
respective business units, only), with their own written approval and that of
[***], using the a form attached as Attachment E to this Exhibit 1:
[***]
This Attachment B may be amended from time-to-time by WDIG providing written
notice to WSS.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL
29
ATTACHMENT C
DATAFEED INCLUDED FIELDS
[***]
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL
30
ATTACHMENT D
LEGACY CUSTOM REPORTS
[***]
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL
31
ATTACHMENT E
APPROVAL FORM PER SECTION 2.4
[***]
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL
32
EXHIBIT B
REIMBURSABLE EXPENSE GUIDELINES
GENERAL:
All travel should be booked by the WSS through Disney's Corporate Travel
Division. Arrangements will be made for air fare, hotel, and rental cars. The
traveler should communicate to Disney's Corporate Travel Division that the
travel is on behalf of WDIG in order to obtain any applicable discounts. The
airline ticket, car rental and hotel charges shall be paid directly by the
traveler and reimbursement requested through normal invoicing.
Disney's Corporate Travel Division can be reached between 7:00 am and
6:00 pm PST by calling - [***]
For all international travel please call: - [***]
For general information or the main receptionist please call: - [***]
Original invoices and receipts shall be submitted to substantiate all charges.
AIR TRAVEL:
All travelers shall fly coach on a Disney-preferred airline as directed by
Corporate Travel.
HOTELS:
Travelers will be booked into Disney-owned hotel properties or one of the hotels
participating in Disney's preferred hotel program. The Corporate Travel Division
will direct the traveler to an appropriate hotel.
Requests for specific hotels will be honored if the rate is the same or lower
than the hotel booked by Disney's Corporate Travel Division.
Lodging expenses shall include the cost of the room plus applicable taxes. It
does not include room service, recreation or any other direct charges to the
room. See Miscellaneous Travel Expenses for further discussion regarding these
charges.
AUTOMOBILE EXPENSE:
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
33
Auto rentals will be provided by one of Disney's preferred car rental suppliers
as directed Corporate Travel, and billing shall be direct to the traveler.
Reimbursement will cover no more than the cost of a full size car. Additional
insurance coverage, as provided in the rental agreement, will not be reimbursed.
Mileage for travel in WSS' or WSS' employees own vehicles is paid at the rate of
[***] mile for mileage incurred. Mileage should be supported by appropriate
contemporaneous logs. Limousine service is expressly prohibited unless
authorized in advance and in writing by the Project Manager.
MISCELLANEOUS TRAVEL EXPENSES:
Original receipts shall be submitted for all expenses in order to be
reimbursable. These expenses shall include all meals, taxi fares, parking and
other costs for which receipts can be typically obtained.
Expenses, such as tips, which are usually unreceipted should be reasonable for
the service provided and supported by a personal log or other contemporaneous
record. Employee expense reports submitted as documentation for reimbursement
are to be signed by appropriate management personnel and are to include original
receipts as supporting documentation. Documentation of business meals shall
include the names of all individuals, the date of the meals, the business
relationship of the individuals and the business topic of discussion.
Per diem expenses for meals, tips and incidentals shall not exceed [***] or
[***] for "high cost" cities. The following are considered "high cost" cities:
Atlanta, GA New York, NY
Birmingham, AL Oakland, CA
Boston, MA Philadelphia, PA
Charlotte, NC Phoenix, AZ
Chicago, IL Pittsburgh, PA
Dallas, TX San Diego, CA
Honolulu, HI San Francisco, CA
Houston, TX San Jose, CA
Los Angeles, CA Santa Barbara, CA
Newark, NJ Seattle, WA
New Orleans, LA Washington, DC
OTHER EXPENSES:
Reimbursement for such costs as reproduction, computer time, CADD time, air
freight, postage and long distance telephone calls will be made upon
presentation of satisfactory documentation. This documentation may include
office logs which indicate a reasonable effort to identify specific costs with
the appropriate project.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
34
SUBCONSULTANTS:
If the traveler, in performing its contractual services, has received WDIG's
prior written consent to employ other consultants ("SUBCONSULTANTS"), the
following shall apply:
1. The traveler shall coordinate the services of any
Subconsultants.
2. The traveler agrees to incorporate as a condition of
employment the applicable provisions set out in the traveler's
contract with Disney.
NOTE: All of the above expenses will be reimbursed at actual cost without
xxxx-up upon approval by the Project Manager.
(END OF EXHIBIT B)
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EXHIBIT C
TERMS GOVERNING CUSTOMIZED REPORTS
Except as expressly provided herein, the terms and conditions regarding
additional Reports shall be set forth in an amendment to the Agreement.
Custom Report Consulting Services fees will be no more than [***].
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
36
EXHIBIT D
SERVICE LEVEL GUARANTY
Counting Services (such as the Enterprise Service) will be available for not
less than [***] and viewing access to the Statistics will be available for not
less than [***] of each calendar week beginning on Monday at 12:01 a.m. and
ending on Sunday at midnight. "Availability" will be calculated and reported in
accordance with the rules set out below.
If in any calendar week Availability for counting of traffic at any of WDIG's
Accounts is less than [***] ("Counting Availability") or Availability for WDIG
end users to access the WDIG Statistics for an Account or Accounts is less than
[***] ("Viewer Availability"), WSS will provide a service credit (a "Service
Credit") to WDIG. The amount of the Service Credit will be determined in
accordance with the rules set out below.
[***]
Where:
[***].
Downtime is calculated from the time of commencement of the fault in WSS'
Services due to factors within WSS' systems or networks and ends when the
service is restored to full working order as determined by WSS and WDIG jointly,
but excludes previously scheduled maintenance of which WDIG has been notified in
advance. Viewing Downtime also excludes isolated individual instances of WDIG
end users being unable to access the WDIG Statistics for an Account or Accounts
when other WDIG end users remain able to access such Statistics. WSS will
undertake such scheduled maintenance only during times designed to minimize
effects on the accuracy of the Statistics.
In the event of any Downtime, WSS will promptly and accurately report such
Downtime to WDIG. Such report will be in writing and will include, at a minimum,
the start time of the Downtime, the end time of the Downtime and the understood
reason for the Downtime.
If (a) Counter Availability with respect to any of WDIG's web sites is below
[***] but more than [***] in any particular week or (b) Viewer Availability with
respect to any of WDIG's web sites is below [***] but more than [***] in any
particular week then WSS will provide a Service Credit to WDIG against amounts
payable by WDIG under this Agreement in an amount equal to half of the amount
that would otherwise be due from WDIG for the affected Service Account or
Accounts for such week. If (x) Counter Availability with respect to any of
WDIG's web sites is at or below [***] in any particular week, or (y) Viewer
Availability with respect to any of WDIG's Accounts is at or below [***] in any
particular week, then WSS will provide a Service Credit to WDIG against amounts
payable by WDIG under this Agreement in an amount equal to all of the amount
that
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
37
would otherwise be due from WDIG for the affected Service Account or Accounts
for such week. The parties agree that in the event that (1) Counter Availability
with respect to any of WDIG's web sites is less than [***] during any calendar
week or (2) Viewer Availability with respect to any of WDIG's Accounts is at or
below [***] in any particular week, WDIG shall have the right to terminate this
Agreement upon one week's notice to WSS with such notice being sent no later
than 30 days after the end of week during which the Downtime occurred. The
Service Credits shall be the limit of WSS' liability for the non-availability of
the Services or any other failures of the Service. The parties agree that the
foregoing sentence shall not be deemed to limit the exception set forth in the
first sentence of Section 10.1 of the Agreement or to limit any of WDIG's
termination rights set forth herein.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
38
EXHIBIT E
AVAILABLE STATISTICS
[***]
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
39
EXHIBIT F
WDIG COMPETITORS
[***]
And the parents, subsidiaries, and affiliates of the foregoing.
This Exhibit F may be amended from time-to-time by WDIG providing written notice
to WSS.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
40
