1
Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EMAIL SERVICES AGREEMENT
This Email Services Agreement (the "Agreement") is made and entered into
effective as of July 19, 1999 (the "Effective Date") by and between Media
Synergy Inc. ("MSI"), located at 000 Xxxx Xxxxxx Xxxx, Xxxxxxxx X, Xxxxxxx,
Xxxxxxx, X0X IK3, and CNET, Inc. ("CNET"), located at 000 Xxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000. CNET operates a number of email newsletters that deliver
technology-related information to online users, and MS1 provides mass email
delivery services. Accordingly, the parties, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
"CNET Marks" means any trademarks, trade names, service marks and logos
(a) used in any Dispatch, or (b) delivered by CNET to MSI in accordance
with this Agreement.
"Dispatch" means an electronic newsletter, alert, or other periodic
electronic mail message described on Exhibit A, which may be modified
by CNET from time to time.
"FLO Network" means the software, hardware, and Internet connectivity
configured to provide mass e-mail delivery services.
"MSI Marks" means any trademarks, trade names, service marks and logos
delivered by MSI to CNET in accordance with this Agreement.
"Services" means the email sending and support services described on
Exhibit D.
"Term" means the term of this Agreement as described in Section 5. 1.
"User" means any Dispatch subscriber.
"User Data" means any data or information related to a User, including
but not limited to a name, email address, physical address and any
other related information.
2. CNET DISPATCHES.
2.1. Sending and Support Services. MSI will provide all email
sending and support Services related to the CNET Dispatches
described on Exhibit D. MSI guarantees that it will install
and make available to CNET the most current versions of all
applications used by MSI, including all bug-fixes, service
releases, and upgrades.
2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2.2. Links within Dispatch. MSI will take all steps necessary to
ensure that URL links contained within a Dispatch delivered by
MSI appear to originate from the relevant CNET domains. CNET
will provide MSI with access to appropriate subdomains (e.g.,
xxxxxxxx.xxxxxxxxx.xxx) for the sole purpose of assisting MSI
with the foregoing.
2.3. Send Volume. MSI will send Dispatches at a minimum, guaranteed
aggregate rate of [**] per hour for standard text Dispatches
through [**] dedicated server farm cluster networks.
2.4. Off-Schedule Delivery. If CNET is late providing MSI with
approved copy for any Dispatch, MSI guarantees that so long as
the copy is received within three (3) hours after the
originally scheduled send time, MSI will commence delivering
such Dispatch as soon as the approved copy is received from
CNET.
2.5. Tracking and Reporting for all Email Dispatches. MSI will
provide CNET with access, at no cost to CNET, to the latest
and newest innovations developed for tracking and reporting as
such innovations are developed and become commercially
available. At a minimum, each month throughout the Term MSI
will provide CNET with the reporting and tracking metrics set
forth on Exhibit B.
2.6. No Spam. CNET acknowledges that MSI sends only
permission-based email marketing messages. CNET will use
commercially reasonable efforts to include "unsubscribe"
information and instructions in each Dispatch. MSI reserves
the right, at its sole discretion, to refuse to send any email
if MSI reasonably and conclusively determines that the email
database is not an "opt-in" database. If MSI, CNET or their
respective Internet access providers receive hostile email
"flames" from recipients of the CNET Dispatches, CNET will use
commercially reasonable efforts to contact such recipients and
inform them why their email addresses were included in the
database.
2.7. Email Response Study. MSI will conduct and provide CNET with
the results of a four week Dispatch study describing the
optimal time and day to deliver CNET Dispatches in order
maximize User click-through and response rates for both CNET
advertisers and CNET. Such report shall include (a) a written
summary of the findings and conclusions of such report, (b) an
electronic copy of all relevant survey data and information in
a form reasonably requested by CNET.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3. PRODUCT DEVELOPMENT.
3.1. Development. MSI acknowledges that CNET [**] into the [**] and
[**] of the FLO Network. Therefore, representatives from MSI
and CNET will meet together in good faith [**] to discuss CNET
[**] and [**] schedules. Further, MSI shall provide [**] to be
applied towards [**] CNET. MSI will work with the CNET
representative to [**] into the [**] schedule. CNET shall
follow the process described on Exhibit C for all development
requests and changes. MSI will work towards a [**] development
cycle and will aim to provide product improvements and
enhancements every [**]; provided, however, that CNET
acknowledges that in some cases product releases may take
longer due to complex feature set requests or unforeseen
development issues.
3.2. Beta Testing. MSI will include CNET in its beta testing
program, and will allow CNET to test relevant features prior
to their public release.
3.3. Representatives. CNET will appoint one representative to
gather all CNET feature set requests and approve all requests
in accordance with Exhibit C, and work closely with MSI to
communicate such requests, and MSI will appoint one
representative to receive such requests from CNET. The parties
agree that the representatives shall initially be as follows:
CNET: Xxxxxxxxx Xxxxxx, CNET Group Circulation Manager
MSI: Xxxx Xxxxxx, MSI Product Manager
4. PRICING AND PAYMENT.
4.1. Advance. With fifteen (15) days after the Effective Date, CNET
shall pay MSI a [**] advance to be credited against future
monthly Deployment Fees due hereunder.
4.2. Deployment Fees. All Deployment Fees shall be due within
thirty (30) days after the receipt of a monthly invoice by
CNET. All Deployment Fees shall be calculated in accordance
with the pricing set forth on Exhibit D.
4.3. Payment upon Termination. Upon termination of this Agreement
for any reason, all amounts due and payable to MSI at the time
of termination shall be due and payable by CNET within
forty-five (45) days of the termination date. CNET's payment
obligations hereunder shall survive the termination of this
Agreement.
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5. TERM AND TERMINATION.
5.1. Term. The initial Term of the Agreement shall be two (2) years
from the Effective Date of the Agreement. Following the
initial term, the Agreement may be renewed for subsequent
terms of one (1) year each. Renewal shall be automatic unless
either party notifies the other of its desire to not renew at
least ninety (90) days prior to the end of the then current
Term.
5.2. Termination for Cause. Either party may terminate this
Agreement upon a notice of termination for any material breach
of this Agreement, provided such notice (i) describes the
grounds for termination in sufficient detail and (ii) gives
the breaching party thirty (30) days to cure the breach.
Notwithstanding that a party gives notice of termination, such
termination shall not be effective if the breach is cured
prior to expiration of the notice period and the terminating
party is given timely notice of the cure. Notwithstanding the
above, either party shall have an absolute right, exercisable
in its sole discretion, to terminate the Agreement immediately
and without further obligations of any kind whatsoever
hereunder (including an opportunity to cure), by giving the
other party written notice of such termination if such other
party ceases business, becomes insolvent or commits any act of
bankruptcy.
5.3. Termination by CNET for Convenience. CNET shall have the right
to terminate this Agreement for any reason (or for no reason)
upon ninety (90) days' notice to MSI, which may be delivered
at any time; except in the event of a change of control in
which case the notice period shall be thirty (30) days' notice
to MSI.
5.4. Consequences of Termination or Expiration.
5.4.1. User List Data. Upon termination or expiration of
this Agreement, MSI will transfer all User Data for
Users appearing on CNET lists (the "CNET List User
Data") in a format and on a timetable reasonably
acceptable to CNET, and all rights in the CNET List
User Data and such base of subscribed Users to CNET
or to CNET's designee. Following such transfer, CNET
will have the unrestricted right to use all User
Data, and MSI will have no right to use any CNET List
User Data without CNET's express written consent. MSI
will cooperate in good faith with CNET or its
designee to ensure an orderly and expeditious
transfer of the CNET List User Data from MSI to CNET
or its designee. CNET acknowledges that MSI will not
be required to develop any new software code to
assist in the transfer process. Both parties
anticipate that the transfer will be completed, and
that CNET will be in a position to launch a successor
e-mail service, within three months after termination
(the "Completed Transition"). Until the Completed
Transition, the terms of this Agreement, as then in
effect, will apply to the continued operation of the
Services. If CNET terminates this Agreement for
convenience pursuant to Section 5.3 or MSI terminates
this Agreement for cause pursuant to Section 5.2,
then CNET will pay
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MSI the liquidated damages described in Section 5.4.3
related to transferring such CNET List User Data.
5.4.2. Return of Information. Each party will return to the
other party any documentation and confidential
information received from such other party.
5.4.3. Payment by CNET. If this Agreement is terminated
pursuant to Section 5.2 as a result of a breach by
CNET or pursuant to Section 5.3, then within ten (10)
days after the Completed Transition, CNET will pay
MSI an amount in cash equal to 150% of the
engineering and labor costs associated with transfer
of the CNET List User Data. MSI and CNET acknowledge
that this amount is $200.00 per person hour of labor.
Further, MSI and CNET acknowledge that this amount is
reasonable in liquidated damages and not as a
penalty.
5.4.4. Transfer of Hardware. If this Agreement is terminated
pursuant to Section 5.2 as a result of a breach by
MSI, then at CNET's request, MSI will sell all
hardware used to provide the Services at a cost equal
to the initial cost of the hardware less a 20%
depreciation per year, calculated as of the date of
termination.
5.5. Survival. The provisions of Sections 6, 7, 8 and 10 and any
obligations arising prior to termination will survive any
termination of this Agreement.
6. SOFTWARE ESCROW.
At CNET's request, MSI will deliver into escrow a current copy of all
software source code and documentation used in connection with the
operation and maintenance of the Services used by CNET, excluding any
software readily available from third parties or developed and owned by
CNET (the "MSI Software"). CNET will choose the escrow agent, which
must be reasonably acceptable to MSI, and the retention and release of
the MSI Software from escrow to CNET upon termination of the Agreement
by CNET pursuant to Section 5.2 or if MSI materially breaches its
obligation to cooperate with the transfer of CNET List Users Data
pursuant to Section 5.4.1. Upon release, CNET will have a royalty-free
license solely to use the MSI Software in operating email services like
those provided in the course of this Agreement, and such license will
continue (a) for 12 months, if the termination occurs pursuant to
Section 5.2 based on breach, or (b) indefinitely, if the termination
occurs pursuant to Section 5.2 based on insolvency, bankruptcy or
discontinuing business. MSI will put into escrow the most current
working version of the MSI Software used by CNET. CNET will pay the
cost of escrowing the MSI Software as described herein. Nothing in this
Section 6 shall give CNET the right to resell or sublicense the MSI
Software. Further, nothing herein shall affect any provisions contained
in Section 7, below.
7. INTELLECTUAL PROPERTY.
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7.1. FLO Network Ownership. CNET acknowledges that the FLO Network
technology and software are the property of MSI or its
licensers and that MSI owns all proprietary rights, including
patent, copyright, trade secret and trademark rights in and to
the FLO Network. CNET has no rights in the foregoing except
those expressly granted by this Agreement, and this Agreement
does not transfer ownership of any of these rights. Nothing
herein shall be construed as restricting MSI's right to sell,
license, modify, publish or otherwise distribute and use the
FLO Network, in whole or in part, to any other person.
7.2. FLO Network Enhancement. CNET acknowledges and agrees that all
product enhancements and modifications made to the FLO Network
as a result of the joint collaboration between CNET and MSI
shall belong to MSI. CNET hereby assigns to MSI all
proprietary rights for any product enhancements and
modifications created for the FLO Network as a result of its
input.
7.3. Ownership of Dispatch Domain Names. Notwithstanding the domain
access granted to MSI in Section 2.2, above, MSI acknowledges
that CNET owns all rights and title in and to the Dispatch
domains and sub-domains, and that CNET is in no way, either
express or implied, granting any rights, title or other
ownership whatsoever to CNET's domains. MSI acknowledges and
agreed that all CNET trademarks and service marks remain the
sole property of CNET.
7.4. User Data. MSI acknowledges that CNET is the sole owner of all
User Data (including email addresses and related information)
associated with the Dispatches, and MSI shall not use such
User Data for any purpose without the prior express written
consent of CNET. MSI further acknowledges that such User Data
is the Confidential Information of CNET (as defined in Section
10.6, below) and may not be disclosed to any third party
without the prior written consent of CNET.
7.5. MSI Marks. MSI hereby grants to CNET a non-exclusive,
royalty-free license, effective throughout the Term, to use,
display and publish the MSI Marks solely as provided in
Section 9. Any use of the MSI Marks by CNET must comply with
any reasonable usage guidelines communicated by MSI to CNET
from time to time. CNET acknowledges and agrees that, as
between MSI and CNET, MSI is the sole owner of all rights in
and to the MSI Marks.
7.6. CNET Marks. CNET hereby grants to MSI a non-exclusive, royalty
free license, effective throughout the Term, to use, display
and publish the CNET Marks solely as provided in Section 9.
Any use of the CNET Marks by MSI must comply with any
reasonable usage guidelines communicated to MSI by CNET from
time to time. MSI acknowledges and agrees that, as between MSI
and CNET, CNET is the sole owner of all rights in and to the
CNET Marks.
7.7. General Limitation. Neither party shall use or reproduce any
trade name, logo, trademark or copyright of the other party
except in accordance with the terms and conditions of this
Agreement. Neither party shall register or attempt to register
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any trade name, logo, trademark or copyright owned by the
other party anywhere in the world except with the owner's
express written permission.
7.8. Result of Termination. Upon the expiration or termination of
this Agreement, each party will cease using the trademarks,
service marks and/or trade names of the other party except as
the parties may agree in writing or to the extent permitted by
applicable law.
8. MUTUAL INDEMNIFICATION.
8.1. Indemnification by CNET. CNET shall indemnify and hold MSI
harmless from and against any costs, losses, liabilities and
expenses, including all court costs, reasonable expenses and
reasonable attorney's fees (collectively, "Losses") that MSI
may suffer, incur or be subjected to by reason of any legal
action, proceeding, arbitration or other claim by a third
party, whether commenced or threatened, arising out of or as a
result of a Dispatch containing (a) any unlawful, threatening
abusive, libelous, defamatory, obscene, pornographic, profane,
or otherwise objectionable information, including without
limitation any transmission constituting or encouraging
conduct that would constitute a criminal offense, give rise to
civil liability, or otherwise violate any local, state,
federal or international law; (b) any misleading or deceptive
information, or any misrepresentation with respect to products
or services offered by CNET or its advertisers; (c) any chain
letters, or illegal pyramid type schemes; (d) any information,
audio, video, graphics, software, or other works in violation
of any person's copyright, trademark or any other intellectual
property rights; (e) any deceptive information which would
imply affiliation or sponsorship of any entity or person other
than CNET or its advertisers without the written consent of
such entity or person, or (f) information delivered to anyone
who has not given CNET permission to send email communications
to them or "SPAM".
8.2. Indemnification by MSI. MSI shall indemnify and hold CNET
harmless from and against any Losses that CNET may suffer,
incur or be subjected to by reason of any legal action,
proceeding, arbitration or other claim by a third party,
whether commenced or threatened, arising out of or as a result
of (a) the use of the Services by CNET; (b) the operation of
the Services; or (c) damage caused by any virus, worm, "trojan
horse," time bomb or similar contaminating or destructive
feature attached or included with any Dispatch subsequent to
receiving such Dispatch from CNET; provided however, MSI shall
have no obligation under this section 8.2 for any Losses due
to or arising from a Dispatch containing any of the items
contained in section 8.1 above, unless CNET can conclusively
prove that MSI was solely responsible for the inclusion of
such item in a Dispatch without the approval of CNET.
8.3. Indemnification Procedures. If any party entitled to
indemnification under this Section (an "Indemnified Party")
makes an indemnification request to the other, the Indemnified
Party shall permit the other party (the "Indemnifying Party")
to control the defense, disposition or settlement of the
matter at its own expense;
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provided that the Indemnifying Party shall not, without the
consent of the Indemnified Party enter into any settlement or
agree to any disposition that imposes an obligation on the
Indemnified Party that is not wholly discharged or
dischargeable by the Indemnifying Party, or imposes any
conditions or obligations on the Indemnified Party other than
the payment of monies that are readily measurable for purposes
of determining the monetary identification or reimbursement
obligations of Indemnifying Party. The Indemnified Party shall
notify Indemnifying Party promptly of any claim for which
Indemnifying Party is responsible and shall cooperate with
Indemnifying Party in every commercially reasonable way to
facilitate defense of any such claim; provided that the
Indemnified Party's failure to notify Indemnifying Party shall
not diminish Indemnifying Party's obligations under this
Section except to the extent that Indemnifying Party is
materially prejudiced as a result of such failure. An
Indemnified Party 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.
9. MEDIA AND PUBLIC RELATIONS.
9.1. Media Contact. Each party will designate a contact for media
relations between CNET and MSI. The parties agree that the
contacts shall initially be as follows:
CNET: Xxxxxxxxx Xxxxxx, CNET Group Circulation Manager
MSI: Xxxxx Xxxx, Marketing/MarCom Manager
9.2. Prior Announcement Rights. MSI will inform CNET, in writing,
of the acquisition of any client with a weekly send volume
equal to, or greater than, 70% of the current CNET email send
volume. All such notification will occur prior to any public
announcement of the new client acquisition.
9.3. Reference and Endorsement. CNET will act as a customer
reference for MSI in a manner reasonably determined by CNET.
9.4. Marketing Materials. MSI may include CNET in its list of
entities, including "strategic affiliates," using the
Services. MSI agrees to remove CNET from any materials upon
the reasonable request of CNET.
9.5. Presentations. MSI may include the Dispatches and pre-approved
CNET logos in MSI presentations. MSI agrees to remove the
Dispatches and CNET logos from any presentation upon the
reasonable request of CNET.
9.6. Speaking Engagements. Pending agreement by both parties, CNET
will participate in MSI speaking engagements and co-marketing
activities from time to time.
10. MISCELLANEOUS.
10.1. LIMITATION OF DAMAGES, DISCLAIMER OF WARRANTY. NEITHER PARTY
WILL BE LIABLE FOR ANY SPECIAL, INDIRECT,
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CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED
TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER,
EXCEPT FOR ANY CLAIM ARISING UNDER SECTION 8 OR 10.6, IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF
THE TOTAL PAYMENTS MADE UNDER THIS AGREEMENT. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, EACH PARTY ACKNOWLEDGES AND AGREES
THAT THE OTHER HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES OR
AGREEMENTS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
10.2. Assignment. Neither party may assign this Agreement, except
(a) in connection with the transfer of substantially all of
the business operations of such party (whether by asset sale,
stock sale, merger or otherwise); (b) to an affiliate of such
party; or (c) with the written permission of the other party.
Notwithstanding the foregoing, if MSI's acquirer is at any
time reasonably determined by CNET to be a competitor of CNET,
then CNET may terminate this Agreement upon ten days written
notice to the acquiror.
10.3. Relationship of Parties. This Agreement will not be construed
to create a joint venture, partnership or the relationship of
principal and agent between the parties hereto, nor to impose
upon either party any obligations for any losses, debts or
other obligations incurred by the other party except as
expressly set forth herein.
10.4. Audit Rights. CNET will have the right to engage an
independent third party to audit the books and records of MSI
relevant to the quantification of the Dispatches delivered per
hour, upon reasonable notice and during normal business hours,
and MSI will provide reasonable cooperation in connection with
any such audit. CNET will pay all expenses of the auditor
unless the audit reveals an underdelivery by MSI of more than
5%, in which case MSI will reimburse all reasonable expenses
of the auditor.
10.5. Applicable Law. This Agreement will be construed in accordance
with and governed by the laws of the State of California,
United States of America without regard to principles of
conflicts of law or treaty provisions.
10.6. Confidentiality. In connection with the activities
contemplated by this Agreement, each party may have access to
confidential or proprietary technical or business information
of the other party, including without limitation (a)
proposals, ideas or research related to possible new products
or services; (b) financial statements and other financial
information; (c) any reporting information herein; and (d) the
material terms of the relationship between the parties;
provided, however, that such information will be considered
confidential only if it is conspicuously designated as
"Confidential," or if provided orally, identified at the
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time of disclosure and confirmed in writing within 30 days of
disclosure (collectively, "Confidential Information"). Each
party will take reasonable precautions to protect the
confidentiality of the other party's Confidential Information,
which precautions will be at least equivalent to those taken
by such party to protect its own Confidential Information.
Except as required by law or as necessary to perform under
this Agreement, neither party will knowingly disclose the
Confidential Information of the other party or use such
Confidential Information for the benefit of any third party.
Each party's obligations in this Section with respect to any
portion of the other party's disclosed Confidential
Information shall terminate when the party seeking to avoid
its obligation under such Paragraph can document that such
disclosed Confidential Information: (i) was in the public
domain at or subsequent to the time it was communicated to the
receiving party ("Recipient") by the disclosing party
("Discloser ") through no fault of Recipient; (ii) was
rightfully in Recipient's possession free of any obligation of
confidence at or subsequent to the time it was communicated to
Recipient by Discloser; (iii) was developed by employees or
agents of Recipient independently of and without reference to
any information communicated to Recipient by Discloser; (iv)
was communicated by the Discloser to an unaffiliated third
party free of any obligation of confidence; or (v) was in
response to a valid order by a court or other governmental
body, was otherwise required by law or was necessary to
establish the rights of either party under this Agreement;
provided, however, that both parties will stipulate to any
orders necessary to protect said information from public
disclosure.
10.7. Severability of Agreement. If a court of an arbitrator or
competent jurisdiction holds any provision of this Agreement
to be illegal, unenforceable, or invalid in whole or in part
for any reason, the validity and enforceability of the
remaining provisions, or portions thereof, will not be
affected.
10.8. Dispute Resolution. In the event that any dispute arises
hereunder, the parties agree that prior to commencing
litigation, arbitration, or any other legal proceeding, each
party shall send an officer of such party to negotiate a
resolution of the dispute in good faith at a time and place as
may be mutually agreed. Each officer shall have the power to
bind its respective party in all material respects related to
the dispute. If the parties cannot agree on a time or place,
upon written notice from either party to the other, the
negotiations shall be held at the principal executive offices
of CNET twenty one days following such notice (or on the next
succeeding business day, if the twenty first day is a weekend
or holiday). Notwithstanding the foregoing dispute resolution
process, neither party shall be excluded from seeking
provisional remedies in the courts of any jurisdiction,
including, but not limited to, temporary restraining orders
and preliminary injunctions, but such remedies shall not be
sought as a means to avoid the dispute resolution process.
10.9. Force Majeure. If the performance of this Agreement or any
obligations hereunder is prevented, restricted or interfered
with by reason of fire or other casualty or accident, strikes
or labor disputes, war or other violence, any law,
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order, proclamation, regulations, ordinance, demand or
requirement of any government agency, or any other similar act
or condition beyond the reasonable control of the parties
hereto, the party so affected upon giving prompt notice to the
other party will be excused from such performance during such
prevention, restriction or interference.
10.10. Article Headings. The captions and headings of the various
articles of this Agreement are inserted merely for the purpose
of convenience and do not expressly or by implication limit,
define or extend and specific terms or text of the article so
designated and shall not in any way alter the meaning or
interpretation of this Agreement.
10.11. Press Release. Neither party shall issue a press release
concerning the terms of this Agreement or the relationship of
the parties without the prior written consent of the other.
10.12. No Waiver. No waiver of breach, failure of any condition, or
any right or remedy contained in or granted by the provisions
of this Agreement will be effective unless it is in writing
and signed by the party waiving the breach, failure, right or
remedy. No waiver of any other breach, failure, right or
remedy will be deemed a waiver of any other breach, failure,
right or remedy, whether or not similar, nor shall any waiver
constitute a continuing waiver unless the writing so
specifies.
10.13. Remedies Not Exclusive. Any specific right or remedy provided
in this Agreement shall not be exclusive but shall be
cumulative upon all other rights and remedies set forth herein
and allowed or allowable under applicable law.
10.14. Entire Agreement. This Agreement constitutes and contains the
entire agreement between the parties with respect to the
subject matter hereof and supersedes any prior oral or written
agreements. This Agreement may not be amended except in
writing signed by both parties. Each party acknowledges and
agrees that the other has not made any representations,
warranties or agreements of any kind, except as expressly set
forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
CNET, Inc. Media Synergy Inc.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxx
--------------------- -----------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx Xxx
--------------------- -----------------------
Title: Senior Vice President Title: Chief Operating Officer
--------------------- -----------------------
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EXHIBIT A
CNET DISPATCHES
MSI shall provide the Services for all of the following CNET Dispatches. CNET
may reasonably amend the following list from time to time upon notice to MSI.
1. Digital Dispatch
2. Digital Dispatch (HTML version)
3. XXXX.XXX Dispatch
4. XXXX.XXX Dispatch (HTML version)
5. XXXXXXXXX.XXX Dispatch
6. XXXXXXXXXX.XXX Dispatch
7. Xxxxxxx.xxx Dispatch
8. XXXXXXXX.XXX Dispatch (PC version)
9. XXXXXXXX.XXX Dispatch (Mac version)
10. Builder Blast
11. XXXXXXX.XXX Dispatch
12. XXXXXXXXX.XXX Dispatch
13. XXXXXXXXX.XXX Content Dispatch
14. Browser Alert (PC version)
15. Browser Alert (Mac version)
16. Software Dispatch
17. Cool Gear
18. For What It's Worth
19. ATC Dispatch
20. Message Board Newsletter
21. Web Design Dispatch
22. CNET Help ICQ Tips Dispatch
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EXHIBIT B
TRACKING AND REPORTING REQUIREMENTS
MSI will provide CNET with the following tracking and reporting information:
1. Total list size
2. Total subscribes
3. Total unsubscribes
4. Messages sent
5. Hard Bounce Count
6. Soft Bounce Count
7. Click through by URL
8. A/B split testing
9. Pass along rate
10. Response curve by hours from send
11. Open mail percentages (HTML only)
12. Buy rate and amount
13. Number of click through by customer
14. Number of purchase transactions by customer
15. Total dollar amount purchased by customer
16. Number of messages received by customer
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EXHIBIT C
DEVELOPMENT REQUEST AND CHANGE PROCEDURES
1. ORIGINAL FEATURE REQUESTS
a. Feature requests documented in a Product Requirements Document
(PRD)
b. CNET representative signs off on the PRD
c. MSI development team develops feature set based on CNET
approved PRD
2. CHANGES AND AMENDMENTS
a. Changes and amendments are to be documented as a PRD amendment
b. CNET representative signs off on the PRD amendment
c. MSI development team develops feature set based on the CNET
approved PRD amendment
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EXHIBIT D
SERVICES AND DEPLOYMENT FEES
1. Services.
(i) Email Sending. MSI shall provide all hardware, software,
Internet connections, and bandwidth necessary to send the
Dispatches as described in the Agreement. MSI is responsible
for all costs and expenses associated with sending the
Dispatches.
(ii) Virus Checking. MSI shall install and maintain the most
current virus signatures prior to sending any Dispatch, and
shall scan each Dispatch prior to sending it to Users.
(iii) List Maintenance. MSI will add and delete Users from CNET's
email lists as requested by CNET and Users. MSI will not add
any email address to CNET's email lists unless specifically
authorized in writing by CNET or the owner of the email
address. After receiving a request to add a User to or remove
a User from any email list, MSI will use its best efforts to
add or remove such User as soon as possible, not to exceed 24
hours. At least once per month, MSI shall deliver a file
containing all CNET User List Data to CNET in a zipped ASCII,
tab-delimited format or other format reasonably requested by
CNET.
(iv) Bad Address Handling. MSI shall install and maintain a system
of rules for the purging of "bad addresses" from the CNET
database of subscribers. All bad address rules will be
approved by the designated CNET contact prior to being
implemented. These rules will function within the parameters
of the Service "uptime" described in the following paragraph,
2(i).
2. Technical and Operational Specifications
(i) Uptime. The Services will be operational and fully functional
in all material respects (i.e. capable of sending Dispatches,
accessing the FLO Network) at least 95% of the time during any
30 day period (or, in a cure period, time during any 7 day
period), excluding reasonable scheduled downtime.
(ii) Scheduled Downtime. The parties acknowledge that MSI may be
required to interrupt the Service for scheduled maintenance,
and that such scheduled downtime shall not be included in the
5% downtime permitted each month. Notwithstanding the
foregoing, MSI agrees that (a) MSI will use commercially
reasonable efforts to minimize the adverse impact of such
scheduled downtime on CNET and the delivery of the Dispatches,
(b) MSI will use commercially reasonable efforts to notify
CNET in writing two (2) business days prior to such scheduled
downtime, and (c) in no event shall the total uptime for the
MSI Services be less than 90% in a given month. In the event
of any interruption of the Services
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
within the control of MSI, MSI will promptly notify CNET of
such interruption and shall use commercially reasonable
efforts to restore the Services within four hours.
(iii) Minimum Volume. At all times during the Term, the average send
volume per hour, per list will be [**] or more during any
consecutive three month period (or, if in a cure period,
during a 7 day period),
3. Deployment Fees
(i) Setup Fee. Initial transition, database design, and setup fee:
[**]
(ii) Email Delivery Pricing*. The pricing for all CNET email
dispatches are based on weekly email volumes. The email
delivery fees will be calculated based on the total number of
emails delivered in the course of a week such that a send of
[**] pieces will be billed at [**] per thousand sends while a
send of [**] pieces will be billed at [**] per thousand sends.
(iii) Message Fee (CPM).
[**] million sends per week [**]/CPM
[**] million sends per week [**]/CPM
*Note: An additional [**] per advertiser web site is charged to enable the buy
rate tracking feature. This is [**] cost only. All other tracking and reporting
features are included in the above pricing.
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