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EXHIBIT 10.35
CONTENT PARTNER/DISTRIBUTION AGREEMENT
This Content Partner/Distribution Agreement ("Agreement") is entered into by and
among Xxxx.xxx, Inc., a corporation duly organized under the laws of the State
of Delaware, with its principal place of business at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Content Partner"), Buena Vista Internet Group, a
corporation duly organized under the laws of the State of California, with its
principal place of business at 000 Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX
00000-0000 ("BVIG"), and Infoseek Corporation, a corporation duly organized
under the laws of the State of California, with its principal place of business
at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000 ("Infoseek") (BVIG
and Infoseek collectively referred to herein as the "GO Entities"). The
effective date of this Agreement is January 15, 2000 (the "Effective Date").
WITNESSETH:
WHEREAS, BVIG hosts and maintains the U.S. versions of certain Internet sites,
including Xxxxxx.xxx and Xxxxxx.xxx, which sites are part of GO Network.
WHEREAS, Infoseek hosts and maintains the U.S. version of the Internet portal
service which is part of GO Network.
WHEREAS, Catalyst Investments, L.L.C. ("Catalyst") is a limited liability
corporation which makes and holds certain investments for The Xxxx Disney
Company.
WHEREAS, ABC, Inc. ("ABC") owns and/or operates certain broadcast properties.
WHEREAS, BVIG, Infoseek, Catalyst and ABC are subsidiaries and Affiliates of The
Xxxx Disney Company.
WHEREAS, Content Partner is an online retailer of pet products, information and
resources.
WHEREAS, the GO Entities wish to enter into a relationship with Content Partner
for, among other things, the distribution and placement of certain Content
Partner content and advertising on GO Network, advertising by Content Partner on
the ABC broadcast properties, Catalyst's equity investment in Content Partner
and joint on-line and offline promotion opportunities.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, BVIG, Infoseek and Content Partner hereby agree as
follows:
ARTICLE 1 DEFINITIONS
1.1 AFFILIATE means with respect to a party to this Agreement, any
entity that directly or indirectly controls, or is under common
control with, or is controlled by, such party or in which such
party beneficially owns at least fifty percent (50%) of the
equity interests; "control" (including, with its correlative
meanings, "controlled by" and "under common control with") means
possession, directly or indirectly, of the power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership
interests, by contract or otherwise).
1.2 CONTENT means editorial content, products, services, tools,
applications and commerce provided by Content Partner to the GO
Entities or distributed by Content Partner to GO
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Network Users through the GO Network-Wrapped Pages relating to
pets and animals and as further described in Appendix A,
including, without limitation, advertisements for Content
Partner or its services and/or products.
1.3 CONTENT PARTNER COMPETITORS mean the following pet supply
retailers: PETCO Animal Supplies, Inc., PETsMart, Inc. and its
affiliate XXXxXXXX.xxx, Inc., Xxxxxxx.xxx, Xxxxxxxx.xxx,
PetQuarters, Inc., Drs. Xxxxxx & Xxxxx, Inc., Petland,
XxxXxxxxx.xxx, Inc., XxxxXxx.xxx, Inc. and their subsidiaries
and direct successors. Upon written notice to the GO Entities,
Content Partner may from time to time substitute other companies
or entities engaged primarily in the business of pet supplies
and accessories retail for the entities listed herein or,
subject to the limit described herein, add other companies or
entities to the definition of "Content Partner Competitors"
subject to the approval of the GO Entities which will not be
unreasonably withheld. In no event shall the total number of
companies or entities designated by Content Partner as "Content
Partner Competitors" exceed ten (10) at any one time.
1.4 CONTENT PARTNER SERVICE means the U.S. version of the web site
located at xxx.xxxx.xxx and/or such other successor, extension
or replacement site(s) as may be designated by Content Partner.
1.5 XXXXXX.XXX is the U.S. version of the Internet service for The
Xxxx Disney Company currently located at xxxxxx.xx.xxx.
1.6 EFFECTIVE DATE shall have the meaning set forth in the Preamble
to this Agreement.
1.7 XXXXXX.XXX is the U.S. version of the Internet service related
to family issues currently located at xxxxxx.xx.xxx.
1.8 XX.XXX (THE ENTITY) refers to the online properties of The Xxxx
Disney Company, including the following subsidiaries and
organizations of The Xxxx Disney Company: BVIG (which operates
Xxxxxx.xxx, Xxxxxx.xxx, xxxxxxxxx.xxx and certain other sites),
Infoseek (which operates the GO Portal), ABC News/Starwave
Partners d/b/a AIV Ventures and ESPN/Starwave Partners d/b/a EIV
Ventures, which respectively operate XXXXxxx.xxx and XXXX.xxx.
1.9 XX.XXX COMPETITORS mean the following Internet portal companies:
AOL, Yahoo, Lycos, Excite, MSN and Snap; and the following media
companies: Time Warner and Viacom; and their subsidiaries and
direct successors. Upon written notice to Content Partner, the
GO Entities may from time to time substitute other companies or
entities engaged primarily in the business of providing Internet
portal services or in the media business for the entities listed
here subject to the approval of Content Partner which will not
be unreasonably withheld. In no event shall the total number of
companies or entities designated by the GO Entities as "XX.xxx
Competitors" exceed eight (8) at any one time.
1.10 GO ENTITIES has the meaning set forth in the Preamble to this
Agreement and specifically excludes AIV Ventures and EIV
Ventures, which respectively operate XXXXxxx.xxx and XXXX.xxx.
1.11 GO NETWORK is the U.S. version of the Internet service currently
located at xx.xxx and certain subdomains of xx.xxx which service
includes the GO Portal and certain vertical Internet sites such
as Xxxxxx.xxx, Xxxxxx.xxx, XXXXxxx.xxx and XXXX.xxx.
1.12 GO NETWORK-WRAPPED PAGES means co-branded pages with the GO
Wrapper that display the Content, as further described herein.
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1.13 GO PORTAL means the U.S. version of the Internet portal service
located at xxx.xx.xxx and/or such other successor, extension or
replacement site(s) as may be designated by the GO Entities.
1.14 GO WRAPPER means a page with the GO Network Trademarks and
includes the GO Network header, footer, tabs, breadcrumb and
other navigational elements and copyright notice as provided by
the GO Entities.
1.15 INITIAL TERM has the meaning set forth in Section 12.1.
1.16 LINK means a so-called "hot link" in graphical and/or textual
format located on the applicable areas of the Service which
takes a User directly to another web site or area within the
site.
1.17 PETSMART AGREEMENT has the meaning set forth in Section 3.4.
1.18 STANDARD DISTRIBUTION DEAL means an advertising and/or shopping
opportunity that is available to multiple parties in a party's
same space. For example, "Standard Distribution Deal" includes
key word buys, advertising banner and button buys, and merchant
slotting buys.
1.19 TDSO means The Disney Store online currently located at
Xxxxx.Xxxxxx.xx.xxx.
1.20 TRADEMARKS means trade names, logos and trademarks, and
representations of the foregoing.
1.21 USERS means individuals or entities that access GO Network.
ARTICLE 2 EQUITY INVESTMENT AND ABC TV ADVERTISING
2.1 Equity Investment. Content Partner will issue to Catalyst
1,378,000 shares of Content Partner's Series C Preferred Stock
(the "Shares") which represent no less than five percent (5%) of
the total number of outstanding shares of Content Partner's
capital stock (assuming exercise of all outstanding options and
warrants) as of the Effective Date in exchange for
$11,024,000.00 of Promotion as described below. Terms and
conditions regarding the Shares will be as set forth in executed
definitive equity documents substantially in the form attached
hereto as Appendix B (the "Equity Documents"). In the event and
to the extent there is a conflict between the terms and
conditions set forth in the Equity Documents and the terms and
conditions set forth in this Agreement, the terms and conditions
in the Equity Documents shall govern.
2.2 Consideration For Shares. Content Partner and the GO Entities
agree that in consideration for the Shares, "Promotion" shall
consist of the ABC Media Rights as described on Appendix C
attached hereto, rights to which will not vest until, but will
become irrevocable upon, the transfer of the Shares to Catalyst.
In the event the GO Entities are unable to provide Promotion as
described herein with an aggregate market value of
$11,024,000.00 by the date three (3) years from the Effective
Date, the GO Entities shall pay Content Partner cash in the
amount for which it was unable to provide Promotion. Such
make-good cash payment shall be Content Partner's sole and
exclusive remedy for the GO Entities' failure to provide such
Promotion.
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ARTICLE 3 PURCHASE OF ONLINE MEDIA PLACEMENT
3.1 Purchase of Online Advertising and Sponsorship. Content Partner
hereby agrees to purchase online media placement on GO Network
("Online Advertising") in an aggregate amount of at least Nine
Million Dollars ($9,000,000) during the Initial Term of the
Agreement. Online Advertising may be placed on GO Network
properties operated by BVIG or Infoseek and on properties such
as XXXXxxx.xxx and XXXX.xxx operated by XX.xxx entities which
are not parties to this Agreement.
3.2 Terms and Conditions of Advertising Purchase. Such purchase of
online media placement shall be on substantially the terms and
conditions set forth in the forms of Advertising Agreement and
Advertising Insertion Order attached hereto as Appendices D-1
and D-2, respectively (the "Advertising Agreements").
3.3 Placement of Advertising. Content Partner, BVIG and Infoseek
will determine an initial placement schedule and will meet no
less than once every quarter during the Initial Term to review
media placements and actual performance against projected
impressions and to determine future placement schedules to
optimize performance within the projected impression ranges. The
initial placement schedule is attached hereto as Appendix E.
Placements and impression levels on the initial placement
schedule are projections only and are subject to change. Content
Partner's Online Advertising will Link to a page in the Content
Partner Service. Content Partner may determine the page in the
Content Partner Service to which such Online Advertising Links;
provided however that no Link shall take a User directly to a
registration page in the Content Partner Service. All Online
Advertising, including Links from such Online Advertising, shall
comply with the then current XX.xxx Advertising Guidelines, the
current form of which is attached hereto as Appendix F-2, and
the terms and conditions of the relevant Advertising Agreement.
3.4 Petsmart Agreement. Content Partner acknowledges that Infoseek
is a party to an agreement with Xxxxxxxx.xxx, Inc. (the
"Petsmart Agreement") which agreement contains certain
advertising and other restrictions. During the term of the
Petsmart Agreement, Infoseek will be restricted from accepting
certain placements of Content Partner Content, including
advertising. Content Partner acknowledges and agrees that
nothing in this Agreement is intended to put Infoseek in breach
of its obligations under the Petsmart Agreement and any actions
taken by Infoseek which Infoseek deems necessary or advisable to
comply with the Petsmart Agreement shall not be deemed a breach
of this Agreement. In the event the advertising purchase portion
of the Petsmart Agreement becomes available during the term of
this Agreement, Infoseek will grant Content Partner a right of
first refusal to purchase such advertising placement.
3.5 Fees and Payments. Content Partner will pay advertising fees in
accordance with the schedule set forth on Xxxxxxxx X-0 and the
provisions in Article 8.
ARTICLE 4 DISPLAY OF CONTENT ON GO NETWORK
4.1 General. Subject to the license set forth in Section 6.1, the GO
Entities and Content Partner plan to integrate Content into
certain areas of GO Network and may display Content on GO
Network-Wrapped Pages as described below during the term of this
Agreement. In addition, the GO Entities and Content Partner plan
to enter into certain joint marketing activities as described
herein and as mutually agreed.
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4.2 Display of Content on GO Network.
a. Content Placement. Subject to the license set forth in
Section 6.1, the GO Entities will place Content on GO
Network as follows:
- Xxxxxx.xxx will integrate Content on its
Animal/Pets Channel
- Xxxxxx.xxx may include a Link to the Content
Partner Service from a fixed position on its
Animals/Pets Channel
It is intended that Content will be integrated into the
GO Network so as to retain the "look and feel" of the
site/page where the Content is being integrated. The GO
Entities will host such Content and shall prepare such
Content for display on GO Network by editing and making
such other technical alterations conforming such Content
to GO Network format provided that the GO Entities shall
not alter the substantive meaning of Content. The
frequency and actual placement of Content shall be at
the sole discretion of the GO Entities. The GO Entities
will retain ultimate creative approval over any and all
Content displayed on GO Network.
a. Exclusive Content. Content Partner will provide certain
exclusive content to the GO Entities for use on GO
Network. Such exclusive Content will not be provided to
third parties; provided however, that Content Partner
may use such exclusive Content on the Content Partner
Service or in its magazine, newsletters or other online
and off-line marketing communications. The parties will
mutually agree upon the exclusive content to be
provided. The GO Entities' use of such exclusive content
shall be subject to the license set forth in Section
6.1.
b. Attribution. Content Partner will generally receive
static textual attribution at the top-level page where
its Content is distributed on GO Network (other than on
the GO Network-Wrapped Pages) and dynamic Link textual
attribution at the lowest-level page or end of the
Content. For example, a Content Partner article will
have a static textual attribution at the beginning of
the article and a dynamic "Find Out More" Link at the
end. Such Link will Link to the Content Partner Service.
c. Other Distribution of Content. In addition to
distribution of the Content as described above, Content
Partner agrees that the GO Entities may distribute such
of Content Partner's Content elsewhere on GO Network as
the GO Entities deem appropriate. Content displayed on
other areas of GO Network will be subject to the terms
and conditions stated herein.
d. Hosting; GO Network Attributes. Xxxxxx.xxx, Xxxxxx.xxx
and the GO Portal will be hosted by the GO Entities.
Notwithstanding anything herein, the GO Entities retain
the right to adapt or otherwise alter the design, look
and any other attributes of Xxxxxx.xxx, Xxxxxx.xxx, the
GO Portal and any other pages in GO Network.
4.3 GO Network-Wrapped Pages.
a. General; Hosting. The GO Entities may request that
Content Partner create GO Network-Wrapped Pages. GO
Network-Wrapped Pages are co-branded pages which will
contain the GO Wrapper and display Content from Content
Partner. It is intended that the GO Network-Wrapped
Pages contain substantially the content and features of
the Content Partner Service and other content and
features as the parties mutually agree. The GO
Network-Wrapped Pages may include an opportunity for
Users to
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register with GO Network and Content Partner as
described in Article 7 below. Content Partner will host
the GO Network-Wrapped Pages and will serve such pages
out of a dynamic virtual domain to be located at
xxxx://xxxxxxx domain xxxx.xx.xxx (the "Virtual
Domain"); provided however, that Users in the Virtual
Domain who are accessing product/commerce pages (as
opposed to pages with editorial content) may be served
from the Content Partner Service as follows: (i) a User
in the Virtual Domain who has been reviewing editorial
content who then clicks on a product/commerce page may
be served from a page in the Content Partner Service
upon clicking on to a product/commerce image or Link and
(ii) a User who comes to the Virtual Domain by clicking
on to a product/commerce page, e.g., through a search
for pet supplies, will be served from a GO
Network-Wrapped Page in the Virtual Domain until such
time as such User puts a product into a Content Partner
shopping cart at which time such User maybe served from
the Content Partner Service. Content Partner shall own
all revenues generated from commerce on the Content
Partner Service. The parties anticipate that, excluding
virtual domains which may be created for promotions,
Content Partner will not be required to maintain more
than one Virtual Domain to host the GO Network-Wrapped
Pages. All GO Network-Wrapped Pages will include the GO
Wrapper but the GO Wrapper will not displace Content
Partner's "look and feel," including placement of the
Content Partner name and logo. Content Partner will
offer its services and products to Users through the GO
Network-Wrapped Pages on substantially the same terms
and conditions as it offers such services and products
to visitors to the Content Partner Service.
b. Advertising. The GO Entities will be responsible for
selling and serving all advertising on the GO
Network-Wrapped Pages. The GO Entities will not place
advertisements from Content Partner Competitors on the
pages in the Virtual Domain; provided however that such
restriction shall not apply to run-of-site (ROS) banner
advertisements. Any advertising placements in the GO
Wrapper will be of a size consistent with other
advertising placements across GO Network. In addition,
Content Partner acknowledges and agrees that the
following shall not constitute a breach of this Section
4.3.b: (a) the XX.xxx search technology may search the
sites of the Content Partner Competitors and (b) the GO
Entities may provide search-related products that may
include results from the Content Partner Competitors on
the Virtual Domain pages.
c. Counting Page Views. The GO Entities will count all page
views on the Virtual Domain.
d. Distribution of Content Displayed on GO Network-Wrapped
Pages. The GO Entities shall not have any rights
pursuant to Section 4.2 to integrate, display or
otherwise distribute Content which has been distributed
by Content Partner to GO Network Users through the GO
Network-Wrapped Pages simply as a result of Content
Partner's distribution of such Content through the GO
Network-Wrapped Pages.
4.4 Content Guidelines; Delivery of Content; Error Correction.
a. Content Guidelines. All Content will comply with the
then current Content Guidelines and Advertising
Guidelines for GO Network. The current forms of Content
Guidelines and Advertising Guidelines are set forth in
Appendices F-1 and F-2. The GO Entities shall have the
right, but not the obligation, to remove, or direct
Content Partner to remove, any Content, or any
information or other material from any Content, which
the GO Entities determine to be offensive, in poor
taste, or otherwise objectionable or which would cause
one of the GO Entities to be in violation of any
agreements existing at the Effective Date with third
parties (for example, exclusivity
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agreements prohibiting the provision of credit card
services), and Content Partner shall immediately comply
with such request.
b. Delivery of Content. Content Partner will deliver to the
GO Entities the Content to be included on GO Network in
a digital format (such as HTML) or in another mutually
agreeable electronic format, via modem or Internet
access (e.g. Internet ftp or Internet e-mail). Content
Partner agrees to certify that all deliveries hereunder
were made electronically. The initial delivery of
Content shall include all items listed on Appendix A and
shall be made no later than March 31, 2000. Content
Partner will provide additional Content elements and
make updates to the Content available to the GO
Entities, and the GO Entities will update the Content on
GO Network, on a mutually agreed upon schedule and
basis.
c. Error Correction. Content Partner shall promptly remedy
and/or correct any material limitations or errors in the
Content. Content Partner shall cooperate and assist the
GO Entities by promptly answering questions and
complaints regarding the Content. Each party shall
promptly inform the other parties of any event or
circumstance, and provide all information pertaining to
such event or circumstance, related or arising from this
Agreement which could reasonably lead to a claim or
demand against the other parties by any third party.
4.5 Marketing Agreements.
a. Inclusion of Promotional Materials. Content Partner will
permit the GO Entities, The Xxxx Disney Company or any
of The Xxxx Disney Company's Affiliates to place
promotional materials in at least 150,000 Content
Partner customer packages per year. The GO Entities, The
Xxxx Disney Company or The Xxxx Disney Company's
Affiliates, as applicable, shall be responsible for
providing such promotional materials. Content Partner
will be responsible only for labor-related costs
associated with including and shipping such promotional
materials with the Content Partner customer packages.
The content of such promotional materials and timing of
inclusion shall be subjection to approval by Content
Partner, which approval will not be unreasonably
withheld.
b. Online Promotions. Content Partner and the Go Entities
agree to create six online promotions, such as contests,
sweepstakes or games, during the Initial Term. The
details of the online promotions will be determined as
part of the joint marketing plan described in Section
4.5.c below.
c. Marketing Plan. Within 75 days of the Effective Date,
the GO Entities and Content Partner will jointly draft
and agree upon a marketing and promotions program which
may include, among other things:
i. Special Content Partner offers targeted to XX.xxx
Users (other than TDSO customers) interested in pets.
ii. Special Content Partner offers targeted at TDSO
customers.
iii. An opportunity for Content Partner to be an online
distribution source for the purchase of pet-related
Disney products, other than through The Disney Store
(online or off-line).
iv. Opportunity for The Xxxx Disney Company to send
xxxx.xxx: The Magazine to its customers. v. Web casts
and web chats.
a. Coordination of Marketing Efforts. The GO Entities and
Content Partner will coordinate and communicate direct
marketing (e.g. email) efforts aimed at Content
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Partner Users in order to avoid duplicate and spam
communications; provided however that the foregoing
excludes a party's direct marketing efforts to a User
who has opted to receive direct communications from such
party.
e. Other Marketing Discussions. The GO Entities and Content
Partner agree to discuss the following additional
promotional ideas:
[*]
f. Marketing and Promotions. All joint marketing and
promotional activities shall be subject to final
approval and mutual agreement of all parties involved,
including, where applicable, TDSO and other XX.xxx
entities or Affiliates. No party shall have any
obligation to enter into joint marketing and promotional
activities except on terms and conditions expressly
agreed to in writing by such party.
4.6 Exclusivity.
a. Restriction on Content Partner. Content Partner agrees
not to enter into an agreement with any XX.xxx
Competitor during the term of this Agreement except for
Standard Distribution Deals unless mutually agreed to by
the parties. Notwithstanding the foregoing; the GO
Entities acknowledge that Content Partner has entered
into an agreement with Blue Mountain Arts/Excite which
will expire on September 30, 2000 which agreement will
be deemed exempted from the restriction set forth in
this Section 4.6.a. In addition, Content Partner may
pursue an extension of such agreement on terms and
conditions substantially similar to those of the current
deal and excluding any provision which requires Content
Partner to provide exclusive content to Blue Mountain
Arts/Excite.
b. Restriction on the GO Entities.
The GO Entities agree not to enter into any strategic
equity relationship (i.e., of a similar nature to the
relationship among the parties described in this
Agreement) with any Content Partner Competitor during
the term of this Agreement. Notwithstanding the
foregoing, the GO Entities may make open market
purchases or other investments of any kind strictly for
financial investment purposes (i.e., unrelated to a
strategic relationship).
[*] CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SEC.
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ii. The GO Entities will not include advertisements
or branded (i.e. including attribution) content
from Content Partner Competitors on the pages
within the Animals/Pets Channel on Xxxxxx.xxx
and the Pets Category on Xxxxxx.xxx, or
successor channels/online properties designated
by the GO Entities; provided however that the
foregoing exclusivity will not apply to: (i)
run-of site advertisements from Content Partner
Competitors or (ii) Content Partner Competitors
to the extent related to sales of pet supplies
or accessories with licensed animated
characters, such as a Lion King cat bowl or a
101 Dalmatians dog bed. In addition, the
following shall not constitute a breach of this
Section 4.6.b.ii: (a) the XX.xxx search
technology may search the sites of the Content
Partner Competitors, (b) the GO Entities may
provide search-related products that may include
results from the Content Partner Competitors on
pages within the Animal/Pets Channel on
Xxxxxx.xxx and the Pets Category on Xxxxxx.xxx,
and (c) the Content Partner Competitors may be
included in the Search Directory. As used
herein, "Search Directory" means the general
directory on the GO Portal which is currently
accessed through the tab "Search."
iii In the event the GO Entities or their Affiliates
determine to make a significant product change
or change of strategic or product focus, for
example merging two or more of its online
properties, which affects the Animals/Pets
Channel on Xxxxxx.xxx and/or the Pets Category
on Xxxxxx.xxx, then the GO Entities' obligations
under Section 4.6.b.ii above shall terminate
with respect to the affected online property.
The GO Entities and Content Partner will work
together to make appropriate substitutions of
online media placements and Content Partner will
be entitled to receive a twenty-five percent
(25%) discount on such substitutions of affected
online media placements. The GO Entities will
not be entitled to exercise its rights hereunder
prior to three (3) months from the Effective
Date nor later than June 1, 2001.
4.7 Technical Resources; Key Contacts; Reports.
a. Technical Resources. Content Partner will provide
sufficient resources in order to implement Content and
advertising placements by March 31, 2000.
b. Key Contacts. The GO Entities, on the one hand, and
Content Partner, on the other hand, will each appoint a
single point of contact to manage the relationship among
the GO Entities and Content Partner and will identify
key contacts in product development, merchandising,
customer service and technical support to ensure that
the GO Network-Wrapped Pages are working effectively.
Content Partner shall further provide the GO Entities
with a support contact to provide 24-hour emergency
technical support. Until a party provides notice
otherwise to the other parties in accordance with
Section 16.6, the contacts shall be as follows:
GO Entities: Content Partner:
Relationship Manager: Xxxx Xxxxx Relationship Manager: Xxxxxxxx Xxxxx
Telephone No.: (000) 000-0000 Telephone No.: (000) 000-0000
Email address: xxxx.xxxxx@xxxx.xx.xxx Email address: xxxxxxxx@xxxx.xxx
Product Development Contact: name Product Development Contact: Xxxxxx Xxxxxxxx
Telephone No.: Telephone No.: (000) 000-0000
Email address: Email address: xxxxxx@xxxx.xxx
Merchandising: name Merchandising: Xxxx Xxxxxxxx
Telephone No.: Telephone No.: (000) 000-0000
Email address: Email address: xxxxx@xxxx.xxx
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Customer Service: name Customer Service: Xxxxx Xxxxxxx
Telephone No.: Telephone No.: (000) 000-0000
Email address: Email address: xxxxx@xxxx.xxx
Technical Support: name Technical Support: Xxxx Xxxxxx
Telephone No.: Telephone No.: (000) 000-0000
Email address: Email address: xxxxx@xxxx.xxx
Emergency Technical Support Contact Emergency Technical Support Contact
(24) hours): (24 hours): Xxxxxx Xxxxxx
Telephone No.: Telephone No.: (000) 000-0000
(40 character limit)
Email address: Email address: xxxxxxxxx@xxxx.xxx
c. Reports. Content Partner will provide monthly traffic
reports to the GO Entities containing the number of
visitors to the GO Network-Wrapped Pages, the number of
Content Partner Users and such other information as the
GO Entities reasonably request related to Users and
usage of the GO Network-Wrapped Pages. Reports hereunder
will be due within ten (10) business days after the end
of the month to which such report relates.
4.8 Ownership of Intellectual Property. For content or promotions
developed by Content Partner solely for distribution, display or
other use on GO Network or by the GO Entities, which has not
been already incorporated into the Content Partner Service, the
GO Entities shall own all design, technology, code and other
materials produced in relation to this Agreement. Except as set
forth herein, for all content or promotions not created by
Content Partner solely for distribution, display or other use on
GO Network or by the GO Entities, the party creating such
content or promotion shall own such content or promotion,
including all related intellectual property rights. If content
or promotions are jointly created by Content Partner and one or
more of the GO Entities, then the GO Entities will own such
content or promotion, including all related intellectual
property right; provided however that the GO Entities may not
license or otherwise provide such content or promotions to
Content Partner Competitors during the term of this Agreement.
In clarification and not in modification of the foregoing, each
party shall retain all rights for copyrighted material and
Trademarks and the GO Entities shall not have any ownership
rights to the Xxxx.xxx, Inc. Sock Puppet and Content Partner
will not have any ownership rights to any character owned or
controlled by The Xxxx Disney Company during or after the term
of this Agreement.
4.9 Linking. Content Partner agrees not to override browser back
button functionality to prevent Users who link to the Content
Partner Service from GO Network from returning to GO Network.
4.10 Costs. Each party will be responsible for its respective
telecommunications charges with respect to the provision of
respective portions of the Content to Infoseek and to Users.
ARTICLE 5 SHOPPING/E-COMMERCE
5.1 GO Network Commerce Areas. The following shopping areas
currently exist on the GO Network Portal, Xxxxxx.xxx and
Xxxxxx.xxx: GO Shopping (currently at xxxx.xx.xxx), FamilySHOP,
and TDSO.
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5.2 Content Partner Placement in GO Network Commerce Areas. Content
Partner will have placement in TDSO (if and as agreed as part of
the marketing agreements described in Section 4.5) and
FamilySHOP, and, following the expiration or termination of the
Petsmart Agreement, on GO Shopping. Content Partner Content will
be included in the rotation for the
"Deal of the Week" feature of the FamilySHOP area on the
Xxxxxx.xxx home page or other comparable feature. Except as
expressly set forth herein, placement of promotions on GO
Network shall be at the discretion of the GO Entities. Any
placements of Content in GO Network Commerce Areas will be
subject to the standard terms and conditions, if any, governing
content placement in such Commerce Areas.
5.3 Commerce Transactions/ Content. Content Partner placement of
Content on GO Network commerce areas, including placement on
FamilySHOP and other BVIG commerce areas, will be on terms and
conditions mutually agreed; provided however that the following
provision shall govern Content Placement on FamilySHOP and other
BVIG commerce areas:
a. Order Fulfillment. Content Partner shall be solely
responsible for (i) processing and fulfilling all orders
made through the Content Partner Service or the GO
Network-Wrapped Pages, (ii) all accounting with respect
to such orders, and (c) all customer service and support
with respect to such orders, purchases and returns.
Content Partner shall provide all of the foregoing
services at the highest levels of quality consistent
with the BVIG name and the Xxxx Disney Company
reputation. Content Partner acknowledges and agrees that
it is solely responsible for the security of any
transactions initiated within the Content Partner
Service.
ARTICLE 6 LICENSE
6.1 Grant of License by Content Partner. Subject to the terms and
conditions of this Agreement, Content Partner hereby grants to
the GO Entities and their respective Affiliates, a fully-paid,
worldwide (to the extent necessary to implement this Agreement),
limited, non-exclusive, non-transferable right and license,
without right to sub-license, to use, reproduce, incorporate,
integrate and distribute the Content on GO Network and a license
and right to use Content Partner's trade names, trade dress, and
trademarks as reasonably necessary with respect to the display
and use of the Content on GO Network in accordance with the
terms of this Agreement during the term of this Agreement.
6.2 Grant of License by Infoseek. Subject to the terms and
conditions of this Agreement, Infoseek hereby grants to Content
Partner a fully-paid, worldwide (to the extent necessary to
implement this Agreement) limited, non-exclusive,
non-transferable right and license, without right to
sub-license, to use, reproduce, incorporate, integrate and
distribute the GO Wrapper and related GO Network Trademarks
solely on the GO Network Wrapped Pages in accordance with the
terms of this Agreement or as otherwise expressly approved in
writing by Infoseek during the term of this Agreement.
6.3 Acknowledgment by GO Entities. The GO Entities acknowledge that
except as expressly set forth in Section 6.1 above, they may not
use the Content Partner name or other Trademarks owned by
Content Partner without Content Partner's prior written
permission.
6.4 Acknowledgment by Content Partner. Content Partner acknowledges
that, except as expressly set forth in Appendix G, it may not
use The Xxxx Disney Company name or, except as expressly set
forth in Section 6.2 above or Appendix G, Trademarks owned by
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The Xxxx Disney Company or the GO Entities, without the prior
written permission of The Xxxx Disney Company or the GO
Entities, as applicable.
ARTICLE 7 USER DATA
7.1 User Registration.
a. Privacy Policy. Content Partner shall ensure that its
privacy policy applicable to the Content Partner
Service, to the extent applicable to its performance
under this Agreement, is substantially consistent with
the privacy policy of GO Network, as may be changed from
time to time, including, without limitation, including a
mechanism that allows Users to opt out of sharing of
User data with third parties.
b. User Registration Experience. The User registration
experience that shall be implemented pursuant to this
Agreement shall be as follows:
i. "Global Registration". An unregistered User on
GO Network or on a GO Network-Wrapped Page
hosted by Content Partner who encounters Content
Partner functionality or Content that provides
the User with an opportunity to register will be
presented with a standard series of GO Network
user registration screens, the first of which
explains that this is a simultaneous
registration for Content Partner and GO Network.
The User then has the option to continue to
register or to click back to his/her original
starting point. If the User responds "yes", then
the User's data will go simultaneously to
Content Partner and the GO Entities. If the User
elects to opt-in to simultaneous registration,
the User shall only be required to execute "one
click" to transfer the registration data to
Content Partner ("Global Registration"). It is
anticipated that Global Registration will be
required only for certain joint promotions.
ii. "GO-Tagged Users". A User originating from GO
Network and Linking to the Content Partner
Service shall be identified in the Content
Partner User database as originating from GO
Network and will be tagged as a "GO-Tagged
User." Content Partner represents that it has
the technology to identify GO-Tagged Users.
7.2 Ownership of User Data
a. Content Partner and the GO Entities shall jointly own
all right, title and interest in all User data generated
on GO Network-Wrapped Pages hosted by Content Partner
and User data for GO-Tagged Users ("Content Partner
Users") who register on the Content Partner Service. In
clarification of the foregoing, the parties will not
jointly own User data for GO-Tagged Users which data is
generated on pages in GO Network not hosted by Content
Partner. Content Partner shall make available to the GO
Entities, via a method and timing to be mutually agreed
upon, all first and last names and email addresses from
each such Content Partner User provided that such User
has not opted out of sharing his/her data with third
parties and provided such disclosure is not prohibited
by law or regulation. In addition, except as prohibited
by law and provided the User has not opted out of
sharing his/her data, Content Partner may, to the extent
not in violation of Content Partner's privacy policy,
provide to the GO Entities all available data concerning
Users who access the Content Partner Service and/or the
Content from GO Network, concerning products and/or
services purchased by such Users, survey and promotion
responses, and other demographic information concerning
such Users. The
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parties agree that they will not sell or share Content
Partner User data during the term of the Agreement or
thereafter; provided however that a party may disclose
such aggregate information to third parties as it deems
appropriate in connection with its operations. Aggregate
information described hereunder will include only such
statistical information which relates to a broad
category of Content Partner Users such as gender, age
range or level of education and which is generic enough
so as not to identify particular Users.
b. The GO Entities shall own all right, title and interest
in and to and the exclusive right to use all data
concerning Users which data is generated on all pages of
GO Network hosted by the GO Entities.
c. Content Partner shall own all right, title and interest
in and to and the exclusive right to use all data
concerning Users which data is generated on all pages of
the Content Partner Service, except for jointly-owned
User data as specifically described in Section 7.2.a
above.
7.3 Use of User Data.
a. Content Partner shall not specifically target or invite
Users co-owned with the GO Entities to visit a XX.xxx
Competitor at any time during the term of this
Agreement.
b. Xxxxxx.xxx, xxxxxxxxx.xxx and Xxxxxx.xxx will not
specifically target or invite individual Users co-owned
with Content Partner via email to visit a Content
Partner Competitor at any time during the term of this
Agreement; provided however, that Infoseek may take such
actions as it reasonably deems necessary or appropriate
to comply with its obligations under the Petsmart
Agreement.
ARTICLE 8 FEES AND PAYMENTS
8.1 Payments. Content Partner will make payments to Infoseek in the
amounts and at the times specified in Appendix D-3. Content
Partner will be responsible for the proper payment of all taxes,
including sales, excise and value added taxes, which may be
levied in connection therewith, exclusive of taxes based upon
Infoseek's net income.
8.2 Wire Transfers. All payments made to Infoseek hereunder shall be
made via wire transfer in accordance with the following
instructions, or such other instructions as may be provided to
Content Partner in writing by an authorized representative of
Infoseek:
Wire transfer, EFT/ACH Payment remittance instructions:
Bank of America
San Francisco, California
ABA Number: 000000000
Account Name: Infoseek Corporation
Account Number: 12335-30390
Swift ID: XXXXXX0X
ARTICLE 9 CONFIDENTIAL INFORMATION
9.1 Disclosures. The GO Entities, on the one hand, or Content
Partner, on the other hand, may disclose to the other (the
"Receiving Party") certain information that the disclosing party
deems to be confidential and proprietary, including technical
and other business information of the disclosing party that is
not generally available to the public ("Confidential
Information"). Confidential Information shall include the terms
and conditions of this Agreement.
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9.2 Obligations of Receiving Party. The Receiving Party agrees to
use Confidential Information solely in conjunction with its
performance under this Agreement and not to disclose or
otherwise use such information in any fashion. The Receiving
Party, however, will not be required to keep confidential such
Confidential Information that becomes generally available
without fault on its part; is already rightfully in the
Receiving Party's possession without restriction prior to its
receipt from the disclosing party; is independently developed by
the Receiving Party; is rightfully obtained by the Receiving
Party from third parties without restriction; or is otherwise
required to be disclosed by law or judicial process. In the
event disclosure of Confidential Information, including the
terms and conditions of this Agreement, is required by law or
judicial process, the Receiving Party shall promptly notify the
disclosing party of such requirement and provide the disclosing
party with a timely and reasonable opportunity to review the
proposed disclosure in advance and will cooperate with the
disclosing party to limit the scope of disclosure or seek
confidential treatment of material required to be disclosed, if
confidential treatment is available.
9.3 Limitations. Unless required by law or to assert its rights
under this Agreement, and except for disclosure on a "need to
know basis" to its own employees, and its legal, investment,
financial and other professional advisers on a confidential
basis, each party agrees not to disclose the terms of this
Agreement or matters related thereto without the prior written
consent of the other party.
ARTICLE 10 REPRESENTATIONS AND WARRANTIES
10.1 Content Partner. Content Partner represents, warrants and
covenants to the GO Entities and their respective Affiliates
that it is the owner of the Content and/or has the right to
grant the rights hereunder. Content Partner represents, warrants
and covenants to the GO Entities and their respective Affiliates
that it holds the necessary rights to permit the use of the
Content by the GO Entities and their respective Affiliates for
the purpose of this Agreement; that its entry into this
Agreement does not violate any agreement with any other party;
that its performance under this Agreement will conform to
applicable laws and government rules and regulations; and that,
to the best of its knowledge after reasonable inquiry, the
Content is true, accurate and does not contain material
omissions. Content Partner further represents, warrants, and
covenants to the GO Entities and their respective Affiliates
that the use, reproduction, distribution, transmission, or
display of the Content and Content Partner's Trademarks, Content
Partner's collection and use of Content Partner User Data and
the sale of products and services by Content Partner as
contemplated in this Agreement will not (a) violate any laws or
any rights of any third parties, including, but not limited to,
such violations as infringement or misappropriation of any
copyright, patent, trademark, trade dress, trade secret, music,
image, or other proprietary or property right, false
advertising, unfair competition, defamation, invasion of privacy
or publicity rights, moral or otherwise, or rights of celebrity,
violation of any antidiscrimination law or regulation, or any
other right of any person or entity; or (b) contain any material
that is: unlawful, harmful, fraudulent, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful,
racially, or ethnically objectionable, including, without
limitation, any material that supports, promotes or otherwise
encourages wrongful conduct that would constitute a criminal
offense, give rise to civil liability, or otherwise violate any
applicable local, state, national or international laws.
10.2 Year 2000 - Content Partner. Content Partner represents,
warrants and covenants that, to the best of its knowledge after
reasonable inquiry, the systems and technology utilized to
operate the Content Partner Service (including, without
limitation, order fulfillment systems relating to products sold
by Content Partner, if any) are compliant with the following
Year 2000 requirements: (a) the occurrence in or use by such
systems of dates before, on or after
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January 1, 2000 will not adversely affect the performance of
such systems with respect to date-dependent data, computations,
output, or other functions (including, without limitations,
calculating, comparing and sequencing); and (b) such systems
will not abnormally end or provide invalid or incorrect results
as a result of date dependent data.
10.3 BVIG. BVIG represents, warrants and covenants to Content Partner
that its entry into this Agreement does not violate any
agreement with any other party, that it has the full right,
power and authority to enter into this Agreement and to perform
the acts required of it hereunder, and that BVIG Content will
not (a) violate any laws or any rights of any third parties,
including, but not limited to, such violations as infringement
or misappropriation of any copyright, patent, trademark, trade
dress, trade secret, music, image, or other proprietary or
property right, false advertising, unfair competition,
defamation, invasion of privacy or publicity rights, moral or
otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any
person or entity; or (b) contain any material that is: unlawful,
harmful, fraudulent, threatening, abusive, harassing,
defamatory, vulgar, obscene, profane, hateful, racially, or
ethnically objectionable, including, without limitation, any
material that supports, promotes or otherwise encourages
wrongful conduct that would constitute a criminal offense, give
rise to civil liability, or otherwise violate any applicable
local, state, national or international laws. As used herein,
"BVIG Content" means any content on the Xxxxxx.xxx and
Xxxxxx.xxx pages where Content is distributed that has been
authored and created solely by BVIG.
10.4 Infoseek. Except with respect to the litigation involving
Xxxx.xxx which has previously been disclosed to Content Partner,
Infoseek represents, warrants and covenants to Content Partner
that its entry into this Agreement does not violate any
agreement with any other party, that it has the full right,
power and authority to enter into this Agreement and to perform
the acts required of it hereunder, and that Infoseek Content
will not (a) violate any laws or any rights of any third
parties, including, but not limited to, such violations as
infringement or misappropriation of any copyright, patent,
trademark, trade dress, trade secret, music, image, or other
proprietary or property right, false advertising, unfair
competition, defamation, invasion of privacy or publicity
rights, moral or otherwise, or rights of celebrity, violation of
any antidiscrimination law or regulation, or any other right of
any person or entity; or (b) contain any material that is:
unlawful, harmful, fraudulent, threatening, abusive, harassing,
defamatory, vulgar, obscene, profane, hateful, racially, or
ethnically objectionable, including, without limitation, any
material that supports, promotes or otherwise encourages
wrongful conduct that would constitute a criminal offense, give
rise to civil liability, or otherwise violate any applicable
local, state, national or international laws. As used herein,
"Infoseek Content" means any content on the GO Wrapper that has
been authored and created solely by Infoseek.
ARTICLE 11 LIMITATION OF LIABILITY; DISCLAIMER
11.1 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR A PARTY'S LIABILITY FOR
THIRD PARTY CLAIMS AS SPECIFIED IN ARTICLE 15 BELOW, OR A
PARTY'S BREACH OF ARTICLE 9, OR DAMAGES ARISING FROM PERSONAL
INJURY, IN NO EVENT SHALL A PARTY HERETO OR ITS AFFILIATES BE
LIABLE TO ANOTHER PARTY HERETO OR ITS AFFILIATES FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY
NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY
REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF A PARTY HERETO
AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT,
NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF
LIABILITY.
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11.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 10, NO
PARTY HERETO MAKES ANY, AND EACH PARTY ACKNOWLEDGES THAT EACH
OTHER PARTY HAS NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS
ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING GO NETWORK, THE CONTENT PARTNER SERVICE, THE CONTENT,
OR THE OPERATION OF THE CONTENT ON GO NETWORK, INCLUDING, BUT
NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 12 TERM AND TERMINATION
12.1 Term. This Agreement shall be effective on the Effective Date
and shall continue in force for an initial term ending three (3)
years from the Effective Date (the "Initial Term"). Upon prior
mutual written agreement, the term of this Agreement may be
renewed at the end of the Initial Term and each anniversary date
thereafter for one (1) year renewal terms.
12.2 Termination. This Agreement may be terminated as follows:
a. For Breach. Content Partner, on the one hand, and the GO
Entities, on the other hand, will have the right to
terminate this Agreement upon thirty (30) days prior
written notice if a GO Entity, on one hand, or Content
Partner, on the other hand, is in default of any
obligation herein, including failure of Content Partner
to provide the Content, and such breach is incapable of
being cured within thirty (30) days, or if such breach
is capable of cure within thirty (30) days, such breach
is not cured within thirty (30) days (or fourteen (14)
days with respect to any default in any payment
obligation) after receipt of written notice of such
default from the non-defaulting party/parties. The
non-defaulting party/parties may authorize an additional
cure period in its/their sole discretion.
b. Performance.
i. By Content Partner. If the Content Partner
Service or GO Network-Wrapped Pages hosted by
Content Partner do not meet the following
performance standards (which shall be measured
by the GO Entities), and such failure is not due
to force majeure events or the failure of any
third party services, hardware, software or
telecommunications systems not controlled by
Content Partner, one or both of the GO Entities
shall notify the Content Partner in writing and
Content Partner shall cure the breach within 24
hours. In the event of more than 3 performance
failures pursuant to this Section 12.2.b.i in
any 30 day period, the GO Entities shall have
the right to terminate, without providing an
opportunity to cure. Termination of this
Agreement shall be the GO Entities' sole remedy
for such performance failures. The performance
standards are as follows:
A. Uptime/Downtime. Excluding maintenance
downtime, the Content Partner Service
and GO Network-Wrapped Pages hosted by
Content Partner will have a minimum
uptime operation of 99.4 percent
(downtime of 0.6 percent) measured
quarterly. Downtime shall mean any 30
second interval in which the Content
Partner Service is not able to process
queries.
B. Unscheduled Downtime Limits. The Content
Partner Service and GO Network-Wrapped
Pages hosted by Content Partner will not
have aggregate unscheduled downtime
exceeding 15 hours per quarter.
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C. Maintenance Downtime. The Content
Partner Service and GO Network-Wrapped
Pages hosted by Content Partner may be
disabled for up to 3 hours per month for
maintenance. All maintenance downtimes
will occur between 9:00 p.m. and 6:00
a.m. Pacific time (Standard or Daylight
as applicable).
ii. By the GO Entities. If the pages in the GO
Network hosted by Infoseek or BVIG which
prominently display Content (the "GO-Hosted
Pages") do not meet the following performance
standards and such failure is not due to force
majeure events or the failure of any third party
services, hardware, software or
telecommunications systems not controlled by the
GO Entity hosting the GO-Hosted Pages, Content
Partner notify the GO Entity hosting the
GO-Hosted Pages in writing and such GO Entity
shall cure the breach within 24 hours. In the
event of more than 3 performance failures
pursuant to this Section 12.2.b.ii in any 30 day
period, Content Partner shall have the right to
terminate, without providing an opportunity to
cure. Termination of this Agreement shall be
Content Partner's sole remedy for such
performance failures. The performance standards
are as follows:
A. Uptime/Downtime. Excluding maintenance
downtime, the GO-Hosted Pages will have
a minimum uptime operation of 99.4
percent (downtime of 0.6 percent)
measured quarterly. Downtime shall mean
any 30 second interval in which the
GO-Hosted Pages are not able to process
queries.
B. Unscheduled Downtime Limits. The
GO-Hosted Pages will not have any
aggregate unscheduled downtime exceeding
15 hours per quarter.
C. Maintenance Downtime. The GO-Hosted
Pages may be disabled for up to 3 hours
per month for maintenance.
12.3 Effect of Termination.
a. Transition Period. At least ninety (90) days prior to
termination, the parties will effect the following
transition process:
i. The parties will inventory all material online
Content being exchanged and will jointly draft a
Content transition plan for material Content
Partner Content that will not remain on the GO
Network beyond the termination of the Agreement.
ii. The parties will inventory any products and
promotions that have been jointly developed and
(A) agree upon a termination date by which such
products can no longer be sold and promotions
can no longer run, respectively.
iii. Either party holding any surplus product or
promotional inventory bearing Trademarks, or
other copyrighted material of the other parties
will destroy such product or promotional
inventory within 30 days of termination of this
Agreement unless mutually agreed.
iv. Content Partner will make one final transfer of
all the names and email addresses of Content
Partner Users (in accordance with and as
described in Section 7.2).
a. Survival. The following provisions of this Agreement
shall survive the termination or expiration of this
Agreement: Article 1, Article 2, Section 4.8, Section
7.2.a
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(first sentence and last two sentences) and Section
7.2.b, Article 8: Fees and Payments (as to fees accrued
prior to termination or expiration), Article 9:
Confidential Information, Article 10: Representations
and Warranties (as to claims arising prior to
termination or expiration or claims based on events
arising prior to termination or expiration), Article 11:
Limitation of Liability; Disclaimer, Section 12.3: Term
and Termination - Effect of Termination, Article 14:
Publicity (other than first two sentences), Article 15:
Indemnification and Article 16: General Terms and
Conditions.
b. Return of Materials. Upon the termination or expiration
of this Agreement, each party shall (i) promptly return
all Confidential Information, and other information,
documents, manuals and other materials belonging to the
other parties, except as may be otherwise provided in
this Agreement; and (ii) promptly remove the other
parties' content, branding, links, and any other
material provided under this Agreement.
ARTICLE 13 FORCE MAJEURE
No party hereto will be liable for delay or default in the performance
of its obligations under this Agreement (other than for non-payment) if
such delay or default is caused by conditions beyond its reasonable
control, including, but not limited to, fire, flood, accident,
earthquakes, telecommunications line failures, storm, acts of war, riot,
government interference, strikes and/or walk-outs. In the event of a
force majeure event which lasts longer than thirty (30) days, a party
not experiencing the force majeure event may terminate this Agreement
upon prior written notice to the other parties.
ARTICLE 14 PUBLICITY
The parties will draft a joint press release to announce the execution
of this Agreement to be issued at a mutually agreed upon time. The GO
Entities will use commercially reasonable efforts to approve such joint
press release for issuance within one week of the Effective Date. Except
as expressly set forth herein or as described on Appendix G, Content
Partner shall not issue or permit the issuance of any press release or
publicity regarding or grant any interview, or make any public
statements whatsoever concerning, this Agreement, GO Network or the GO
Entities (or their respective Affiliates) without prior coordination
with and written approval from the GO Entities, which approval may be
granted or withheld in such GO Entity's sole discretion. Except as
expressly set forth herein, the GO Entities shall not issue or permit
the issuance of any press releases or publicity regarding, or grant any
interview, or make any public statements whatsoever concerning this
Agreement or Content Partner without prior coordination with and written
approval from Content Partner, which approval may be granted or withheld
in Content Partner's sole discretion. All Content Partner endorsements
and public statements concerning this Agreement must receive the GO
Entities' prior review and approval; provided however that all items
attached hereto as Appendix G shall be deemed approved. Notwithstanding
the foregoing, Content Partner shall not state or imply, in
advertisements, writings, or otherwise, that a GO Entity or its
respective Affiliates endorse Content Partner's products or services or
any other product or service.
ARTICLE 15 INDEMNIFICATION
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15.1 Content Partner. Content Partner agrees to defend, indemnify and
hold the GO Entities and their respective officers, directors,
agents, employees, and Affiliates harmless from and against any
and all claims, demands, liabilities, actions, judgments, and
expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to
(i) any breach or alleged breach of any of Content Partner's
representations and warranties set forth in Section 10.1; (ii)
any injury to person or property caused by any products or
services sold by Content Partner, or any User's use of or
reliance on the Content; (iii) any injury to person or property
caused by any products or services sold through the Content;
(iv) any other claim with respect to Content Partner, the
Content, or products or services sold by or through Content
Partner or its agents, or (v) Content Partner's sales or
marketing practices. Content Partner shall bear full
responsibility for the defense (including any settlements) of
any such claim; provided, however, that (a) Content Partner
shall keep the GO Entities (as applicable) informed of, and
consult with the GO Entities (as applicable) in connection with,
the progress of such litigation or settlement; and (b) Content
Partner shall not have any right, without the written consent of
the Go Entities (as applicable), to settle any such claim if
such settlement arises from or is part of any criminal action,
suit or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of the GO Entities (as
applicable) or their respective Affiliates or otherwise requires
the GO Entities (as applicable) or their respective Affiliates
to take or refrain from taking any material action (such as the
payment of fees).
15.2 BVIG. BVIG agrees to defend, indemnify and hold Content Partner
and its officers, directors, agents and employees harmless from
and against any and all claims, demands, liabilities, actions,
judgments, and expenses, including reasonable fees and expenses
of attorneys, paralegals and other professionals, arising out of
or related to any breach or alleged breach of any of BVIG's
representations and warranties set forth in Section 10.3. BVIG
shall bear full responsibility for the defense (including any
settlements) of any such claim; provided, however, that (a) BVIG
shall keep Content Partner informed of, and consult with Content
Partner in connection with, the progress of such litigation or
settlement; and (b) BVIG shall not have any right, without
Content Partner's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action,
suit or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of Content Provider or
otherwise requires Content Partner to take or refrain from
taking any material action (such as the payment of fees).
15.3 Infoseek. Infoseek agrees to defend, indemnify and hold Content
Partner and its officers, directors, agents and employees
harmless from and against any and all claims, demands,
liabilities, actions, judgments, and expenses, including
reasonable fees and expenses of attorneys, paralegals and other
professionals, arising out of or related to any breach or
alleged breach of any of Infoseek's representations and
warranties set forth in Section 10.4. Infoseek shall bear full
responsibility for the defense (including any settlements) of
any such claim; provided, however, that (a) Infoseek shall keep
Content Partner informed of, and consult with Content Partner in
connection with, the progress of such litigation or settlement;
and (b) Infoseek shall not have any right, without Content
Partner's written consent, to settle any such claim if such
settlement arises from or is part of any criminal action, suit
or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of Content Provider or
otherwise requires Content Partner to take or refrain from
taking any material action (such as the payment of fees).
ARTICLE 16 GENERAL TERMS AND CONDITIONS
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16.1 Independent Contractors. The parties to this Agreement are
independent contractors. No party hereto is an agent,
representative or partner of the other parties hereto. No party
hereto shall have any right, power or authority to enter into
any agreement for or on behalf of, or to incur any obligation or
liability for, or to otherwise bind, the other parties hereto.
This Agreement shall not be interpreted or construed to create
an association, joint venture, co-ownership, co-authorship, or
partnership among the parties or to impose any partnership
obligation or liability upon any other party hereto.
16.2 No Assignment. No party hereto shall assign, sublicense or
otherwise transfer (voluntarily, by operation of law, through a
change of control or otherwise) this Agreement or any right,
interest or benefit under this Agreement, without the prior
written consent of the other parties hereto; provided, however,
that a party hereto may assign this Agreement to any entity that
acquires all or substantially all of the assets or shares of
such party; provided that the acquiring entity is not (i) a
XX.xxx Competitor in the case of the acquisition of Content
Partner or (ii) a Content Partner Competitor in the case of the
acquisition of one or both of the GO Entities. Any attempted
assignment, sublicense or transfer by a party in derogation
hereof shall be null and void. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective
successors and assigns.
16.3 No Modifications. No change, amendment or modification of any
provision of this Agreement or waiver of any of its terms will
be valid unless set forth in writing and signed by the party to
be bound thereby.
16.4 Governing Law. This Agreement shall be interpreted, construed
and enforced in all respects in accordance with the laws of the
State of California. Each party hereto irrevocably consents to
the exclusive jurisdiction of any state or federal court for or
within Santa Xxxxx County, California over any action or
proceeding arising out of or related to this Agreement, and
waives any objection to venue or inconvenience of the forum in
any such court.
16.5 No Waiver. The failure of a party to insist upon or enforce
strict performance by another party of any provision of this
Agreement or to exercise any right under this Agreement shall
not be construed as a waiver or relinquishment to any extent of
such party's right to assert or rely upon any such provision or
right in that or any other instance; rather the same shall be
and remain in full force and effect.
16.6 Notices. Any notice, approval, request, authorization, direction
or other communication under this Agreement shall be given in
writing, will reference this Agreement, and shall be deemed to
have been delivered and given (a) when delivered personally; (b)
three (3) business days after having been sent by registered or
certified U.S. mail, return receipt requested, postage and
charges prepaid; or (c) one (1) business day after deposit with
a commercial overnight courier, with written verification of
receipt. All communications will be sent to the addresses set
forth below or to such other address as may be designated by a
party by giving written notice to the other parties pursuant to
this Section 16.6.
If to BVIG: If to Content Partner:
Buena Vista Internet Group Xxxx.xxx, Inc.
000 Xxxxx Xxxxx Xxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxx Xxxxxxxxx, XX 00000
Attention: Legal Department Attention: President
Tel: (000) 000-0000 Tel: (000) 000-0000
If to Infoseek:
Infoseek Corporation
-20-
21
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Legal Department
Tel: (000) 000-0000
16.7 Entire Agreement. This Agreement and the Appendices attached
hereto and incorporated herein by reference constitutes the
entire agreement between the parties and supersede any and all
prior agreements or understandings between the parties with
respect to the subject matter hereof. No party hereto shall be
bound by, and each party specifically objects to, any term,
condition or other provision or other condition which is
different from or in addition to the provisions of this
Agreement (whether or not it would materially alter this
Agreement) and which is proffered by another party hereto in any
purchase order, correspondence or other document, unless the
party to be bound thereby specifically agrees to such provision
in writing.
16.8 Headings/Construction. The headings used in this Agreement are
for convenience only and are not to be construed to have legal
significance. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court
with jurisdiction over the parties to this Agreement, such
provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance
with applicable law, and the remainder of this Agreement shall
remain in full force and effect.
16.9 Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts which taken together shall be regarded
as one and the same Agreement. A party's facsimile signature
will be deemed a binding acceptance of this Agreement by such
party.
BUENA VISTA INTERNET GROUP XXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------- --------------------------------
Authorized Signature Authorized Signature
Print Name: Xxxx Xxxxxx Print Name: Xxxx Xxxxx
----------------------- ------------------------
Title: Title: CFO
---------------------------- -----------------------------
Date: Date: 1/17/00
----------------------------- ------------------------------
INFOSEEK CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------
Authorized Signature
-21-
22
Print Name: Xxxx Xxxxxx
-----------------------
Title:
----------------------------
Date:
-----------------------------
-22-
23
APPENDIX A
CONTENT
"Content" shall include but not be limited to:
- Dog and cat related articles mutually agreed upon by Content
Partner and Xxxxxx.xxx
- Content Partner searchable database of articles mutually agreed
upon by Content Partner and Xxxxxx.xxx
- Content Partner community message boards (moderated prior to
delivery to Xxxxxx.xxx)
As mutually agreed, the GO Entities and Content Partner may also share
other Content and tools, including but not limited to: chat, e-mail,
user reviews, live broadcasts and web casts.
Content Partner will grant the GO Entities with access to a significant
portion of the content from the Content Partner Service in a mutually
agreeable delivery format and timeframe. Use of such content by the GO
Entities will be subject to Section 6.1.
24
APPENDIX C
ABC MEDIA RIGHTS
Terms of ABC Media Rights. For purposes of this Agreement, "ABC Media Rights"
shall mean the right to place advertising on ABC, Inc. broadcast properties in
an aggregate amount of Twelve Million Three Hundred Forty Thousand Two Hundred
Six Dollars and Forty-Five Cents ($12,340,206.45) over the period which begins
on the Effective Date and ends three (3) years later, subject to the terms and
conditions set forth in this Agreement and the Standard Terms and Conditions for
ABC Television Network Sponsorship Contracts and any other standard advertising
terms and conditions used by a particular broadcast property ("ABC Standard
Terms").
a. Content Partner acknowledges that there are standard integration
charges on the ABC network for every unit that airs regardless
of commercial length. Standard integration charges are currently
$470/spot during prime time and $235/spot in other day parts.
ABC affiliates may have similar charges. Integration charges are
subject to change.
b. The GO Entities will use commercially reasonable efforts to work
with Content Partner and ABC to optimize Content Partner's reach
and frequency to [*] ages [*] with [*] ages [*].
c. Content Partner acknowledges that the GO Entities may not
purchase media for Content Partner further out than one year in
advance. Content Partner acknowledges and understands that most
ABC, Inc. properties sell their product on a broadcast year or a
calendar year basis so Content Partner may be limited in the
time frames within which it may obtain advertising. For example,
Content Partner may not be able to obtain advertising from most
divisions for January 2001 in March 2000 even though such dates
are less than one year apart.
d. Content Partner's use of the ABC Media Rights shall be subject
to availability of inventory. In addition, Content Partner may
not exercise such rights for greater than $5 million worth of
media value in any given quarter nor less than $2 million worth
of media value in any given year during the Initial Term.
e. Content Partner will be charged marketplace rates when
exercising its ABC Media Rights. The GO Entities will use
reasonable best efforts to obtain marketplace rates at least as
favorable as those given to third parties making similar media
purchases.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SEC.
25
APPENDIX D
FORMS OF ADVERTISING AGREEMENT AND
ADVERTISING INSERTION ORDER AND
SCHEDULE OF ADVERTISING FEES
D-1: FORM OF ADVERTISING AGREEMENT
Advertising Placement Standards
- All ad content must comply with Buena Vista Internet Group's (BVIG)
"Guidelines for Advertising". Copies may be obtained from your sales
representative.
- BVIG must review all ad content prior to acceptance and may accept or reject
such content at its sole discretion.
Submission of Advertising Insertion Orders and Ad Content
- All requests for ad and sponsorship placements must be submitted to BVIG by
fax.
- All orders must be received no later than five (5) working days prior to the
first date in the requested ad flight.
- Any Insertion Order involving third-party ad serving and/or custom technology
must be received by BVIG no later than ten (10) working days prior to the first
date in the requested ad flight.
- All ad content must be received by BVIG no later than the due date in the
Insertion Order or, if no date is specified, five (5) working days prior to the
start of the ad flight.
- All Insertion Orders and ad content are to be properly labeled and submitted
to:
Ad Sales Operations Manager
Buena Vista Internet Group
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
xxx@xxxxxxxxxxxx.xxx
Ph: (000) 000-0000
Fax: (000) 000-0000
- IN THE EVENT THAT NEW AND/OR UPDATED AD CONTENT IS NOT RECEIVED BY BVIG PRIOR
TO THE DUE DATE IN THE APPLICABLE INSERTION ORDER, BVIG MAY RUN PREVIOUS AD
MATERIAL IN ORDER TO MEET ITS IMPRESSION DELIVERY OBLIGATIONS. ALL NEW AND/OR
UPDATED AD CONTENT IS SUBJECT TO THE SAME TERMS AND CONDITIONS AS THE PREVIOUS
AD CONTENT.
Order Confirmation/Acceptance
- Insertion Order acceptance is subject to ad space availability at the time of
receipt.
- BVIG cannot guarantee an on-time start for an ad flight where the Insertion
Order was received past the Insertion Order closing date for the desired ad
flight period or where the ad content is received past its due date. If the
Insertion Order or ad content is late, BVIG may, at its sole discretion, reduce
the size of the impression buy, shorten or extend the term of the ad flight,
and/or postpone or cancel the Insertion Order without liability.
- Insertion Order acceptance is subject to credit approval. In the event that
Advertiser lacks an adequate credit history, there may be a delay in the order
acceptance process and the start of the ad flight.
- BVIG will issue Advertiser a fax confirmation of each Insertion Order (which
shall be a copy of the Insertion Order initialed by BVIG authorized personnel)
no later than one (1) working day after receipt of the order. Advertiser shall
initial and date the confirmation notice. Regardless, if Advertiser does not
object to the confirmation notice within two (2) working days after receipt, the
confirmation notice shall be deemed to have been accepted as the final Insertion
Order of record. The confirmation notice shall be sent to both Advertiser and
its designated agency, if any.
- BVIG will use commercially reasonable best efforts to deliver the requested
number of ad impressions in the agreed- upon date range. BVIG shall determine
actual ad placements and rotations in its sole discretion but shall use
commercially reasonable best efforts to spread ad buy impression volumes evenly
across the course of the ordered ad flights.
- There will be no refund for undelivered ad impressions at the end of an ad
flight. If the requested number of ad impressions has not been delivered in the
agreed-upon date range (as modified for late ad content delivery), BVIG shall
deliver the balance beyond the end of the ad flight until the ordered total is
delivered. There will be no additional charge to Advertiser for such delivery.
PRODUCTION REQUIREMENTS
- All ad content must comply with BVIG's Advertising Technical Specifications,
if ad banners, or with the technical requirements described in the Sponsorship
Production Request and Sponsorship Terms, if a sponsorship. Copies are available
from your sales representative.
- Any costs incurred by BVIG to bring Advertiser's ad content into compliance
will be billed to Advertiser as a non-commissionable production cost.
FULL DISCLOSURE OF AD CONTENT AND HOW IT WILL BE SERVED
26
- Advertiser shall provide to BVIG a complete and accurate representation of how
all ad content will be served to BVIG site visitors. Advertiser shall also
disclose any content or technology outside of the ad content itself that may be
served to a BVIG site visitor, such as server "cookies" or other methods for
tagging or labeling a BVIG site visitor.
- Advertiser shall disclose to BVIG any error messages that a BVIG site visitor
may see, such as browser notices requesting user acceptance of a server "cookie"
or any copy that may appear if an image is not successfully downloaded.
- Advertiser shall respond to all BVIG questions in a timely manner. BVIG may
delay or suspend delivery of ad content until all BVIG technical and
non-technical issues are resolved.
FULL DISCLOSURE OF HOW VISITOR DATA WILL BE COLLECTED, REPORTED, AND DISTRIBUTED
- Advertiser will submit to BVIG in writing a clear and accurate description of
what specific data will be collected by Advertiser or any third-party server
from BVIG Site visitors who view or click on Advertiser's ad content, how and
when such data will be collected, and how such data will be used or distributed.
- Advertiser shall respond to all BVIG questions regarding Visitor Data
collection and use in a timely manner. BVIG may delay or suspend delivery of ad
content until all BVIG data issues are resolved.
- Advertiser acknowledges that if Advertiser's proposed or actual use of visitor
data conflicts with BVIG's data policies, BVIG may reject or cancel the
Insertion Order in its sole discretion.
QUALITY ASSURANCE (QA)
- Advertiser is responsible for checking the ad content when it is first posted
on the BVIG sites and must notify BVIG of any problems or concerns within
seventy-two (72) hours after such posting. Failure to notify BVIG within that
time period will be deemed Advertiser's approval of the ad content as posted.
- BVIG is not responsible for ensuring that ad content is served as intended by
Advertiser and matters such as color corrections, proper animation, and degree
of sound quality are strictly Advertiser's responsibility.
- BVIG is not responsible for any incorrect click-through URLs or ad banner
referring URLs submitted by Advertiser or for broken text links where a
click-through URL leads to an error message for the user.
ADVERTISER RESPONSIBILITY FOR AD CONTENT
- Advertiser shall own or have all proper authorizations, permissions, and
licenses for the use of the ad content and any trademarks and logos therein, as
contemplated under the Insertion Order and BVIG Advertising Policies. Advertiser
shall be solely responsible for and pay all rights, public performance, and
other fees associated therewith.
- Advertiser shall indemnify, defend, and hold BVIG and its affiliates harmless
from any and all claims, judgments, damages, losses, expenses (including
reasonable attorneys' fees and expenses), and other liabilities related in any
way to, directly or indirectly, (1) any ad content provided by Advertiser and
posted on the BVIG sites, (2) Advertiser's failure to pay any rights, public
performance, or other fees associated with the ad content, (3) the delivery to
BVIG Site visitors by Advertiser or on its behalf of any content or technology
outside the ad content itself, (4) the pages and sites to which the ad content
links, or (5) any products sold through the ad content or the Web pages or sites
to which it links. Advertiser shall bear full responsibility for the defense
(including any settlements) of any such claim; provided, however, that (a)
Advertiser shall keep BVIG informed of and consult with BVIG in connection with
the progress of such litigation or settlement; and (b) Advertiser shall not have
any right, without BVIG's written consent, to settle any such claim if such
settlement arises from or is part of any criminal action, suit, or proceeding or
contains a stipulation to or admission or acknowledgment of any liability or
wrongdoing (whether in contract, tort or otherwise) on the part of BVIG or any
BVIG affiliate.
MULTIPLE AD CREATIVES
- Advertiser may rotate up to four (4) different ad creatives over the course of
a given ad flight.
- BVIG may in its sole discretion permit Advertiser to run more than four (4)
different creative versions over the course of an ad flight. In such event,
Advertiser shall pay to BVIG BVIG's then-current non-commissionable ad
management fee for each additional ad creative.
INVOICING AND PAYMENT TERMS
- BVIG shall issue written invoices to Advertiser (or its designated agency) for
all amounts due. Payment in full in US dollars is due to BVIG no later than
thirty (30) days from the date of the invoice. An interest charge equal to one
and one-half percent (1.5%) per month or the highest legal rate, whichever is
less, will be applied to unpaid amounts past due.
- In a case where the ad flight exceeds one calendar month in length, BVIG may
issue multiple invoices. For example, a six-month ad flight may result in six
invoices, each for a one-month span.
- Advertiser's payment is due and payable within the period described above,
regardless of any change in Advertiser's designated agency.
- Insertion Orders for additional ad or sponsorship buys will not be accepted
when Advertiser has a balance due that has been outstanding for ninety (90)
days. BVIG may also delay the start of a confirmed Insertion Order or suspend or
cancel delivery of any Insertion Order in progress until full payment is
received against such outstanding balance.
- In the event of nonpayment, Advertiser and its designated agency shall be
jointly and severally liable for any unpaid amounts. BVIG's rendering an invoice
to Advertiser's agency shall not release Advertiser in the event the agency does
not pay the invoice. Advertiser's payment to its agency shall not constitute
payment to BVIG unless BVIG actually receives the payment. In the event of
nonpayment, BVIG may set off any amounts due BVIG against any amounts due from
BVIG to Advertiser or its agency, or may set off such amounts against any ad
impressions to be delivered by BVIG.
AD REPORTING
- BVIG will report ad impressions delivered and related click yield to
Advertiser in a timely manner. The information to be tracked by BVIG and/or
reported to Advertiser shall be determined by BVIG at its sole discretion. All
such information shall be deemed BVIG Confidential Information and, except for
Advertiser's internal research purposes, such information may not be used by
Advertiser for
27
any purpose. Advertiser shall not disclose such information to any third party
without BVIG's prior written consent, which may be granted or withheld at BVIG's
sole discretion.
- Advertiser agrees BVIG's internal reporting is the official basis for
measuring the delivery of ad impressions and related click yields and shall be
deemed conclusive.
- BVIG owns and shall retain all rights, title and interest in all traffic data
and customer data collected by BVIG and Advertiser shall have no right to obtain
or use such data.
- All reporting queries should be addressed to:
Xxxxx Xxxxxxx
Ad Sales Operations Manager
Buena Vista Internet Group
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ph: (000) 000-0000
Fax: (000) 000-0000
xxx@xxxxxxxxxxxx.xxx
- E-mail messages should be followed up with a telephone call.
ADS DELIVERED BY THIRD-PARTY SERVERS
- Advertiser may request that ad impressions be delivered via third-party
servers in place of BVIG servers. Advertiser (not its agency) must make the
request in writing to BVIG's Vice President of Advertising no later than ten
(10) working days prior to the first date of the ad flight. The request must be
accompanied by all relevant supporting documentation. All requests will be
reviewed on a case-by-case basis, with approval granted or withheld in BVIG's
sole discretion.
- Third-party ad servers must comply with all BVIG Advertising Policies and all
deadlines and terms within the Insertion Orders for the applicable ad content.
All ad content must be approved by BVIG before going live and may not be changed
without prior BVIG approval. Proposed changes must be submitted to BVIG for
review no less than five (5) working days in advance.
- The third-party, or whomever Advertiser designates, shall provide BVIG with
impression and click-through reports in a timely fashion; provided however, that
BVIG internal reporting shall remain the official basis for measuring the
delivery of ad impressions and related click yields and shall be deemed
conclusive. All third-party reports shall conform to industry standards.
- Advertiser shall provide BVIG with a default ad unit(s) that BVIG may serve
directly in the event of technical difficulties with the third-party server in
order to meet the terms of the Insertion Order.
- BVIG reserves the right to disapprove or withdraw its approval of any
third-party ad server at any time for any reason, in BVIG's sole discretion.
- Advertiser agrees and will, if BVIG requests, acknowledge in a separate
writing, that neither it, its ad agencies, its agent for operating the
third-party server, nor any other party known or unknown, will take data from
the third party server and use it in conjunction with any other data source or
sources to identify and/or label any BVIG site visitor as an individual entity.
THIRD-PARTY AD SERVER COMPLIANCE WITH TECHNICAL REQUIREMENTS
- Advertiser assumes all responsibility for its third-party servers' technical
service levels during the ad flight. Advertiser will pay for all impressions
allocated by BVIG's servers, whether or not the third party server actually
delivers them. BVIG is the final arbiter regarding the number of ad impressions
allocated by the BVIG servers.
- All ads served by third-party servers must completely load within seven (7)
seconds at a 28.8 kbps connection. BVIG will advise Advertiser of any additional
third-party server technical standards, such as speed and volume requirements.
- If BVIG determines that the speed of any third-party server's ad delivery
fails to meet BVIG's quality assurance standards, BVIG may stop serving the
applicable ad content.
28
D-2: FORM OF ADVERTISING SALES INSERTION ORDER FORM
PACKAGES: (PLEASE CHECK APPROPRIATE BOX(es)
BUSINESS ENTITY WEB SITE PACKAGE
DOL Xxxxxx.xxx Disney ROS ATF [ ]
Disney ROS BTF [ ]
Disney ROS 120x60 [ ]
Disney ROS ATF and BTF [ ]
Disney ROS ATF and 120x60 [ ]
Disney ROS ATF and BTF and 120x60 [ ]
Disney Family ATF [ ]
Disney Family BTF [ ]
Disney Family 120x60 [ ]
Disney Family ATF and BTF [ ]
Disney Family ATF and 120x60 [ ]
Disney Family ATF and BTF and 120x60 [ ]
Disney Women ATF [ ]
Disney Women BTF [ ]
Disney Women 120x60 [ ]
Disney Women ATF and BTF [ ]
Disney Women ATF and 120x60 [ ]
Disney Women ATF and BTF and 120x60 [ ]
Disney Kids ATF [ ]
Disney Kids BTF [ ]
Disney Kids 120x60 [ ]
Disney Kids ATF and BTF [ ]
Disney Kids ATF and 120x60 [ ]
Disney Kids ATF and BTF and 120x60 [ ]
Disney Teens ATF Disney Teens BTF [ ]
Disney Teens 120x60 [ ]
Disney Teens ATF and BTF [ ]
Disney Teens ATF and 120x60 [ ]
Disney Teens ATF and BTF and 120x60 [ ]
CUSTOM PACKAGE DESCRIPTION:
29
PACKAGES CONTINUED: (PLEASE CHECK APPROPRIATE BOX(es)
BUSINESS ENTITY WEB SITE PACKAGE
ABC XXX.xxx ABC Primetime Group [ ]
ABC Primetime Portal Group [ ]
ABC ROS Group [ ]
ABC ROS Portal Group [ ]
ABC ROS w/o TGIF [ ]
ABC ROS w/o Talk Shows [ ]
ABC Shopping [ ]
ABC Shopping Portal [ ]
ABC Soaps [ ]
ABC TGIF Group [ ]
ABC Talk Shows [ ]
ABC Test Group [ ]
ABC The View [ ]
ABC Women's Group (w/HP) [ ]
ABC Women's Group w/o HP [ ]
CUSTOM PACKAGE DESCRIPTION:
DOL Xxxxxx.xxx Family ATF [ ]
Family BTF [ ]
Family 120x60 [ ]
Family ATF and BTF [ ]
Family ATF and 120x60 [ ]
Family ATF and BTF and 120x60 [ ]
Family Shop [ ]
Family 234x60 National [ ]
Family 234x60 Local [ ]
CUSTOM PACKAGE DESCRIPTION:
30
PACKAGES CONTINUED: (PLEASE CHECK APPROPRIATE BOX(es)
GoRadio WABC-AM [ ]
WPLJ-FM [ ]
KABC-AM [ ]
XXXX-FM [ ]
WLS-AM [ ]
WXCD-FM [ ]
KGO-AM [ ]
KSFO-AM [ ]
WMAL-AM [ ]
WRQX-FM [ ]
WJZW-FM [ ]
WBAP-AM [ ]
KSCS-FM [ ]
WJR-AM [ ]
WPLT-FM [ ]
WDRQ-FM [ ]
WKHX-FM [ ]
WYAY-FM [ ]
KQRS-FM [ ]
KXXR-FM [ ]
KZNT-FM [ ]
KZNZ-FM [ ]
KZNR-FM [ ]
ABC Network Radio Xxx Xxxxxx [ ]
Shows
Xxxx Xxxxx [ ]
Xxxx Xxxxxx [ ]
Radio Xxxxxx.xxx [ ]
ABC Local Net [ ]
CUSTOM PACKAGE DESCRIPTION:
31
D-3: FEES AND PAYMENTS
Content Partner will purchase Online Advertising in accordance with Article 3 of
the Agreement at a rate of $2 million during the first year in the Initial Term,
$3 million during the second year in the Initial Term and $4 million during the
third year in the Initial Term. The fees for such Online Advertising are payable
as follows unless otherwise mutually agreed:
- for the first twelve months during the Initial Term, One Hundred
Sixty-Six Thousand Six Hundred Sixty-Seven Dollars ($166,667) per month;
- for months 13 through 24, Two Hundred Fifty Thousand Dollars ($250,000)
per month; and
- for months 25 through 36, Three Hundred Thirty-Three Thousand Three
Hundred Thirty-Three Dollars ($333,333) per month.
Online Advertising fees shall be due and payable within thirty (30) days after
receipt of invoice sent to Content Partner at its address as set forth in
Section 16.6, Attention: Accounts Payable. The first invoice sent pursuant to
this Agreement shall be delivered no earlier than February 29, 2000.
Failure to pay the Online Fees as they become due shall result in a late fee of
one percent (1%) per month of the total monthly amount due until such payment is
made.
Content Partner will receive a fifteen percent (15%) discount off of the then
current rate card for any additional online advertising buys above the $2
million during the first year of the Initial Term, the $3 million during the
second year of the Initial Term and the $4 million during the third year of the
Initial Term described above.
00
XXXXXXXX X
PROJECTED IMPRESSIONS
[This Appendix has not been finalized by the parties]
33
APPENDIX F
CONTENT GUIDELINES AND ADVERTISING GUIDELINES FOR GO NETWORK
F-1: CONTENT GUIDELINES FOR GO NETWORK
All editorial and creative content, design and overall appearance and user
experience ("the Content") of the GO Network must be appropriate to the intended
user experience and to the content of The Xxxx Disney Company Sites, ESPN sites,
and ABC Sites that will have prominent positioning within GO Network.
Infoseek, at its discretion, may offer search results or directory listings that
may include links to content outside GO Network that might otherwise not be
appropriate.
What is clearly not appropriate
The following types of Content are clearly not appropriate to be on GO Network
or presented in any context that may create a direct or implied association with
The Xxxx Disney Company Sites:
- Pornographic or obscene material;
- Content whose primary purpose is to encourage gambling or betting (i.e.,
poker or 21 card games, roulette, slot machines, etc.) other than sports
fantasy games, or approved sweepstakes or games of skill or chance
(certain card games are appropriate and may be included on Infoseek,
i.e., solitaire, go fish, matching games, etc.);
- Threatening (i.e., harassment, hate speech) material or content that
promotes, encourages, describes, or provides instruction in conduct that
would constitute a criminal offense or otherwise violates any law in
jurisdictions where the products is marketed.
- Content that is defamatory, illegal or infringes upon the privacy rights
of any person or entity.
What may also be considered by Infoseek as inappropriate
Certain types of Content, unless offered in the format of an independent
observer providing objective, fair, accurate and impartial information (as may
be provided by a news site such as XXXXxxx.xxx), may be considered inappropriate
for GO Network if it involves, without limitation:
- unauthorized copies, use or parodies of current or past Infoseek
products or the products of its affiliates,
- a direct or implied endorsement, affiliation or favored status with
Infoseek, GO Network, ESPN, ABC or The Xxxx Disney Company;
- inaccurate or misleading information;
- unreasonable or highly unlikely claims;
- highly controversial issues (politics, social issues, etc.);
- death, crime, drugs or violence in an inappropriate context; or
- involves an advertiser or content provider in a category where the
privilege of exclusivity has previously been sold by Infoseek to a third
party (for example, MBNA is the exclusive provider/advertiser for credit
card products for GO Network).
Guidelines for Requests for User Information
Any solicitation or request for personal information from a user of GO Network
must be accompanied by the following:
- a clear request that children below the age of 13 years seek parental
permission before providing any information
- a clear explanation to the user of how the information collected will be
utilized
- only certain functionality or premium content areas will require the
user to submit personal information
34
IMMEDIATELY UPON DETERMINING THAT CONTENT ON GO NETWORK DOES NOT MEET THESE
GUIDELINES, SUCH CONTENT WILL BE REMOVED FROM GO NETWORK.
These guidelines are subject to change by Infoseek.
F-2: ADVERTISING GUIDELINES FOR GO NETWORK
THE ADVERTISING ENVIRONMENT MUST BE APPROPRIATE IN THE CONTEXT OF THE GO
NETWORK. This "advertising environment" includes the ad unit itself, the
advertiser's web site and direct links off of it, the specific destination URL,
interstitial or buffer pages, and all other elements that define the guest's
online experience.
An advertising environment or advertising materials of the types enumerated in
the first grouping below will not be accepted and materials may also be
rejected, at the discretion of Infoseek
WHAT IS CLEARLY NOT APPROPRIATE?
- HARD LIQUOR-RELATED (XXXXX GOODS, WHITE GOODS, ETC)
- TOBACCO-RELATED (CIGARETTES, CIGARS, PIPES, CHEWING TOBACCO, ETC)
- GUNS/WEAPONS-RELATED (FIREARMS, BULLETS, ETC)
- DRUGS-RELATED (MARIJUANA, ETC)
- GAMBLING-RELATED (CASINOS, LOTTERIES, ETC)
- PORNOGRAPHIC-RELATED (SEX SITES)
- CRIME-RELATED (DEALING WITH THE NOTORIOUS)
- DEATH-RELATED (FUNERAL HOMES, MORTUARIES)
- GRAPHIC VIOLENCE (INCLUDING CERTAIN TYPES OF GAME SITES)
WHAT MAY ALSO BE CONSIDERED BY INFOSEEK AS INAPPROPRIATE?
- INVOLVES WHAT INFOSEEK CONSIDERS TO BE A DIRECT BUSINESS COMPETITOR OF
GO NETWORK.
- INVOLVES UNAUTHORIZED OR UNAPPROVED USE OF GO NETWORK CREATIVE ASSETS
(INCLUDING ESPN TALENT, ABC LOGOS, DISNEY CHARACTERS, MOVIE LOGOS, THEME
PARK IMAGERY, NAMES AND MARKS USED IN GO NETWORK).
- INVOLVES AN ADVERTISER IN A CATEGORY WHERE THE PRIVILEGE OF EXCLUSIVITY
HAS PREVIOUSLY BEEN SOLD TO ANOTHER ADVERTISER.
- INVOLVES A COPY OR PARODY OF CURRENT OR PAST GO NETWORK PRODUCT.
- POLITICS-RELATED (LOBBYISTS, PAC SITES, POLITICAL CAMPAIGNS)
- NON-HARD LIQUOR RELATED (BEER, NON-ALCHOHOLIC BEER, WINE, CHAMPAGNE,
ETC.)
- OTHER "CONTROVERSIAL TOPICS" (POLITICS, SOCIAL ISSUES, ETC.) AS
DETERMINED BY INFOSEEK IN ITS DISCRETION
- INVOLVES AN IMPLIED AFFILIATION OR FAVORED STATUS WITH GO NETWORK.
- INVOLVES UNREASONABLE OR HIGHLY UNLIKELY PRODUCT OR SERVICE CLAIMS.
SOLICITATION OF PERSONAL INFORMATION: The advertiser's web site should not
require guest registration prior to site access when linking to such site
through the banner. The destination URL should not be a registration screen,
sweepstakes entry screen or other screen that immediately solicits personal
information from a site guest.
WHERE INFORMATION IS REQUESTED:
- Any solicitation of personal information must include a clear request
that children below the age of 13 years seek parental permission before
providing any such information.
- The advertiser must clearly explain to the guest how the advertiser will
utilize the personal information collected.
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- Only certain functionality or premium content areas will require the
user to submit personal information.
Infoseek welcomes the opportunity to work closely with advertisers and agencies,
to insure that ad content and web sites meet standards for advertising
applicable to GO Network.
Immediately upon determining that an advertisement does not meet these ad
guidelines, that ad will be removed from GO Network.
All advertisers, agents or representatives placing ads on behalf of or with GO
Networks must adhere to these advertising guidelines. Infoseek reserves the
right of refusal for any advertising placement for any reason, whether due
to content, technological, legal, privacy or other considerations.
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APPENDIX G
PRE-APPROVED STATEMENTS
THERE ARE CURRENTLY NO PRE-APPROVED STATEMENTS
