Confidential EXHIBIT 10.18
OUTLET CENTER AGREEMENT
This outlet center agreement ("Agreement") is entered into as of December 28,
2000 ("Effective Date"), by and between At Home Corporation, a Delaware
corporation located at 000 Xxxxxxxx, Xxxxxxx Xxxx, XX 00000 ("Excite" or
"Excite@Home") and FairMarket, Inc., a Delaware corporation located at 000
Xxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("FairMarket" or "Services
Provider").
RECITALS
A. Excite maintains a site on the Internet at XXXX://XXX.XXXXXX.XXX which,
among other things, allows users to search for and access content and other
sites on the Internet (collectively, the "Excite Site").
B. Excite@Home maintains a broadband Internet service currently available to
subscribers of high-speed Internet connectivity ("Broadband Service").
Excite Site and Broadband Service, collectively defined as "Excite
Network".
C. FairMarket maintains a network of private label Internet sites developed,
hosted and maintained by FairMarket on behalf of third parties, located on
FairMarket's operating platform in the United States and directed primarily
at residents of the United States (the "FairMarket Network"), which sites,
among other things, enable its merchant customers to conduct online
auctions and/or utilize other ecommerce services provided by FairMarket.
D. Excite wishes FairMarket to develop and maintain an Excite-FairMarket
co-branded version of FairMarket's off price "Outlet Center" service
offering (the "Excite Outlet Center") that provides discount shopping. The
Excite Outlet Center will include but is not limited to the following
categories: computers, jewelry, apparel, consumer electronics/photo and
sports. The Excite Outlet Center will include FairMarket's merchant
auction, falling price and fixed price formats.
1. CONTENT AND PROMOTION
a) The Excite Outlet Center will be promoted through various areas of the
Excite Network at Excite@Home's discretion, which may include links
from the Xxxxxx.xxx home page ("My Excite Start Page" or "MESP"),
shopping, directory, and other areas defined by Excite.
b) Excite@Home will be responsible for the definition and placement of
the links to the Excite Outlet Center and will collaborate with
FairMarket on their development and placement in order to drive
traffic to the Excite Outlet Center.
c) Without limiting the generality of Section 1(a), (i) Excite will use
commercially reasonable efforts to provide 700,000 clickthroughs from
the Excite Site to the Excite Outlet Center during each of the first
two calendar quarters following the Effective Date and (ii)
thereafter, for the remainder of the term of this Agreement, Excite
will use commercially reasonable efforts to promote the Excite Outlet
Center from the home page of the Excite Shopping channel.
2. EXCITE OUTLET CENTER
a) FairMarket will create an Excite Outlet Center utilizing FairMarket's
Outlet Center service (the "Outlet Center Service") that will include
content and functionality as described in Exhibit A and on which
listings of FairMarket's merchant customers will be made available for
display to, for bidding and purchase by, users of the Excite Network.
b) FairMarket will design and create the web pages for the Excite Outlet
Center. FairMarket will implement the User Interface (as defined
below) in a manner that will as far as is reasonably practicable be in
accordance with Excite@Home design/user interface guidelines as
described in Exhibit A or as reasonably changed by Excite@Home with
the approval of FairMarket, such approval not to be
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unreasonably withheld. The User Interface guidelines include but are
not limited to page weight targets, number of server calls per page,
header, footer, universal site vertical navigation and other
design/user interface standards. "User Interface" means the overall
look and feel (branding, font, navigation and color scheme) of the
border areas of the Excite Outlet Center pages. The Excite Outlet
Center will carry both Excite branding and FairMarket branding, with
Excite being the primary Excite Outlet Center brand and the sole
non-FairMarket site-related brand. The "look and feel" of the User
Interface will be consistent with the "look and feel" of the Excite
Site, or as otherwise determined by Excite@Home, subject to the
foregoing. Excite@Home will have final approval over the "look and
feel" of the User Interface of the Excite Outlet Center.
c) The Excite Outlet Center will be a separate and distinct site in the
FairMarket Network that is operated by FairMarket. FairMarket shall,
during the term, remain in compliance with the standards set forth
inthe Service Level Agreement ("SLA") defined in Exhibit B.
d) FairMarket will have sole responsibility for developing, hosting and
maintaining, at its sole expense, the Excite Outlet Center and any
updates thereto. FairMarket will have the right to improve, enhance
and modify the Outlet Center Service on a periodic basis, provided
that FairMarket shall not make any such change that would
significantly affect the operation of the Outlet Center Service
without the approval of Excite, such approval not to be unreasonably
withheld, provided further that if such change relates to an integral
functionality of the Outlet Center Service (i.e., such change cannot
be "turned off" with respect to the Excite Outlet Center alone) then
FairMarket shall so notify Excite and Excite will have the right,
during the 30-day period following delivery of such notice, to
terminate this Agreement upon 5 days prior written notice to
FairMarket. Each party will bear any costs of developing and
maintaining any required user interface or co-branding most closely
under its control. Each party shall make reasonable commercial efforts
to cooperate with the other party to further any mutual essential
purpose of this Agreement.
e) The Excite Outlet Center will have the URL designated and obtained by
Excite or will be masked to a reasonable URL to be determined by
Excite and shall conform to third party requirements that allow Excite
to report the page views of the Excite Outlet Center and receive the
appropriate third party (including but not limited to Media Metrix)
page view credit.
f) In the event that Excite@Home desires to add features, tools and/or
content ("Additional Functionality") to the Excite Outlet Center,
FairMarket will have fifteen (15) business days to respond to
Excite@Home's written request to provide the Additional Functionality;
and thirty (30) days after such response to deliver any accepted
Additional Functionality to Excite@Home. FairMarket is under no
obligation to provide any requested Additional Functionality. Should
FairMarket choose not to provide, or is not able to provide any such
requested Additional Functionality within the timetable described
above, Excite@Home may enter into an agreement with a third party to
obtain such requested Additional Functionality and incorporate it into
the Excite Network, as long as such Additional Functionality does not
adversely impair FM's ability to develop, host and maintain the Excite
Outlet Center. Should FairMarket choose to provide any such requested
Additional Functionality within the timetable, FairMarket will provide
such Additional Functionality at a mutually agreed price, but in no
case more than FairMarket's published Standard Professional Services
rate.
3. EXCLUSIVITY
The Excite Outlet Center will be mutually non-exclusive (e.g., the parties
agree there shall be no expectation of exclusivity by either party. By way
of example and not limitation, FairMarket may maintain its own version of
the Outlet Center or provide versions of the Outlet Center to other third
parties, and Excite may enlist discount shopping services and related
program offerings by vertical and/or by type of service from other third
party providers, e.g. discount music products from EXCITE@HOME'S music
store provider, group buy opportunities for camera equipment within photos,
etc.)
4. PAYMENTS
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a) Excite agrees to pay FairMarket a $10,000 one-time set-up fee
(covering all FairMarket standard site set-up ) which fee shall be
payable thirty (30) days after the execution of this Agreement. If
Excite@Home, at its discretion, asks FairMarket to provide additional
Excite Outlet Center specific features, functions or enhanced
integration that are not part of the FairMarket standard site set-up,
FairMarket will, at its discretion provide such additional work at a
mutually agreed price, but in no case more than FairMarket's then
current published Standard Professional Services rate.
b) FairMarket will not charge Excite any hosting/application fee(s)
regardless of the pageview traffic in the Excite Outlet Center.
c) Excite will be solely responsible for all banner ad serving, targeting
and selling on the Excite Outlet CenterExcite will pay FairMarket, on
a quarterly basis, twenty per cent (20%) of "Net Advertising Revenue"
(gross advertising revenue less sales costs not to exceed fifteen per
cent (15%)) collected from such advertising.
Payments will be made to FairMarket monthly 30 days after the end of
each calendar month.
d) FairMarket will be solely responsible for selling, producing and
serving all of the merchandising packages, including sponsorships and
merchant listing fees if applicable (the pricing of such packages to
be determined by FairMarket in its sole discretion), in the Excite
Outlet Center. FairMarket will pay Excite a percentage of the
merchandising revenue FairMarket receives from merchandising that
FairMarket serves on the Excite Outlet Center, net of actual payment
processing costs (not to exceed 2.5%) per the following formula:
67% of (Total Monthly FairMarket Outlet Center Related
Merchandising Revenue) multiplied by (Excite Monthly Outlet
Center pageviews) divided by (Total FairMarket Monthly
Network-wide Outlet Center pageviews).
Payments will be made to Excite monthly 30 days after the end of each
calendar month.
e) FairMarket will be responsible for transmitting to the respective
merchant, order fulfillment information with respect to listings sold
on the Excite Outlet Center as is in FairMarket's possession (e.g.,
purchase or winning bid price, user name and email address, etc). With
respect to each listing that is displayed and sold on the Excite
Outlet Center through the Outlet Center Service, FairMarket will pay
Excite an amount equal to sixty-seven percent (67%) of the percentage
transaction fees received by FairMarket from its merchant customers in
respect of such sale, net of actual payment processing costs (not to
exceed 2.5%). Payments will be made to Excite monthly 30 days after
the end of each calendar month.
5. REGISTRATION/DATA OWNERSHIP/USAGE REPORTS / USER DATA
a) For the purpose of this Agreement, "User Data" shall mean all
information submitted by or collected on a user of the Excite Outlet
Center through or in connection with the use by any such user of the
Excite Outlet Center ("User"). "Individually Identifiable User Data"
shall mean any data which can be reasonably used to identify a
specific individual including without limitation name, address, phone
number, etc.
b) Both parties acknowledge that any individual user of the Internet
could be a customer of Excite and/or FairMarket through activities
unrelated to this Agreement. Both parties further acknowledge that any
User Data gathered independent of this Agreement, even for Users that
utilize both party's services, shall not be covered by this Agreement.
c) Each of FairMarket and Excite@Home will be deemed to be the owner of
and will each have all rights permitted by applicable law to any User
Data obtained through this Agreement and to use the same in its
discretion, subject to applicable law, the following provisions of
this Section 5 and the provisions of the Excite@Home privacy policy.
The storage by each party of User Data will comply with the
Excite@Home written security and privacy guidelines, as they may be
reasonably
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changed from time to time and, on request, delivered to FairMarket in
writing. Excite will have access to User Data via the FairMarket
Administrative Module. Upon expiration or termination of this
Agreement, FairMarket will provide to Excite any User Data not
available to Excite at the time of such termination or expiration;
such User Data will be provided in an electronic format to be agreed
upon by the parties and will be provided to Excite within thirty (30)
days following such termination or expiration.
d) Excite hereby grants FairMarket a royalty-free, nonexclusive, limited
license to use User Data only as follows in this Section 5d:
1)FairMarket shall be able to utilize aggregate User Data during the
term of this Agreement for the purposes of improving the Excite Outlet
Center. 2) FairMarket may utilize, at its sole discretion, aggregated
data from the Excite Outlet Center when aggregated with data from
FairMarket's other customers; the provisions of this sentence shall
survive the termination or expiration of this Agreement. 3) During the
term of this Agreement, FairMarket may use User Data in connection
with the provision by FairMarket to Users, either individually or in
the aggregate, of opt-in marketing programs (whereby, for example,
losing bidders may be offered products comparable to the item that
they bid on).
e) Both parties agree that they will not sell or transfer (other than in
connection with an assignment permitted under Section 15(a)) or rent
the Individually Identifiable User Data to any third party, nor will
either party use said Individually Identifiable User Data on behalf of
any third party, without the express permission of the User, nor will
either party disclose Individually Identifiable User Data to any third
party except as permitted by the terms of the privacy policy
applicable to the Excite Outlet Center or with the express permission
of the User or, in the case of a proposed disclosure by FairMarket,
the express permission of Excite. In such cases where User permission
for dissemination of Individually Identifiable User Data is required
and has been obtained, the disseminating party shall use all
reasonable efforts to include and enforce within such dissemination
contracts or agreements a requirement for the inclusion of an
unsubscribe feature in all email communications generated by, or on
behalf of, third party users of said Individually Identifiable User
Data.
f) Excite@Home may, at its discretion, require FairMarket, on a one-time
basis, to reasonably integrate the Excite Outlet Center with
Excite@Home's Universal Registration System ("URS") if FairMarket
desires to introduce features or functionality to the Excite Outlet
Center that requires separate user registration in order to use such
feature sets. In such event, FairMarket will so integrate the Excite
Outlet Center at its own cost according to Excite@Home's technical and
operational specifications. Launch of any such registration based
feature sets will not precede integration with Excite's URS.
g) FairMarket agrees not to use User Data to directly or indirectly
solicit or contact any Excite@Home users who are not also Users,
either individually or in the aggregate, during the term and for a
period of twelve (12) months following the expiration or termination
of this Agreement.
h) FairMarket will provide Excite access to usage reports via standard
FairMarket Administration Module tools or a separate custom monthly
report (or a combination thereof) containing the information set forth
in Exhibit C ("Usage Reports"). The parties may, by mutual written
agreement, alter the content of the Usage Reports.
6. QUALITY/CUSTOMER SUPPORT
FairMarket shall comply with the Service Level Agreement (as defined in
Exhibit B). Specifically, and in addition to Exhibit B, FairMarket will:
a) Answer and/or fix significant bug reports on the Excite Outlet Center
within the applicable time periods specified in Exhibit B;
b) Copy Excite@Home on all customer service related correspondence with
Users;
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c) Not send direct or indirect mailings to Excite@Home users (other than
Users) without prior consent of Excite@Home; excluding opt-in
merchandising electronic circulars; and
d) Devote such operational resources as are necessary to enable
Fairmarket to perform its obligations under this Agreement in all
material respects.
7. TERM
The initial term of this Agreement will be eighteen (18) months
commencing on the Effective Date and ending on June 30, 2002, subject
to the last paragraph of Exhibit A. Upon expiration of the initial
term, this Agreement will automatically renew for one twelve (12)
month term unless canceled in writing by either party at least
thirty (30) days prior to the end of the initial term.
8. TERMINATION
a) Either party may terminate this Agreement if the other party breaches
any material obligation hereunder and such breach remains uncured for
thirty (30) days following the receipt of written notice to the
breaching party of the breach and the notifying party's intention to
terminate.
b) Notwithstanding the provisions set forth in Section 8(a) above, Excite
shall have the following termination rights:
i. In the event that the Excite Outlet Center is available to users
less than ninety-nine percent (99%) of each calendar month for
two (2) consecutive calendar months (excluding the effect of any
action taken by Excite or of any occurrence outside FairMarket's
reasonable control) , Excite may immediately terminate this
Agreement by written notice to FairMarket, without a cure
period.
ii. If ,after 120 days following the Effective Date, the quality of
the Excite Outlet Center is not at least comparable on average
to other comparable services on the Internet, based on ranking
by a cross-section of third party reviewers (to be recommended
by Excite and approved by FairMarket, such approval not to be
unreasonably withheld) in terms of features and functionality
including user interface, product services, accessibility and
reliability (the "Default Standard"), Excite shall notify
FairMarket in writing, and FairMarket shall use all commercially
reasonable efforts to bring the Excite Outlet Center to the
Default Standard. If Excite reasonably determines that
FairMarket has not met the Default Standard within thirty (30)
days following such notification, Excite shall so notify
FairMarket in writing. If Excite reasonably determines that
FairMarket has not met the Default Standard within sixty (60)
days following Excite's initial notification, Excite may
immediately terminate this Agreement by written notice to
FairMarket and without a further cure period.
iii. In the event that any undisputed payment by either party to the
other remains unpaid after it is due, the unpaid party shall
notify the other of such delinquency and of the unpaid party's
intention to terminate, and the other party shall have five (5)
business days to cure, after which, if any portion remains
unpaid, the unpaid party may immediately terminate this
Agreement by written notice to the other and without a further
cure period.
iv. During the term of this Agreement, in the event that an Excite
Named Competitor acquires FairMarket, or merges with FairMarket
or acquires control of all or substantially all of FairMarket's
assets, Excite may terminate this Agreement by providing ninety
(90) days written notice within ninety (90) days of Excite's
notification of such merger or acquisition. Should Excite choose
not to terminate this Agreement during this period, FairMarket
will continue to provide Excite with a level of service, which
is, at a minimum, consistent with that level of service
described herein . For purposes of this Section, "Excite Named
Competitor" means the following entities:
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America OnLine/TW, Alta Vista, Xxx.xxx, Go Network, Xxxx.xxx,
Xx0xxx.xxx, Juno, LookSmart, Lycos, Microsoft/MSN,
Xxxxxxxx.xx/Xxxxx.xxx, NBCi, Yahoo/ Xxxxxxxxx.xxx,/Geocities
c) Upon termination of this Agreement, Excite and the Excite Network
shall immediately discontinue all use of the Excite Outlet Center and
the Outlet Center Service and return to FairMarket, or destroy, all
intellectual property belonging to FairMarket.
d) All payments that have accrued prior to the termination or expiration
of this Agreement will be payable in full within thirty (30) days of
such termination or expiration.
e) The provisions of Section 10 a) and b), (Trademark Ownership); Section
11 (Confidentiality); Section 12 (Warranty and Indemnity);Section 13
(Limitation of Liability); Section 14 (Dispute Resolution) and Section
15 b) (Choice of Law) shall survive any termination or expiration of
this Agreement.
9. SERVICE OWNERSHIP AND LICENSE
FairMarket will retain all right, title and interest in and to its
service worldwide (including, but not limited to, ownership of all
copyrights and other intellectual property rights therein). During the
term of this Agreement, and subject to the terms and conditions of this
Agreement, FairMarket hereby grants to Excite a royalty-free,
non-exclusive license to publicly display the Excite Outlet Center in
accordance with this Agreement.
10. TRADEMARK OWNERSHIP AND LICENSE
a) FairMarket will retain all right, title and interest in and to its
trademarks, service marks and trade names ("Marks") worldwide, subject
to the limited license granted to Excite hereunder.
b) Excite will retain all right, title and interest in and to its Marks
worldwide, subject to the limited license granted to FairMarket
hereunder.
c) Each party ("Licensor") hereby grants to the other a non-exclusive,
limited license to use Licensor's Marks only as specifically described
in this Agreement. All such use shall be in accordance with Licensor's
reasonable policies regarding advertising and trademark usage, as
shall be established or changed from time to time, in each party's
sole discretion, and furnished to the other party in writing. Each
party agrees not to challenge any rights of the other party to the
other party's Marks or to pursue ownership or registration of such
Marks or any confusingly similar Marks anywhere in the world.
d) Upon the expiration or termination of this Agreement, each party will
cease using the Marks of the other except:
i. As the parties may agree in writing; or
ii. To the extent permitted by applicable law.
11. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its customers',
suppliers' or affiliates') business or activities that is proprietary
and confidential, which shall include all business, financial,
technical and other information of a party marked or designated by
such party as "confidential" or "proprietary"; or information which,
by the nature of the circumstances surrounding the disclosure, ought
in good faith to be treated as confidential.
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b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all
Confidential Information of the other party in its possession or
control, which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party. Notwithstanding the foregoing,
Excite acknowledges that FairMarket intends to publicly announce the
existence and terms of this Agreement and that FairMarket may be
required to file this Agreement as an exhibit to a report filed by it
under the Securities Exchange Act of 1934, as amended, in accordance
with the rules and regulations under such Act (or, if applicable,
pursuant to the Securities Act of 1933, as amended, and the rules and
regulations thereunder) or the rules of the NASDAQ. Excite hereby
consents to such public announcement provided that FairMarket notifies
Excite at least 24 hours in advance of such announcement and provides
Excite with a reasonable opportunity to review the text of such
announcement regarding the existence and terms of this Agreement.
12. WARRANTY AND INDEMNITY
a) Each of FairMarket and Excite warrants that it owns, or has obtained
all necessary rights to distribute and make available as specified in
this Agreement, any and all information, service or content provided
to the other party or made available to third parties in connection
with this Agreement, including without limitation in the case of
FairMarket, the FairMarket Auction Service(s).
b) Each of FairMarket and Excite will indemnify, defend and hold harmless
the other party, its affiliates, officers, directors, employees,
consultants and agents from any and all third party claims, liability,
damages and/or costs (including, but not limited to, reasonable
attorneys fees) arising from:
i) The breach of any warranty, representation or covenant by
FairMarket or Excite, as applicable, in this Agreement; or
ii) Any claim that the Excite Outlet Center or any all information,
service or content provided to Excite or FairMarket, as
applicable or made available to third parties by FairMarket or
Excite, as applicable, in connection with this Agreement
infringes or violates any third party's copyright, patent, trade
secret, trademark, right of publicity or right of privacy or
contains any defamatory content.
iii) A party seeking indemnification hereunder will promptly notify
the other party of any and all such claims and will reasonably
cooperate with such other party in the defense and/or settlement
thereof; provided that, if any settlement requires an
affirmative obligation of, results in any ongoing liability to
or prejudices or detrimentally impacts the indemnified party in
any way and such obligation, liability, prejudice or impact can
reasonably be
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expected to be material, then such settlement shall require the
indemnified party's written consent (not to be unreasonably
withheld or delayed) and the indemnified party may, at its sole
cost and expense, have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, INCLUDING ALL EXHIBITS, NEITHER
PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
13. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 12 (WARRANTY AND INDEMNITY), IN NO EVENT WILL EITHER PARTY
BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE LIABILITY OF A PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED,
THE AMOUNTS ACTUALLY PAID BY THE OTHER PARTY TO SUCH PARTY HEREUNDER.
14. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is
no adequate remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding trademarks,
service marks or trade names or confidentiality, the aggrieved party
will be entitled to seek equitable relief in addition to its other
available legal remedies in a court of competent jurisdiction.For the
purposes of this Section 14 a) only, subject to Section 15 b)
(Governing Law - California) the parties consent to venue in either
the state courts of the county in which the defendant has its
principal place of business or the United States District Court for
the district in which the defendant has its principle place of
business
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, the parties will first attempt to
resolve the dispute(s) through good faith negotiation. In the event
that the dispute(s) cannot be resolved through good faith negotiation,
the parties will refer the dispute(s) to a mutually acceptable
mediator. For the purposes of this Section 14 b) only, subject to
Section 15 b) (Governing Law - California) the parties consent to
venue for mediation in the county in which the defendant has its
principal place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation and mediation, the parties will refer the dispute(s)
to the American Arbitration Association for resolution through binding
arbitration by a single arbitrator pursuant to the American
Arbitration Association's rules applicable to commercial disputes. For
the purposes of this Section 14 c) only, subject to Section 15 b)
(Governing Law - California) the parties consent to venue for
arbitration in the county in which the defendant has its principal
place of business.
15. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required
in connection with a merger, reorganization or sale of all, or
substantially all, of such
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party's capital stock or assets. Any attempt to assign this Agreement
other than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of
FairMarket.
c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed given upon personal delivery, one (1)
day after deposit with express courier, upon confirmation of receipt
of facsimile or email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set forth below or such
other address as that party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint venture.
e) Force Majeure. Any delay in or failure of performance by either party
under this Agreement caused by any occurrence beyond the reasonable
control of such party including, but not limited to, acts of God,
power outages and governmental restrictions will not be considered a
breach of this Agreement and such performance will be excused for the
number of days such occurrence reasonably prevents performance, but in
no case will such excuse extend beyond six (6) months.
f) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or arbitrator,
the remaining portions of this Agreement will remain in full force and
effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a written document
executed by both parties.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the Effective Date.
At Home Corporation FairMarket, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
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Title: EVP, Consumer Broadband Svcs & Cmc Title: CEO
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Date: 12/28/00 Date: 12/28/00
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FairMarket / Excite Excite Outlet Center Agreement
3/20/01
Page 9