CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
ASTERISK * DENOTES SUCH OMISSIONS.
WEBSITE LINKING AND PROMOTION AGREEMENT
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Dated as of April 22, 1998 Agreement No. DEN-980416-5204
("Effective Date")
MediaOne of Delaware, Inc. PI Graphix, Inc.
and/or ("PI Graphix")
MediaOne, Inc.
("MediaOne")
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Phone: ▇▇▇.▇▇▇.▇▇▇▇
Phone: ▇▇▇.▇▇▇.▇▇▇▇ Fax: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇ E-Mail Address:
E-Mail Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
This Agreement may refer to PI Graphix or to MediaOne as a "Party" or PI Graphix
and MediaOne together as "Parties" to this Agreement.
1. PURPOSE. MediaOne provides an entertainment, education, and information
service as a part of its MediaOne Business Broadband Information Service
("MediaOne Service") on numerous sites ("MediaOne Sites") on the World Wide Web
("WWW") part of the Internet. PI Graphix provides electronic commerce systems
and related information services on the WWW ("PI Graphix Site(s)"). MediaOne and
PI Graphix desire to provide links to the other's sites (collectively "Sites")
and engage in other activities on the terms and conditions set forth in this
Agreement.
2. RESPONSIBILITIES OF THE PARTIES.
2.1. Linking.
(a) PI Graphix shall:
(i) Manage, maintain, handle all electronic commerce transaction, and
provide all customer services relating to PI Graphix's sites.
(ii) Establish and maintain prominent hypertext links ("Site links")
from the PI Graphix Sites to the MediaOne Sites maintained by PI
Graphix as mutually agreed to by the Parties;
(iii) Provide a logo and hypertext mark-up language ("HTML") that
together shall be displayed in the PI Graphix area of the MediaOne
Site ("PI Graphix Button");
(iv) Use reasonable commercial efforts to provide MediaOne monthly
sales, usage and demographic data available regarding use of the Sites
in relevant categories; and,
(v) Work with MediaOne, on an ongoing basis, to identify areas within
the PI Graphix site where it would be appropriate to provide Site
links to the MediaOne Sites based on users seeking local information
of a type included in the MediaOne Sites.
(b) MediaOne shall:
(i) In cooperation with PI Graphix, produce Co-branded versions of the
Media One Sites' to be maintained on the MediaOne servers for users to
have access to the PI Graphix Site. Such Co-branded Pages shall
include a graphic provided by PI Graphix to be displayed in the size
agreed to by the parties and will be similar in all respects to the
primary MediaOne home pages with the
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(Linking and Promotion Agreement)
exception of the addition of the prominently placed PI Graphix logo.
The information accessed through the Co-branded Pages will include but
not be limited to: the PI Graphix ▇▇▇▇▇▇▇▇▇▇.▇▇▇ areas and related
information and sites. The Co-branded Pages shall provide a Site link
back to the PI Graphix site of origin. A "Back Button" shall be used
to accomplish the Site links back. Such Back Buttons shall be
comprised of a graphic provided by PI Graphix and shall be displayed
in the size specified by PI Graphix;
(ii) Establish and maintain prominent Site links from its MediaOne
Sites to PI Graphix Site including but not limited to: the PI Graphix
area in the format of the PI Graphix Button and as mutually agreed to
by the Parties;
(iii) Work with PI Graphix, on an ongoing basis, to identify areas
within the MediaOne Site where it would be appropriate to provide Site
links to the PI Graphix Sites based on users seeking information of a
type included in the PI Graphix's Sites; and,
(iv) Use reasonable commercial efforts to provide PI Graphix monthly
usage and demographic data available regarding use of the PI Graphix
Sites in relevant categories.
2.2. Licenses. Each Party grants to the other Party during the term of this
Agreement a non-exclusive, royalty-free, world-wide right and license to use its
trade names, trademarks, service names and service marks ("Marks") in compliance
with any guidelines which may be provided from time to time. Such use shall be
solely in connection with the MediaOne Site and PI Graphix Sites, including, but
not limited to, use for promotion and demonstration purposes. Each Party agrees
to maintain a standard of quality for any services offered under the other
Party's Marks commensurate with standards previously achieved and maintained by
the other Party or as may be set by the other Party from time to time. Each
Party has the right to inspect the services offered by the other Party under the
inspecting Party's Marks and may terminate this trademark license grant
immediately at its sole discretion. The Parties agree to cooperate with the
other in facilitating the monitoring and control of the other's Marks. Nothing
in this Agreement shall be deemed to grant to the other Party any ownership
interest in the Marks.
2.3. Promotional Efforts.
(a) The Parties agree to work together in identifying and pursuing
promotional activities designed to enhance the value of their respective
Sites. These efforts may include the development of a joint co-marketing
program that will allow each Party to access the other's customers/clients,
participation in public relations activities, use of each other's Marks on
specific targeted creative advertising executions, press releases, agreed
upon advertising placement within each other's Sites, and other promotions
that benefit both Parties. MediaOne will be responsible for the placement
and promotion of banners, editorials, hyperlinks, etc., within MediaOne's
local commerce community. PI Graphix will provide MediaOne with the
graphics for Banners and hyperlinks and with raw data and research
material.
(b) Each Party will submit to the other Party, for its prior written
approval, which shall not be unreasonably withheld or delayed, any
marketing, advertising, press releases, and all other promotional materials
related to the MediaOne Sites or the PI Graphix Sites that reference the
other Party and/or its Marks (the "Materials"). Each Party shall solicit
and reasonably consider the views of the other Party in designing and
implementing such Materials. Once approved, the Materials (other than press
releases) may be used by a Party for the purpose of promoting the MediaOne
Sites or the PI Graphix Sites contained therein and reused for such purpose
until such approval is withdrawn with reasonable prior notice. In the event
such approval is withdrawn (which either Party may do at its sole
discretion), existing inventories of Material may be depleted.
Notwithstanding the foregoing, either Party may issue press releases and
other disclosures as required by law or as reasonably advised by legal
counsel without the consent of the other Party and, in such event, prompt
notice thereof shall be provided to the other Party.
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(Linking and Promotion Agreement)
2.4. General.
(a) Each Party shall be solely responsible for supplying and managing its
Site(s) at its own expense and neither Party shall have any obligations
whatsoever with respect to the Site(s) of the other. Each Party shall
manage, review, delete, edit, create, update and otherwise manage all
content and services available on or through its respective Site(s).
Neither Party has any obligation to the other Party to pre-screen content
posted by users of its Site(s).
(b) Neither Party shall be required to provide any personal information
regarding specific users, including, without limitation, their names and
addresses or any other information the provision of which could violate any
privacy or other rights of users or third-parties. Neither Party will be
required to include in any reports any information the provision of which
to the other would cause such Party to violate any law, rule or regulation
or any contractual or legal obligation of such Party to any other person.
(c) Each Party shall: (i) provide the other with specified graphic files
and Site link addresses and notify the other in advance of any changes in
its URL(s) and, (ii) if developed and maintained by a Party, provide a Site
link from such Party's appropriate business alliance index (or similar link
listing index) to the other Party's Site(s).
(d) Each Party shall promptly inform the other of (i) any information
related to its Site(s) that could reasonably lead to a claim, demand, or
liability of or against the other Party by any third-party; and (ii) any
changes in its Sites which would substantially change the content in any
area to which the other Party has linked.
(e) Each Party retains the right, in its sole discretion, to immediately
cease linking to the other Party's Site(s) if in such Party's opinion, the
other Party's Site(s) infringes on or violates any applicable law or
regulation; any proprietary right of any third-party; or is defamatory,
obscene, offensive or controversial. Notwithstanding any exercise of, or
failure to exercise, such right, each Party shall have the sole and
exclusive responsibility for its respective Site(s).
(f) Neither Party will place advertising on the Co-branded Pages for
entities which are direct competitors of the other (such as other
high-speed Internet service providers, cable service providers or providers
of locally focused online entertainment, education and information services
which are not owned or controlled by the Party) or advertising for weapons,
tobacco products, distilled spirits, or services related to sexual themes
or content.
(g) PI Graphix shall retain all right, title, and interest in and to the PI
Graphix Sites. MediaOne shall retain all right, title, and interest in and
to the MediaOne Site. Unless otherwise agreed to in writing, if content is
jointly created by the Parties, the intellectual property rights to such
content shall be jointly owned by the Parties. Neither Party shall license
to any third-party such jointly owned content without the other's written
approval.
2.5. Caching. PI Graphix hereby grants to MediaOne during the term of this
Agreement a nonexclusive, royalty-free, worldwide license to reproduce,
distribute, perform and display, in whole or in part, the content on the PI
Graphix site on, from, and in connection with, any MediaOne Sites and for
promotion and demonstration purposes.
3. FEES/PAYMENT.
3.1. The Parties agree to make payments as set forth in the Fee/Payments
Schedule attached hereto.
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(Linking and Promotion Agreement)
3.2. Other than for payments of fixed amounts, payment of all amounts due under
this Agreement shall be made by the responsible Party within thirty (30) days of
the end of each quarter representing payments for the preceding calendar quarter
when such payments accumulate to or exceed one hundred dollars ($100.00) or
within thirty (30) days of from the expiration or termination of the Agreement.
Reports containing sufficient information for the calculation of such amounts
will be provided to the Party receiving payment. In the event there is a dispute
regarding the amount due, upon reasonable request, a Party will provide copies
of all records or other documentation relevant to the calculation of such
amounts. The Parties agree to maintain records supporting fees payable by either
Party for a period of three (3) years following the date that the payment was
made. The relevant portion of such records and accounts shall be available for
inspection and audit by an auditing Party or its representative (but not more
than once in any twelve (12) month period) during regular business hours and
upon reasonable advance written notice.
3.3. Each Party agrees to pay directly taxes it incurs under the law.
4. TERM/TERMINATION.
4.1. The initial term of this Agreement shall begin on the Effective Date and
shall continue for a period of one (1) year from the date the Co-branded pages
and the Back Button are operational ("Initial Term"). This Agreement shall be
automatically extended for successive one (1) year periods (each a "Renewal
Term") unless the Agreement has been terminated in accordance with this Section
4.
4.2. Either Party may terminate this Agreement at any time in the event of a
material breach by any of the other Parties which remains uncured after fifteen
(15) days' written notice thereof. Either Party may terminate this Agreement for
any reason, in whole or in part, without liability to the other Party upon
thirty (30) days written notice to the other Party, which such termination shall
not be effective until the commencement of the next Renewal Term hereof, unless
otherwise agreed to by the Parties.
4.3. Notwithstanding anything to the contrary herein, upon written notice,
either Party may immediately terminate this Agreement, in whole or in part,
without liability to the other Party if such Party cancels their Site(s) or any
component thereof necessary to offer the Site links as contemplated hereby.
5. CONFIDENTIALITY.
5.1. Each Party acknowledges and agrees that any and all information relating to
the other Party's business and not publicly known, including without limitation,
the contents of this Agreement, technical processes and formulas, source codes,
names, addresses and information about users and advertisers, product designs,
sales, costs and other unpublished financial information, product plans, and
marketing data is confidential and proprietary information. Each Party agrees
that it shall take reasonable steps, at least substantially equivalent to the
steps as it takes to protect its own proprietary information, during the term of
this Agreement, and for a period of one (1) year following expiration or
termination of this Agreement, to prevent the duplication or disclosure of any
such confidential or proprietary information, other than by or to its employees
or agents who must have access to such information to perform such Party's
obligations hereunder, who shall each treat such information as provided herein,
and as may be required by either of the Parties for public or private financing.
To the extent that such information is publicly known, already known by, or in
the possession of the non-disclosing Party; is independently developed by the
non-disclosing Party; is thereafter rightly obtained by the non-disclosing Party
from a source other than the disclosing Party; or is required to be disclosed by
law, regulation, or court order; then there shall be no restriction of the use
of such information.
5.2. Upon the termination or expiration of this Agreement, (i) each Party shall
promptly return or certify as to the destruction of all confidential and
proprietary information and other information, documents, manuals, equipment and
other materials belonging to the other Party; (ii) each Party shall immediately
cease using all materials of the other Party in any form, and (iii) all licenses
granted herein shall terminate. In the event of a
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(Linking and Promotion Agreement)
partial termination, all terms and conditions of this Agreement shall remain in
full force and effect with respect to rights and obligations not affected by the
partial termination.
6. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
6.1. Representations and Warranties. Each Party represents and warrants to the
other that (i) its Site(s) are or will be functional Internet site(s) accessible
to subscribers and users of the Internet; (ii) the Sites do not and will not
contain any content, materials, advertising or services that infringe on or
violate any applicable law or regulation, any proprietary right of any
third-party (including copyright, trademark, patent, and trade secret), or which
is defamatory, obscene or offensive; (iii) it has the right and authority to
enter into and perform all obligations under this Agreement; and (iv) it shall
comply with all applicable laws, statutes, ordinances, rules and regulations
with respect to its Site(s). In the event of an error, delay, defect, breakdown
or failure of its Site, the Party's obligation shall be limited to the use of
reasonable diligence under the circumstances to restore its Site(s) to
operation.
6.2. Indemnity. Each Party will defend, indemnify, save and hold harmless the
other Party's Affiliates, and their officers, directors, agents, and employees
from any and all third-party claims, demands, liabilities, costs or expenses,
including reasonable attorney's fees ("Liabilities"), resulting from the
indemnifying Party's breach of any material duty, representation, or warranty
contained in this Agreement, except there shall be no obligation to indemnify,
defend, save and hold harmless where Liabilities result from the gross
negligence or knowing and willful misconduct of the other Party. Each Party
agrees to (i) promptly notify the other Party in writing of an indemnifiable
claim and (ii) give the other Party the opportunity to defend or negotiate a
settlement of any such claim at such other Party's expense and cooperate fully
with the other Party, at that other Party's expense, in defending or settling
such claim. Each Party reserves the right, at its own expense, to participate in
the defense of any matter otherwise subject to indemnification by the other
Party.
7. LIMITATION OF LIABILITY AND DISCLAIMER.
7.1. Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY SET
FORTH IN THIS AGREEMENT OR DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR (1) DIRECT DAMAGES IN
EXCESS OF FIVE THOUSAND DOLLARS ($5,000.00); OR (2) ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, SUCH
AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS,
EXCEPT THAT EITHER PARTY SHALL BE ENTITLED TO RECEIVE CONSEQUENTIAL DAMAGES FOR
A BREACH OF SECTION 5 (CONFIDENTIALITY) OR BREACH OF ANY LICENSES GRANTED UNDER
THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED FIVE THOUSAND DOLLARS ($5,000.00).
7.2. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER SUBJECT
TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
8. GENERAL PROVISIONS.
8.1. Amendment. No change, amendment or modification of any provisions of this
Agreement shall be valid unless set forth in a written instrument signed by all
Parties. This Agreement sets forth the entire agreement and supersedes any and
all prior agreements, written or oral, of the Parties with respect to the
transactions set forth herein.
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(Linking and Promotion Agreement)
8.2. Assignment. Neither this Agreement, nor any rights hereunder in whole or in
part, shall be assignable or otherwise transferable by either Party without the
express written consent of the other; provided that MediaOne may assign this
Agreement: (i) to any successor in interest to all or substantially all of its
Service, (ii) to any parent, subsidiary, or Affiliate of MediaOne, and/or (iii)
to any joint venture with Time Warner for the provision of broadband information
services, if such assignee agrees in writing to be bound by the terms and
conditions of this Agreement. For purposes of this Agreement, the term
"Affiliate" means any entity wholly owned by MediaOne or which, directly or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, MediaOne. For purposes of this paragraph,
"control" means (i) in the case of corporate entities, direct or indirect
ownership of more than twenty (20%) of the stock or shares entitled to vote for
the election of the board of directors or other governing body of the entity; or
(ii) in the case of non-corporate entities, direct or indirect ownership of more
than twenty (20%) of the equity interest.
8.3. Compliance with Laws. This Agreement and the Parties' actions under this
Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental or regulatory agency orders.
8.4. Construction. In the event that any provision of this Agreement conflicts
with the law under which this Agreement is to be construed, or if any such
provision is held invalid by a court with jurisdiction over the Parties to this
Agreement, such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with applicable
law, and the remainder of this Agreement shall remain in full force and effect.
8.5. Dispute Resolution. Any claim, controversy, or dispute between the Parties,
their Affiliates, their approved assignees, agents, employees, officers, or
directors ("Dispute") shall be resolved by arbitration conducted by a single
arbitrator engaged in the practice of law and familiar with the subject matter
of the Dispute, under the then current rules of the American Arbitration
Association ("AAA"). The Federal Arbitration Act, 9 U.S.C. ▇▇.▇▇.. 1-16, not
state law, shall govern the arbitrability of all Disputes. The arbitrator shall
have authority to award injunctive relief and/or compensatory damages only, as
allowed herein. The arbitrator's award shall be final and binding and may be
entered in any court having jurisdiction thereof. The prevailing Party, as
determined by the arbitrator, shall be entitled to an award of reasonable
attorneys' fees and costs. The arbitration shall occur in the City and State of
the Party against whom the arbitration is brought, and the laws of such state
shall govern the construction and interpretation of the Agreement. It is
expressly agreed that the arbitrator shall be authorized to issue injunctive
relief pending a final arbitration decision and either Party may seek relief in
an appropriate court of law to enforce such determination by an arbitrator.
Either Party may seek a temporary restraining order from an appropriate court of
law for a period of time needed for the designation of an arbitrator and the
arbitrator's assuming responsibility for the Dispute including whether to issue
injunctive relief pending a final arbitration decision.
8.6. Independent Contractors. The Parties to this Agreement are independent
contractors. No Party is an agent, representative, or partner of the other
Party. No party shall have any right, power or authority to enter into any
agreement for, or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
8.7. No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party, of any provision of this Agreement, or to
exercise any right under this Agreement, shall not be construed as a waiver or
relinquishment of such Party's right to enforce any such provision or right in
any other instance.
8.8. Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail; (ii) on the delivery date if delivered personally
to the Party to whom the same is directed; (iii) one (1) business day after
deposit with a commercial overnight carrier with written
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(Linking and Promotion Agreement)
verification of receipt; or (iv) five (5) business days after the mailing date
whether or not actually received, if sent by U. S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available to the Contact at the address of the
Party to whom the same is directed.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
MediaOne PI Graphix
Signatory: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Signatory: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------- -----------------------
Title: Director Programming Title: President
--------------------------- ---------------------------
Date: 4/25/98 Date: April 22, 1998
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(Linking and Promotion Agreement)
FEE/PAYMENT SCHEDULE
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[* * *](1)
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(1) Omitted pursuant to a request for confidential treatment.
