Vicinity Corporation and AltaVista Company
Agreement No. 00400154
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Vicinity Corporation and AltaVista Company
This is the Master Agreement ("Agreement") between AltaVista Company, a Delaware
corporation (hereinafter referred to as "AltaVista") with an address for
purposes of this Agreement at 111 Theory, Irvine, CA 92612, and Vicinity
Corporation, a California corporation (hereinafter referred to as "Vicinity")
with an address at 1135A San Antonio Road, Palo Alto, CA 94303-4310 with an
effective date of January 11, 2000 ("Effective Date").
The parties intend to create a strategic relationship which includes, but is not
limited to, the following objectives:
. Vicinity to provide AltaVista with technologies for selected services
available within AltaVista's shopping services such as yellow pages.
. Provide end users with an enriched shopping experience by providing rich
product information for local online and offline purchasing opportunities.
. Establish a leadership position in the web-based shopping services space.
. Provide enhanced services for online and offline merchants by presenting
product availability by brand, category, * * * * to the extent such
information is available.
. Create a * * * * merchant initiative that provides for product integration
and services within the AltaVista shopping services.
. Develop an overall merchant acquisition strategy that provides increased
benefits for web--based shopping and web-based location of local merchants
while maintaining a competitive advantage within the AltaVista/Vicinity
. Jointly develop a strategy and execution plan to integrate the sales efforts
of both AltaVista and Vicinity to ensure that the supporting merchant base is
expanded upon rapidly.
. Create a bundle of value added services for merchants that includes both
* * * * and * * * *
. Build on the competitive advantage created by the parties' affiliation.
. Become a leader in providing new technologies (products and services) in the
. Work together on one or more * * * * initiatives similar to the * * * * web-
based initiatives that the parties are currently discussing.
. Lead the industry in the creation of world-class web-based shopping
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
1) Purpose. Vicinity and AltaVista are interested in satisfying the needs of
their respective customers and increasing the effective use and
interoperability of their respective products and services. Vicinity has
developed and intends to continue to develop infrastructure and services
that integrate local merchants with online product locator services.
AltaVista has developed and intends to continue to develop its online
shopping service and to integrate both online and offline purchasing
This Agreement describes the business relationship between the parties with
respect to the foregoing.
2) Organization Of This Agreement. This Agreement contains the terms and
conditions that will apply to all business transactions falling within the
scope of this Agreement between the parties unless otherwise specified in
one or more of the Project Statements. The purposes of this Agreement will
be implemented through one or more Project Statements.
a) Types of Project Statements. Under this Agreement, the parties may
enter into Project Statements which include but are not limited to the
i) Product Development Project Statement.
ii) Marketing Project Statement.
iii) Services Project Statement.
iv) Administrative Project Statements.
v) Joint Project Statements.
b) Contents of Each Project Statement. Each Project Statement must
contain (or incorporate as attachments or by reference):
i) A reference to this Agreement by agreement number;
ii) Designation of the names, business addresses, and telephone
numbers of the Project Manager for the Project Statement
iii) Amount, discounts, schedule and method of compensation, if any
iv) Identification of any materials, deliverables and/or services to
be provided to either party pursuant to the Project Statement
and related technology ownership and license terms, including
limitations, if any; and
v) Timetable and location (if applicable) for performance and
completion, including milestones, schedules and delivery dates,
c) In addition, when applicable or appropriate, a Project Statement shall
contain (or incorporate as attachments or by reference):
i) Provision for written progress reports to be prepared by the
ii) Acceptance standards for deliverables and/or reports, including
any or all of the following:
(1) Documentation, specifications and standards;
(2) Quality standards;
(3) Performance specifications;
(4) Usability and architecture requirements;
(5) A list and description of any equipment, components, and
software to be supplied for use (specifying the party who
is responsible for the supply of such equipment, component,
or software) in connection with the Project Statement; and
(6) Any limitation on the locations of performance or storage
of AltaVista or Vicinity confidential information;
iii) Resource requirements, including training and assignment of key
iv) Any applicable termination provisions; and
v) A list of the trademarks licensed (if any) under the Project
Statement and applicable guidelines and use restrictions, if
any, for any such licensed trademarks.
3) Definitions. Unless the context clearly requires otherwise, the capitalized
terms used within Contract Documents shall have the same meaning as
ascribed to the terms below.
a) Contract Documents - shall mean this Agreement, its attachments, its
schedules and all Project Statements issued under this Agreement, and
any amendments to the foregoing in effect from time to time during the
term or terms of the applicable Contract Documents.
b) Deliverables - shall mean any materials or services which result from
performance by the parties under a Project Statement and which are
required to be delivered in fulfillment of a Project Statement.
c) Documentation - shall mean user manuals and other written materials
that relate to a particular product or service developed pursuant to a
Project Statement, including but not limited to materials useful for
design (for example, logic manuals, flow charts, and functional
specifications), and machine-readable text or graphic files subject to
display or print-out.
d) Invention - shall mean any idea, design, concept, technique,
invention, discovery or improvement whether or not patentable, that is
conceived or reduced to practice by the inventing party in the
performance of any Project Statement.
e) Licensed Work - shall mean any software, Documentation, Deliverable
or other proprietary technology licensed by one of the parties to the
other pursuant to a Project Statement.
f) Updates - shall mean any modifications or revisions, other than a new
Version of software, Documentation or Deliverables that correct errors
or provide other incidental corrections. Updates are typically
identified by increases to the right of the decimal such as 1.x or
g) Version - shall mean modifications or revisions that result from
significant changes or functional additions to any product or service
and related Documentation and Deliverables that provide additional
value, utility, content and/or other significant enhancements. New
Versions are typically identified by increases in the version number
associated with the product or service to the left of the decimal such
as 2.x to 3.y
h) Joint Invention - shall mean any idea, design, concept, technique,
invention, discovery or improvement that is conceived or reduced to
practice by the collaborative efforts of the representatives of
Vicinity and AltaVista in the performance of any Project Statement.
Each party grants the other a non exclusive, non transferable, royalty
free right to display during the Term of this Agreement the
trademarks, tradenames, service marks and logos made available by such
party for use only to fulfil the obligations under one or more Project
Statements and for no other purpose. Such use shall be subject to the
terms of this Agreement and/or the terms of a Project Statement. In
the event that a party determines that the other's use of the
applicable trademarks, tradenames, or service marks or logos is
inconsistent with the applicable trademark or service mark owner's
standard quality standards or the terms set forth in a Project
Statement, then such party shall provide the non-conforming party with
ten (10) days written notice to conform its use of the trademark,
tradename, service mark or logo to the applicable standards. If after
the ten (10) days notice, the non-conforming party
fails to conform to the applicable trademark, tradename, service mark
or logo to the standards of the requesting owner, then the owner of
the marks shall have the right to immediately terminate the other
party's right to use such marks under the terms of this Agreement or a
a) Compensation. Any compensation due from one party to the other shall be
specified in a relevant Project Statement.
b) Payments. Unless otherwise stated in a relevant Project Statement, any
payments due hereunder, shall be due within forty-five (45) days of
the invoice date and shall be payable in U.S. Dollars. Notwithstanding
any other remedies available to either party under this Agreement or
under applicable law, payment in arrears of more than forty-five (45)
days shall bear interest from the date payment is due at the rate of
one percent (1%) per month or the maximum rate permitted by law,
unless the amount in arrears is disputed in good faith.
c) Audit. The parties shall maintain complete and accurate accounting
records, in accordance with generally acceptable accounting practices,
to support and document any amounts due hereunder. Such records shall
be retained for a period of at least two (2) years after the payments
to which such records relate have been made. Each party shall, upon
written request, during normal business hours, but not more frequently
than once each calendar year, provide access to such accounting
records to an independent accounting firm chosen and compensated by
the requesting party, for purposes of audit. Such accounting firm
shall be required to sign an agreement protecting the party's
confidential information and shall be authorized to report only the
amounts due and payable for the period requested. If any such audit
reveals that the audited party has underpaid by more than five percent
(5%) the amounts owed to the auditing party for the period covered by
the audit, the audited party will promptly pay any shortfall and
reimburse the auditing party for all expenses reasonably incurred by
the auditing party in connection with the audit.
6) Procedure For Entering Into Project Statements. Each Project Statement
issued under this Agreement shall become effective only when executed by
authorized representatives of both parties. Neither party gives any
assurance as to the issuance or execution of any subsequent Project
Statements. Each Project Statement entered into under this Agreement shall
be construed to incorporate the provisions of, and to be governed by, this
Agreement unless otherwise provided for in the Project Statement.
7) Contract Administration.
a) Executive Coordinator. Upon the execution of this Agreement,
AltaVista and Vicinity shall each submit to the other party in writing
the name, business address and telephone number of the Executive
Coordinator(s) who shall be responsible for all overall matters
pertaining to this Agreement and all other Contract Documents. The
responsibilities of the Executive Coordinators are as follows:
i) Administer and coordinate the overall aspects of the Contract
ii) Arrange meetings, visits and consultations between the parties
concerning matters related to this Agreement and material
performance issues or amendments related to a relevant Project
b) Project Management. Unless otherwise specified in a Project Statement,
the Project Manager shall be responsible for the design and
development of Deliverables developed under a Project Statement; the
Project Manager shall be responsible for providing customer
requirements and testing the Deliverables. Each party shall have only
one Project Manager for each Project Statement. All communications
between the parties relating to technical performance and the
preparation and the delivery of Deliverables under a Project Statement
shall take place between the Project Managers named in the Project
Statement. The additional responsibilities of the Project Manager with
respect to the applicable Project Statements are as follows:
i) Arrange meetings, visits and consultations between the parties
concerning matters related to the applicable Project Statement;
ii) Chair periodic status reviews of the applicable Project Statement;
iii) Coordinate amendments (including documenting and signing or
initialing such amendments) to the Project Statements, to the
extent the Project Managers are authorized to make such
iv) Supervise submission and acceptance of all Materials pursuant to
the Project Statement, including the delivery, testing and
acceptance of Deliverables;
v) Supervise the transfer of any information as required hereunder;
vi) Prepare written progress reports required under this Agreement
or a relevant Project Statement.
c) Changes in Coordinators. Either party may replace any of the people
referenced in this Section by delivering written notice of the change
to the other party. The notice must be signed by either the Executive
Coordinator of the party making the change, or by an authorized
signatory of that party. The notice shall set forth the name, business
address and telephone number of the replacement.
8) Changes To Contract Documents.
a) Changes. Either party, through the respective Executive Coordinator or
Project Manager, may propose changes to Contract Documents. Either
party may at its sole option accept or reject changes proposed by the
b) Material Increases. In the event that a party proposes changes which
materially increase the other party's cost or work effort, such
proposal shall include a proposed equitable adjustment in payments
and/or schedule. Where the parties agree to make a change to the
Contract Documents, the parties shall negotiate in good faith such
c) Amendments. All changes to the Contract Documents must be made in
writing and executed by authorized representatives of both parties.
The terms of the Agreement may only be changed by a written amendment
referring to the clauses of the Agreement to be changed and signed by
an authorized representative of each party. Amendments to terms and
conditions of this Agreement implemented through a signed Project
Statement shall be effective only with respect to that Project
d) Authority to Make Changes. The parties' respective Project Manager
named in a Project Statement may propose, accept (by signature) and
implement changes to technical aspects of such Project Statement
provided such changes do not change dollar amounts or materially
change Deliverables or time schedules. Changes in the Project
Statement that involve adjustment in payments or material changes in
Deliverable to time schedules require the approval of the parties'
Executive Coordinators. Such changes are effective only if accepted
(by signature) by both parties.
e) Changes Effective Upon Execution of Documentation. No change or
amendment, including related modifications (if any) in payment
obligations and schedules, shall be effective, nor shall it be
implemented until it is:
i) reduced to a written amendment;
ii) signed by the appropriate authorized representative of each
party, as authorized by this Section; and
iii) The terms of the Agreement may only be changed by a written
amendment referring to the clauses of the Agreement to be
changed and signed by the Executive Coordinator of each party or
his or her designee. Each party assumes its risk of any work
done or action taken by it based on oral statements, or on
documents or notations, not in accordance with this Section.
9) Progress Reports. Unless otherwise provided in the applicable Project
Statement, the Project Manager of one party shall provide to the Project
Manager of the other party monthly written progress reports for such
Project Statement specifying the current work progress level and
identifying any problems that have been resolved and any problems that are
unresolved, along with a projected date of resolution, changes in the
assignment of its key employees, strikes and labor unrest, or
unavailability of critical resources, or of any factor, event or
anticipated event that may affect the ability to meet the requirements of
any Project Statement.
10) Inventions & Ownership.
a) Ownership of Inventions. The inventing party shall own each Invention
made by its employees, applications filed thereon and patents issuing
thereon except Joint Inventions which shall be jointly owned. Each
party shall account to the other regarding any monies collected with
respect to such Joint Inventions. With respect to Joint Inventions,
Vicinity and AltaVista shall share equally in the expenses of seeking
and maintaining patent protection. Either party may elect at its own
expense to seek and maintain patent protection if the other party
declines to share such expenses; such patent shall be in name of the
party who registers the patent and the other party shall be given a
free, perpetual license to use such patent.
b) Inventions Licenses. Subject to a license being granted in a Project
Statement, the licensing party hereby grants the other party a
worldwide, nonexclusive, non-transferable and royalty-free license to
the Inventions, but only as
necessary to exercise the grant contained in such Project Statement.
The license granted by the inventing party shall not include any right
to sublicense without the consent of the inventing party.
c) No Other License. Except as stated in this Agreement, no license under
any patents or patent applications arising out of any idea, design,
concept, technique, invention, discovery or improvement made by either
party shall be deemed granted, at any time to either party, whether
expressly or by implication, estoppel, or otherwise.
d) Notice of Infringement. If either party becomes aware that an item it
has produced under this Agreement infringes, or allegedly infringes, a
patent of a third-party, that party agrees to notify the other party
promptly in writing.
11) CONFIDENTIALITY AND INFORMATION EXCHANGE.
a) Exchange. It is the intention of AltaVista and Vicinity to transfer
and/or exchange information as may be essential for completing Project
Statements under this Agreement and to explore other business
relationships between the parties. Such information may be disclosed
in oral, visual, or written form (including magnetic media). The
obligations of the parties regarding confidentiality under this
Agreement and any Project Statement entered into by the parties
pursuant to the Agreement shall be governed by the Confidentiality and
Nondisclosure Agreement between the parties dated January 11, 2000 or
any renewals thereof.
b) Disclosure to Others. Neither party shall disclose the financial terms
and conditions under the Contract Documents to third parties, without
the prior written consent of the other party. If, however, a party
determines, upon the opinion of counsel, that disclosure regarding the
Contract Documents and/or the relationship between the parties is
required by law, then disclosure shall be permitted, but only after
the nondisclosing party is given reasonable opportunity (upon not less
than three (3) business days notice) to dispute the required
disclosure. The non-disclosing party shall reasonably cooperate with
the disclosing party to mitigate such required disclosure by taking
reasonable steps to secure confidentiality through a protective order
or other available protective procedures.
12) Proprietary Notices.
a) Copyright Notices. Any publication by AltaVista or Vicinity of
copyrighted works shall contain an appropriate copyright notice in
accordance with, and in the form prescribed by the copyright statutes
or by this Agreement or a Project Statement.
b) Vicinity Content. All Vicinity content distributed under this Agreement
shall include and display the copyright notices, trademarks and any
other proprietary legends of Vicinity and Vicinity's licensors in the
manner required by Vicinity, as set forth on the attached Schedule A
as such Schedule may be amended from time to time by Vicinity upon
written notice to AltaVista.
c) Modification of Copyright Notices. Each party shall not alter, modify
or delete, obscure the other party's copyright notice statement
without the other party's written consent.
13) Enforcement of Copyright and other Proprietary Rights. Each party shall
be responsible for maintaining the validity and enforceability of its
copyrights and all other proprietary rights that it may have in all
Licensed Works and Deliverables.
14) Representation And Warranties. Each party makes the following
representations and warranties for the benefit of the other, as a present
and ongoing affirmation of facts in existence at all times when this
Agreement is in effect:
a) Ownership and Authority.
i) EACH PARTY REPRESENTS AND WARRANTS (1) THAT IT IS THE SOLE OWNER
OF ALL DELIVERABLES PROVIDED BY IT UNDER EACH PROJECT STATEMENT,
OR HAS LICENSES FROM THIRD PARTIES TO PROVIDE ALL DELIVERABLES
IDENTIFIED IN SUCH PROJECT STATEMENT AS BELONGING TO THIRD
PARTIES, AND (2) THAT IT HAS FULL AND SUFFICIENT AUTHORITY TO
GRANT THE RIGHTS AND OR LICENSES GRANTED TO THE OTHER PARTY IN
THE CONTRACT DOCUMENTS.
ii) EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT DOCUMENTS, NEITHER
PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO DELIVERABLES, LICENSED
WORKS, INVENTIONS, JOINT INVENTIONS, DOCUMENTATION, INFORMATION
OR ANY OTHER
WORK OR OTHERWISE UNDER THE CONTRACT DOCUMENTS, AND EACH PARTY
HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND TITLE.
b) No Extrinsic Assurances. Each party represents and warrants that,
time during the term of this Agreement, it does not and will not rely
on any promises, inducements, or representations made by the other
with respect to the subject matter of such Contract Documents, nor on
the expectation of any other business dealings with the other party,
now or in the future, except as specifically provided in the Contract
a) Statement of Indemnification. Each party that provides Deliverables
under this Agreement agrees to defend and indemnify, at its expense,
any suit, claim or the like against the party that receives the
Deliverables to the extent such suit, claim or the like is based upon
an assertion that (1) the licensing party does not have sufficient
right, title and interest in the Deliverables to enter into, and/or
convey the rights and licenses required by this Agreement, and/or (2)
that the Deliverables infringe a patent, copyright, trademark, trade
name, or trade secret of a third-party. The delivering party agrees to
pay the amount of any settlement (with prior written approval by the
delivering party), judgment, damages, costs (including reasonable
attorney's fees) finally awarded in any such suit, claim or the like
(1) The delivering party is notified promptly in writing of any
notice of claim or of threatened or actual suit;
(2) The delivering party has sole control of the defense of
such suit, claim or the like and related settlement
negotiations if any;
(3) The receiving party cooperates in the defense and
settlement of such suit, claim or the like at the expense
of the delivering party; and
(4) Any such settlement shall contain no admission of the
delivering party's liability without the prior written
approval of the delivering party.
Following notice from the receiving party of a claim or of a
threatened or actual suit, to the extent based on the above, the
delivering party shall, at its expense, elect to 1) procure for the
receiving party the right to continue to market, use, and/or have
others market or use the allegedly infringing product, 2) replace or
modify the same to make it non-infringing or 3) refund payment
prorated to the receiving party for the alleged infringed
Deliverables. If the delivering party elects to replace or modify such
Deliverables such replacement shall substantially meet the
specifications contained in the applicable Project Statement.
Notwithstanding the foregoing, in the event that any settlement (with
prior written approval by each party), judgment, damages, costs
(including reasonable attorney's fees) finally awarded in any such
suit related to a third party claim of infringement contemplated by
this Section arises from or is related to a Joint Invention, the
parties will equally share the burden of all such damages, costs and
b) Exceptions. The delivering party assumes no liability arising from or
related to the combination of the Deliverables with other products or
services not provided by the delivering party, if such infringement
would have been avoided without such combination. The delivering party
shall also have no indemnity obligation for claims resulting from
compliance with the other party's specifications where the delivering
party's method of compliance has been compelled by the terms of the
other party's specifications.
c) Exclusive Statement. This Section shall represent the entire and
exclusive obligation of one party to the other regarding any claim of
16) TERM AND TERMINATION.
a) Stated Term of Agreement. This Agreement shall be effective upon the
date specified at the beginning of this Agreement, and shall remain in
force for a period of three (3) years, unless otherwise terminated as
provided herein; provided, however, that this Agreement shall continue
to remain in effect with respect to any Project Statement already in
effect hereunder until such Project Statements are themselves
terminated and/or performance thereunder is completed. After the
initial three (3) year term, this Agreement shall automatically renew
for additional one (1) year periods unless either party provides the
other with written notice at least ninety (90) days or more prior to
the end of any term.
b) Project Statement Terms. The term of a Project Statement shall be
stated in the Project Statement.
c) Earlier Termination of the Agreement. Either party may terminate this
Agreement for convenience upon not less than one hundred eighty (180)
days' written notice to the other party; provided, however, that this
continue to remain in effect with respect to any Project Statements
already in effect hereunder until such Project Statements are
themselves terminated in accordance with their respective terms and/or
performance thereunder is completed.
d) Suspension of Link. In the event that a Project Statement creates a web
site that is co-branded by both parties, either party may suspend the
other party's rights to provide the co-branded web site upon thirty
(30) days written notice to the other party (such notice specifying in
reasonable detail the offending portions of the co-branded web site),
if the suspending party, in its sole judgment, determines that the
content of the co-branded site negatively affects that party.
e) Termination for Cause. Either party may, at its option, terminate the
applicable Contract Documents in the event that the other party
materially breaches a particular Contract Document and the breach
remains uncured after a period of thirty (30) days from receipt of
written notice of breach.
f) Termination Upon Certain Events. Either party may terminate this
Agreement immediately upon written notice if the other party (i)
institutes bankruptcy or similar proceedings; (ii) has bankruptcy
similar proceedings instituted against it, and such proceedings are
not stayed or dismissed within sixty (60) days; or (iii) makes an
assignment of property or assets for the benefit of its creditors.
g) Change of Control or Acquisition. If a Change of Control to one of the
parties to this Agreement occurs, the other party shall have the
option to immediately terminate all of the Contract Documents with the
exception of any Project Statement in progress, and have returned to
it all Confidential Information then in the possession of the other
party and any Deliverables provided under any of the Contract
Documents. A Change of Control shall not be deemed to have occurred in
the event that a party makes a registered public offering of its
securities. For purposes of the foregoing, a "Change of Control" shall
be deemed to have occurred with respect to a party if that party is
involved in a merger, reorganization, stock sale or similar
transaction with an entity (or its affiliates) that is reasonably
deemed a competitor of the other party. In the event of a Change of
Control, if the parties do not terminate all of the Contract Documents
as provided above, the acquiring, surviving or purchasing entity (i)
shall agree in writing to assume all of the rights and obligations
under the unterminated Contract Documents and (ii) shall not be
permitted to terminate any of the unterminated Contract Documents.
h) Survival. In the event of any termination of this Agreement, Sections
5, 10, 11, 12, 14, 15, 16, 17 and 19 shall survive and continue in
effect to the extent necessary to protect the rights granted in the
Contract Documents which expressly survive termination and shall inure
to the benefit of and be binding upon the parties and their legal
representatives, heirs, successors and assigns.
i) Effect of Termination. Upon any termination or expiration of the
Agreement or a Project Statement, each party agrees to return to the
other party within thirty (30) days of the effective date of such
termination or expiration, the confidential information and other
materials provided to the other party.
17) LIMITATION OF LIABILITIES. IN NO EVENT SHALL THE LIABILITY OF EITHER
PARTY ARISING OUT OF THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT
EXCEED THE NET AMOUNTS PAID BY ONE PARTY TO THE OTHER PARTY PURSUANT TO,
AND DURING THE PREVIOUS TWELVE (12) MONTHS OF THIS AGREEMENT. IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF DATA, OR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER
CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND
WHETHER OR NOT IT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS
REFLECTED IN THE FEES CHARGED UNDER THIS AGREEMENT.
18) FREEDOM OF ACTION. Unless specifically set forth in a Project Statement
or signed addendum to this Agreement, nothing in any Contract Document
shall be construed as prohibiting or restricting either party from
independently developing or acquiring and marketing materials and/or
programs which are competitive with the Deliverables or from entering into
similar agreement with other parties.
a) Notice. Unless otherwise agreed to by the parties, all notices required
under this Agreement (except those relating to product pricing,
changes and upgrades) shall be deemed effective when received and made
in writing by either (i) registered mail, (ii) certified mail, return
receipt requested, or (iii) overnight mail, addressed and sent to the
Vicinity: Vicinity Corporation
11 Lafayette Street
Attn: Marty Himmelstein
AltaVista: AltaVista Company
Irvine, CA 92679
Attn.: Director of Business Development
with a copy of non-technical notices to:
Vicinity: Vicinity Corporation
1135A San Antonio Road
Palo Alto, CA 94303-4310
Attn: Director of Business Development - Bruce Horowitz
AltaVista: AltaVista Company
529 Bryant Street
Palo Alto, CA
Attn.: General Counsel
i) Headings. The headings of this Agreement are provided for
reference only and shall not be used as a guide to interpretation.
ii) Order of Precedence. In rendering performance under this
Agreement, each party shall comply with all applicable
provisions contained in each of the Contract Documents. In the
event of inconsistency between or among the various Contract
Documents, the following order of precedence shall govern:
(a) The Project Statements (including the terms specifically
identified in a particular Project Statement as modifying
or amending terms of this Agreement);
(b) This Agreement and its attachments (other than Project
iii) Singular, Plural and Gender . When used in this Agreement,
the singular includes the plural, the plural includes the
singular and gender related pronouns include the feminine,
masculine and neuter.
c) Independent Contractor. Each party is and shall remain an
independent contractor with respect to all performance rendered
pursuant to the Contract Documents. Neither party nor any employee
thereof shall be considered an employee or agent of the other party
for any purpose and shall have no authority to bind or make
commitments on behalf of such other party for any purpose and shall
not hold itself or themselves out as having such authority. Each party
assumes full responsibility for its actions and the actions of its
personnel in rendering performance pursuant to the Contract Documents,
and each party shall have sole responsibility for the supervision,
daily direction and control, payment of salary (including withholding
of income taxes and social security), worker's compensation,
disability benefits and the like of its personnel. Each party assumes
full responsibility for the acts of all subcontractors.
d) Publicity. Each party agrees to be a customer reference for the other
party's customer prospects' inquiries as well as press inquiries. It
is understood that this will be a controlled effort and will be
managed to ensure minimum impact on the parties. Either party may
disclose the other as a customer or supplier of other party during the
term of this Agreement or relevant Project Statement. The parties
agree to issue press releases (separate or joint) relating to the
parties' business relationship under this Agreement provided that such
releases are coordinated on a mutually agreed upon time. No press
releases or publicity statements, references to this Agreement or any
Project Statements may be made without the express written approval of
the other party.
e) Compliance with Laws. Each party shall, at its own expense, comply
with any governmental law, statute, ordinance, administrative order,
rule or regulation relating to its duties, obligations and performance
under the Contract Documents and shall procure all licenses and pay
all fees and other charges required thereby.
f) Export of Technical Data. The parties shall not, nor shall they
authorize or permit their employees, agents or subcontractors to,
export or reexport any Deliverable, any technical information, or any
process, product or service that is produced under the Contract
Documents to any country specified as a prohibited destination in
applicable national, state and local laws, regulations and ordinances,
including the Regulations of the U.S. Department of Commerce and/or
the U.S. State Department, without first obtaining government
g) Taxes. Each party shall have sole responsibility for the payment of
all taxes and duties imposed by all governmental entities, as they
pertain to its duties, obligations and performance under the Contract
h) Force Majeure. Neither party shall be held liable for failure to
fulfill its obligations under the Contract Documents, if the failure
is caused by flood, extreme weather, fire, or other natural calamity,
acts of governmental agency, or similar causes beyond the control of
i) Assignment. Neither party may sell, transfer, assign, or subcontract
any right or obligation set forth in the Contract Documents, except as
expressly provided herein or therein, without the prior written
consent of the other party. Any act in derogation of the foregoing
shall be null and void. Neither party may sell, transfer, assign, or
subcontract this Agreement, except as expressly provided herein ,
without the prior written consent of the other party. Any act in
derogation of the foregoing shall be null and void.
j) Governing Law. The validity, construction, and performance of all
Contract Documents will be governed by the substantive law of the
State of California (without reference to its conflicts of laws
k) No Other Rights. This Agreement shall not be construed to grant any
rights by implication, estoppel, or otherwise, that are not granted
through the express provisions of the Contract Documents.
l) Severability. Each Project Statement is intended to constitute an
independent and distinct agreement of the parties, notwithstanding the
fact that each shall be construed to incorporate all applicable
provisions of this Agreement. If any provision of any Contract
Document is held by a court of competent jurisdiction to be contrary
to law, the remaining provisions of the Contract Document will remain
in full force and effect and shall be interpreted, to the extent
possible, to achieve the purpose of this Agreement and any affected
Project Statements as originally expressed without the invalid,
illegal or unenforceable provision.
m) Counterparts. This Agreement may be executed in multiple counterparts,
each of which taken together shall constitute a single instrument.
n) Entire Agreement. The provisions of the Contract Documents, as in
effect from time to time by their terms, constitute the entire
agreement between the parties and supersede all prior agreements, oral
or written, and all other communications relating to the subject
matter of the Contract Documents. Any terms contained in invoices,
acknowledgments, shipping instructions, or other forms that are
inconsistent with or different from the terms of the Contract
Documents shall be void and of no effect.
(Signature Page Follows)
SIGNATURES. The parties have caused this Agreement to be executed by
their duly Authorized Representatives.
Vicinity Corporation AltaVista Company
Print Name______________________ Print Name__________________________
Print Title_____________________ Print Title_________________________
VICINITY - PROPRIETARY INFORMATION
The bottom of each web page that displays any Vicinity Content must have the
following hyper-linked notice: "Powered by Vicinity Corporation". The notice
must hyperlink to a web page that displays the Vicinity URL `www.vicinity.com'.
Each map containing data from or derived from Geographic Data Technology
supplied data will display the following copyright notice: "Map Data, GDT, Inc.
The bottom of each web page that displays a Canadian map image will include the
following notice: "(C) 1999 Desktop Mapping Technologies Inc." The bottom of
each web page that displays a European map image will include the following
notice: "NAVTECH(TM) and (C) 1999 Navigation Technologies B.V. All rights
reserved. Some portions (C) 1999 AND-USA, Inc."
Each driving directions display that uses Navigation Technologies data will
include the following trademark and copyright notices conspicuously displayed
within the image: "NAVTECH and (C) 1999 Navigation Technologies. All rights
The bottom of each web page that displays any Vicinity Content will include the
following notice: "(C) 1999 Vicinity Corporation. All rights reserved. Terms
displays Vicinity's then-current public end user terms and conditions of use.
Such terms and conditions will be subject to change by Vicinity and its
licensors at any time and from time to time.
PROJECT STATEMENT NO. 1
the MASTER AGREEMENT No. 00400154
VICINITY CORPORATION and ALTAVISTA COMPANY
This Project Statement No. 1 entered into on January 11, 2000 and
incorporates all terms and conditions in the Master Agreement No. 00400154 dated
January 11, 2000 between the Vicinity Corporation ("Vicinity") and AltaVista
Vicinity will provide its Brand Finder services to Alta Vista for use on Alta
Vista's Shopping.com shopping engine located at the following URL:
http://shopping.altavista.com/home. The parties forecast a "go live" date of
February 28, 2000.
II. Project Managers
Alta Vista Vicinity
Gannon Giguiere Marty Himmelstein
111 Theory 115 Etna Road
Irvine, CA 92679 Lebanon, NH 03766
A. Annual License Fee for Brand Finder Services
AltaVista shall pay Vicinity an annual license fee of * * * * for the
Brand Finder services; provided, however, that Vicinity will waive this
fee for the first year provided this Project Statement is signed by Alta
Vista and returned to Vicinity on or before January 11, 2000.
B. Customer Fees
If AltaVista elects to participate in Vicinity's Channel Partner
Program, the following compensation shall be paid by Vicinity to
1. Referral Fees - Subject to the terms and conditions of the Channel
Partner Program, AltaVista will receive * * * * of the fees (of the
first 12 months) received by Vicinity from customers that were
referred by AltaVista.
2. Integration Partner Fees - Subject to the terms and conditions of
the Channel Partner Program, AltaVista will receive * * * * of the
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
by Vicinity during the first twelve months and * * * * of the fees
received in the subsequent years from customers recruited by
Vicinity represents and warrants to AltaVista that as of the date
hereof no other Internet portal has been afforded a more favorable
compensation arrangement with respect to the Channel Partner Program
than that outlined above.
C. Revenue Splits
1. Priority Listing - Vicinity agrees to pay AltaVista * * * * of all
Net Revenue (as defined) received from its customers for priority
listings on the Shopping.com site. For purposes of the foregoing,
"Net Revenue" shall mean all revenue received by Vicinity net of all
Vicinity third party expenses directly related to obtaining such
priority listing; provided that in no event shall such Vicinity
expenses exceed 35% of Net Revenue.
2. Banner Ads or Other Advertising - AltaVista agrees to pay Vicinity
* * * * of all Net Revenue (as defined) received for banner ads or
other advertising on the Shopping.com site that contains Vicinity
content. For purposes of the foregoing, "Net Revenue" shall mean
all revenue received by AltaVista net of all third party expenses
and costs directly related to providing such banner ads or other
advertising including, but not limited to, third party sales
commissions and ad serving fees. Such third party expenses and
costs will not exceed similar third party costs and expenses
related to banner ads and other advertising across the
IV. Press Releases
The parties agree to issue one or more press releases related to this Project.
The parties currently contemplate that they will issue a press release upon
execution of the Master Agreement, and another Press Release upon implementation
of the Brand Finder services on the Shopping.com site. The press releases will
emphasize unique customer benefits and CMGI keiretsu benefits, and will feature
quotes from upper level management of both companies.
V. Project Deliverables
Vicinity will use good faith efforts to provide its Brand Finder services for
the AltaVista Shopping.com site on or before February 28, 2000. Such forecast
date is subject to AltaVista providing Vicinity the required data and assistance
in a timely manner.
This Project Statement shall be for a term of one (1) year from the date the
Project Statement is executed by the parties, and shall automatically renew for
additional one (1) year periods unless either party provides the other with
written notice of termination at
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
least ninety (90) days or more prior to the end of the then current term, or
this Project Statement or the Master Agreement is terminated as otherwise
This Project Statement may be terminated as provided above, or as provided for
in the Master Agreement.
IN WITHNESS WHEREOF, the parties have caused the Project Statement to be
executed by their duly authorized representatives.
Vicinity Corporation AltaVista Company
Print Name________________________ Print Name________________________
Print Title_______________________ Print Title_______________________