EXHIBIT 10.12
AMENDED AND RESTATED CONTENT PROVIDER AGREEMENT
THIS AMENDED AND RESTATED CONTENT PROVIDER AGREEMENT (the "Agreement")
supercedes any and all agreements relating to a Content Provider Agreement or
Internet Joint Marketing Agreement between the parties mentioned below. This
Agreement is made as of August 24, 1998, effective as of April 25, 1998 (the
"Effective Date"), by and among INFOSPACE, INC., ("INFOSPACE"), a Delaware
corporation having a principal place of business at 00000 00xx Xxx. XX, Xxxxxxx,
XX 00000, 800-U.S. SEARCH, Inc. ("SEARCH"), a California corporation, with
offices at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 and The
Xxxxxxx-Xxxxx Company ("PARENT"), a California corporation, with offices at
00000 Xxxxxxxx Xxxx., 00xx Xxxxx, Xxx Xxxxxxx, XX 00000.
WHEREAS, INFOSPACE provides information and other content in various media to
end users via several sites on the World Wide Web (the "Web") and other
electronic media environments;
WHEREAS, SEARCH supplies public record information and other related
capabilities via the Web;
WHEREAS, SEARCH is a subsidiary of PARENT, and PARENT is willing to guarantee
SEARCH's obligations under this Agreement; and
WHEREAS, SEARCH desires, and INFOSPACE agrees to enter into an agreement whereby
SEARCH's content and functionality will be integrated into a Web site branded in
accordance with INFOSPACE's "look and feel" and located at
xxxx://xxx.xxxxxxxxx.xxx (the "INFOSPACE Site") and distributed on certain areas
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of the INFOSPACE Network (as defined below).
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
The following terms shall have the following meanings for the purpose of this
Agreement:
1.1 "SEARCH CONTENT" means the text, pictures, graphics, sound, video,
other data, functionality, computer software and code to be provided by SEARCH.
1.2 "SEARCH MARKS" means the SEARCH logos and trademarks to be provided
to INFOSPACE in accordance with this Agreement.
1.3 "INFOSPACE MARKS" means the INFOSPACE logos and trademarks to be
provided to SEARCH in accordance with this Agreement.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.
1.4 "INFOSPACE NETWORK" means the WebSites that deliver INFOSPACE's
content services, including the INFOSPACE Site, other Web Sites owned by
INFOSPACE and the co-branded Web sites of the affiliates with whom INFOSPACE has
distribution arrangements.
2. OBLIGATIONS
2.1 INFOSPACE'S OBLIGATIONS
2.1.1 INFOSPACE will fully integrate SEARCH Content into the
INFOSPACE Site in such a manner that the search service will be built into the
INFOSPACE Site and offered as a co-branded service. There will be a mutually
agreed upon heading built into the INFOSPACE Site homepage and 5 mutually agreed
upon subheadings listed underneath. Each will link to the appropriate service,
all of which is a part of the INFOSPACE Site.
2.1.2 INFOSPACE will integrate a link and description to the SEARCH
chat room from the INFOSPACE Site Chat area.
2.1.3 INFOSPACE will integrate the SEARCH background check service
into appropriate areas within the INFOSPACE Site personals and employment
sections in the classifieds.
2.1.4 INFOSPACE will integrate SEARCH Content into XXXXXX.XXX.
2.1.5 INFOSPACE will provide SEARCH with a minimum of [*] million
banner impressions per month anywhere within the INFOSPACE Network whitepages
("WHITEPAGE BANNERS").
2.1.6 INFOSPACE will provide a button sponsorship to SEARCH on every
page within the whitepages located within the INFOSPACE Site and on selected
pages throughout the INFOSPACE Network ("WHITEPAGE BUTTONS"). INFOSPACE will
guarantee that the WHITEPAGE BUTTONS will receive a minimum of [*] million
impressions per month anywhere within the INFOSPACE Network.
2.1.7 INFOSPACE will provide a button sponsorship to SEARCH on every
non-whitepages page located within the INFOSPACE Site and on selected pages
throughout the INFOSPACE Network ("STANDARD BUTTONS"). INFOSPACE will guarantee
that the STANDARD BUTTONS will receive a minimum of [*] million impressions per
month anywhere within the INFOSPACE Network.
2.1.8 INFOSPACE will lace a text link on the INFOSPACE navigation
bar located within the INFOSPACE Site and on selected pages throughout the
INFOSPACE Network
[*]= 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.
2.
("TEXT LINK"). INFOSPACE will guarantee that the TEXT LINK will receive a
minimum of [*] million impressions anywhere within the INFOSPACE Network.
2.1.9 INFOSPACE maintains the right to sell banner and sponsorship
advertising on all pages that contain SEARCH Content that is built into the
INFOSPACE Site, as an INFOSPACE service, and will keep [*] of the revenue
from, such Advertising.
2.2 SEARCH'S OBLIGATIONS.
2.2.1 SEARCH shall make the SEARCH Content available to INFOSPACE
via electronic transfer or by other automated means to be mutually agreed on by
the parties.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
2.2.2 SEARCH shall provide all payments in a timely manner as
defined in Section 3.
2.2.3 SEARCH will not include any INFOSPACE competitors, as defined
by INFOSPACE, in any of its advertising for the duration of this Agreement.
SEARCH agrees to use its best efforts to include INFOSPACE in its television and
print advertising by the second quarter of 1998 and continuing for the duration
of this Agreement.
3. REMUNERATION
3.1 1998 PROMOTION AND DISTRIBUTION FEES. SEARCH will pay to INFOSPACE for
promotion and distribution of the SEARCH Content, during the first eight months
of this Agreement, the following [*] fees:
[*]
[*]
[*]
[*]
[*]
[*]
[*]
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During this time period, the CPM rates set forth in section 3.2 below shall be
imputed for purposes of the parties' internal accounting procedures as
necessary.
INFOSPACE agrees to allow SEARCH to defer payment of $[*] per month from the
months of June through November of 1998. This deferred payment of $[*] will be
made by SEARCH over the first 6 months of 1999 with a payment of $[*] per month.
This payment is in addition to the regular fees as described in 3.2.
3.2 ON-GOING PROMOTION AND DISTRIBUTION' FEES. After the first eight
months of this Agreement (beginning in January 1999), SEARCH will pay to
INFOSPACE, for
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
3.
promotions and distribution of the SEARCH Content, the following fees based on
exposure levels:
FLAT INTEGRATION FEE of $[*]
WHITEPAGE BANNER at a CPM of $[*] for non-linking banner and $[*] for linking
banners.
WHITEPAGE BUTTONS at a CPM of $[*].
STANDARD BUTTONS at a CPM of $[*].
TEXT LINKS at a CPM of $[*].
Beginning January 1999, the minimum monthly fee will be $[*].
3.3 REPORTS AND PAYMENT. Within ninety (90) days following the end of each
of July and August 1998 and within sixty (60) days following the end of each
month thereafter, SEARCH shall render payment in full of all fees due.
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
3.4 TAXES. All fees and payments stated herein exclude, and SEARCH shall
pay, any sales, use, property, license, value added, withholding, excise or
similar tax, federal, state or local, related to the parties' performance of its
obligations or exercise of its rights under this Agreement and any related
duties, tariffs, imposts and similar charges.
3.5 RECORDS. Each party shall keep reasonable records in connection with
its respective performance under this Agreement and shall permit the other party
reasonable access to such records at such other party's expense upon reasonable
notice.
3.6 GUARANTEE. Until the earlier of December 31, 1999 or the date of
effectiveness of a registration statement for SEARCH'S initial public offering,
if any, in the event that SEARCH fails to comply with Sections 3.1 through 3.4
above, PARENT shall guarantee to INFOSPACE the payment of all amounts due
thereunder within 10 days of the payment dates set forth in Section 3.3. In the
event that any such payment is not timely made by SEARCH as aforesaid, INFOSPACE
shall give notice to SEARCH and SEARCH shall make such payment within ten days.
In the event SEARCH fails to do so, INFOSPACE may give notice to Parent so
stating and Parent shall make such payment within ten days thereafter, provided
that Parent shall be entitled to assert any offsets, claims, or defenses to
which SEARCH may be entitled in connection therewith.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
4.
4. PROPRIETARY RIGHTS AND LICENSE.
4.1 LICENSE GRANT. SEARCH hereby grants to INFOSPACE for the term of this
Agreement, a non-exclusive, worldwide license to electronically reproduce,
electronically distribute, create derivative works of, publicly perform,
publicly display and digitally perform SEARCH Content in connection with the
parties' objectives hereunder. INFOSPACE hereby grants to SEARCH, for the term
of this Agreement, a non-exclusive, nontransferable, royalty-free, worldwide
license to use INFOSPACE's Marks for the purposes of marketing, promotion, and
content directories or indexes, and in electronic or printed advertising,
publicity, press releases, newsletters and mailings about SEARCH.
4.2 OWNERSHIP OF SEARCH CONTENT AND SEARCH MARKS. All right, title and
interest in and to the SEARCH Content and SEARCH Marks as well as intellectual
property rights (including without limitation all rights therein under
copyright, trademark, trade secret and similar laws) shall remain with SEARCH or
its licensors and/or suppliers. Notwithstanding the foregoing, SEARCH hereby
grants to INFOSPACE a non-exclusive, nontransferable, royalty-free, worldwide
license to use SEARCH Marks in the INFOSPACE Site and for the purposes of
marketing, promotion, and content directories or indexes, and in electronic or
printed advertising, publicity, press releases, newsletters and mailings about
the INFOSPACE Site. Further, any information collected from providing the
classified Apartment service will be owned and controlled by INFOSPACE.
4.3 OWNERSHIP OF INFOSPACE MARKS. All right, title and interest in and to
the INFOSPACE Marks as well as intellectual property rights (including without
limitation all rights therein under trademark and similar laws) shall remain
with INFOSPACE or its licensors and/or suppliers. Notwithstanding the
foregoing, INFOSPACE hereby grants to SEARCH a non-exclusive, nontransferable,
royalty-free, worldwide license to use INFOSPACE Marks for the purposes of
marketing, promotion, and content directories or indexes, and in electronic or
printed advertising, publicity, press releases, newsletters and mailings.
4.4 QUALITY CONTROL AND USE RESTRICTIONS BY SEARCH. SEARCH shall use the
INFOSPACE Marks in accordance with any written instructions provided by
INFOSPACE. SEARCH acknowledges that SEARCH's use of the INFOSPACE Marks will
not create in it, nor will it represent it has, any right, tide or interest in
or to the INFOSPACE Marks other than the license granted by INFOSPACE above.
SEARCH will not challenge the validity of or attempt to register any of the
INFOSPACE Marks or its interest therein as a licensee. SEARCH acknowledges
INFOSPACE's and its affiliates' ownership and exclusive right to use the
INFOSPACE Marks and agrees that all goodwill arising as a result of the use of
the INFOSPACE Marks shall inure to the benefit of INFOSPACE and its affiliates.
4.5 QUALITY CONTROL AND USE RESTRICTIONS BY INFOSPACE. INFOSPACE shall
use the SEARCH Marks in accordance with any written instructions provided by
SEARCH. INFOSPACE acknowledges that INFOSPACE's use of the SEARCH Marks will
not create in
5.
it, nor will it represent it has, any right, title or interest in or to the
SEARCH Marks other than the license granted by SEARCH above. INFOSPACE will not
challenge the validity of or attempt to register any of the SEARCH Marks or its
interest therein as a licensee. INFOSPACE acknowledges SEARCH's and its
affiliates' ownership and exclusive right to use the SEARCH Marks and agrees
that all goodwill arising as a result of the use of the SEARCH Marks shall inure
to the benefit of SEARCH and its affiliates.
4.6 SEARCH NON-EXCLUSIVITY. The parties agree and acknowledge that
nothing in this Agreement shall be deemed or construed to prohibit SEARCH from
providing the SEARCH Content to any other third party.
4.7 INFOSPACE EXCLUSIVITY. During the term of this Agreement, INFOSPACE
will not run advertising on the INFOSPACE Site from any of SEARCH's competitors
where competitor is defined as any company who provides a pay-for people
locating service including but not limited to the companies listed on Exhibit B.
The list on Exhibit B may be amended by mutual agreement of the parties to this
Agreement. Notwithstanding the foregoing, INFOSPACE shall not provide such
exclusivity to SEARCH on other sites in the INFOSPACE Network, other than on the
INFOSPACE Site, including, but not limited to, Netscape and AOL. During the
Term, the parties agree to discuss the possibility of including co-branded sites
in such exclusivity.
5. LIMITED WARRANTY.
5.1 REGARDING SERVICES. SEARCH provides the SEARCH Content as is and all
services performed hereunder "AS IS" and without any warranty of any kind.
SEARCH does not guarantee continuous or uninterrupted display or distribution of
the services.
5.2 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5, EACH
PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6. INDEMNITY.
6.1 INDEMNITY BY INFOSPACE. INFOSPACE shall indemnify and hold harmless
SEARCH and its affiliates and suppliers against all claims, losses, damages,
liabilities, costs and expenses, including reasonable attorneys' fees, which
SEARCH and its affiliates and suppliers may incur as a result of any claims
relating to the infringement by the INFOSPACE Marks of any third party
trademark.
6.2 SEARCH'S INDEMNITY. SEARCH shall indemnify and hold harmless INFOSPACE
and its affiliates and suppliers against all claims, losses, damages,
liabilities, costs and expenses, including reasonable attorneys' fees, which
INFOSPACE and its affiliates and
6.
suppliers may incur as a result of claims relating to the infringement by the
SEARCH Content or the SEARCH Marks of any third party copyright, trademark or
trade secret.
6.3 MECHANICS OF INDEMNITY. The party seeking indemnification (the
"Indemnified Party") shall: (a) give the proposed indemnifier (the "Indemnifying
Party") notice of the relevant claim, (b) cooperate with the Indemnifying Party,
at the Indemnifying Party's expense, in the defense of such claim, and (c) give
the Indemnifying Party the right to control the defense and settlement of any
such claim, except that the Indemnifying Party shall not enter into any
settlement that affects the Indemnified Party's rights or interest without the
Indemnified Party's prior written approval. The Indemnified Party shall have the
right to participate in the defense at its expense.
7. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO ANY LIABILITY OF EITHER PARTY TO THE OTHER PARTY
ARISING UNDER SECTION 6 HEREUNDER: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
LOSS OF PROFITS, REVENUES OR DATA, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, NOR SHALL EITHER PARTY'S LIABILITY UNDER THIS AGREEMENT EXCEED THE
AMOUNTS ACTUALLY PAID BY SEARCH TO INFOSPACE HEREUNDER.
8. TERM AND TERMINATION.
8.1 TERM. This Agreement shall expire four (4) years following the first
date on which the SEARCH Content is available on the INFOSPACE Site. After this
Agreement expires, SEARCH will have first right of re-negotiation.
8.2 TERMINATION. Except as provided below, neither party may terminate
Agreement, prior to the end of the Term, unless (a) there is a material breach
of the obligations defined herein that is not cured after 30 days from the
receipt of written notification of such breach; (b) either party files for
bankruptcy protection; or (c) either party is indicted for any criminal
activity. Upon the effective date of expiration or termination, all obligations
defined herein expire except the obligations set forth in Section 6 and SEARCH's
obligation to pay in full all amounts due under Section 3, including but not
limited to the deferred payment of $[*].
9. GENERAL PROVISIONS.
9.1 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of Washington without giving effect its
conflict of law principles.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMMITTED PORTIONS.
7.
9.2 COMPLIANCE WITH LAWS. At their own expense, SEARCH and INFOSPACE shall
comply with all applicable laws, regulations, rules, ordinances and orders
regarding their respective activities related to this Agreement.
9.3 SEVERABILITY; HEADINGS. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision, which
most closely approximates the intent and economic effect of the invalid
provision. Headings are for reference purposes only and in no way define, limit,
construe or describe the scope or extent of such section, or in any way affect
this Agreement.
9.4 INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors, and no agency, partnership, joint venture or employee-employer
relationship is intended or created by this Agreement. Neither party may take
any actions, which are binding, on the other party. Without limiting the
foregoing, SEARCH shall not make any representations or warranties to third
parties on behalf of INFOSPACE.
9.5 NOTICE. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified above or at such other address as
the party shall specify in writing. Unless otherwise specified, such notice
shall be deemed given: upon personal delivery; if sent by fax, upon confirmation
of receipt; or if sent by certified or registered mail, postage prepaid, three
(3) days after the date of mailing.
9.6 ENTIRE AGREEMENT; WAIVER. This Agreement and the Exhibits attached
hereto set forth the entire understanding and agreement of the parties, and
supersede any and all prior or contemporaneous oral or written agreements or
understandings between the parties, as to the subject matter of this Agreement.
In the event of any conflict between the Agreement and an Exhibit, the terms of
the Exhibit shall control. Except as provided herein, only writing signed by
both parties may change this Agreement. Waiver by either party of a breach of
any provision contained herein must be in writing, and no such waiver shall be
construed as a waiver of any succeeding breach of such provision or a waiver of
the provision itself.
8.
9.7 ASSIGNMENT AND TRANSFER OF CONTROL. INFOSPACE may assign this
Agreement, upon notice to SEARCH, to its parent corporation, or to any wholly or
partially owned domestic or foreign subsidiary or joint venture thereof provided
that the assignee assumes and agrees in writing to perform all of INFOSPACE's
executory obligations and INFOSPACE guarantees performance by the assignee
throughout the Term. In, addition, INFOSPACE may, upon notice to SEARCH, assign
its rights under this Agreement to any entity acquiring all or substantially all
of the assets of the INFOSPACE. Notwithstanding the above provision, in no event
may INFOSPACE assign this Agreement to any direct competitors of SEARCH without
SEARCH's prior written consent. SEARCH may assign this Agreement, in whole or in
part, to any of its Affiliates, defined as Web sites and Web appliance companies
to whom INFOSPACE licenses its content, provided such Affiliate assumes and
agrees to perform all of SEARCH's obligations throughout the Term.
9.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed to be one instrument.
INFOSPACE: SEARCH:
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------- ____________________________
Title:_________________________ Title: President / COO
_________________________
Date:__________________________ Date:__________________________
PARENT:
By: /s/ Xxxxx Xxxxx
____________________________
Title: Co-Chairman
_________________________
Date:__________________________
9.
EXHIBIT A
1. CONTENT AND FUNCTIONALITY TO BE PROVIDED.
SEARCH will provide the following Content and Functionality:
TO BE ADDED
EXHIBIT B
TO BE PROVIDED BY SEARCH.
10.
