Exhibit 10.21
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is entered into this October
28, 1999, and is made effective as of October 15, 1999 (the "EFFECTIVE DATE")
by and between RealNames Corporation ("REALNAMES") and Xxxxxxxxx.xxx, Inc.
("FURNITURE").
1. SPONSORSHIP. RealNames will be a sponsor of Furniture's Web
properties for two years at an aggregate cost of [**] payable in equal quarterly
installments of [**]. Payment shall be made to Furniture within 30 days of the
end of each calendar quarter. In consideration of such payments, Furniture
agrees to include "Internet Keyword: Furniture" or other words mutually
acceptable to both parties and appropriate to Furniture's web properties covered
by this agreement (the "CONTENT") in Furniture's advertising and marketing
activities, including, but not limited to, television, radio, print, direct
mail, software presence, college marketing, and online. Furniture agrees to
include the Content in all such advertising and marketing activities where
reasonably appropriate; provided that the aggregate value of the advertising
carrying the Content ("Qualifying Advertising") shall be no less than [**] per
calendar quarter.
2. SPECIFICATIONS.
(a) TELEVISION. In television advertisements that are Qualifying
Advertising, Furniture shall include the Content as either superimposed text or
voice-over. If included as superimposed text, such text shall be at least eight
point in size and shall be included for a minimum amount of air time so as to
permit a viewer to read the Content. If the Content consists of voice-over, it
shall be included for a minimum amount of air time so as to permit a listener to
hear the Content. The Content shall have a consistent placement in all
television advertisements.
(b) RADIO. In any radio advertisements which are Qualifying
Advertising, Furniture shall include the Content for a minimum amount of air
time so as to permit a listener to hear the Content.
(c) OTHER MEDIA. Furniture shall also include the Content in any
print, direct mail, software presence, college marketing and online marketing
activities that are Qualifying Advertising. The Content shall have a consistent
placement in all such marketing materials, and shall not be confined to body
copy in an advertisement.
(d) SPECIAL PROMOTIONS. The parties will promote use of the Internet
Keyword "Furniture" through various promotional activities, which may include,
but are not limited to: additional software download promotions, sweepstakes,
and promotions to encourage trial of Furniture's Internet Keywords. The parties
will negotiate the terms of the promotions as they arise.
3. DISPUTES. In the event of a dispute, the parties agree to negotiate
in good faith towards resolution thereof, with the general goal of including and
promoting the Content and the appropriate Internet Keywords in all Qualifying
Advertising undertaken by Furniture.
4. TERM AND TERMINATION. This Agreement will commence on the Effective
Date and continue for an initial term that will expire on October 15, 2001
unless earlier terminated as set forth herein.
This Agreement may be terminated immediately for cause by either Party
on written notice to the other Party in the event that the other Party: (a)
ceases to function as a going concern or to conduct its operations in the normal
course of business; or (b) is in material default of its obligations under this
Agreement and fails to cure such default within thirty (30) days after written
notice thereof.
5. GENERAL. As between the parties, except for the payments to made to
Furniture pursuant to Section 1 hereof, Furniture shall be solely responsible
for all costs incurred in procuring and producing the advertisements and
marketing materials hereunder. Each party may disclose the existence of this
Agreement, but agrees that the terms and conditions of this Agreement will be
treated as confidential information; provided, however, that each party may
disclose the terms and conditions of this Agreement: (i) as required by any
court or other governmental body; (ii) as otherwise required by law; (iii) to
legal counsel of the parties; (iv) in confidence, to accountants, banks, and
financing sources and their advisors; (v) in connection with the enforcement of
this Agreement or rights under this Agreement; or (vi) in confidence, in
connection with an actual or proposed merger, acquisition, or similar
transaction. The relationship of RealNames and Furniture established by this
Agreement is that of independent contractors. This Agreement will be governed by
and construed under the laws of the Commonwealth of Massachusetts without
reference to conflict of law principles. This Agreement, together with all
exhibits and attachments hereto, set forth the entire agreement and
understanding of the Parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing signed by the Party to be charged, and the waiver of any
breach or default will not constitute a waiver of any other right hereunder or
any subsequent breach or default. RealNames may not assign this Agreement, or
assign or delegate any right or obligation hereunder, without the prior written
consent of Furniture, except in the case of a sale or other transfer of
substantially all of RealNames's assets or equity, whether by sale of assets or
stock or by merger or other reorganization, provided that the assignee has
agreed in writing to be bound by all the terms and conditions of this Agreement.
Subject to the foregoing sentence, this Agreement shall be binding on each
Party's respective successors and assigns.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
REALNAMES CORPORATION
By: /s/Xxxxxxx X. Xxxx
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Title: Senior Vice President of Marketing
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XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxx
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Title: Vice President, Business Development
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