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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS AND
ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.22
XX0.xxx, Inc.
X.X. XXX 000000
Xxx Xxxxx, XX 00000
(000) 000-0000
This ("Agreement") is made an entered into on February 17,
1999 ("Effective Date"), by and between Xxxxxxx.xxx, Inc., a Delaware
corporation, located at 0000 Xxxxxxx Xxx., Xxxxxx xxx Xxx, XX 00000 ("Tickets")
and XX0.xxx, Inc., having an address at X.X. Xxx 000000, Xxx Xxxxx, XX
00000-0000 ("XX0.xxx"). XX0.xxx owns and operates the website located at
xxx.xx0.xxx (the "Website").
1. Form of Sponsorship. During the term of this Agreement, Tickets shall be
XX0.xxx's exclusive partner/source for sports, entertainment, and travel
tickets, and XX0.xxx shall include a Tickets Portal on the "Music" page and the
"Pop," "Rock" and "Alternative" genre pages on the Website. A "Portal" is
defined as a web graphic with the dimensions not to exceed 125 x 125 pixels and
20Kb in size. The content of the Portal shall be supplied by Tickets and shall
conform with reasonable technical and content specifications supplied by
XX0.xxx.
2. Impressions. XX0.xxx agrees to deliver a guaranteed minimum of 3,000,000
Impressions per month for the term of this Agreement. An "Impression" is defined
as the display of the Tickets Portal to a user on one of the above referenced
pages.
3. Sponsor Fees. Tickets agrees to pay XX0.xxx, during the term of this
Agreement, as follows: (i) $[***] payable on the Effective Date; (ii) $[***]
payable on or before one month subsequent to the Effective Date; (iii) $[***]
payable on or before two months subsequent to the Effective Date; (iv) $[***]
payable on or before three months subsequent to the Effective Date; (v) $[***]
payable on or before four months subsequent to the Effective Date; (vi) $[***]
payable on or before five months subsequent to the Effective Date. Any late
payments under this Agreement will be assessed a service fee of one and one-half
percent (1.5%) per month, to the extent allowed by law.
4. Term and Termination. This Agreement shall commence on the Effective Date and
shall remain in full force and effect until one (1) year subsequent to the
Effective Date, provided however, that Tickets may terminate this Agreement for
any reason upon thirty (30) days' notice to MP3. com at any time prior to the
expiration of sixty (60) days subsequent to the Effective Date. Furthermore, for
a thirty (30) day period, beginning thirty (30) days prior to the first
anniversary of this Agreement, Tickets shall have the right to renew the
Agreement for another year with Sponsor Fees that do not exceed a [***] percent
increase over the existing Sponsor Fees. Any payments which have accrued prior
to the date of termination shall remain due and payable. Sections 6, 7, and 8
shall survive termination of this agreement.
5. Measurement. Upon request, Tickets shall have access to pertinent statistics
related to Impressions covering the period of this contract. Tickets agrees to
accept XX0.xxx's measurement of Impressions (the "Count") according to XX0.xxx's
logs and other tracking devices and/or software XX0.xxx may use, provided
however, that Tickets shall have the right to audit XX0.xxx's records in this
regard. If Tickets reasonably disputes the Count pursuant to this Agreement,
then Tickets shall have the right to select the independent auditor of its
choice to conduct an audit of XX0.xxx's records (the "Audit"). The Audit will be
conducted in such a way so as not to interfere to any material extent with
XX0.xxx's operations. If, for any applicable period, the independent auditor
determines that XX0.xxx overstated the Count by more than five percent (5%),
than XX0.xxx shall pay the cost of the Audit and shall refund Tickets the
difference between the amount originally paid and the amount which should have
been paid, or XX0.xxx shall credit the appropriate amount of Impressions to
Tickets' account.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
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6. Representations and Warranties. Each party is solely responsible for any
legal liability arising out of or relating to the content of its site and any
material to which users can link through the sites. Each party represents and
warrants that its sites will not: (i) infringe upon any third party's copyright,
patent, trademark, trade secret or other proprietary rights or rights of
publicity or privacy; (ii) violate any law, statue, ordinance or regulation,
including without limitation any laws regarding unfair competition,
antidiscrimination or false advertising; (iii) be pornographic or obscene; (iv)
be defamatory or trade libelous; or (v) contain viruses other harmful
programming routines. Each party agrees to defend, indemnify and hold harmless
the other and its shareholders, directors, officers, agents and employees for
any and all losses, costs, liabilities or expenses (including without limitation
reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a)
any breach of the foregoing representations or warranties; (b) any claim arising
from the sale or license of either party's goods or services; or (c) any other
act, omission or representation by either party. Either party may participate in
the defense of itself at its option and expense.
7. No Consequential Damages. Except for claims arising under section 6, in no
event will either party be liable for any special, indirect, incidental or
consequential damages.
8. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflict of law principles thereof. Any claim arising out of or related to this
Agreement must be brought exclusively in the state or federal courts located in
San Diego County, California, and each party hereby consent to the jurisdiction
thereof. In any action to enforce this Agreement the prevailing party will be
entitled to costs and attorneys' fees. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior discussions, documents, agreements and prior course of
dealing, and shall not be effective until signed by both parties. This Agreement
may not be assigned by Tickets without XX0.xxx's written consent, which shall be
promptly granted or denied and not unreasonably withheld, except that Tickets
may assign this Agreement without XX0.xxx's consent if another entity acquires
substantially all the assets of Tickets. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is created by this Agreement. XX0.xxx intends to,
and does, bind its successors and assigns to the terms of this Agreement.
/s/ Xxxx Xxxxxx /s/ Xxxx Xxxxxxx
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Representative of XX0.xxx Representative of Xxxxxxx.xxx, Inc.
/s/ Xxxx Xxxxxx, VP Sales Xxxx Xxxxxxx, SVP Counsel
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Printed Name & Position Printed Name & Position
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Date Date
