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* Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
EXHIBIT 10.22
[XX0.XXX LETTERHEAD]
This ("Agreement") is made and 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 [***] 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 [***]
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 XX0.xxx 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 [***]. 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
* CONFIDENTIAL TREATMENT REQUEST(ED)
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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%), then 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.
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, statute, 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
intend to, and does, bind its successors and assigns to the terms of this
Agreement.
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/s/ XXXX XXXXXX /s/ XXXX XXXXXXX
------------------------- -----------------------------------
Representative of XX0.xxx Representative of Xxxxxxx.xxx. Inc.
Xxxx Xxxxxx - VP Sales Xxxx Xxxxxxx - V.P. & Counsel
------------------------- -----------------------------------
Printed Name & Position Printed Name & Position
2/17/99 2-17-99
------------------------- -----------------------------------
Date Date
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Xxxxx:
Per our conversation yesterday, this will confirm, on behalf of Xxxxxxx.xxx,
Inc., that the term of the February 17, 1999 agreement (the "Agreement") by and
between Xxxxxxx.xxx, Inc. and XX0.xxx, Inc. is for one (1) year as stated in
Paragraph 4 thereof (subject to the exceptions stated therein). Though Paragraph
3 of the Agreement only specifies revenue owing XX0.xxx, Inc. through the first
six (6) months of the Term, it is Xxxxxxx.xxx, Inc.'s understanding that for
each of the months subsequent thereto XX0.xxx, Inc. will be compensated in the
amount of ([***]) per month.
/s/ XXXX XXXXXXX
----------------
Xxxx Xxxxxxx
Senior V.P. Business Development & Counsel
Xxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxx Xxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxx@xxxxxxx.xxx
* Confidential Treatment Requested
