1
* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
EXHIBIT 10.10
PROMOTION AGREEMENT
This Promotion Agreement (the "Agreement") is dated as of September 10, 1999
between CNET, Inc., with its principal place of business located at 000 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("CNET"), and Niku Corporation, with its
principal place of business located at 000 Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx
00000 (the "Company"). Pursuant to this Agreement, the Company and CNET will
work together to create a co-branded site to provide Company's services to CNET
users, and CNET will provide various promotions to the Company to assist the
Company in promoting the co-branded site and Company services. Accordingly, the
parties hereby agree as follows:
1. DEFINITIONS.
"Above the Fold" means that a particular item on a Web page is viewable
on a computer screen at an 800 x 600 pixels resolution when the User
first accesses such Web page, without scrolling down to view more of the
Web page.
"Business Computing Channel" means the Business Computing channel on the
CNET Site, as may be changed from time to time by CNET.
"CNET Competitor" means the competitors of CNET listed on Exhibit G, as
reasonably amended by CNET from time to time, but in no event more than
once during each calendar quarter.
"CNET Content Areas" means the header and footer of each page of the
Co-Branded Site designed in accordance with Section 2.3.1.
"CNET Marks" means any trademarks, trade names, service marks and logos
delivered by CNET to the Company expressly for inclusion on the Company
Site.
"CNET Sites" means the Internet sites operated by CNET together with any
mirror sites and successors to the foregoing, but not including the
Distributor Sites as described in Section 12.14.
"Co-Branded Site" means the web site created pursuant to Section 5,
below, which features branding for CNET and the Company.
"Company Competitor" means the competitors of the Company listed on
Exhibit H, as mutually amended by CNET and the Company from time to
time, but in no event more than once during each calendar quarter.
"Company Content Area" means the middle section of each page of the
Co-Branded Site designed in accordance with Section 2.3.2.
"Company Marks" means any trademarks, trade names, service marks and
logos that may be delivered by the Company to CNET expressly for
inclusion in the Promotions.
"Company Services" means any product or service sold or provided on or
through the Company Site.
1
2
"Company Site" means the Internet site operated by the Company at
xxxx://xxx.xxxxx.xxx, together with any mirror sites and successors to
the foregoing, but not including the Company Distributor Sites as
described in Section 12.15.
"Impression" means the display of a Promotion on the CNET Sites.
"Launch Date" means the date on which the Co-Branded Site is made
generally available to Users, as further described in Section 2.7.
"Look and Feel" means the look and feel, User interface and flow of User
experience.
"Promotions" means banners, buttons, text links, windows and other
promotions that are offered by the relevant party now or in the future,
for which such party receives monetary payment, barter, or other
compensation.
"Special Promotions" means branded or unbranded Promotions specifically
promoting the Co-Branded Site.
"Sponsorship" means the Business Solutions Directory sponsorship
described in Section 3.3.
"Standard Promotions" means Promotions linked to the Company Site and
which promote the Company's products and services.
"Television Spotlight" means a weekly television spotlight to be run in
selected CNET programming available on CNBC.
"Term" means the term described in Section 5.
"User" means a user of a CNET Site.
2. CO-BRANDED SITE DEVELOPMENT AND INTEGRATION.
2.1 Co-Branded Site Described. The parties will work together in good
faith to create the Co-Branded Site on the terms describe in this
Section 2. Unless otherwise mutually agreed by the parties, the
Co-Branded Site will provide all of the features and
functionality provided by, and will perform in a manner
substantially identical to, the Company Site, as the Company Site
may be updated and enhanced from time to time.
2.2 Hosting. The Company or its designee (provided that such designee
is not a CNET Competitor) will host the Co-Branded Site on its
servers (or on servers within its control) and will provide all
computer hardware, software, bandwidth and personnel necessary to
operate and maintain the Co-Branded Site as a functional site
accessible to Users. The Company will operate the Co-Branded Site
in a manner that meets or exceeds the reliability and performance
standards described on Exhibit C, and will use commercially
reasonable efforts to ensure that the performance and reliability
of the Co-Branded Site are at least as good as the CNET Sites.
2
3
2.3 Design.
2.3.1 CNET Content Areas. CNET will create the specification,
design, functionality, user interface and Look and Feel
for the CNET Content Areas, and Company will use
commercially reasonable efforts to assist CNET. Subject to
the terms of Section 2.13.1, such CNET Content Area may
include branding, promotions, content, navigational tools,
and other features, tools and content as determined by
CNET. CNET will develop all elements of the CNET Content
Areas interface, including graphics and templates. Company
acknowledges that CNET may change the design and content
of the CNET Content Areas from time to time, as determined
at CNET's discretion. Initially, the CNET Content Areas
will substantially conform to the illustrations attached
as Exhibit E.
2.3.2 Company Content Area. Company will create the
specification, design, functionality, user interface and
Look and Feel for the Company Content Area; provided,
however, that the Company Content Area will substantially
conform to the Look and Feel of the Company Site, as may
be changed from time to time. Company will consider CNET's
reasonable requests to change the design and content of
the Company Content Area, provided that the final design
and Look and Feel of the Company Content Area will be
determined by the Company. Subject to the terms of
Sections 2.4 and 2.13.2, such Company Content Area will
include branding, promotions, content, navigational tools,
and other features, tools and content as mutually agreed
by Company and CNET. Company will develop all elements of
the Company Content Area interface, including graphics and
templates. CNET acknowledges that Company may change the
design and content of the Company Content Area to add or
delete Company Services in accordance with Section 2.4.
Initially, the Company Content Area will substantially
conform to the illustrations attached as Exhibit E.
2.4 Company Services. Company will provide on the Co-Branded Site
substantially all Company Services offered on the Company Site.
CNET acknowledges that (i) the Company may change the Company
Services offered on the Company Site from time to time, in which
case the Company Services offered on the Co-Branded Site will be
changed in a similar fashion and (ii) Company may license content
from third party suppliers from time to time for display on the
Company Site, and the complete text of such content may reside on
the Company Site without being posted to the Co-Branded Site.The
Company will in good faith consider all changes, improvements and
enhancements reasonably suggested by CNET. The Company will be
responsible for incorporating all bug fixes and upgrades into the
Company Services offered on the Co-Branded Site on an ongoing
basis.
2.5 CNET Content. Company may include content from the CNET Sites as
described on Exhibit F on relevant pages of the Co-Branded Site,
or as otherwise mutually agreed by the Company and CNET.
2.6 Co-Branding Features. Each page on the Co-Branded Site will
include branding for CNET and the Company so that the CNET Marks
and Company Marks are
3
4
both Above the Fold. The "Home" page of the Co-Branded Site will
include a Company Xxxx within the top CNET Content Area, as
illustrated in Exhibit E. All other pages on the Co-Branded Site
will include CNET graphics and links in the CNET Content Area and
Company graphics and links in the Company Content Area, as
illustrated on Exhibit E.
2.7 Launch Date. The parties will use commercially reasonable efforts
to achieve a Launch Date for the Co-Branded Site [***] after the
Effective Date.
2.8 IP Masking. Using IP masking, the URL for the Co-Branded Site
will begin with xxxx://xxxxx.xxxx.xxx. The Company agrees that
CNET will be entitled to count all page views of the Co-Branded
Site towards CNET's traffic as measured by Media Metrix (as both
a "Property" and "Domain" listing) and other Internet
traffic-auditing firms. In addition, both parties will count the
traffic as a "Consolidated" listing as measured by Media Metrix.
CNET shall have the right to provide a redacted copy of this
Agreement to an Internet traffic-auditing firm in connection with
this Section. Furthermore, simultaneous with the execution of
this Agreement, the parties shall execute the letter to Media
Metrix set forth in Exhibit D attached hereto.
2.9 Terms and Pricing. The Company shall offer Users of the
Co-Branded Site pricing and terms equivalent in value to the
lowest generally available pricing and terms offered by the
Company to similarly situated users of the Company Site, provided
that such pricing will not be greater than the published pricing
on the Company Site.
2.10 Quality assurance. Throughout the Term, the Co-Branded Site will
comply with the performance standards and technical
specifications described on Exhibit C.
2.11 Customer Support. The Company will provide reasonable support to
registered users on the Co-Branded Site in a quality and manner
substantially equivalent to the customer support provided on the
Company Site.
2.12 Technical Support. Each party will provide all necessary
technical support for the parts of the Co-Branded Site they each
provide and will designate a technical point of contact. Each
party will use reasonable efforts to notify the other's
designated contact at least three (3) business days in advance of
any planned outages of its portion of the Services, and within
fifteen (15) minutes in case of any unplanned outages of its
portion of the Services.
2.13 Advertising.
2.13.1 CNET Content Areas. CNET shall own and have the right to
use or sell all of the advertising inventory within the
CNET Content Areas. The Company will fully cooperate with
CNET in integrating CNET's Promotion serving software with
the Co-Branded Site in a manner that allows CNET to
accurately deliver and track Promotions and other
advertising. CNET will have the right to retain all
revenues associated with Promotions, subscriptions,
services and transactions displayed in the CNET Content
Areas. CNET shall not display any Promotions,
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4
5
advertising or solicitations within the CNET Content Areas
for any Company Competitor listed on Exhibit H.
2.13.2 Company Content Area. Company shall own and have the right
to use or sell all of the advertising inventory within the
Company Content Area. Company will have the right to
retain all revenues associated with Promotions,
subscriptions, services and transactions sold by Company
or its agents and displayed in the Company Content Areas.
Company shall not display any Promotions, advertising or
solicitations within the Company Content Area for any CNET
Competitor listed on Exhibit G; provided, however, that
the foregoing shall not restrict the Company from placing
a reasonable number of unpaid editorial links from the
Company Content Area to CNET Competitors. Except as
specifically restricted in the foregoing sentence, Company
shall have the right to display third party (including
CNET Competitor) links, media, banner advertisements,
other Promotions, and/or unpaid editorial content anywhere
on the Company Site. Notwithstanding the foregoing, if
CNET and the Company reasonably determine that unused
promotional space exists within the Company Content Area,
CNET and the Company will work together to allow CNET to
use such unused promotional space for Promotions delivered
by CNET. The Company will fully cooperate with CNET in
integrating CNET's Promotion serving software with the
Co-Branded Site in a manner that allows CNET to accurately
deliver and track Promotions and other advertising which
CNET provides in the Company Content Area. CNET will have
the right to retain all revenues associated with
Promotions sold by CNET and displayed in the Company
Content Areas.
2.14 Performance Standards. October 1st 1999 will be the first day of
the initial 3 month evaluation period. Within a reasonable time
after the end of the first three months following October 1st
1999 (the "First Quarter"), CNET and the Company will work
together in good faith to evaluate the success of the Co-Branded
Site taking into consideration factors such as (a) the number of
Co-Branded Site users, (b) feedback from the Co-Branded Site
users, (c) consumer response to the joint marketing activities,
and (d) any technical issues related to the Co-Branded Site. CNET
and the Company will agree on a list of action items aimed at
improving the success of the Co-Branded Site. Within a reasonable
time after the end of the three months immediately following the
First Quarter (the "Second Quarter"), CNET and the Company will
work together in good faith to evaluate the success of the
Co-Branded Site taking into consideration factors similar to
those considered at the end of the First Quarter. CNET and the
Company will agree on a list of action items aimed at improving
the success of the Co-Branded Site. During the three months
immediately following the Second Quarter (the "Third Quarter"),
the parties will work together in good faith to determine and
establish performance standards for the remainder of the term,
based on the success of the Co-Branded Site during the First
Quarter and Second Quarter. The parties agree to finalize such
performance standards by the end of the Third Quarter; provided,
however, that if the parties, working together in good faith, are
unable to finalize such performance standards by the end of the
Third Quarter, then on July 5th, 2000 either party may terminate
this Agreement immediately upon written notice to the other
party. The parties agree that the
5
6
foregoing meetings are an essential part of this Agreement and a
party's failure to participate in the such meetings will be
deemed to be a material breach of this Agreement by such party.
2.15 Bi-annual Executive Review. Every six months after the execution
of this Agreement., senior executives of CNET and the Company
(President level or above) will conduct face-to-face meetings at
a mutually agreed time and location to discuss the performance of
the Co-Branded Site and the relationship between the parties. The
parties agree that the first executive meeting will occur in
conjunction with the second performance standards meeting set
forth in Section 2.14.
3. PROMOTIONS BY CNET.
3.1 Standard Promotions. During the Term of this Agreement, the
Company will purchase Standard Promotions on the CNET Site (based
on a [***]) as set forth in Section 5.2.CNET will use
commercially reasonable means to deliver for the Company the
Standard Promotions as set forth on Exhibit A, as may be modified
from time to time as determined by the Company and subject to
CNET's then-current inventory availability. If the Company fails
to provide CNET with a Standard Promotions media plan for a
minimum of [***] for any particular month on or before the fifth
day of such month, then CNET will choose and run a mix of
Standard Promotions equal to the monthly advertising payment.
CNET will use commercially reasonable efforts to choose Standard
Promotions that are consistent with the Company's goals. The
Company may request any reasonable reallocation of the location
and type of the Standard Promotions subject to CNET's
then-current inventory availability and the terms of CNET's Media
Kit at xxxx://xxx.xxxx.xxx/Xxxxx/, as may be reasonably changed
from time to time. CNET shall not charge the Company any extra
fees for such requested reallocations of Standard Promotions if
they are equivalent in value to those that would otherwise be
provided by CNET hereunder. If the Company's requested
reallocations of Standard Promotions are more expensive than the
location and type normally provided hereunder by CNET, then the
Company shall pay the difference of such cost based on a [***] at
the time of request. CNET will use commercially reasonable
efforts to implement the Company's requests made in accordance
with the preceding sentence within thirty (30) days after receipt
of each request. The Company will design any graphics and other
materials required for the Standard Promotions, and CNET will
provide reasonable assistance to the Company in connection with
the design and creation of such materials. The Company will be
responsible for ensuring that each URL provided to CNET for use
in a Standard Promotion takes the User to the appropriate area
within the Company Site and that such site functions with
reasonable reliability and in a commercially reasonable manner
throughout the Term. In particular, the Company agrees that the
Company Site will comply with the performance standards set forth
on Exhibit C throughout the Term.
3.2 Special Promotions. During the Term of this Agreement, CNET may,
at its sole discretion, deliver Special Promotions to encourage
Users to visit the Co-Branded Site. CNET will design any graphics
and other materials required for the
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
6
7
Special Promotions, and the Company will provide reasonable
assistance to CNET in connection with the design and creation of
such materials. Special Promotions may appear anywhere on the
CNET Sites as determined in CNET's sole discretion.
3.3 Sponsorship. On or before November 1, 1999 and continuing
throughout the remainder of the Term, CNET and the Company will
work together in good faith to provide a message to all CNET
Business Solutions Directory subscribers enabling them to
subscribe to the Company Services through the Co-Branded Site.
Such message will appear each time a CNET Business Solutions
Directory subscriber completes registration of the Business
Solutions Directory on the CNET Sites. Further, CNET will use
commercially reasonable efforts to allow each Business Solutions
Directory Subscriber to register with the Company through the
Co-Branded Site in a manner that does not require such subscriber
to separately re-enter the information they have already provided
to CNET.
3.4 Television Spotlight. During the Term of this Agreement, CNET
will deliver for the Company the Television Spotlights as set
forth on Exhibit A. Each Television Spotlight will contain a
Company Site promotion along with a URL selected by the Company.
The Company will record the Television Spotlights and design any
graphics and other materials required for the Television
Spotlights, and will supply copies of such materials to CNET in a
form reasonably requested by CNET. All materials provided to CNET
will comply with CNET's reasonable technical and editorial
guidelines, as in effect from time to time. CNET will provide
reasonable assistance to the Company in connection with the
design and delivery of such materials.
3.5 Promotion of the Co-Branded Site. During the Term of this
Agreement, CNET will purchase [***] worth of Promotions for
the Co-Branded Site on third-party web sites or through other
media. CNET and the Company will work together in good faith to
determine the type, quantity and delivery time of such
Promotions, provided that the final placement, type and quantity
of Promotions will be determined by CNET. The parties agree that
the timing of such Promotions shall be in the manner described on
Exhibit K, unless otherwise mutually agreed by the parties. Such
Promotions will encourage users to visit the Co-Branded Site and
will include branding for CNET and the Company, as reasonably
determined by the parties.
3.6 Links from Business Computing. During the Term of this Agreement,
CNET will provide navigational links to the Co-Branded Site
throughout all relevant areas of the Business Computing Channel,
with specific placement determined at the sole discretion of
CNET. Throughout the Term, at a minimum CNET will provide a
navigational link to the Co-Branded Site from the Business
Computing channel (excluding Company Profile Pages), including
but not limited to a navigational link on (a) the [***] of the
[***] channel at a minimum level of [***] as shown in
Illustration E-4, attached to Exhibit E, (b) the [***] of the
[***] at a minimum level of [***] as shown in illustration E-5
(c) on all of the [***] (an example of which is shown in
Illustration E-6) within a minimum of [***] of the [***] (as
defined below) listed on the [***] of the [***], at a minimum
level of [***] as shown in Illustration E-6, (provided that
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
7
8
CNET may change the font, style or characteristics of the link to
make it consistent with the design and layout of the page), and
(d) on all pages within a minimum of [***] of the [***] listed on
the [***] of the [***]. For the purposes of this Section 3.6, a
"Top Level Category" is any highlighted link presented on the
front door of a channel or directory that is designed to
categorize all content within that channel or directory. CNET
will create the specification, design, functionality, user
interface and Look and Feel for the Business Computing Channel.
Not more than once per month during the Term, CNET will consider
Company's reasonable requests to change the design and content of
the Business Computing Channel, provided that the final design
and Look and Feel of the Business Computing Channel will be
determined by CNET. At any time during the Term, if CNET decides
to stop displaying the Business Computing Channel or any
successor page on the CNET Sites, then (a) CNET will provide the
Company written notice of such decision within a reasonable time
prior to removing the Business Computing Channel from the CNET
Sites, and (b) executives (Senior Vice President level or above)
from both CNET and the Company will participate in a face-to-face
meeting to discuss alternative promotional opportunities for the
Company.
4. PROMOTIONS BY THE COMPANY.
4.1 CNET Content. Company may include content from the CNET Sites as
described on Exhibit F on relevant pages of the Company Site, or
as otherwise mutually agreed by the Company and CNET. Beginning
on November 1, 1999 and continuing through the remainder of the
Term, each time a user of the Company Site clicks on a link
within the content described on Exhibit F, such user will be
shown a link back to the Company Site on a navigational bar
displayed Above the Fold, or other method mutually agreed upon by
the parties. Initially, such navigational bar will be
substantially similar to Illustration E-7 attached to Exhibit E.
4.2 Promotions on the Company Site. During the Term of this
Agreement, CNET will purchase Promotions on the Company Site in
the amount of [***]. The Company will use commercially reasonable
means to deliver for CNET the Promotions as set forth on Exhibit
B, as may be modified from time to time upon the mutual consent
of the parties subject to the Company's then-current inventory
availability. CNET may request any reasonable reallocation of the
location and type of the Promotions subject to the Company's
then-current inventory availability. The Company shall not charge
CNET any extra fees for such requested reallocations of
Promotions if they are equivalent in value to those that would
otherwise be provided by the Company hereunder. If CNET's
requested reallocations of Promotions are more expensive than the
location and type normally provided hereunder by Company, then
CNET shall pay the difference of such cost based on a [***] at
the time of request. The Company will use commercially reasonable
efforts to implement CNET's requests made in accordance with the
preceding sentence within thirty (30) days after receipt of each
request. CNET will design any graphics and other materials
required for such Promotions, and the Company will provide
reasonable assistance to CNET in connection with the design and
creation of such materials. CNET will be responsible for ensuring
that each URL provided to the Company
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
8
9
for use in a Promotion takes the User to the appropriate area
within CNET and that such site functions with reasonable
reliability and in a commercially reasonable manner throughout
the Term. In particular, CNET agrees that the CNET Sites will
comply with the performance standards and technical
specifications set forth on Exhibit I throughout the Term.
4.3 Sponsorship. On or before November 1, 1999 and continuing
throughout the remainder of the Term, the Company will provide a
message to all Company Site and Co-Branded Site Information
Technology ("IT") subscribers of the Company Project Market
enabling them to subscribe to the CNET Business Solutions
Directory. Such message will appear each time a Co-Branded or
Company Site subscriber completes registration for the Project
Market section of the Company Site and Co-Branded site. Further,
the Company will use commercially reasonable efforts to allow
each Company Project Market subscriber creating a profile on the
Co-Branded or Company Site to register with CNET's Business
Solutions Directory in a manner that does not require such
subscriber to separately re-enter the information they have
already provided to the Company.
5. PAYMENTS.
5.1 Integration Fee. The integration fee will cover fees and costs
associated with creating and integrating technology resources
dedicated to the Co-Branded Site, maintenance of the Co-Branded
Site and Special Promotions (described in Section 3.2) to drive
traffic to the Co-Branded Site. Company will pay CNET an
integration fee totaling [***] as follows:
5.1.1 Upon execution of this Agreement, Company shall pay CNET
$[***];
5.1.2 On or before the 12 month anniversary date of this
Agreement, Company shall pay CNET an additional [***];
5.1.3 On or before the 18 month anniversary date of this
Agreement, Company shall pay CNET an additional [***].
5.1.4 Payments under this Section 5.1 will be made by check or
wire transfer of immediately available funds as reasonably
directed by CNET.
5.2 Standard Promotions, Sponsorships and Television Spotlights.
Beginning October 1, 1999 and continuing throughout the Term,
Company will pay CNET a total of [***], at a rate of
approximately [***] per year, and [***] per month, for
the Standard Promotions, Sponsorships and Television Spotlights
delivered as described in Exhibit A. Within 30 days after
delivery of the Promotions for a given month, CNET shall invoice
the Company for the Promotions, Sponsorships and Television
Spotlights for a given month. All amounts due to CNET under this
Section 5.2 must be paid not more than 30 days after delivery of
the Promotions, Sponsorships or Television Spotlights for a given
month. Payments under this Section 5.2 will be made by check or
wire transfer of immediately available funds as reasonably
directed by CNET.
5.3 Promotions on the Company Site. Starting October 1, 1999 and
continuing throughout the Term, CNET will pay the Company a total
of [***] for the
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9
10
Promotions on the Company Site delivered as described in Exhibit
B. CNET will pay Company an engineering and maintenance fee of
[***] to covers fees and costs associated with creating and
integrating technology resources dedicated to the Co-Branded
Site, maintenance of the Co-Branded Site and Promotions
(described in Section 4.2) to drive traffic to the Co-Branded
Site as follows:
5.3.1 Upon execution of this Agreement, CNET will pay Company
[***];
5.3.2
5.3.3 On or before March 30, 2000, CNET will pay Company an
additional [***]; and
5.3.4 On or before June 30, 2000, CNET will pay Company an
additional [***].
The remaining [***] due to Company under this Section 5.3
shall be paid by CNET over the Term in monthly payments of
[***] for the Promotions delivered to CNET each month
starting October 1, 1999. Within 30 days after delivery of the
Promotions for a given month, the Company shall invoice CNET for
Promotions. Payments under this Section 5.3 will be made within
30 days after the receipt of an invoice by check or wire transfer
of immediately available funds as reasonably directed by the
Company.
5.4 Net 30 Terms. All payments by both parties listed in Section
5 are due within 30 days of the payment date.
6. TERM AND TERMINATION.
6.1 Term. This Agreement shall begin on the Effective Date and end on
the second anniversary of the Launch Date (the "Term").
Thereafter, this Agreement will continue on a month-to-month
basis unless terminated by either party upon 30 days written
notice to the other.
6.2 Termination for Breach. If either party commits a material breach
of its obligations hereunder that is not cured within 30 days
after notice thereof from the non-breaching party, the
non-breaching party may terminate this Agreement at any time by
giving written notice of termination to the breaching party.
6.3 Termination by CNET.
6.3.1 Competitive Services. If the Company is reasonably deemed
by CNET to offer Competitive Services (as defined below),
then CNET shall give Company written notice of such
determination and Company shall have 30 days to cease such
Competitive Services. If Company fails to cease the
Competitive Services within 30 days in a manner reasonably
acceptable to CNET, then CNET may terminate this Agreement
immediately upon written notice to Company.
Notwithstanding the foregoing, the parties acknowledge and
agree that the Company Site (and the Co-Branded Site, to
the extent that it duplicates the Company Site), in the
form that it exists on the Effective Date, does not offer
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
10
11
Competitive Services in a manner that allows CNET to
terminate hereunder, and that such termination rights will
only apply if the Company adds Competitive Services to the
Company Site (or Co-Branded Site). For the purposes of
this Section 6.3.1, "Competitive Services" means (a)
comparative pricing search engine or services for computer
and technology products and/or services, (b) aggregating
or providing more than 100 downloadable software titles,
(c) aggregation and display of five or more technology
news headlines each from three or more sources, and (d)
aggregation of computer and technology product reviews.
6.3.2 CNET may notify Company in writing if CNET reasonably
determines that the Company Services (a) contain any
virus, worm, "trojan horse", time bomb or similar
contaminating or destructive feature, (b) contain material
"bugs" that are not adequately remedied to CNET's
satisfaction, or (c) on the Co-Branded Site are not
performing in a manner that is substantially similar to
the Company Site. Company will have 30 days from receiving
notice from CNET to cure. If Company fails to cure within
such 30 day period, CNET may terminate this Agreement
immediately upon written notice to Company.
Notwithstanding the foregoing or anything herein to the
contrary, if CNET reasonably determines that subparagraphs
(a), (b) or (c) apply, then CNET may immediately remove
any or all links to the Company Site and Co-Branded Site,
at CNET's sole discretion, until such time as the Company
notifies CNET that the Company Services have resumed
acceptable operation. Upon notification by the Company and
verification by CNET that the Company Services have
resumed acceptable operations, CNET shall re-post links to
the Company Site and Co-Branded Site within two business
days in a manner substantially similar to the manner in
which such links were previously included on the CNET
Sites. These remedies are for CNET's editorial purposes
and in no way limit CNET's ability to terminate this
contract or pursue any other remedies hereunder in the
event the performance standards set forth herein are not
met.
6.3.3 This termination remedy in Section 6.3 is for CNET's
editorial purposes and in no way limits CNET's ability to
terminate this Agreement or pursue any other remedies
hereunder.
6.4 Termination by Company.
6.4.1 If CNET is reasonably deemed by the Company to offer
Company Competitive Services (as defined below), then the
Company shall give CNET written notice of such
determination and CNET shall have 30 days to cease such
Company Competitive Services. If CNET fails to cease the
Company Competitive Services within 30 days in a manner
reasonably acceptable to the Company, then the Company may
terminate this Agreement immediately upon written notice
to CNET. Notwithstanding the foregoing, the parties
acknowledge and agree that the CNET Sites, in the form
that it exists on the Effective Date, does not offer
Company Competitive Services in a manner that allows the
Company to terminate hereunder, and that such termination
rights will
11
12
only apply if CNET adds the Company Competitive Services
to the CNET Sites. For the purposes of Section 6.4.1,
"Company Competitive Services" means (a) an online
application for virtual team project management or time &
expense reporting; (b) an online application for file
sharing and management; (c) an online resource management
application for staff planning; and (d) an online sales
and marketing application for managing customer
acquisition opportunities
6.4.2 If CNET acquires, or is acquired by, any Company
Competitor then Company may terminate this Agreement upon
90 days written notice to CNET; provided, however, that
beginning on the date such termination notice is delivered
to CNET, Company shall not be required to deliver a CNET
Business Solutions Directory message to Company
subscribers as described in Section 4.3. Further, for all
new Co-Branded Site Users registered by the Company after
the date of such termination notice, the requirements of
Section 6.5 will not apply.
6.4.3 The Company may notify CNET in writing if the Company
reasonably determines that CNET Sites with links to the
Co-Branded Site or the Company Site, and CNET Content
featured on the Company Site or Co-Branded Site: (a)
contain any virus, worm, "trojan horse", time bomb or
similar contaminating or destructive feature, or (b)
contain material "bugs" that are not adequately remedied
to CNET's satisfaction. CNET will have 30 days from
receiving notice from the Company to cure. If CNET fails
to cure within such 30 day period, the Company may
terminate this Agreement immediately upon written notice
to CNET. Notwithstanding the foregoing or anything herein
to the contrary, if the Company reasonably determines that
subparagraphs (a) or (b) apply, then the Company may
immediately remove all links to the CNET Content, at the
Company's sole discretion, until such time as CNET
notifies the Company that the CNET Sites have resumed
acceptable operation. Upon notification by CNET and
verification by the Company that the CNET Sites have
resumed acceptable operations, the Company shall re-post
links to the CNET Content in a manner substantially
similar to the manner in which such links were previously
included on the Company Sites and/or Co-Branded Site.
6.4.4 This termination remedy in Section 6.4 is for Company's
editorial purposes and in no way limits Company's ability
to terminate this Agreement or pursue any other remedies
hereunder.
6.4 Survival. The provisions of Sections 8.2, 9, 10 and 12, and any
obligations arising prior to termination will survive any
termination of this Agreement.
6.5 Transition Obligation. Upon the expiration or termination of this
Agreement, at CNET's request the Company will reasonably provide
the Users of the Co-Branded Site with the option to move their
data and information from the Company Services to CNET or CNET's
designee. Notwithstanding the foregoing, CNET shall not require
any User to move data or information from the Co-Branded Site or
Company Services.
12
13
7. REPORTING.
7.1 CNET Promotion Report. Within 30 days after the end of each month during
the Term, CNET will provide to the Company standard advertising reports,
as generally offered by CNET, with respect to the Standard Promotions,
Sponsorships and Television Spotlights. Company acknowledges that the
statistics provided on the CNET report are the official, definitive
measurement of CNET's performance on any delivery obligations described
in this Agreement. No other measurements or usage statistics (including
those of Company or a third-party advertisement server) shall be
accepted by CNET or have bearing on this Agreement. Any data provided to
Company under this Section 7.1 shall be deemed "Confidential
Information" as described in Section 12.7.
7.2 Company Report.
7.2.1 Within 30 days after the end of each month during the Term, the Company
will provide to CNET a report that includes the following information
for such month: (a) the aggregate number of referrals from the CNET
Sites to the Company Site and; (b) the total value of Company Services
purchased by CNET Users on the Co-Branded Sites; (c) the total value of
Company Services purchased by CNET Users on the Company Site; and (d)
any information collected on the Co-Branded Site, such as number of page
views, number of unique users, and other standard reports. The Company
will obtain the foregoing data by tagging each User using a cookie or
other similar technology, as agreed upon by the parties.
7.2.2 The Company will provide standard reporting on all Promotions CNET runs
on the Company Site, including number of Impressions delivered broken
down by Promotion and page.
7.2.3 Any reports delivered to CNET pursuant to this Section 7.2 may not be
shared by CNET with any third party, and will be used only to improve
the ongoing marketing and promotional programs. Such reports will be
deemed "Confidential Information" as described in Section 12.7.
8. USER DATA.
8.1 Delivery by Company to CNET. If such data is made available by a
CNET User, Company will supply CNET with the following
registration data received from CNET Users in both summary and
detailed form: (a) [***], (b) [***], and (c) [***]. This data
will be shared in real time if commercially and technologically
feasible in a manner so that, for example, CNET can match a
tracking tag on a User session with that User's registration data
in order to customize the CNET Site content and advertising for
that User. If real time data sharing is not available, the data
shall be provided to CNET no less frequently than weekly. This
data shall be deemed "Confidential Information" as described in
Section 12.7.
8.2 Permitted use. CNET will use the registration data collected by
the Company for internal purposes only. It will not be sold or
otherwise distributed to third parties, provided that CNET may
use and distribute statistics based on the aggregate data.
Further, all use of Company's proprietary data will comply with
applicable law and be consistent with the respective privacy
policies of Company
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
13
14
and CNET. CNET will not send targeted communications to the
Company's members without the prior consent of Company. This
Section 8.2 will survive any termination or expiration of this
Agreement.
9. DISCLAIMER OF WARRANTIES. EACH PARTY AND ITS LICENSORS HEREBY DISCLAIM
ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
CONTENT, MARKS, AND ANY OTHER MATERIALS PROVIDED BY SUCH PARTY
HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY WITH CONCERNING THE
ACCURACY OF THE CONTENT AND OTHER MATERIALS PROVIDED BY SUCH PARTY, AND
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Neither CNET nor Company will make any representation, warranty
or guaranty, whether written or oral, on behalf of the other.
10. MUTUAL INDEMNIFICATION.
10.1 Indemnification by CNET. CNET shall indemnify and hold the
Company harmless from and against any costs, losses, liabilities
and expenses, including all court costs, reasonable expenses and
reasonable attorney's fees (collectively, "Losses") that the
Company may suffer, incur or be subjected to by reason of any
legal action, proceeding, arbitration or other claim by a third
party, whether commenced or threatened, arising out of or as a
result of (a) the use of the CNET Marks by the Company in
accordance with this Agreement; (b) the operation of any CNET
site (except in cases where the Company is required to indemnify
CNET under the following paragraph), including claims of
infringement or misappropriation of intellectual property rights;
(c) any content provided by CNET for the Company Site or
Co-Branded Site; or (d) the offer or sale of CNET products or
services through the CNET Sites, Company Site or Co-Branded Site.
10.2 Indemnification by the Company. The Company shall indemnify and
hold CNET harmless from and against any Losses that CNET may
suffer, incur or be subjected to by reason of any legal action,
proceeding, arbitration or other claim by a third party, whether
commenced or threatened, arising out of or as a result of (a) the
use of the Company Marks by CNET in accordance with this
Agreement; (b) any content provided by the Company for the
Co-Branded Site; (c) the operation of the Company Site; or (d)
the offer or sale of the Company Services by the Company through
the Company Site or Co-Branded Site.
10.3 Indemnification Procedures. If any party entitled to
indemnification under this Section (an "Indemnified Party") makes
an indemnification request to the other, the Indemnified Party
shall permit the other party (the "Indemnifying Party") to
control the defense, disposition or settlement of the matter at
its own expense; provided that the Indemnifying Party shall not,
without the consent of the Indemnified Party enter into any
settlement or agree to any disposition that imposes an obligation
on the Indemnified Party that is not wholly discharged or
dischargeable by the Indemnifying Party, or imposes any
conditions or obligations on the Indemnified Party other than the
payment of monies that are readily measurable for purposes of
determining the monetary indemnification or reimbursement
obligations of Indemnifying Party. The Indemnified Party shall
notify Indemnifying Party promptly of any claim for which
Indemnifying Party is
14
15
responsible and shall cooperate with Indemnifying Party in every
commercially reasonable way to facilitate defense of any such
claim; provided that the Indemnified Party's failure to notify
Indemnifying Party shall not diminish Indemnifying Party's
obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of such
failure. An Indemnified Party shall at all times have the option
to participate in any matter or litigation through counsel of its
own selection and at its own expense.
11. TRADEMARK LICENSES.
11.1 Company Marks. The Company hereby grants to CNET a non-exclusive,
royalty-free license, effective throughout the Term, to use,
display and publish the Company Marks solely within the
Co-Branded Site, Promotions, Sponsorships and Television
Spotlights as provided in Section 3, above. Any use of the
Company Marks by CNET must comply with any reasonable usage
guidelines communicated by the Company to CNET from time to time.
Nothing contained in this Agreement will give CNET any right,
title or interest in or to the Company Marks or the goodwill
associated therewith, except for the limited usage rights
expressly provided above. CNET acknowledges and agrees that, as
between the Company and CNET, the Company is the sole owner of
all rights in and to the Company Marks.
11.2 CNET Marks. CNET hereby grants to the Company a non-exclusive,
royalty free license, effective throughout the Term, to use,
display and publish the CNET Marks solely within the Co-Branded
Site, Promotions, and Company Site as provided in Section 4,
above. Any use of the CNET Marks by the Company must comply with
any reasonable usage guidelines communicated to the Company by
CNET from time to time. Nothing contained in this Agreement will
give the Company any right, title or interest in or to the CNET
Marks or the goodwill associated therewith, except for the
limited usage rights expressly provided above. The Company
acknowledges and agrees that, as between the Company and CNET,
CNET is the sole owner of all rights in and to the CNET Marks.
12. MISCELLANEOUS.
12.1 LIMITATION OF DAMAGES. EXCEPT FOR ANY CLAIM UNDER SECTION 10 OR
11, ABOVE, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, EXCEPT FOR
ANY CLAIM ARISING UNDER SECTION 10, 11, OR 12.7, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF THE TOTAL
PAYMENTS MADE UNDER THIS AGREEMENT.
12.2 Assignment. Neither party may assign this Agreement, except (a).
upon the transfer of substantially all of the business operations
of such party (whether by asset sale, stock sale, merger or
otherwise); (b) to an affiliate of such party; or (c) with the
written permission of the other party. Notwithstanding the
foregoing, if
15
16
the Company's acquiror is a CNET Competitor, then CNET may
terminate this Agreement upon ten days written notice to the
acquiror.
12.3 Relationship of Parties. This Agreement will not be construed to
create a joint venture, partnership or the relationship of
principal and agent between the parties hereto, nor to impose
upon either party any obligations for any losses, debts or other
obligations incurred by the other party except as expressly set
forth herein.
12.4 Marketing. The parties shall issue a press release concerning the
business relationship contemplated in this agreement, and each
party will provide an appropriate quote from one of its senior
executive officers for use in the press release. Each party will
review and comment on the press release prior to its publication.
Further, the parties will participate in joint marketing and
public relations activities as they mutually deem appropriate, as
further defined on Exhibit J attached hereto. The parties will
work together in good faith to create joint marketing activities
that are anticipated by both parties to obtain favorable results,
taking into consideration the timing, type and content of the
activity. Notwithstanding the foregoing, and except for the
activities described on Exhibit J, neither party will be
obligated to engage in any marketing activity that is (a) unduly
burdensome on a party, (b) deemed to be illegal, improper,
unethical, or ineffective by a party, or (c) inconsistent with
the general marketing practices of the party. Further, each party
acknowledges that there may be times when a party may be
restricted by law, rule or regulation from engaging in marketing
activities or making public statements (e.g., SEC "quiet
period"), and such party will be excused from the marketing
activities described herein (including those on Exhibit J) during
such time.
12.5 Audit Rights. Each party will have the right to engage an
independent third party to audit the books and records of the
other party relevant to the quantification of the Promotions,
upon reasonable notice and during normal business hours, and the
other party will provide reasonable cooperation in connection
with any such audit. The party requesting the audit will pay all
expenses of the auditor unless the audit reveals an underpayment
by the other party of more than 5%, in which case the other party
will reimburse all reasonable expenses of the auditor.
12.6 Applicable Law. This Agreement will be construed in accordance
with and governed by the laws of the State of California, without
regard to principles of conflicts of law.
12.7 Confidentiality. In connection with the activities contemplated
by this Agreement, each party may have access to confidential or
proprietary technical or business information of the other party,
including without limitation (a) proposals, ideas or research
related to possible new products or services; (b) financial
statements and other financial information; (c) any reporting
information required herein; and (d) the material terms of the
relationship between the parties; provided, however, that such
information will be considered confidential only if it is
conspicuously designated as "Confidential," or if provided
orally, identified at the time of disclosure and confirmed in
writing within 30 days of disclosure (collectively, "Confidential
Information"). Each party will take reasonable precautions to
protect the confidentiality of the other party's Confidential
Information, which precautions will be at least equivalent to
those taken by such party to protect its own
16
17
Confidential Information. Except as required by law or as
necessary to perform under this Agreement, neither party will
knowingly disclose the Confidential Information of the other
party or use such Confidential Information for the benefit of any
third party. Each party's obligations in this Section with
respect to any portion of the other party's disclosed
Confidential Information shall terminate when the party seeking
to avoid its obligation under such Paragraph can document that
such disclosed Confidential Information: (i) was in the public
domain at or subsequent to the time it was communicated to the
receiving party ("Recipient") by the disclosing party
("Discloser") through no fault of Recipient; (ii) was rightfully
in Recipient's possession free of any obligation of confidence at
or subsequent to the time it was communicated to Recipient by
Discloser; (iii) was developed by employees or agents of
Recipient independently of and without reference to any
information communicated to Recipient by Discloser; (iv) was
communicated by the Discloser to an unaffiliated third party free
of any obligation of confidence; or (v) 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; provided, however, that both
parties will stipulate to any orders necessary to protect said
information from public disclosure.
12.8 Severability of Agreement. If a court of an arbitrator or
competent jurisdiction holds any provision of this Agreement to
be illegal, unenforceable, or invalid in whole or in part for any
reason, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected.
12.9 Dispute Resolution. In the event that any dispute arises
hereunder, the parties agree that prior to commencing litigation,
arbitration, or any other legal proceeding, each party shall send
an officer of such party to negotiate a resolution of the dispute
in good faith at a time and place as may be mutually agreed. Each
officer shall have the power to bind its respective party in all
material respects related to the dispute. If the parties cannot
agree on a time or place, upon written notice from either party
to the other, the negotiations shall be held at the principal
executive offices of CNET twenty one days following such notice
(or on the next succeeding business day, if the twenty first day
is a weekend or holiday). Notwithstanding the foregoing dispute
resolution process, neither party shall be excluded from seeking
provisional remedies in the courts of any jurisdiction,
including, but not limited to, temporary restraining orders and
preliminary injunctions, but such remedies shall not be sought as
a means to avoid the dispute resolution process.
12.10 Article Headings. The captions and headings of the various
articles of this Agreement are inserted merely for the purpose of
convenience and do not expressly or by implication limit, define
or extend and specific terms or text of the article so designated
and shall not in any way alter the meaning or interpretation of
this Agreement.
12.11 No Waiver. No waiver of breach, failure of any condition, or any
right or remedy contained in or granted by the provisions of this
Agreement will be effective unless it is in writing and signed by
the party waiving the breach, failure, right or remedy. No waiver
of any other breach, failure, right or remedy will be deemed a
waiver of any other breach, failure, right or remedy, whether or
17
18
not similar, nor shall any waiver constitute a continuing waiver
unless the writing so specifies.
12.12 Remedies Not Exclusive. Any specific right or remedy provided in
this Agreement shall not be exclusive but shall be cumulative
upon all other rights and remedies set forth herein and allowed
or allowable under applicable law.
12.13 Illustrations. Except for Illustrations E-4, E-5 and E-6 attached
to Exhibit E. all Illustrations attached to the Exhibits are for
illustrative purposes only and shall not be deemed to bind,
obligate or restrict either party from making reasonable changes
in such party's discretion.
12.14 CNET Co-Branded Editions. Company acknowledges that CNET produces
co-branded editions of the CNET Sites for various resellers,
distributors, other licensees and/or joint venture partners
(collectively the "CNET Distributors"). In some cases, such CNET
Distributors are entitled to replace or remove CNET's default
content with other content within their own co-branded editions
of any CNET Site. Notwithstanding any other provisions of this
Agreement, if any such CNET Distributor has exercised its right
to replace Promotions or the Co-Branded Site with other content
or Promotions, then CNET will not be required to display the
Promotions or Co-Branded Site within such CNET Distributor's
co-branded edition of the CNET Sites. If CNET does display the
Promotions or Co-Branded Site within a co-branded edition of any
CNET Site, such display will be governed by this Agreement.
12.15 Company Co-Branded Editions. CNET acknowledges that the Company
may produce co-branded editions of the Company Sites for various
non-IT or technology related resellers, distributors, other
licensees and/or joint venture partners (collectively the
"Company Distributors"). In some cases, such Company Distributors
are entitled to replace the Company's default content with other
content within their own co-branded editions of any Company Site.
Notwithstanding any other provisions of this Agreement, if any
such Company Distributor has exercised its right to replace
Promotions with other content or Promotions, then the Company
will not be required to display the Promotions within such
Company Distributor's co-branded edition of the Company Sites. If
the Company does display the Promotions within a co-branded
edition of any Company Site, such display will be governed by
this Agreement.
12.15 Entire Agreement. This Agreement constitutes and contains the
entire agreement between the parties with respect to the subject
matter hereof and supersedes any prior oral or written
agreements. This Agreement may not be amended except in writing
signed by both parties. Each party acknowledges and agrees that
the other has not made any representations, warranties or
agreements of any kind, except as expressly set forth herein.
18
19
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its
duly authorized representatives as of the date first written above.
CNET, INC. NIKU CORPORATION
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- -----------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
-------------------------------- ---------------------------
Title: President Title: Sr. Vice President
-------------------------------- --------------------------
19
20
EXHIBIT A
PROMOTIONAL PLAN ON THE CNET MEDIA PROPERTIES
Beginning October 1, 1999 and continuing throughout the Term, the Company will
pay [***] per month to CNET for Promotions, Sponsorships and Television
Spotlight provided by CNET as set forth in the Agreement. CNET will provide all
Promotions and Television Spotlight to Company at a rate of [***] in accordance
with the time, quantity and Promotion type specified by the Company, subject to
CNET's advertising inventory availability.
The Company may select from, but is not limited to, the following five types of
promotional opportunities, as available:
1. CPM Based Media
Ad Units: Banners, Windows, Portals, Buttons
Sites: Xxxx.xxx, Xxxxxxx.xxx, XXXX.xxx, Xxxxxxxx.xxx
2. Online Sponsorships
Exclusive E-Board Topic Center Sponsorships
Exclusive E-Board Xxxx.xxx Category Sponsorships
Xxxx.xxx Send A Story Sponsorships
3. Email Sponsorships
Email Dispatch Text Ad Sponsorships
4. TV Sponsorships
Founding Series Sponsorships
CNBC XX.Xxx Sponsor
Spotlight Sponsors of CNET's USA Network TV shows
5. TV Spotlight
Hardware Sponsorship on CNET XX.xxx
6. Off line Sponsorships
Techies Day
Tour series Sponsorships
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
20
21
EXHIBIT B
PROMOTIONAL PLAN ON THE COMPANY SITE
Beginning October 1, 1999 and throughout the term of this agreement CNET will
pay [***] per month to the Company, and the Company will provide CNet, Inc.
an anchor sponsorship of the Company Site. The CNet anchor program will include
the sponsorship of the IT channel of the Company Site, sponsorship of the
Company Site membership newsletter, and the sponsorship of any CNet content used
in the company site as outlined in sections 2.5 and 4.1 of this agreement.
CNet will be sponsoring the content channel for IT professionals on the Company
Site. This channel will combine what is currently titled, "What the experts say"
and "Technology Stories" into one area where IT professionals will go to find
business-critical information on IT industry trends and analysis. This area will
include IT consulting methodologies/best practices, IT industry premium research
reports and analysis (e.g. Gartner Group), a Web directory of useful sites for
IT consultants, and industry news.
In the new user interface scheduled to launch in early September, CNet will
receive the following promotion on the Company Site:
A. Primary IT Channel Sponsorship.
B. A "brought to you by" or "sponsored by" text placement in combination
with CNet's logo prominently displayed on the main page of the IT
channel.
C. CNet logo prominently displayed around IT industry news headlines and
story abstracts to be fed into the company site from Xxxx.xxx with
links back to CNet for viewing of full-length stories. The
full-length stories will displayed as per Exhibit J with CNet owning
all page views and advertising inventory on these pages.
D. Sponsorship of the "iNikuNews" Company Site newsletter, currently a
monthly newsletter, which will become a weekly in the near term. This
will include display of the CNet logo and links to relevant CNet
content from the newsletter. The newsletter is currently distributed
to 8,000 members with the distribution expected to grow to 1 million
during the terms of this agreement. The newsletter is only available
to sponsors and partners.
E. Prominent display of CNet logo and branding on all areas of the
company site where CNet content is featured as per sections 2.5 and
4.1 of this agreement. This will include news areas in the other
vertical channels that will be featured on the Company Site.
F. Featuring of CNet content for selected services within the current
"Services" area of the Company Site. This will drive traffic to CNet
services such as Xxxxxxx.xxx and Xxxxxxxx.xxx.
The Company Site is a new offering and has not yet built the page view churn
normally associated with CPM pricing. As our audience is extremely targeted we
anticipate a healthy margin as website page views become more in-line with
industry averages. Until that time pricing for this opportunity will be
sponsorship based and by default a minimum impression guarantee will not be
offered. We will review the allocation of CNet's advertising on an ongoing basis
to maximize its promotional effectiveness for CNet.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
21
22
EXHIBIT C
PERFORMANCE STANDARDS AND TECHNICAL SPECIFICATIONS
The Company will use commercially reasonable efforts to comply with the
following performance standards throughout the Term:
1. The Company Site and Co-Branded Site will be operational and fully
functional in all material respects (i.e. capable of displaying
information and conducting transactions as contemplated in the ordinary
course of business) at least [***] of the time during any [***] period,
except for a reasonable number of planned maintenance windows as
specified by the Company.
2. The average time required to start displaying the HTML on a page of the
Company Site and Co-Branded Site (excluding planned maintenance windows
specified by the Company and unplanned outages) after a link from the
CNET Sites shall not exceed a daily average of [***], and the average
time required to deliver an entire page of the Company Site or
Co-Branded Site (excluding planned maintenance windows specified by the
Company and unplanned outages) over the open Internet shall not exceed a
daily average of [***]. For measurements required in this Paragraph, the
Company may assume standard T1 connectivity to the Internet.
3. Without limiting the effect of Paragraphs 1 and 2 above, the Company
shall provide to Users coming to the Co-Branded Site at least the same
level of service as is offered to Users coming directly to the Company
Site.
4. Company shall ensure that planned maintenance windows will not occur
during peak traffic hours.
5. The Company Site or Co-Branded Site shall not, to Company's [***]:
(a) contain publicly accessible defamatory or libelous material or
material [***], without such person's consent; (b) permit to appear or
be uploaded any publicly accessible messages, data, images or programs
[***] or are, by law, [***]; or (c) permit to appear or be uploaded any
publicly accessible messages, data, images or programs [***], including
unauthorized [***] used in an [***]. Notwithstanding the foregoing, each
party acknowledges and agrees that the Company may draft original news
reports and editorial content and materials that may occasionally
contain information or graphics in violation of the foregoing standards,
and any such news reports and editorial treatment shall not be deemed a
breach of this provision; provided, however, that Company will use
commercially reasonable efforts to minimize any violation of the
foregoing standards. This Section 5 shall only apply to materials on the
Company Site or Co-Branded Site created by the Company.
6. If any of the standards set forth in Section 5, above, are not met by
the Company, CNET may immediately remove any or all links to the Company
Site and Co-Branded Site, at CNET's sole discretion. In such instance
CNET will provide immediate notice and 24 hours from said notice to
cure. If the Company Site or Co-Branded Site fails to operate
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
22
23
fully and functionally in any material respect for any period of four or
more consecutive hours, even if otherwise in compliance with the
performance standards, CNET may immediately remove any or all links to
the Company Site and Co-Branded Site, at CNET's sole discretion, until
such time as the Company notifies CNET that such Company Site and
Co-Branded Site has resumed acceptable operation. Upon notification by
the Company and verification by CNET that the Company Site and
Co-Branded Site have resumed acceptable operations, CNET shall re-post
links to the Company Site and Co-Branded Site within two business days
in a manner substantially similar to the manner in which such links were
previously included on the CNET Sites. These remedies are for CNET's
editorial purposes and in no way limit CNET's ability to terminate this
contract or pursue any other remedies hereunder in the event the
performance standards set forth herein are not met.
23
24
EXHIBIT D
MEDIA METRIX LETTER
September 10, 1999
Dear Media Metrix:
Niku Corporation wishes to make it clear that CNET will receive the
credit for all page views of the Co-Branded Sites (as that term is defined in
the contract between CNET and Niku Corporation dated September 10, 1999), which
include the site located at xxxx://xxxxx.xxxx.xxx.
By signing below, Niku Corporation hereby agrees that CNET will be
entitled to count all page views of the Co-Branded Site towards CNET's traffic
as measured by Media Metrix as a "Domain" listing and "Property" listing.
Further, Niku Corporation and CNET agree that each will receive credit in the
"Consolidated" listing of Media Metrix. Niku Corporation acknowledges that CNET
may present this letter to Media Metrix and other Internet traffic-auditing
firms.
Sincerely,
Niku Corporation
-----------------------------
Countersigned:
-----------------------------
CNET
24
25
EXHIBIT E
ILLUSTRATIONS
ILLUSTRATION E-1: Co-Branded Site Home Page
ILLUSTRATION E-2: Co-Branded Site Workspace Page
ILLUSTRATION E-3: Co-Branded Site Project Market Page
ILLUSTRATION E-4: Navigational Links to Co-Branded Site
ILLUSTRATION E-5: Navigational Links to Co-Branded Site
ILLUSTRATION E-6: Navigational Links to Co-Branded Site
ILLUSTRATION E-7: Navigational Bar
25
26
ILLUSTRATION E-1
CO-BRANDED SITE HOME PAGE
[GRAPHIC DEPICTING WEB PAGE]
27
ILLUSTRATION E-2
CO-BRANDED SITE WORKSPACE PAGE
[GRAPHIC DEPICTING WEB PAGE]
28
ILLUSTRATION E-3
CO-BRANDED SITE PROJECT MARKET PAGE
[GRAPHIC DEPICTING WEB SITE]
29
ILLUSTRATION E-4
NAVIGATIONAL LINKS TO CO-BRANDED SITES
[GRAPHIC DEPICTING WEB PAGE]
30
ILLUSTRATION E-5
NAVIGATIONAL LINKS TO CO-BRANDED SITE
[GRAPHIC DEPICTING WEB PAGE]
31
ILLUSTRATION E-6
NAVIGATIONAL LINKS TO CO-BRANDED SITE
[GRAPHIC DEPICTING WEB SITE]
32
ILLUSTRATION E-7
NAVIGATIONAL BAR
[GRAPHIC DEPICTING WEB SITE]
33
EXHIBIT F
CNET CONTENT
Company will receive a [daily/hourly] update containing the following CNET
content:
XXXX.XXX: Between four and eight current headlines taken from the
XXXX.xxx site and one-paragraph summaries of the stories
associated with such headlines
XXXX.XXX: Between four and eight current headlines taken from the
Xxxx.xxx site and one-paragraph summaries of the stories
associated with such headlines
XXXXXXXX.XXX: Between four and eight current headlines taken from the
Xxxxxxxx.xxx site and one-paragraph summaries of the
stories associated with such headlines
XXXXXXX.XXX: Between four and eight current headlines taken from the
Xxxxxxxx.xxx site and one-paragraph summaries of the
stories associated with such headlines
XXXXXXX.XXX: Xxxxxxx.xxx product search tool
36
34
EXHIBIT G
CNET COMPETITORS
Ziff Xxxxx
CMP
IDG
Wired
Mecklermedia
Andover News Network
XxxxX.xxx
Xxxxxxxxx.xxx
EarthWeb
MacCentral
Tucows
Xxxx Central
Gamelan
Softseek
Tipworld
Tom's Hardware
Amazon Auctions and Amazon Shop the Web (but not including sites operated by
Xxxxxx.xxx in other categories, including books, CDs, videos, etc.)
eBay
Onsale
Bidder's Edge
Boxlot
uBid
BottomDollar
MySimon
Price Watch
CompareNet
PriceScan
37
35
EXHIBIT H
COMPANY COMPETITORS
Xxxx.xxx
XxxXxxxxx.xxx
Xxxxxxx
Xxxxxxxxx.xxx
Agillion
Xxxxx.xxx
XxxxxxxXxxxxx.xxx
Xxxxxxxxxxxxx.xxx
Evolve
Xxxxxx.xxx
Winstar Telebase or Winstar Communications
xXxxx.xxx
DigitalWork
Net-Temps
Xxxx.xxx
Xxxxxxx.xxx
Xxxxxxx.xxx
Hypermart
xxxxxxxxxxxx.xxx
xxxxxxxxxx.xxx
Xxxxxxxx-xxxxxx.xxx
Xxxxx.xxx
Xxxxxxxxxxx.xxx
XxxXx.xxx
Xxxxxxx.xxx
Xxxxx.xxx
Aquent Partners
Xxxxxxxx-xxxx.xxx
ConsultLink
XxxxxxXxxxxxxxxxx.xxx (PEN Group)
XXXXxxxXxxxxx.xxx
iFreeAgents
xxxxxxxxxxxxx.xxx
BrainStorm Interactive, Inc.
xxxxxxx.xxx
xxxxxx.xxx
Xxxxxxxxxxx.xxx
xXxxxxxxx.xxx
Xxxxxxxxxxx.xxx (eRoom or Instinctive Technology, Inc.)
38
36
EXHIBIT I
PERFORMANCE STANDARDS AND TECHNICAL SPECIFICATIONS
CNET will use commercially reasonable efforts to comply with the following
performance standards throughout the Term:
1. The CNET Sites will be operational and fully functional in all material
respects (i.e. capable of displaying information and conducting
transactions as contemplated in the ordinary course of business) at
least [***] of the time during any [***] period, except for a reasonable
number of planned maintenance windows as specified by CNET.
2. The average time required to start displaying the HTML on a page of the
CNET Sites (excluding planned maintenance windows specified by CNET and
unplanned outages) after a link from the Company Site shall not exceed a
daily average of [***], and the average time required to deliver an
entire page of the CNET Sites (excluding planned maintenance windows
specified by CNET and unplanned outages) over the open Internet shall
not exceed a daily average of [***]. For measurements required in this
Paragraph, CNET may assume standard T1 connectivity to the Internet.
3. Without limiting the effect of Paragraphs 1 and 2 above, CNET shall
provide to Users coming to the CNET Sites from the Company Site at least
the same level of service as is offered to Users coming directly to the
CNET Sites.
4. CNET shall ensure that planned maintenance windows will not occur during
peak traffic hours.
5. The CNET Sites shall not, to CNET's [***]: (a) contain publicly
accessible defamatory or libelous material or material [***], without
such person's consent; (b) permit to appear or be uploaded any publicly
accessible messages, data, images or programs [***] or are, by law,
[***]; or (c) permit to appear or be uploaded any publicly accessible
messages, data, images or programs [***], including unauthorized [***]
text, images or programs, [***] or other [***] used in an [***].
Notwithstanding the foregoing, each party acknowledges and agrees that
CNET drafts original news reports and editorial content and materials
that may occasionally contain information or graphics in violation of
the foregoing standards, and any such news reports and editorial
treatment shall not be deemed a breach of this provision; provided,
however, that CNET will use commercially reasonable efforts to minimize
any violation of the foregoing standards. This Section 5 shall only
apply to non-editorial materials on the CNET Sites created by CNET.
6. If any of the standards set forth in Section 5, above, are not met by
the CNET, Company may immediately remove any or all links to the CNET
Site that is in violation, at Company's sole discretion. In such
instance Company will provide immediate notice and 24 hours from said
notice to cure. If a CNET Site fails to operate fully and functionally
in any material respect for any period of four or more consecutive
hours, even if otherwise in compliance with the performance standards,
Company may immediately
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
39
37
remove any or all links to such CNET Site, at Company's sole discretion,
until such time as the CNET notifies Company that such CNET Site has
resumed acceptable operation. Upon notification by CNET and verification
by the Company that the CNET Site in violation has resumed acceptable
operations, Company shall re-post links to such CNET Site, if
applicable, within two business days in a manner substantially similar
to the manner in which such links were previously included on the
Company Site and Co-Branded Site. These remedies are for Company's
editorial purposes and in no way limit Company's ability to terminate
this contract or pursue any other remedies hereunder in the event the
performance standards set forth herein are not met.
40
38
EXHIBIT J
MARKETING PLAN
1. One press release and a reasonable amount of supporting media activity
(including at least two CEO media interviews) related to the Agreement
and the Co-Branded Site. The timing of all marketing activities will be
mutually upon by the parties, provided that most media activity will
occur within a reasonable time of the September launch of the new
Company Site.
2. An additional two press releases over the Term describing customer
acquisition on the Co-Branded Site, the success of the Co-Branded Site,
and other newsworthy events related to the Co-Branded Site.
3. A reasonable amount of executive referrals and interviews for
substantial business and trade opportunities. Each party will provide a
quote for two press releases per year regarding new services,
initiatives, and other newsworthy events.
4. Use of both parties' logos and description of the relationship on
Company Site, in Company corporate materials, and in Company
presentations (based on mutually agreeable standards determined by the
parties from time to time)
41
39
EXHIBIT K
PROMOTION OF THE CO-BRANDED SITE
Pursuant to Section 3.5, CNET will purchase Promotions on third party web sites
or other media as follows:
Month Amount
----- ------
October 1999 - September 2001 [***] per quarter
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
42
