EXHIBIT 10.18
CONFIDENTIAL TREATMENT REDACTED FOR
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REQUESTED CONFIDENTIALITY
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The astericked portions of this document have
been omitted and are filed separately with
the Securities and Exchange Commission
JOINT MARKETING AGREEMENT
This Joint Marketing Agreement (the "Agreement") is entered into by Prio,
Inc., a California corporation ("Prio") with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Vicinity Corporation, a California
corporation ("Vicinity") with offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, effective June 23, 1999 (the "Effective Date").
Recitals
A. Whereas, Prio provides services which enable merchants, Internet
portals and other website owners to offer personalized online/offline
promotions, loyalty and brokerage services, which consumers can redeem with
credit cards at the point of sale; and
B. Whereas, Vicinity provides private label solutions for customer
websites include multi-attribute and located-based search capabilities; and
C. Whereas, the parties want to cooperate to bundle their services to
create a new marketed customer acquisition service that allows merchants to
offer promotions and that can be redeemed by consumers in off-line (i.e. non-
web-based) storefronts ("Physical Stores"). National merchants and content site
owners would be the target market for the complete suite of offerings by both
parties' sales forces.
Now, Therefore, the parties agree as follows:
Agreement
1. Definitions.
1.1 "Intellectual Property Rights" means all existing and future patents
and other patent rights, trademarks, trade names, service marks, logos and other
corporate identifiers, copyrights, moral rights and trade secrets, including all
applications and registrations with respect thereto. .
1.2 "Prio Service" means the infrastructure, relationships with banks and
other capabilities provided by Prio (collectively, the "Prio Network") which
permit merchants to (a) offer Merchant Promotions through links from a
merchant's website or via push or other technology to an End User; (b) enable
the online selection of Merchant Promotions; (c) enable the redemption of
Merchant Promotions with a credit card either online or at Physical Stores; (d)
capture the credit card transaction from the merchant location, verify promotion
eligibility, debit the merchant's bank account and issue the appropriate rebate
or credit to the Subscriber's credit card account; (e) permit End Users to
register to receive information concerning promotions of products and services
and participating merchants and (f) confirm that a Subscriber makes a purchase
at a Physical Store based on an interaction on the Internet.
1.
1.3 "Vicinity Service" means private label web-based solutions offered by
Vicinity featuring multi-attribute, location-based searching of content,
community and commerce information.
1.4 "Bundled Service Offering" means the combination of the Vicinity
Service and the Prio Service to create a customer acquisition service that,
among other things, would allow merchants to offer promotions to consumers over
the Internet that are redeemable in Physical Stores.
1.5 "Merchant Data" means information provided by merchants to enable
their participation in the Bundled Service Offering.
1.6 "Merchant Promotions" means local, regional and national promotions of
goods and services from merchants participating in the Bundled Service Offering.
1.7 "Prio Marks" means the Prio trademarks, service marks, logos and other
corporate identifiers designated in Exhibit A for use with the Bundled Service
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Offering.
1.8 "Subscribers" means End Users that register to use the Bundled Service
Offering on Participating Sites.
1.9 "Vicinity Marks" means the Vicinity trademarks, service marks, logos
and other corporate identifiers designated in Exhibit B for use with the
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Bundled Service Offering.
1.10 "Subscriber Data" means information entered by Subscribers in
connection with their use of the Bundled Service Offering, including, without
limitation, names, e-mail addresses, credit card numbers, shopping preferences
and demographic information.
1.11 "End Users" means individuals who use browser software to access the
Bundled Service Offering over the Internet.
1.12 "Participating Site" means a website which offers the Bundled Service
Offering.
1.13 "Referral Fees" shall mean commissions paid by one party (the
"Referred Party") which has been introduced to a customer (the "Referred
Customer") by the other party (the "Referring Party") on revenues received from
the sale of the Referred Party's services on a standalone basis to the Referred
Customer.
2. Bundled Service Offering.
2.1 Development of Bundled Service Offering. The parties will cooperate to
jointly specify, develop and integrate the Bundled Service Offering, including
its navigational structure, look and feel and specific functionality. Vicinity
will be responsible for (a) making the Vicinity Services capable of authoring
Merchant Promotions; and (b) displaying the Prio Marks on Participating Sites.
The parties will be jointly responsible for developing marketing collateral
suitable for the Bundled Service Offering (the "Marketing Materials"). The
parties will use reasonable commercial efforts and adequate resources to rollout
the first stage of the Bundled Service Offering implementation (as described
below) by July 31, 1999.
2.
2.2 Implementation. The parties will implement the Bundled Service
Offering in three stages, as follows:
(a) First Stage: Prio Service integrated with Vicinity's
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Business Finder products; Prio and Vicinity to develop and deploy
technologies to enable Prio to publish glyphs (or promotions
button) to appear next to retailer locations on the merchant's
website;
(b) Second Stage: Prio Service integrated with Vicinity's Site
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Maker product; Prio and Vicinity will develop the operational and
technical interfaces to ensure that promotions can be created and
updated by the customer and displayed on the site using Site
Maker; and
(c) Third Stage: Fully integrated offering of Prio Service with
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all Vicinity products including Site Maker, Business Finder and
Vicinity's wireless products.
2.3 Expenses. The parties will jointly size the development efforts in
each stage and each pay for their own development costs unless otherwise agreed
to in writing. The parties shall each pay 50% of the total cost of developing
the Marketing Materials.
3. Vicinity Marketing Obligations.
3.1 Enrollment of Participating Sites. Vicinity will use reasonable
commercial efforts to market the Bundled Service Offering to existing and future
Vicinity merchants and partners; provided that each such merchant or partner
which is not itself a merchant enters into an enrollment agreement containing
the minimum terms and conditions set forth in Exhibit C (Minimum Terms and
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Conditions for Participating Site Enrollment Agreements) and each merchant or
partner which maintains a merchant site enters into an agreement containing the
minimum terms and conditions set forth on Exhibit D.
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3.2 Service Operations. Vicinity shall provide service and support for the
Bundled Service Offering consistent with service and support levels it provides
for the Vicinity Services. Where Vicinity has resold the Bundled Service
Offering and is the point of contact for the Subscriber, Vicinity shall work
with Prio to obtain necessary banking information and permissions from such
Subscribers to enable Prio to enter the merchant and/or partner's locations into
the Prio network. In addition, Vicinity shall work with Prio to display Prio
branded glyphs as part of the Bundled Service Offering that enable Prio to
receive Subscriber registration information.
3.3 Merchant Marketing Collateral. Vicinity will include marketing
collateral for the Bundled Service Offering in the appropriate merchant sales
and marketing information and starter kits.
3.4 Vicinity Website. Unless otherwise requested by a merchant or a
Participating Site, Vicinity will include the Prio icon and "powered by Prio" on
all web pages under Prio's control where the Bundled Service Offering is invoked
or described, and will include Prio branding elements on its homepage or on a
mutually agreed to page on its website and include general
3.
marketing and descriptive information about Prio and the Prio Service in the
appropriate areas of the Vicinity website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ or its successor
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URL.
3.5 Training. Vicinity will provide training at no charge to Prio's sales
and marketing personnel, on dates and at locations to be mutually agreed,
regarding the Vicinity Services.
4. Prio Marketing Obligations.
4.1 Enrollment of Participating Sites. Prio will use reasonable commercial
efforts to market the Bundled Service Offering to existing and future Prio
merchants and partners using Prio's then-standard terms and conditions for the
Prio Service and shall cause each merchant or partner to enter into an agreement
with Vicinity containing the minimum terms and conditions with respect to the
Vicinity Services set forth on Exhibit E.
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4.2 Service Operations. Prio shall provide service and support for the
Bundled Service Offering consistent with service and support levels it provides
for the Prio Service. Prio will support the Vicinity Services consistent with
the standard requirements set forth by Vicinity for resellers of Vicinity
Services.
4.3 Merchant Marketing Collateral. Prio will include marketing collateral
for the Bundled Service Offering in the appropriate Prio's merchant and sales
kits.
4.4 Prio Website. Prio will include Vicinity branding elements on its home
page or on a mutually agreed to page on its website and general marketing and
descriptive information about Vicinity and the Vicinity Service in the
appropriate areas of the Prio website at ▇▇▇.▇▇▇▇.▇▇▇ or its successor URL.
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4.5 Training. Prio will provide training at no charge to Vicinity's sales
and marketing personnel, on dates and at locations to be mutually agreed,
regarding the Prio Services.
5. Joint Marketing Obligations.
5.1 Partnership Obligations.
(a) Prio will exclusively utilize Vicinity Services for all Prio
projects or programs involving location-based search capabilities services;
(b) Vicinity will exclusively utilize Prio Services for all
Vicinity projects involving product or brand specific consumer discounts
linked to specific retail outlets where a transaction originates on a
website and is consummated at a Physical Store;
(c) Notwithstanding Sections 5.1(a) or (b), each party can use
the services of providers that compete with the other party so long as (i)
the customer requests use of a specific competing service and (ii) such
party has first introduced the other party's services to the customer and
used commercially reasonable efforts to cause the customer to use such
services; and
4.
(d) Both parties will refer potential customers to each other
and actively cooperate on joint marketing activities.
5.2 Customer Origination by Prio. In the event that Prio introduces a Prio
customer to Vicinity and the customer subsequently subscribes to the Bundled
Service Offering, then (a) Prio will ▇▇▇▇ the customer for all fees for its use
of the Bundled Service Offering and (b) Prio will remit a portion of such fees
to Vicinity in accordance with Section 6.
5.3 Customer Origination by Vicinity. In the event that Vicinity
introduces a Vicinity customer to Prio and the customer subscribes to the
Bundled Service Offering, then (a) Vicinity will ▇▇▇▇ the customer for all fees
for its use of the Bundled Service Offering and (b) Vicinity will remit a
portion of such fees to Prio in accordance with Section 6.
5.4 Additional Services. Each party shall be entitled to contact any
merchant using the Bundled Service Offering about possible products/services
offered by such party and not connected with the Bundled Service Offering;
provided, however, that neither party shall introduce competitors of the other
party to such merchants. For the purpose of this Section 5.4, a "competitor" of
Prio or Vicinity shall mean a company that offers a service that would
reasonably be expected to compete with the Prio Service or the Vicinity Service,
respectively.
5.5 Marketing Efforts. Each party will integrate sales and marketing
material concerning the Bundled Service Offering into presentations made at
trade shows and industry conferences.
5.6 Press Releases. The parties will cooperate in issuing joint press
releases announcing their relationship and the commercial availability of the
Bundled Service Offering.
5.7 Internal Training. The parties will each train their respective sales
representatives on the benefits, functionality, implementation specifics and
other such issues as they relate to the sale and support of the Bundled Service
Offering.
5.8 Customer Support. The parties will each provide first line support to
their respective customers for the Bundled Offering Service regarding customer
sales and technical support. Prio and Vicinity will provide second line support
for their respective components of the Bundled Service Offering to merchants
participating in the Bundled Service Offering.
5.9 Channel Conflict. The parties will cooperate to develop a strategy for
eliminating sales channel conflict for the Bundled Offering Service.
6. Payments.
6.1 Bundled Service Offering Pricing. The parties shall mutually agree
upon special pricing for the Bundled Service Offering and mutually negotiate
pricing for merchants and participating sites. The parties shall negotiate in
good faith pricing for reseller partners who are not merchants and the
contribution amount of each party for such transactions.
6.2 Payments Collected for Prio Services and Vicinity Services. In the
event that Prio bills customers for Vicinity Services included within the
Bundled Service Offering as provided
5.
by Section 5.2, Prio shall remit the full amount collected with respect to such
services to Vicinity. In the event that Vicinity bills customers for Prio
Services included within the Bundled Service Offering as provided by Section
5.3, Vicinity shall remit the full amount collected with respect to such
services to Prio.
6.3 Fee Sharing.
6.3.1 In the event that Vicinity resells Prio Services to any
merchant or partner as part of the sale of the Bundled Service Offering, Prio
will remit to Vicinity a payment on all fees collected from the Prio Service
attributable to such Bundled Service Offering in accordance with the following
schedule:
First ******* sites: **** of all Prio Service fees collected from those
storefronts
Additional sites: **** of all Prio Service fees collected from those
storefronts
After ********* cumulative sites the payment due for the first ********
sites shall be increased to ***** on a going-forward basis.
6.3.2 In the event that Prio resells Vicinity Services to any
merchant or partner as part of the sale of the Bundled Service Offering,
Vicinity will remit to Prio a payment on all fees collected from the Vicinity
Service attributable to such Bundled Service Offering in accordance with the
following schedule:
First ******* sites: **** of all Vicinity Service fees collected from
those storefronts
Additional sites: **** of all Vicinity Service fees collected from
those storefronts
After ******** cumulative sites the payment for the first ****** sites
shall be increased to **** on a going-forward basis.
6.3.3 The number of sites referenced in Section 6.3.1 and
Section 6.3.2 shall be determined on a cumulative basis for each party and shall
include only sites that actively utilize the Bundled Service Offering during any
given month. The fee sharing percentage attributable to each site (i.e. ****
versus **** for sites ********* through *********) shall be based upon the
chronological order in which each active site was contracted.
6.3.4 References to "Prio Service fees" in Section 6.3.1 and
"Vicinity Service fees" in Section 6.3.2 shall mean gross service fees
attributable to Prio Service or Vicinity Service, respectively, under the
Bundled Service Offering.
6.4 Referral Fees. A party will pay a Referral Fee to the other party when
the first party provides an introduction to a merchant/partner that results in
the second party entering into a signed contract for the second party's services
(other than the Bundled Service Offering) within ninety (90) days of such
referral as follows: The Referral Fee payable to Prio shall be **** of the gross
fees Vicinity collects from the referred merchant/partner during the first year
after such contract is signed; the Referral Fee payable to Vicinity shall be
********** for each merchant/partner referred by Vicinity.
6.
6.5 Payment Terms. Each party will remit the payments pursuant to this
Section 6 owed to the other party quarterly, within thirty (30) days after the
end of each calendar quarter. All payments will be made in U.S. dollars. Each
party will provide statements itemizing the basis for its calculation of
payments due with its remittances.
6.6 Audit Rights. The parties will collect and retain clear and accurate
records regarding the net fees collected and commissions owned in connection
with this Agreement. Each party shall have the right to have an inspection and
audit of the other party's relevant books and records conducted by an
independent audit professional chosen and paid by the auditing party no more
often than once every twelve (12) months, during regular business hours at the
other party's offices and in a manner that doesn't interfere with regular
business operations. If an audit discloses that inaccurate information caused a
discrepancy of ten percent (10%) or more of the amount actually due to or paid
by the auditing party, then the audited party will bear the costs of the audit.
This provision will survive any termination or expiration of this Agreement for
two (2) years.
6.7 Taxes. Each party agrees to indemnify and hold the other harmless
from, any sales, use, value-added or similar tax or duty not based on their net
income, including any penalties and interest, as well as any costs associated
with the collection or withholding thereof, in each case to the extent levied on
the payments made by either party to each other or either party's performance of
its obligations under the Agreement.
7. Ownership and Use of Data.
7.1 Ownership of Data. Unless otherwise agreed to in writing by the
parties, the parties shall each own all Subscriber Data and Merchant Data that
such party independently receives through the Bundled Service Offering. Each
party shall comply with customer restrictions on use thereof.
7.2 Ownership of Prio Service. Prio is and shall remain the sole and
exclusive owner of all of the features and functionality of the Prio Service,
including all Intellectual Property Rights in the design, architecture and
software implementation thereof. No licenses or rights with respect to the Prio
Service are granted in this Agreement. Notwithstanding the foregoing, Vicinity
shall retain all rights to any design, authoring, and set-up services provided
by Vicinity as part of the development and implementation of the Bundled Service
Offering.
7.3 Ownership of Vicinity Services. Vicinity is and shall remain the sole
and exclusive owner of all of the features and functionality of the Vicinity
Services, including all Intellectual Property Rights in the design, architecture
and software implementation thereof. No licenses or rights with respect to the
Vicinity Services are granted in this Agreement.
8. Disclaimer of Warranties; Limited Warranties.
8.1 Disclaimer. EXCEPT AS SET FORTH IN THE REST OF THIS SECTION, EACH
PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE OPERATION OF THE PRIO SERVICE, VICINITY SERVICES
7.
AND BUNDLED SERVICE OFFERING AND ANY OTHER TECHNOLOGY OR SERVICES. IN
PARTICULAR, AND NOT BY WAY OF LIMITATION, NEITHER PARTY WARRANTS THAT ITS WEB
SITE(S) OR THE PRIO SERVICE, THE VICINITY SERVICES OR THE BUNDLED SERVICE
OFFERING WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
8.2 Prio Warranties. Prio warrants that:
8.2.1 The Prio Service as bundled into the Bundled Service
Offering and any data, images, text or other content therein (excluding any
content provided by a Participating Site or a merchant hereunder not modified by
Prio) do not infringe any copyright, trade secret or trademark held by any third
party.
8.2.2 Prio will take reasonable steps to protect Prio-owned
Subscriber Data from unauthorized access, disclosure or use.
8.3 Vicinity Warranties. Vicinity warrants that:
8.3.1 The Vicinity Services as bundled into the Bundled
Service Offering and any data, images, text or other content therein (excluding
any content provided by a Participating Site or a merchant hereunder not
modified by Vicinity) do not infringe any copyright, trade secret or trademark
held by any third party.
9. Indemnities.
9.1 Indemnity by each party.
9.1.1 Each party (the "Indemnifying Party") hereby agrees to
defend, indemnify and hold the other party (the "Indemnified Party"), and its
successors, officers, directors and employees harmless from any and all claims,
demands, costs, liabilities, losses, expenses and damages (including attorneys'
fees, costs, and expert witnesses' fees) arising out of or in connection with
any claim that the Indemnifying Party's Service as bundled into the Bundled
Service Offering and any data, images, text or other content therein (excluding
any content or technology provided by the Indemnified Party, a Participating
Site or a merchant hereunder and not modified by the Indemnified Party) infringe
any copyright, trade secret or trademark held by any third party, provided that
(a) prompt notice shall be given to the Indemnifying Party of any claim to which
the foregoing indemnity relates, (b) the Indemnifying Party shall have sole
control of the defense and settlement of any such claim and (c) the Indemnified
Party shall give the Indemnifying Party all reasonable assistance at the
Indemnifying Party's request in the defense or settlement of such claim. If any
aspect of the Indemnifying Party's Service including any data, images, text or
other content therein becomes, or in the Indemnifying Party's opinion is likely
to become, the subject of a claim of infringement or misappropriation, the
Indemnifying Party may, at its option and expense, obtain the right to continue
using the aspect or content, replace or modify the affected aspect or content,
or instruct the Indemnified Party to cease use of such aspect or content and
refund any payments made by the Indemnified Party with respect to such aspect or
content. The foregoing shall be the Indemnified Party's sole remedy and the
Indemnifying Party's sole obligation with respect to any breach of the warranty
in Section 8 or any other claim of infringement or misappropriation of any
proprietary right.
8.
9.1.2 The Indemnifying Party assumes no liability for, and
the Indemnified Party shall cause each Participating Merchant to acknowledge
that the Indemnifying Party assumes no liability for, any act or omission of the
Indemnified Party, a Participating Site, a Subscriber or any participating
merchant or for the quality, availability or value of any goods and services
offered in connection with Merchant Promotions available on Participating Sites.
The Indemnifying Party agrees to indemnify the Indemnified Party for any loss or
damage incurred by the Indemnified Party due to a documented failure by the
Indemnifying Party to properly implement the valid redemption of a valid
Merchant Promotion by a the Indemnifying Party Subscriber, provided that such
indemnification obligation shall not exceed, with respect to each such
documented failure, the value of the applicable Merchant Promotion.
10. Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF IT HAS
BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY'S LIABILITY IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING
RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT
EXCEED AN AMOUNT EQUAL TO THE PAYMENTS MADE BY SUCH PARTY UNDER THIS
AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM, WITH ALL
PAYMENTS FOR CLAIMS OR DAMAGES BY A PARTY UNDER THIS AGREEMENT BEING
AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT FOR SUCH PARTY. THE
EXISTENCE OF ONE OR MORE SUITS AT ANY TIME OR TIMES WILL NOT ENLARGE THE
LIMIT. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION UNDER OR RELATING TO
THIS AGREEMENT.
11. Confidentiality.
11.1 Confidential Information. "Confidential Information" means any
confidential or proprietary information, source code, software tools, designs,
schematics, plans or any other information relating to any research project,
work in process, future development, scientific, engineering, manufacturing,
marketing or business plan or financial or personnel matter relating to either
party, its present or future products, sales, suppliers, customers, employees,
investors or business, disclosed by one party to the other party, whether in
oral, written, graphic or electronic form, and whose confidential or proprietary
nature is identified at the time of such disclosure.
11.2 Non-Disclosure. Each party agrees that it will not make use of,
disseminate, or in any way disclose the other party's Confidential Information
to any person, firm or business, except as authorized by this Agreement and to
the extent necessary for performance of this Agreement. Each party agrees that
it will disclose Confidential Information only to those of its employees and
contractors who need to know such information and who have previously agreed to
be bound by the terms and conditions of this Agreement. Each party agrees that
it will treat all Confidential Information of the other party with the same
degree of care as it accords its own confidential information; each party
represents that it exercises reasonable care to protect its own confidential
information.
9.
11.3 Exceptions. The receiving party's obligations with respect to any
portion of Confidential Information will terminate when the receiving party can
demonstrate that (a) the Confidential Information was in the public domain at
the time it was communicated to the receiving party by the disclosing party; (b)
it entered the public domain subsequent to the time it was communicated to the
receiving party by the disclosing party through no fault of the receiving party;
(c) it was in the receiving party's possession free of any obligation of
confidence at the time it was communicated to the receiving party by the
disclosing party; (d) it was rightfully in the receiving party's possession free
of any obligation of confidence at or subsequent to the time it was communicated
to the receiving party by the disclosing party; (e) it was developed by
employees or agents of the receiving party independently of and without
reference to any information communicated to the receiving party by the
disclosing party; or (f) the disclosure was in response to a valid order by a
court or other governmental body, was otherwise required by law, or was
necessary to establish the rights of either party under this Agreement. Each
party agrees that the other party may disclose the existence and terms of the
Agreement to actual and prospective investors and their counsel and advisors in
connection with any private placement of such party's securities, in connection
with a merger, acquisition or sale of all or substantially all of such party's
assets, or in accordance with the provisions of any other contract requiring
such disclosure pursuant to a most favored customer or similar provision.
12. Term and Termination.
12.1 Term and Termination. Unless terminated earlier pursuant to the
termination provisions in this Section 12, this Agreement shall remain in effect
for one (1) year from the Effective Date. The Agreement will then automatically
renew for successive one-year periods unless either party notifies the other at
least sixty (60) days prior to the end of the initial or then-current renewal
term that it will not renew the Agreement. In the event that Vicinity elects not
to renew this Agreement or this Agreement is otherwise terminated through no
fault of Prio, then Vicinity agrees to use commercially reasonable effort to
cause each Participating Site attributable to Vicinity to enter into an
agreement with Prio providing for the Prio Service. In the event that Prio
elects not to renew this Agreement or this Agreement is otherwise terminated
through no fault of Vicinity, then Prio agrees to use commercially reasonable
effort to cause each Participating Site attributable to Prio to enter into an
agreement with Vicinity providing for the Vicinity Service.
12.2 Termination for Breach. Either party may terminate the Agreement
if the other party fails to perform any of its obligations and such failure
continues for a period of thirty (30) days after receipt by the breaching party
of written notice from the non-breaching party specifying such default.
12.3 Effects of Expiration or Termination. Upon the expiration or
termination of the Agreement, the parties will return or destroy all
Confidential Information of the other party in their possession. All accrued
payment obligations of Prio and Vicinity shall survive expiration or termination
of the Agreement. The provisions of Sections 1 ("Definitions"), 6 ("Payments"),
7 ("Ownership and Use of Data"); Section 8 ("Disclaimer of Warranties; Limited
Warranties"); Section 9 ("Indemnities"); Section 10 ("Limitation of Liability");
Section 11 ("Confidentiality"); Section 12 ("Termination") and Section 13
("General") shall survive any expiration or termination of this Agreement.
10.
13. General.
13.1 Governing Law. This Agreement shall for all purposes be governed
by and interpreted in accordance with the laws of the State of California as
those laws are applied to contracts entered into and to be performed entirely in
California by California residents.
13.2 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable for any reason, the
remaining provisions hereof shall be unaffected and remain in full force and
effect, unless the unenforceable provisions are of such essential importance to
this Agreement that it is to be reasonably assumed that the parties would not
have entered into this Agreement without such provisions.
13.3 Prio Trademark License. Prio hereby grants Vicinity a limited
license to use the Prio Marks in connection with the marketing, distribution,
provision of access to, and support of the Bundled Service Offering. Vicinity
agrees that the Prio Marks are the exclusive property of Prio and that all usage
of the Prio Marks and any goodwill established by such use of the Prio Marks
shall inure to the exclusive benefit of Prio and that this Agreement does not
confer any goodwill or other interests in the Prio Marks on Vicinity. Vicinity
will comply with Prio's standard trademark and service ▇▇▇▇ usage guidelines
including but not limited to those guidelines pertaining to the requisite
quality of the services with which a Prio ▇▇▇▇ is used, in the form and manner
set forth in such guidelines. Vicinity shall provide to Prio, at no cost to Prio
and prior to any first use, examples of Vicinity's such use of the Prio Marks
and shall obtain Prio's approval in writing prior to such use. Vicinity shall
modify or discontinue such use if requested by Prio, except that Vicinity may
re-use approved uses without further approval provided that such use remains
accurate and not misleading. Vicinity shall not adopt any trademark, trade name,
or service ▇▇▇▇ which is confusingly similar to any Prio Marks.
13.4 Vicinity Trademark License. Vicinity hereby grants Prio a limited
license to use the Vicinity Marks in connection with the marketing,
distribution, provision of access to, and support of the Bundled Service
Offering. Prio agrees that the Vicinity Marks are the exclusive property of
Vicinity and that all usage of the Vicinity Marks and any goodwill established
by such use of the Vicinity Marks shall inure to the exclusive benefit of
Vicinity and that this Agreement does not confer any goodwill or other interests
in the Vicinity Marks on Prio. Prio will comply with Vicinity's standard
trademark and service ▇▇▇▇ usage guidelines including but not limited to those
guidelines pertaining to the requisite quality of the services with which a
Vicinity ▇▇▇▇ is used, in the form and manner set forth in such guidelines. Prio
shall provide to Vicinity, at no cost to Vicinity and prior to any first use,
examples of Prio's such use of the Vicinity Marks and shall obtain Vicinity's
approval in writing prior to such use. Prio shall modify or discontinue such use
if requested by Vicinity, except that Prio may re-use approved uses without
further approval provided that such use remains accurate and not misleading.
Prio shall not adopt any trademark, trade name, or service ▇▇▇▇ which is
confusingly similar to any Vicinity Marks.
13.5 Modifications. Any modification, amendment, supplement, or other
change to this Agreement must be in writing and signed by duly authorized
representatives of the parties.
13.6 Assignments. No right or obligation of either party under this
Agreement shall be assigned, delegated or otherwise transferred, whether by
agreement, operation of law or
11.
otherwise, without the express prior written consent of the other party,
provided that either party may assign the Agreement without the other's consent
in the context of a merger, acquisition or sale of all or substantially all of
its assets. Subject to the preceding sentence, this Agreement shall bind each
party and its permitted successors and assigns.
13.7 Waivers. All waivers must be in writing. The failure of either
party to insist upon strict performance of any provision of this Agreement, or
to exercise any right provided for herein, shall not be deemed to be a waiver
for the future of such provision or right, and no waiver of any provision or
right shall affect the right of the waiving party to enforce any other provision
or right herein.
13.8 Force Majeure. Neither party shall not be responsible for any
failure to fulfill its obligations hereunder due to causes beyond its reasonable
control, including without limitation, acts or omissions of government or
military authority, acts of God, shortages of materials, transportation delays,
fires, floods, labor disturbances, riots or wars.
13.9 Notices. Any notice or communication permitted or required
hereunder shall be in writing and shall be delivered in person or by courier or
mailed by certified or registered mail, postage prepaid, return receipt
requested, and addressed as set forth in the first paragraph of this Agreement
or to such other facsimile number or address as either party may from time to
time provide to the other. If notice is given in person, by courier or by fax,
it shall be effective upon receipt; and if notice is given by mail, it shall be
effective three (3) business days after deposit in the mail.
13.10 Relationship Between Parties. Vicinity and Prio shall at all
times and for all purposes be deemed to be an independent contractor and neither
party, nor either party's employees, subcontractors or agents, shall have the
right or power to bind the other party. This Agreement shall not create or be
deemed to create a joint venture, partnership or other similar association
between the parties or any of either party's employees, subcontractors or
agents.
13.11 Publicity. Each party hereto has the right to periodically
publicize the relationship set forth in this Agreement, provided such publicity
has been submitted to and approved by the other party prior to disclosure.
13.12 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all prior agreements between the parties, whether written or oral, relating to
the same subject matter.
12.
In Witness Whereof, the parties have executed this Joint Marketing
Agreement as of the Effective Date.
Prio, Inc. Vicinity Corporation
By:___________________________ By:_____________________________
______________________________ ________________________________
Typed or Printed Name Typed or Printed Name
______________________________ ________________________________
Title Title
13.
EXHIBIT A
PRIO MARKS
To be added by Prio in accordance with Section 1.7.
14.
EXHIBIT B
VICINITY MARKS
To be added by Vicinity in accordance with Section 1.9.
15.
EXHIBIT C
PARTICIPATING SITE ENROLLMENT AGREEMENT
MINIMUM TERMS AND CONDITIONS
Vicinity's agreements with Participating Sites shall include at least the
following provisions:
1. The Participating Site shall incorporate hyperlinks to the Prio servers
hosting the Prio Service. Each such hyperlink shall be branded with the Prio
▇▇▇▇ designated by Prio. Each website page on which the functionality of the
Prio Service may be invoked shall be co-branded with the designated Prio ▇▇▇▇
(such as "Powered by Prio") in a manner mutually agreeable to Vicinity and the
Participating Site. The Participating Site shall not modify any Prio ▇▇▇▇
without Vicinity's prior written consent.
2. The Participating Site shall use commercially reasonable efforts to solicit
merchants to provide Merchant Promotions for the Prio Service.
3. The Participating Site shall have sole responsibility for collecting all
fees and charges from Enrolled merchants for participation in the Prio Service.
4. All enrollment agreements that a Participating Site enters into with
merchants for the Prio Service shall contain the minimum terms and conditions
set forth in Exhibit D (Minimum Terms and Conditions for Merchant Agreements)
attached to this Agreement. Such terms and conditions shall remain in full force
and effect and are not subject to waiver by Vicinity.
5. The Participating Site grants Vicinity and its suppliers [including Prio] a
non-exclusive, perpetual, irrevocable, royalty-free, fully-paid up license under
all of the Participating Site's Intellectual Property Rights, to (a) use,
reproduce, display, modify and create derivative works of Viewer Data and
Merchant Data solely for the purpose of operating, maintaining and enhancing the
Prio Service as permitted hereunder; and (b) to distribute and sublicense
aggregate statistical and database compilations derived from Viewer Data and
Merchant Data, such as information concerning Prio Subscriber demographics, site
traffic, viewing and navigation patterns, redemption characteristics, etc.,
provided that such aggregate data does not identify individual Prio Subscribers
or merchants.
6. The Participating Site shall not display any hyperlinks, glyphs (e.g.,
branded "buttons" or other graphic representations) or intelligent coupons
served by the Prio Service on any website or location other than the
Participating Site. The Participating Site will not redistribute these
hyperlinks, glyphs or intelligent coupons or any other aspect of the Prio
Service's functionality on any website or location other than the Participating
Site. The Participating Site shall not use the name, trade names or trademarks
of Prio without first obtaining the consent of Vicinity.
7. The Participating Site will collect and retain clear and accurate records
regarding the merchants enrolled and services performed in connection with this
Agreement. Vicinity and its suppliers shall have the right to have an
inspection and audit of the Participating Site's relevant
16.
books and records conducted by an independent audit professional chosen and paid
by the auditing party no more often than once every twelve (12) months, during
regular business hours at the other party's offices and in a manner that doesn't
interfere with regular business operations.
8. The Participating Site warrants that any data, images, text or other
content contributed by the Participating Site to the Prio Service do not
infringe any copyright, trade secret or trademark held by any third party.
9. The Participating Site agrees to defend, indemnify and hold Vicinity and
its suppliers, and its and their successors, officers, directors and employees
harmless from any and all actions, causes of action, claims, demands, costs,
liabilities, expenses and damages (including without limitation attorneys' fees)
to the extent arising out of or in connection with any claim that data, images,
text or other content contributed by the Participating Site to the Prio Service
infringe any copyright, trade secret or trademark held by any third party,
provided that (a) prompt notice shall be given to the Participating Site of any
claim to which the foregoing indemnity relates, (b) the Participating Site shall
have sole control of the defense and settlement of any such claim and (c)
Vicinity shall give the Participating Site all reasonable assistance at the
Participating Site's expense in the defense or settlement of such claim. If any
of the data, images, text or other content contributed by a Participating Site
to the Prio Service becomes, or in the Participating Site's opinion is likely to
become, the subject of a claim of infringement or misappropriation, the
Participating Site may, at its option and expense, obtain the right, or cause
the right to be obtained, to continue using the aspect or content, replace or
modify the affected aspect or content, or instruct Vicinity to cease use of such
aspect or content. The foregoing shall be the Participating Site's sole remedy
and Vicinity's sole obligation with respect to any claim of infringement or
misappropriation of any proprietary right.
10. The Participating Site hereby agrees to defend, indemnify and hold Vicinity
and its suppliers, and its and their successors, officers, directors and
employees harmless from any and all claims, demands, costs, liabilities, losses,
expenses and damages (including attorneys' fees, costs, and expert witnesses'
fees) arising out of or in connection with any breach of the Participating
Site's obligation to include the required minimum terms and conditions in
merchant Enrollment agreements with Merchants (as required above), or any
misrepresentation of the Prio Service by the Participating Site, or any act or
omission of the Participating Site that results in the unauthorized disclosure
of Prio Subscriber information (including but not limited to Viewer Data),
provided that (a) prompt notice shall be given to the Participating Site of any
claim to which the foregoing indemnity relates, (b) the Participating Site shall
have sole control of the defense and settlement of any such claim and (c)
Vicinity shall give the Participating Site all reasonable assistance at the
Participating Site's expense in the defense or settlement of such claim.
11. The Participating Site disclaims any representations or warranties, express
or implied, from Prio, and disclaims all liability of any kind on behalf of Prio
which may be greater than the warranties provided by Prio to Vicinity.
17.
EXHIBIT D
MERCHANT AGREEMENT MINIMUM TERMS AND CONDITIONS
Vicinity's agreements with merchants enrolled in the Bundled Service Offering by
Vicinity shall include at least the following provisions:
1. The merchant shall be solely responsible for all promotions offered by the
merchant and for honoring all such promotions in accordance with their terms.
The merchant shall be solely responsible for the quality, availability and value
of all goods and services promoted by the merchant via the Prio Network.
2. The merchant shall comply with all applicable local, state and federal
regulations of promotions.
3. The merchant will indemnify and hold Prio harmless against any claim, loss
or damage arising from any act or omission by the merchant, including but not
limited to any claim by any third party arising from or concerning the goods and
services offered or sold by the merchant in connection with the promotions
offered via the Prio Network, or any failure by the merchant to honor a valid
redemption.
4. The merchant authorizes its acquiring bank and credit card processor to
provide Vicinity or Vicinity's designee with all of the information required to
match promotions on the Prio Network selected by End Users with transactions
conducted with the merchant and audit the matching process, including but not
limited to a record of all credit card transactions conducted with the merchant.
The merchant will give Vicinity and Prio sixty (60) days written advance notice
of any change in the merchant's acquiring bank and credit card processor. The
merchant agrees to bear all charges and fees imposed by the acquiring
bank/credit card processor and to indemnify and hold Prio harmless against any
such charges and fees.
5. The merchant authorizes the merchant's acquiring banks and credit card
processors to provide Prio a copy of the data relating to promotion redemptions
at all of the merchant's participating sites on Prio's request.
6. The merchant agrees that all transactions with respect to promotions
offered via the Prio Network will be subject to the merchant's agreement for the
acceptance of VISA, MasterCard, American Express, Discover and all other charge,
credit and debit cards the merchant accepts.
7. The merchant disclaims any representations or warranties, express or
implied, from Prio, and disclaims all liability of any kind on behalf of Prio.
8. The merchant authorizes Vicinity or Vicinity's designee to either debit the
merchant's designated bank accounts and credit merchant's customers' credit card
accounts, or to post a billing item on the merchant's account statement, with
respect to promotions redeemed. The merchant disclaims all responsibility of
Prio to collect or remit any funds due to the merchant's customers or third
parties.
18.
9. Vicinity can terminate its agreement with merchant immediately for
nonpayment of any fees required for merchant's participation in the Prio
Network.
10. Prio may terminate any promotion without prior notice to the merchant for
fraud, illegality, willful misconduct or if any such promotion allegedly
infringes the proprietary or other rights of third parties.
11. Prio and/or Vicinity will own all data regarding individual consumers' use
of the Prio Network and redemption of promotions and all information gathered
from use of the Prio Network generally.
12. The provisions for merchants' cancellation of their enrollment in the Prio
Service shall be the same as for the merchants' cancellation of their
participation in the Participating Site in general.
19.
EXHIBIT E
20.
