INTERNET INFOSPACECANADA CONTENT (WORLD WIDE WEB SITE)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, dated as of August 31, 1999 (the "Effective Date'), is made by
and between ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation
("InfoSpaceCanada"), a wholly owned subsidiary of ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
("InfoSpace"), with offices at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
Quotes Canada Inc., a , with offices at
.
RECITALS
This Agreement is entered into with reference to the following facts:
A. InfoSpaceCanada is a wholly owned subsidiary of InfoSpace and,
through InfoSpace, maintains on certain locations of its Web Sites (as defined
below) and makes available to Internet users certain content, resources,
archives, indices, catalogs and collections of information (collectively, such
materials are identified in Exhibit A and referred to herein as the "Content").
B. InfoSpaceCanada wishes to grant certain rights and licenses to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. with respect to access to the Content and certain other
matters, and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. wishes to grant certain rights and licenses
to InfoSpaceCanada with respect to the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites (as
defined below) and certain other matters, as set forth in this Agreement.
AGREEMENT
The parties agree as follows:
Section 1. Definitions
As used herein, the following terms have the following defined meanings:
"Advertising Revenue" is defined on Exhibit C.
"Banner Advertisement" means a rotating banner advertisement of
approximately 468x60 pixels located at the top and/or bottom of a Web Page.
"Co-branded Pages" means, collectively, Query Pages and Results Pages.
"▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks" means those Trademarks of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Inc. set forth on Exhibit B hereto and such other Trademarks (if any) as
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. may from time to time notify InfoSpaceCanada in writing to
be "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks" within the meaning of this Agreement.
"▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites" means, collectively, all Web Sites
maintained by or on behalf of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. and its affiliates.
"Graphical User Interface" means a graphical user interface, to be designed
by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. and InfoSpaceCanada and implemented by InfoSpaceCanada
pursuant to the terms of this Agreement, that contains or implements branding,
graphics, navigation, content or other characteristics or features such that a
user reasonably would conclude that such interface is part of the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites.
"Impression" means a user's viewing of any discrete screen of a Co-branded
Page containing any Banner Advertisement.
"InfoSpaceCanada Marks" means those Trademarks of InfoSpaceCanada (if any)
set forth on Exhibit B hereto, including prospective Marks and parent company
Marks, and such other Trademarks as InfoSpaceCanada may from time to time notify
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. in writing to be "InfoSpaceCanada Marks" within the
meaning of this Agreement.
"InfoSpaceCanada Web Sites" means, collectively: (a) the Web Site the
primary home page of which is located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and (b)
other Web Sites maintained by InfoSpaceCanada and its affiliates.
"Intellectual Property Rights" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of the jurisdiction.
"Person" means any natural person, corporation, partnership, limited
liability ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. or other entity.
"Query Page" means any page hosted on the InfoSpaceCanada Web Sites which
incorporates the Graphical User Interface and on which users may input queries
and searches relating to the Content.
"Results Page" means any page hosted on the InfoSpaceCanada Web Sites which
incorporates the Graphical User Interface and displays Content in response to
queries and searches made on a Query Page.
"Trademarks" means any trademarks, service marks, trade dress, trade names,
corporate names, proprietary logos or indicia and other source or business
identifiers.
"Web Site" means any point of presence maintained on the Internet or on any
other public data network. With respect to any Website maintained on the World
Wide Web, such Website includes all HTML pages (or similar unit of information
presented in any relevant data protocol) that either (a) are identified by the
same second-level domain (such as ▇▇▇▇▇▇▇▇▇.▇▇▇) or by the same equivalent level
identifier in any relevant address scheme, or (b) contain branding, graphics,
navigation or other characteristics such that a user reasonably would conclude
that the pages are part of an integrated information or service offering.
2. Certain Rights Grants.
2.1 InfoSpaceCanada Grant. Subject to the terms and conditions of this
Agreement, InfoSpaceCanada hereby grants to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. the following
rights:
(a) the right to include on the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites
hypertext links (whether in graphical, text or other format) which enable "point
and click" access to locations of the InfoSpaceCanada Web Sites specified by
InfoSpaceCanada (and subject to change by InfoSpaceCanada from time to time);
and
(b) the right to permit users to link to Results Pages via Query
Pages hosted on the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites.
2.2 ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Grant. Subject to the terms and conditions
of this Agreement, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. hereby grants InfoSpaceCanada the
following rights:
(a) the right to include on the InfoSpaceCanada Web Sites
hypertext (whether in graphical, text or other format) which enable "point and
click" access to locations on the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites specified by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. (and subject to change by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. from time
to time); and
(b) the right to sell and serve Banner Advertisements directly on
the Co-branded Pages as provided in Section 4; and
(c) the right to track the number of Impressions.
2.3 Limitations. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. and its affiliates shall have
no right to reproduce or sub-license, re-sell or otherwise distribute all or any
portion of the Content to any Person via the Internet (including the World Wide
Web) or any success public or private data network. This Agreement and delivery
of the Content or any portion hereunder to Company shall not cause
InfoSpaceCanada to be in violation of any laws of any jurisdiction or third
party agreement, and InfoSpaceCanada may modify the Content if necessary in
InfoSpaceCanada's sole discretion to avoid any such potential violation. In
addition, neither party shall have any right to: (a) edit or modify any Banner
Advertisements submitted for a Co-branded Page (but without limiting
InfoSpaceCanada's right to reject any Banner Advertisements pursuant to this
Agreement); or (b) remove, obscure or alter any notices of Intellectual Property
Rights appearing in or on any materials (including Banner Advertisements)
provided by the other party.
2.4 ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks License. Subject to Section 2.6,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. hereby grants InfoSpaceCanada the right to use, reproduce,
publish, perform and display the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks: (a) on the
InfoSpaceCanada Web Sites in connection with the posting of hyperlinks to the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites; (b) in and in connection with the development,
use, reproduction, modification, adaptation, publication, display and
performance of the Graphical User Interface and Results Pages; and (c) in
promotional marketing materials, content directories and indexes, and electronic
and printed advertising, publicity, press releases, newsletters and mailings
about InfoSpaceCanada.
2.5 InfoSpaceCanada Marks License. Subject to Section 2.6,
InfoSpaceCanada hereby grants the right to use, reproduce, publish, perform and
display the InfoSpaceCanada Marks: (a) on the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites in
connection with the posting of hyperlinks to the InfoSpaceCanada Web Sites; (b)
in and in connection with the development, user, reproduction in promotional and
marketing materials, content directories and indexes, and electronic and printed
advertising, publicity, press releases, newsletters and mailings about
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
2.6 Approval of Trademark Usage. InfoSpaceCanada shall not use or
exploit in any manner any of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks, and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. shall not use or exploit in any manner any of the
InfoSpaceCanada Marks, except in such manner and media as the other party may
consent to in writing, which consent shall not be unreasonably withheld or
delayed. Either party may revoke or modify any such consent upon written notice
to the other party.
2.7 Non-exclusivity. Each party acknowledges and agrees that the
rights granted to the other party in this Agreement are non-exclusive, and that,
without limiting the generality of the foregoing, nothing in this Agreement
shall be deemed or construed to prohibit either party from participating in
similar business arrangements as those described herein including soliciting
third party advertisements or other materials, serving advertisements or other
materials to third parties' Web Sites, or hosting or permitting third parties to
place advertisements on such party's Web Site, whether or not, in each such
case, such advertisements are competitive with the products, services or
advertisements of the other party.
3. Certain Obligations of the Parties.
3.1 Graphical User Interface and Co-branded Pages. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Inc. and InfoSpaceCanada will cooperate to design the user-perceptible elements
of the Graphical user Interface, with the goals of: (a) conforming the display
output of the "look and feel" associated with the applicable ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Inc. Web Sites; and (b) maximizing the commercial effectiveness thereof.
Following agreement by the parties upon the design specifications thereof,
InfoSpaceCanada will use commercially reasonable efforts to develop the
Graphical User Interface and to implement the same on Co-branded Pages.
InfoSpaceCanada shall have no liability or obligations for failure to develop or
implement the Graphical User Interface or any Co-branded Pages, as contemplated
by this Section 3.1, or for any nonconformity with the design specifications
agreed upon by the parties, provided InfoSpaceCanada has used commercially
reasonable efforts to develop and implement the same as provided in this Section
3.1.
3.2 ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Obligations. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. shall
integrate links to pages of the InfoSpaceCanada Web Sites determined by
InfoSpaceCanada (and subject to change by InfoSpaceCanada from time to time) on
the primary home page for each of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Web Sites. In
addition, the InfoSpaceCanada logo and at least one other link pointing to pages
on the InfoSpaceCanada Web Sites specified by InfoSpaceCanada (and subject to
change by InfoSpaceCanada from time to time) will be present on all Co-branded
Pages. Each link contemplated by this Section 3.2 shall be: (a) prominent in
relation to links to other Web Sites on the applicable page (and in any event at
least as prominent as any link to any third party Web Site); and (b)
above-the-fold (i.e. immediately visible to any user accessing the applicable
page without the necessary of scrolling downward or horizontally).
3.3 Accessibility of Web Sites. Each party will use commercially
reasonable efforts to ensure accessibility of its Web Sites (including, in the
case of InfoSpaceCanada, the accessibility of the Content).
3.4 Impression Information. InfoSpaceCanada shall track and allow the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. to remotely access in electronic form information
maintained by InfoSpaceCanada concerning the number of Impressions.
3.5 Publicity. The parties may work together to issue publicity and
general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall have
any obligation to do so. In addition, neither party shall issue such publicity
and general marketing communications concerning their relationship without the
prior written consent of the other party (not to be unreasonably withheld).
Neither party shall disclose the terms of this Agreement to any third party
other than its outside counsel, auditors, and financial advisors, except as
required by law.
4. Advertising and Revenue Share.
4.1 Placement of Banner Advertisements. In addition to the terms and
conditions otherwise set forth in this Agreement, Banner Advertisements on the
Co-branded Pages shall be governed by the terms and conditions set forth on
Exhibit C.
4.2 Remuneration. All amounts payable under this Agreement are
denominated in Canadian dollars. Other than as explicitly stated on Exhibit C,
InfoSpaceCanada shall have no obligation to share with, allow ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Inc. to sell, or account to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. regarding, any sums received
by InfoSpaceCanada or any of its affiliates from any advertisements or
promotions on any of the InfoSpaceCanada Web Sites (including, without
limitation, any of the Co-branded Pages), including, without limitation, any
Banner Advertisements thereon.
5. Warranties, Indemnification and Limitation of Direct Liability.
5.1 Warranties.
Each party to this Agreement represents and warrants to the other party
that:
a) it has the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder;
b) its execution of this Agreement by such party and performance of its
obligations hereunder, do not and will not violate any agreement to which it is
a party or by which it is bound;
c) when executed and delivered, this Agreement will constitute the legal,
valid and binding obligation of such party, enforceable against it in accordance
with its terms; and
d) its Web Sites and the content contained therein, and all Banner
Advertisements served or submitted by it to the Co-branded Pages, as the case
may be, will not contain any material that is obscene, libelous or defamatory,
or infringing of any Intellectual Property Rights or other rights of any third
party.
5.2 Indemnification. Each party (the "Indemnifying Party") will
defend, indemnify and hold harmless the other party (the "Indemnified Party"),
and the respective directors, officers, employees and agent of the Indemnifying
Party, from and against any and all claims, costs, losses, damages, judgments
and expenses (including reasonable attorneys' fees) arising out of or in
connection with any third-party claim alleging any breach of such party's
representations or warranties or covenants set forth in this Agreement. The
Indemnified Party agrees that the Indemnifying Party shall have sole and
exclusive control over the defense and settlement of any such third party claim.
However, the Indemnifying Party shall not acquiesce to any judgment or enter
into any settlement that adversely affects the Indemnified Party's rights or
interests without prior written consent of the Indemnified Party. The
Indemnified Party shall promptly notify the Indemnifying Party of any such claim
of which it becomes aware and shall: (a) at the Indemnifying Party's expense,
provide reasonable cooperation to the Indemnifying Party in connection with the
defense or settlement of any such claim; and (b) at the Indemnified Party's
expense, be entitled to participate in the defense of any such claim.
5.3 Limitation of Liability; Disclaimer.
(a) Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS INFOSPACECANADA'S
LIABILITY (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING
ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR
STRICT LIABILITY OF INFOSPACECANADA) UNDER THIS AGREEMENT OR WITH REGARD TO ANY
OF THE PRODUCTS OR SERVICES RENDERED BY INFOSPACECANADA UNDER THIS AGREEMENT
(INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR
PROVIDED BY INFOSPACECANADA OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE
CO-BRAND PAGES), THE INFOSPACECANADA WEB SITES AND ANY OTHER ITEMS OR SERVICES
FURNISHED UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE COMPENSATION PAID BY
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC. TO INFOSPACECANADA UNDER THIS AGREEMENT.
(b) No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN
EACH CASE, REGARDING THEIR WEB SITES, ANY PRODUCTS OR SERVICES DESCRIBED
THEREON, ANY BANNER ADVERTISEMENTS, OR ANY OTHER ITEMS OR SERVICES PROVIDED
UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC. ACKNOWLEDGES THAT THE INFOSPACECANADA WEB SITES AND THE
CONTENT (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS
USED OR PROVIDED BY INFOSPACECANADA OR ANY THIRD PARTIES IN CONNECTION WITH
HOSTING THE INFOSPACECANADA WEB SITES OR THE CONTENT OR PERFORMANCE OF ANY
SERVICES HEREUNDER) ARE PROVIDED "AS IS" AND THAT INFOSPACECANADA MAKES NO
WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS WEB SITES IN THEIR CURRENT FORM,
THAT ITS WEB SITES WILL BE ACCESSIBLE WITHOUT INTERRUPTION, THAT THE SITES WILL
MEET THE REQUIREMENTS OR EXPECTATIONS OF THE OTHER PARTY, OR THAT THE CONTENT OR
ANY OTHER ANY MATERIALS ON ITS WEB SITES OR THE SERVERS AND SOFTWARE THAT MAKES
ITS WEB SITES AVAILABLE ARE FREE FROM ERRORS, DEFECTS, DESIGN FLAWS OR
OMISSIONS.
6. Term and Termination.
6.1 Term. The term of this Agreement is as set forth on Exhibit C.
6.2 Termination. Either party may terminate the Term upon not less
than ninety (90) days' prior written notice to the other party of any material
breach hereof by such other party, provided that such other party has not cured
such material breach within such ninety (90) day period.
6.3 Effect of Termination. Upon termination or expiration of the Term
for any reason, all rights and obligations of the parties under this Agreement
shall be extinguished, except that: (a) all accrued payment obligations
hereunder shall survive such termination or expiration; and (b) the rights and
obligations of the parties under Section 4.2, 4.3, 5, 6, 7 and 8 shall survive
such termination or expiration.
7. Intellectual Property.
7.1 ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. As between the parties, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Inc. retains all right, title and interest in and to the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
Web Sites (including, without limitation, any and all content, data, URLs,
domain names, technology, software, code, user interfaces, "look and feel",
Trademarks and other items posted thereon or used in connection or associated
therewith; but excluding any Content or other items supplied by InfoSpaceCanada)
and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks along with all Intellectual Property Rights
associated with any of the foregoing. All goodwill arising out of
InfoSpaceCanada's use of any of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks shall inure
solely to the benefit of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
7.2 InfoSpaceCanada. As between the parties, InfoSpaceCanada retains
all right, title and interest in and to the Content and the InfoSpaceCanada Web
Sites (including, without limitation, any and all content, data, URLs, domain
names, technology, software, code, user interfaces, "look and Feel", Trademarks
and other items posted thereon or used in connection or associated therewith;
but excluding any items supplied by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.) and the
InfoSpaceCanada Marks, along with all Intellectual Property Rights associated
with any of the foregoing. All goodwill arising out of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.'s
use of any of the InfoSpaceCanada Marks shall inure solely to the benefit of
InfoSpaceCanada.
7.3 Copyright Notices. All Co-branded Pages will include the following
acknowledgement, along with the InfoSpaceCanada logo, or other log designated by
InfoSpaceCanada:
"Powered by InfoSpaceCanada" or "Powered by ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"
InfoSpaceCanada and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. acknowledge that the Co-branded
Pages may also contain copyright and patent notices of copyrighted or
copyrightable works, including those of InfoSpaceCanada Content providers.
7.4 Other Trademarks. InfoSpaceCanada shall not register or attempt to
register any of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks or any Trademarks which
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. reasonably deems to be confusingly similar to any of the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. shall not register or
attempt to register any of the InfoSpaceCanada Marks or any Trademarks which
InfoSpaceCanada reasonably deems to be confusingly similar to any of the
InfoSpaceCanada Marks.
7.5 Further Assurances. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 7.
8. General Provisions.
8.1 Confidentiality. Each party (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed or acquired by the
Receiving Party pursuant to or in connection with this agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that each
party may disclose the terms and conditions of this Agreement to its immediate
legal and financial consultants in the ordinary course of its business. Each
party agrees to use commercially reasonable efforts to protect Confidential
Information of the other party, and in any event, to take precautions at least
as great as those taken to protect its own confidential information of a similar
nature. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. acknowledges that the terms of this Agreement are
Confidential Information of InfoSpaceCanada. The foregoing restrictions shall
not apply to any information that: (a) was known by the Receiving Party prior to
disclosure thereof by the other party; (b) was in or entered the public domain
through no fault of the Receiving Party; (c) is disclosed to the Receiving Party
by a third party legally entitled to make such disclosure without violation of
any obligation of confidentiality; (d) is required to be disclosed by applicable
laws or regulations (but in such event, only to the extent required to be
disclosed); or (e) is independently developed by the Receiving Party without
reference to any Confidential Information of the other party. Upon request of
the other party, or in any event upon any termination or expiration of the Term,
each party shall return to the other all materials, in any medium, which
contain, embody, reflect or reference all or any part of any Confidential
Information of the other party. Each party acknowledges that breach of this
provision by it would result in irreparable harm to the other party, for which
money damages would be an insufficient remedy, and therefore, that the other
party shall be entitled to seek injunctive relief to enforce the provisions of
this Section 8.1.
8.2 Independent Contractors. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. and InfoSpaceCanada
are independent contractors under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture, franchise or agency
relationship between ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. and InfoSpaceCanada. Neither party
has any authority to enter into agreements of any kind on behalf of the other
party.
8.3 Assignment. Neither party may assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party, not to be unreasonably withheld; except that
either party may, without the other party's consent, assign this agreement or
any of its rights or delegate any of its duties under this Agreement: (a) to any
affiliate of such party; or (b) to any purchaser of all or substantially all of
such party's assets or to any successor by way of merger, consolidation or
similar transaction. Subject to the foregoing, this Agreement will be binding
upon, enforceable by, and inure to the benefit of the parties and their
respective successors and assigns.
8.4 Choice of Law; Forum Selection. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Washington
without reference to its choice of law rules, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. hereby
irrevocably consents to exclusive personal jurisdiction and venue in the state
and federal courts located in King County, Washington with respect to any
actions, claims or proceedings arising out of or in connection with this
Agreement, and agrees not to commence or prosecute any such action, claim or
proceeding other than in the aforementioned courts.
8.5 Nonwaiver; English Language. No waiver of any breach of any
provision of this Agreement shall constitute a waiver of any prior, concurrent
or subsequent breach of the same o any other provisions hereof, and no waiver
shall be effective unless made in writing and signed by an authorized
representative of the waiving party. The parties acknowledge having expressly
required that this Agreement and all documents relating to it be written in
English. Les parties reconnaissent avoir expressement exige que ce Contrat et
tours les documents s'y rapportant soient rediges en anglais.
8.6 Force Majeure. Neither party shall be deemed to be in default of
or to have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly or
indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, failure of equipment and/or software, other
catastrophes or any other occurrences which are beyond such party's reasonable
control.
8.7 Notices. Any notice or other communication required or permitted
to be given hereunder shall be given in writing and delivered in person, mailed
via confirmed facsimile or e-mail, or delivered by recognized courier services,
properly addressed and stamped with the required postage, to the individual
signing this Agreement on behalf of the applicable party at its address
specified in the opening paragraph of the agreement and shall be deemed
effective upon receipt. Either party may from time to time change the
individual to receive notices or its address by giving the other party notice of
the change in accordance with this section. In addition, a copy of any notice
sent to InfoSpaceCanada shall also be sent to the following address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
8.8 Savings. In the event any provision of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. If any provision of
this Agreement shall, for any reason, be determined by a court of competent
jurisdiction to be excessively broad or unreasonable as to scope or subject,
such provision shall be enforced to the extent necessary to be reasonable under
the circumstances and consistent with applicable law while reflecting as closely
as possible the intent of the parties as expressed herein.
8.9 Integration. This Agreement contains the entire understanding of
the parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements or negotiations between
InfoSpaceCanada and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. concerning the subject matter hereof,
and cannot be amended except by a writing signed by both parties.
8.10 Counterparts; Electronic Signature. This Agreement may be
executed in counterparts, each of which will be deemed an original, and all of
which together constitute one and the same instrument. To expedite the process
of entering into this Agreement, the parties acknowledge that Transmitted Copies
of the Agreement will be equivalent to the original documents until such time as
original documents are completely executed and delivered. "Transmitted Copies"
will mean copies that are reproduced or transmitted via photocopy, facsimile or
other process of complete and accurate reproduction and transmission.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Canada, Inc. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
("▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.") ("InfoSpaceCanada")
By: (signature) By (signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President Title: SVP, Legal Business Affairs
EXHIBIT A
CONTENT
The Content consists of, but is not limited to, the following indices,
directories and other items and services (as the same may be updated, revised or
modified by InfoSpaceCanada in its sole discretion from time to time):
1. Business Finder
2. People Finder
3. Reverse LookUp
4. International Listings
5. Net Community
6. Classifieds
7. Mapping
8. Other items and services mutually pre-determined as agreeable content.
EXHIBIT B
TRADEMARKS
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. Marks
[▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. to supply list of its applicable trademarks]
InfoSpaceCanada Marks
InfoSpace
▇▇▇▇▇▇▇▇▇.▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Powered by InfoSpace
Powered by ▇▇▇▇▇▇▇▇▇.▇▇
Powered by ▇▇▇▇▇▇▇▇▇.▇▇▇
Powered by ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
The Ultimate Directory
The Ultimate Canadian Directory
ActiveShopper
PageExpress
Search Engine For the Real World
The Stuff That Portals Are Made Of
EXHIBIT C
1. Definitions. As used in this Agreement, the following terms have
the following defined meanings:
"Advertising Revenue" means the gross revenues (less any taxes,
commissions and any required fees payable to third parties) received by a party
for delivering Impressions.
"Co-brand Fee" means a monthly nonrefundable sum in the amount of five
hundred CA dollars ($500 CA).
"Impression Threshold" means 300,000 Impressions per month for any
month during the Term of this Agreement.
"Impression Threshold Date" means the first date on which the number
of Impressions meets or exceeds the Impression Threshold.
2. Term. The term of this Agreement shall commenced on the Effective
Date and, unless earlier terminated or extended as provided below, shall end
upon the third anniversary of this Agreement (the "Term"); provided that the
Term shall be automatically be renewed for successive one year periods unless
either party provides written notice of termination to the other party at least
ninety (90) days prior to the end of the then-current Term.
3. Co-brand Fee. The Company will pay to InfoSpace the Co-brand Fee as
follows:
(a) the Co-brand Fee shall be payable as follows: monthly, and the
initial payment shall be the first day of the month following the date when the
Co-branded Pages are generally accessible to the public; and
(b) the Co-brand Fee for any subsequent time periods shall be payable
on or before the first day of each month.
3. Banner Advertisements. InfoSpaceCanada shall have the exclusive
right to serve and sell Banner Advertisements on the Co-branded Pages. The
appearance of the Banner Advertisements will be as reasonably determined by
InfoSpaceCanada; provided, that InfoSpaceCanada may reject any Banner
Advertisement if such Banner Advertisement would materially adversely affect the
download time or performance of such Co-branded Page. Neither party will submit
for any Co-branded Page any Banner Advertisement which contains any material
that is libellous or defamatory or that infringes any Intellectual Property
Right or other right of any third party.
4. Banner Advertising Revenue Share. The parties will share Banner
Advertising Revenues as follows: InfoSpaceCanada shall remit to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Inc. thirty percent (30%) of the Advertising Revenue received by InfoSpaceCanada
for Banner Advertisements on the Co-branded Pages served on or after the first
day of the first month following the Impression Threshold Date. Advertising
Revenue share payments will be reconciled and paid within thirty (30) days
following the calendar quarter in which the applicable Advertising Revenues are
received by InfoSpace. InfoSpaceCanada will provide with each such payment a
report setting forth Advertising Revenues received by it for such quarter and
the percentage thereof payable to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc.
