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EXHIBIT 10.2
SALES AGENCY AGREEMENT
This Sales Agency Agreement (this "Agreement") is made and entered
into as of October 2, 2000, by and between the following parties (each singly
sometimes a "Party", and both sometimes collectively, the "Parties"):
USSEARCH.com Inc. , a Delaware corporation ("USSEARCH"); and InfoSpace, Inc., a
Delaware corporation ("InfoSpace").
RECITALS
A. InfoSpace is an international information infrastructure services company
that provides commerce, information and communication infrastructure
services to wireless devices, merchants and sites on the WorldWide Web (the
"Web").
B. USSEARCH, among other things, is a provider of individual reference
services via the Web.
3. The Parties wish to enter into an agreement whereby (among other things)
InfoSpace will provide various advertising services to USSEARCH in exchange
for a commission based upon USSEARCH sales derived from such advertising
services, all as more particularly provided herein.
D. Certain capitalized terms not otherwise defined herein are defined in
Schedule 1 attached hereto.
AGREEMENT
Now, Therefore, the Parties hereby agree as follows:
1. Term of Agreement. The term of this Agreement (the "Term") shall commence
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on the date hereof and shall expire, automatically and without further
notice from or to either Party, upon the close of business on September 30,
2003; provided, however, that either Party may cancel this Agreement
effective upon the close of business on September 30, 2002 by delivering
written notice of such cancellation to the other Party at any time on or
before the close of business on August 1, 2002. Any such notice of
cancellation once issued shall henceforth be irrevocable by the issuing
Party unless the other nonissuing Party consents to such revocation in
writing.
2. Commission to InfoSpace. For any and all services provided by InfoSpace
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hereunder, USSEARCH shall pay to InfoSpace, as the total monetary
consideration due hereunder, commissions ("Commissions") equal to [***].
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2.1 Net Revenue. As used herein, the term "Net Revenue" shall mean the
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difference (if a positive number) between (i) the gross sales revenues
actually received by USSEARCH from the sale of USSEARCH services or
products of any kind to Qualified Customers, minus (ii) any and all
discounts, returns for credit, allowances, or shipping or other third-
party charges passed on to the Qualified Customer, in each case
attributable to the gross sales revenue in question.
2.2 Qualified Customers. As used herein, the term "Qualified Customers"
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shall mean (and be limited to) those purchasers of USSEARCH services
or products who both: (i) follow a link to the USSEARCH Web site
either from a Web page included in any item of Inventory shown on
Exhibit A hereto, or from a wireless device service advertisement for
USSEARCH's services and products if InfoSpace caused advertisement to
be delivered through the wireless device service, and (ii) in the same
session purchase a USSEARCH service or product from the USSEARCH Web
site through the USSEARCH Automated Ordering System. A purchase under
(ii) above shall be deemed to have occurred "in the same session" only
if such purchase occurs during the period of time beginning with the
purchaser's initial contact with the USSEARCH Web site and ending upon
such purchaser's departure from the USSEARCH Web site.
2.3 Minimum Quarterly Commission. [***].
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2.4 Payment of Commissions. USSEARCH shall calculate and pay to InfoSpace
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such Commissions as may be owed to InfoSpace hereunder for each
Contract Quarter within [***] after the end of such Contract Quarter.
InfoSpace shall have the right, at InfoSpace's sole cost and expense
and upon reasonable advance notice (but in any event not less than
five days' advance notice), to inspect such books and records of
USSEARCH as may be reasonably necessary or desirable for InfoSpace to
verify USSEARCH's calculation of any Commissions owed.
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARTELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER
GRANTING CONFIDENTIAL TREATMENT OF SUCH INFORMATION.
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3. Covenants.
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3.1 Compliance With Law. Each Party shall comply with all Laws and the
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rights of all third parties in the performance of its duties
hereunder.
3.2 Performance Maximization. The Parties have a mutual interest in
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implementing techniques and strategies consistent with this Agreement
that will maximize Commissions to InfoSpace and Net Revenue to
USSEARCH. In that connection, the Parties shall cooperate with each
other and use all reasonable commercial efforts to maximize such
Commissions and such Net Revenue, including, without limitation,
creating effective advertising for present and future USSEARCH
services and products and integrating the same into the InfoSpace, AOL
and MSN Web sites and wireless services in a manner and to a degree
that the Parties' believe will maximize such Commissions and such Net
Revenue. Without limiting the generality of the foregoing, InfoSpace
shall, at a minimum, comply at all times with the Performance
Requirements set forth in Exhibit B attached hereto.
3.3 Books and Records. Each Party shall maintain such books and records
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as may be reasonably necessary or desirable for the other Party (at
such other Party's sole cost and expense) to verify the maintaining
Party's compliance with this Agreement. Each Party shall provide the
other Party, upon reasonable advance notice, but in any event not less
than five days' advance notice, access to such books and records for
the purpose of verifying such compliance.
4. Representations and Warranties:
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Each Party (a "Representing Party") hereby represents, warrants and
covenants to the other Party that:
a. (i) The Representing Party is a corporation duly organized,
validly existing, and in good standing in the State of Delaware,
and is duly qualified to do business and in good standing in all
other states wherein the failure to so qualify or to be in good
standing would have a material adverse effect upon its business,
assets or financial condition; (ii) the Representing Party has
full legal right and authority to enter into this Agreement and
the other documents to be delivered by it hereunder, and to
consummate the transactions contemplated herein; and (iii) this
Agreement constitutes a valid and legally binding obligation of
the Representing Party enforceable in accordance with its terms,
subject to bankruptcy and similar Laws of general application
with respect to creditors.
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b. The execution, delivery, and performance by the Representing
Party of this Agreement have been duly authorized by all
necessary corporate action required of it and do not (i) require
any consent or approval of the Representing Party's stockholders;
(ii) contravene the Representing Party's articles of
incorporation, charter or bylaws; (iii) violate any provision of
any Law presently in effect having applicability to the
Representing Party; (iv) result in a breach of or constitute a
default under any Person's rights, or any indenture or loan or
credit agreement or any other material agreement, license, lease
or instrument to which the Representing Party is a party or by
which it or its properties may be bound or affected; (v) result
in, or require, the creation or imposition of any lien or
encumbrance, upon or with respect to any of the properties now
owned or hereafter acquired by it; or (vi) cause the Representing
Party to be in violation of, or default under, any such Law, any
such rights or any such material indenture, agreement, license,
lease or instrument.
c. EXCEPT FOR THE REPRESENTING PARTY'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN, THE REPRESENTING PARTY IS RELYING
SOLELY ON ITS OWN INSPECTION AND ANALYSIS OF THE OTHER PARTY, AND
THE OTHER PARTY'S BUSINESS, ASSETS, PRODUCTS AND SERVICES
(COLLECTIVELY, THE "OTHER PARTY'S OPERATIONS") IN ENTERING INTO
THIS AGREEMENT AND NOT ON ANY INFORMATION PROVIDED BY THE OTHER
PARTY, AND THE REPRESENTING PARTY IS PROCEEDING HEREUNDER ON AN
"AS IS" AND "WHERE IS" BASIS WITH ALL FAULTS CONCERNING THE OTHER
PARTY AND ITS PRODUCTS AND OPERATIONS NOW KNOWN OR HEREAFTER
DISCOVERED BY THE REPRESENTING PARTY.
d. EXCEPT FOR THE REPRESENTING PARTY'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN, THE REPRESENTING PARTY ACCEPTS ANY
AND ALL RISK THAT (i) THE REPRESENTING PARTY MAY NOT BE ABLE TO
USE, PROFIT OR BENEFIT FROM OR OTHERWISE DISPOSE OF ANY PRODUCT
OR SERVICE OF THE OTHER PARTY FOR ANY PURPOSE INTENDED OR DESIRED
BY THE REPRESENTING PARTY; AND (ii) SUCH PRODUCTS OR SERVICES MAY
NOT HAVE THE UTILITY, VALUE OR
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BENEFIT ASSUMED BY THE REPRESENTING PARTY IN ITS AGREEMENT
HEREUNDER.
e. THE REPRESENTING PARTY HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO
INSPECT AND ANALYZE THE OTHER PARTY'S OPERATIONS AND ALL ASPECTS
RELATING THERETO, EITHER INDEPENDENTLY OR THROUGH AFFILIATES OF
THE REPRESENTING PARTY'S OWN CHOOSING; (ii) THE REPRESENTING
PARTY HAS CONCLUDED WHATEVER STUDIES, TESTS, AND INVESTIGATIONS
THE REPRESENTING PARTY DESIRES RELATING THERETO; (iii) THE
REPRESENTING PARTY HAS REVIEWED AND READ (OR HAS ELECTED NOT TO
DO SO) AND HAS UNDERSTOOD ALL DOCUMENTS OR INSTRUMENTS OF PUBLIC
RECORD OR OTHERWISE AVAILABLE FROM ANY GOVERNMENTAL BODY OR
PROVIDED BY THE OTHER PARTY, THAT AFFECT OR PERTAIN TO THE OTHER
PARTY'S OPERATIONS AND THAT THE OTHER PARTY DEEMS RELEVANT.
f. Except as otherwise expressly provided herein, notwithstanding
the Representing Party's access to, or handling, possession
processing or other use of, the property or assets of the other
Party or any other activities that the Representing Party may
perform hereunder: (i) the Representing Party does not hold, and
the Representing Party is not now or hereafter, by virtue of this
Agreement or any transactions or activities undertaken hereunder
or contemplated hereby, receiving, obtaining or otherwise being
granted, assigned, licensed, conveyed, delegated or otherwise
conferred or vested with, any ownership, proprietary, use,
access, license or other rights, titles or interests of any kind
whatsoever in or to any property or assets of the other Party or
in any existing or future development, improvement or discovery
with respect thereto, regardless of whether made, commissioned,
obtained, discovered or occasioned by the Representing Party or
any other Person; and (ii) the Representing Party's rights with
respect to the property or assets of the other Party are strictly
limited to those necessary to fulfill the Representing Party's
obligations hereunder.
g. EXCEPT FOR THE REPRESENTING PARTY'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN, THE REPRESENTING PARTY HEREBY HAS
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DISCLAIMED, AND WAIVED AND RELEASED THE OTHER PARTY FROM, ANY
RIGHT OR CLAIM BASED UPON, ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WHETHER
ARISING BY LAW OR ALLEGEDLY MADE EXPRESSLY OR IMPLIEDLY
(INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) BY THE OTHER
PARTY OR ANY AFFILIATE OF THE OTHER PARTY, OF, AS TO, OR
CONCERNING THE OTHER PARTY'S OPERATIONS.
With respect to the foregoing release of claims, the Representing
Party acknowledges and waives the provisions of Section 1542 of
the California Civil Code, which provides as follows:
"general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
The Representing Party has been fully advised of, and understands
the purpose and effect of, Section 1542, and acknowledges that
such release of known and unknown claims provided herein
constitutes a material aspect of the consideration being
exchanged. The Representing Party hereby waives any and all
rights which it may have under Section 1542 or any other state or
federal statute or common Law or principle of similar effect
which restricts the release of any such unknown claims.
5. Proprietary Rights and License.
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5.1 Certain Definitions.
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The following terms shall have the following meanings for the purposes
of this Agreement:
a. "SEARCH Content" means any (if any) text, pictures, graphics,
sound, video, other data, functionality, computer software and
code that may be provided to InfoSpace by USSearch pursuant to
this Agreement.
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b. "SEARCH Marks" means any (if any) SEARCH logos and trademarks
that may be provided to InfoSpace by USSEARCH pursuant to this
Agreement.
c. "InfoSpace Marks" means any (if any) logos and trademarks that
may be provided to SEARCH by InfoSpace pursuant to this
Agreement.
5.2 License Grant. USSEARCH hereby grants to InfoSpace for the Term a
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non-exclusive, worldwide license to electronically reproduce,
electronically distribute, create derivative works of, publicly
perform, publicly display and digitally perform SEARCH Content but
only to the extent necessary for InfoSpace to perform its obligations
hereunder. InfoSpace hereby grants to USSEARCH for the Term, a non-
exclusive, nontransferable, royalty-free, worldwide license to use
InfoSpace's Marks for the purposes of marketing, promotion, and
content directories or indexes, and in electronic or printed
advertising, publicity, press releases, newsletters and mailings about
USSEARCH.
5.3 Ownership of SEARCH Content and SEARCH Marks. All right, title and
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interest in and to the SEARCH Content and SEARCH Marks as well as
intellectual property rights (including without limitation all rights
therein under copyright, trademark, trade secret and similar laws)
shall remain with SEARCH or its licensors and/or suppliers.
Notwithstanding the foregoing, USSEARCH hereby grants to InfoSpace a
non-exclusive, nontransferable, royalty-free, worldwide license to use
SEARCH Marks but only to the extent necessary for InfoSpace to perform
its obligations hereunder.
5.4 Ownership of InfoSpace Marks. All right, title and interest in and to
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the InfoSpace Marks as well as intellectual property rights (including
without limitation all rights therein under trademark and similar
laws) shall remain with InfoSpace. InfoSpace hereby grants to USSEARCH
a non-exclusive, nontransferable, royalty-free, worldwide license to
use InfoSpace Marks for the purposes of marketing, promotion, and
content directories or indexes, and in electronic or printed
advertising, publicity, press releases, newsletters and mailings.
5.5 Quality Control and Use Restrictions by USSEARCH. USSEARCH shall use
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the InfoSpace Marks in accordance with any reasonable written
instructions provided by InfoSpace. USSEARCH acknowledges that
USSEARCH's use of the InfoSpace Marks will not create in it, nor will
it represent is has, any right, title or interest in or to the
InfoSpace Marks other than the license granted by InfoSpace above.
USSEARCH will not challenge the validity of or attempt to register any
of
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the InfoSpace Marks or its interest therein as a licensee. USSEARCH
acknowledges InfoSpace's and its Affiliates' ownership and exclusive
right to use the InfoSpace Marks and agrees that all goodwill arising
as a result of the use of the InfoSpace Marks shall inure to the
benefit of InfoSpace and its Affiliates.
5.6 Quality Control and Use Restrictions by InfoSpace. InfoSpace shall
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use the SEARCH Marks in accordance with any reasonable written
instructions provided by USSEARCH. InfoSpace acknowledges that
InfoSpace's use of the SEARCH Marks will not create in it, nor will it
represent it has, any right, title or interest in or to the SEARCH
Marks other than the license granted by USSEARCH above. InfoSpace will
not challenge the validity of or attempt to register any of the SEARCH
Marks or its interest therein as a licensee. InfoSpace acknowledges
USSEARCH's and its Affiliates' ownership and exclusive right to use
the SEARCH Marks and agrees that all goodwill arising as a result of
the use of the SEARCH Marks shall inure to the benefit of USSEARCH and
its Affiliates.
5.7 SEARCH Non-Exclusivity. Nothing in this Agreement shall be deemed or
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construed to prohibit USSEARCH from providing the SEARCH Content to
any other third party.
5.8 Intellectual Property Representations. USSEARCH hereby represents and
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warrants to InfoSpace that USSEARCH's use and its license to InfoSpace
herein of the USSEARCH Content and SEARCH MARKS does not infringe upon
or otherwise violate the rights of any third parties. Similarly,
InfoSpace hereby represents and warrants to USSEARCH that InfoSpace's
use and its license to USSEARCH herein of the InfoSpace Marks does not
infringe upon or otherwise violate the rights of any third parties.
6. Limitation of Liability.
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EXCEPT WITH RESPECT TO ANY LIABILITY OF EITHER PARTY TO THE OTHER PARTY
ARISING BY REASON OF A BREACH OF SECTION 5.8 HEREOF: IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL EITHER PARTY'S
LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY SEARCH
TO INFOSPACE HEREUNDER.
7. Events of Default:
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7.1 Definition: Each of the following shall constitute an "Event of
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Default" hereunder:
a. The untruth or inaccuracy of any of either Party's
representations or warranties hereunder, or any failure of either
Party to perform any of its obligations under Section 8 or
Section 9.1 hereof.
b. Any failure of a Party to perform any of its obligations
hereunder (other than those covered in subsection (a) above);
provided, however, that such failure shall not constitute an
Event of Default if (in the opinion of the non-defaulting Party)
such failure is capable of cure or remedy and is in fact remedied
or cured within thirty (30) days after the sooner of the
defaulting Party's (i) first discovery of such failure or (ii)
receipt of written notice of such failure from the non-defaulting
Party.
c. The commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to a
Party or its debts under any bankruptcy, insolvency or other
similar Law now or thereafter in effect; or the seeking of the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of a Party or any substantial part of its
property; or a Party's consent to any such relief or to the
appointment of or the taking of possession by any such official
in an involuntary case or other proceeding commenced against a
Party; or any general assignment for the benefit of creditors; or
a Party's failure generally to pay, or its confession or
admission in writing of its general inability to pay, its debts
as they become due; or a Party's taking of any action to
authorize any of the foregoing. The defaulting Party under this
subsection (c) shall be the Party referred to above in this
subsection (c).
d. The commencement of an involuntary case or other proceeding
against a Party seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar Law now or hereafter in effect, or
the appointment of a trustee, receiver, liquidator, custodian or
other similar official of a Party or any substantial part of its
property, and such involuntary case or other proceeding remains
undismissed and unstayed for a period of sixty (60) days; or the
entry of an order for relief against a Party under the federal
bankruptcy Laws as now or hereafter in effect. The defaulting
Party under this subsection (d) shall mean the Party referred to
in this subsection (d).
7.2 Remedies Upon An Event Of Default:
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a. Upon any Event of Default, the non-defaulting Party shall have
all rights and remedies that may be available to it under
applicable Law or otherwise hereunder.
b. In addition to any and all rights or remedies that the non-
defaulting Party may have under applicable Law or otherwise
hereunder, upon any Event of Default, the non-defaulting Party
may immediately terminate this Agreement upon delivery of written
notice of termination to the defaulting Party, and upon any such
termination, the defaulting Party shall immediately cease all use
of the property of the non-defaulting Party in the defaulting
Party's possession or control and deliver the same to the non-
defaulting Party. Should the defaulting Party fail to comply with
its obligations pursuant to this Section 7.2(b), then the non-
defaulting Party or its duly authorized agents, representatives,
contractors and/or employees shall be entitled to enter upon any
premises that the defaulting Party may own or control where the
subject property of the non-defaulting Party may be situated and
remove the non-defaulting Party's property. The defaulting Party
hereby grants to the non-defaulting Party and its duly authorized
agents, representatives, contractors and/or employees an
irrevocable license to enter, go on and occupy such premises for
the purpose of removing all such property and/or otherwise
exercising the non-defaulting Party's rights and remedies
hereunder.
c. In addition to any and all rights or remedies that the non-
defaulting Party may have under Law or otherwise hereunder, upon
any Event of Default based upon a breach of the defaulting
Party's representations or warranties or of the defaulting
Party's obligations under the Sections hereof referred to in
Section 7.1(a) hereof, or from a failure of the defaulting Party
to perform its obligations under Section 7.2(b) hereof, the non-
defaulting Party may seek to obtain and obtain from any court of
competent jurisdiction a temporary restraining order and/or
preliminary or permanent injunction without the posting of a bond
and without proof of damages that have been or may be caused to
the non-defaulting Party by such breach. The defaulting Party
acknowledges that (i) the covenants contained in such Sections
are a material factor to the non-defaulting Party's execution of
this Agreement and are necessary and required for the protection
of the non-defaulting Party; (ii) such covenants relate to
matters that are of a special, unique and extraordinary character
that gives each of such covenants a special, unique and
extraordinary value; and (iii) a breach of any of such covenants
will result in irreparable harm and
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damages to the non-defaulting Party in an amount difficult to
ascertain and which cannot be adequately compensated by a
monetary award. The non-defaulting Party's election to pursue
injunctive relief shall not, however, constitute a waiver or
other limitation of its rights to pursue other or additional
remedies, including, without limitation, declaratory relief or
damages.
7.3 Preservation of Rights: Termination hereof shall not affect the
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rights of the non-defaulting Party under this Section 7, or the rights
of either Party in connection with acts, matters or things done,
committed, omitted or suffered by either Party before and up to the
date of such termination. The exercise of any rights of enforcement
hereunder shall not preclude, or be deemed a waiver of, any other
enforcement rights or remedies available to either Party under Law or
otherwise, and each Party expressly reserves its rights in respect of
such additional rights and remedies.
8. INDEMNIFICATIONS:
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8.1 Indemnified Liabilities: In the event a Party (the "Indemnifying
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Party") breaches (or in the event any third party alleges facts that,
if true, would mean that such Indemnifying Party has breached) any of
its representations, warranties, agreements or covenants contained
herein or any rights of any third parties, including, without
limitation, third-party intellectual property rights, then the
Indemnifying Party shall (and hereby does) indemnify the other Party
and its Affiliates (singly and collectively, the "Indemnified Party")
from and against any Adverse Consequences which the Indemnified Party
may suffer resulting from, arising out of, relating to, in the nature
of, or caused by the breach (or the alleged breach) (collectively, the
"Indemnified Liabilities"); provided, however, that the Indemnifying
Party shall not have any obligation to any Indemnified Party hereunder
with respect to any Indemnified Liabilities to the extent such
Indemnified Liabilities arise solely from the gross negligence or
willful misconduct of that Indemnified Party as determined by a final
judgment of a court of competent jurisdiction. To the extent that the
undertaking to defend, indemnify, pay and hold harmless set forth in
the preceding sentence may be determined by a final judgment of a
court of competent jurisdiction to be unenforceable because it is
violative of any Law or public policy, the Indemnifying Party shall
contribute the maximum portion that the Indemnifying Party is
permitted to pay and satisfy under applicable Law to the payment and
satisfaction of all Indemnified Liabilities incurred by the
Indemnified Party.
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8.2 Notice: If any third party shall notify the Indemnified Party with
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respect to any matter (a "Third-Party Claim")which may give rise to a
claim for indemnification against the Indemnifying Party hereunder,
then the Indemnified Party shall promptly notify the Indemnifying
Party thereof in writing; provided, however, that no delay on the part
of the Indemnified Party in notifying any Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent that) the Indemnifying Party is
prejudiced thereby.
8.3 Right To Defend: The Indemnifying Party will have the right to defend
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the Indemnified Party against the Third-Party Claim with counsel of
its choice reasonably satisfactory to the Indemnified Party so long
as: (a) the Indemnifying Party notifies the Indemnified Party in
writing within fifteen (15) days after the Indemnified Party has given
notice of the Third-Party Claim that the Indemnifying Party will
indemnify the Indemnified Party from and against the entirety of any
Adverse Consequences that the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the
Third-Party Claim; (b) the Indemnifying Party provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party
that the Indemnifying Party will have the financial resources to
defend against the Third-Party Claim and fulfill its indemnification
obligations hereunder; (c) the Third-Party Claim involves only money
damages and does not seek an injunction or other equitable relief; (d)
settlement of, or an adverse judgment with respect to, the Third-Party
Claim is not, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice materially
adverse to the continuing business interests of the Indemnified Party;
and (e) the Indemnifying Party conducts the defense of the Third-Party
Claim actively and diligently.
8.4 Separate Counsel; Settlements, Etc.: So long as the Indemnifying
-----------------------------------
Party is conducting the defense of the Third-Party Claim in accordance
with Section 8.3 above: (a) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the defense
of the Third-Party Claim; (b) the Indemnified Party will not consent
to the entry of any judgment or enter into any settlement with respect
to the Third-Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably); and (c) the
Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement with respect to the Third-Party Claim
without the prior written consent of the Indemnified Party (not to be
withheld unreasonably).
8.5 In the event any of the conditions in Section 8.3 above is or becomes
unsatisfied: (a) the Indemnified Party may defend against, and consent
to the entry of any
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judgment or enter into any settlement with respect to, the Third-Party
Claim, to the fullest extent provided in this Section; (b) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third-Party Claim
(including reasonable attorneys' fees and expenses) to the fullest
extent provided in this Section, and (c) the Indemnifying Party will
remain responsible for any Adverse Consequences arising out of,
relating to, in the nature of, or caused by the Third-Party Claim to
the fullest extent provided in this Section.
9. Miscellaneous Provisions.
9.1 Confidentiality. Each Party may disclose the existence of this
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Agreement, but each Party shall keep the fact of, and the terms and
conditions of, this Agreement strictly confidential from all third
parties, except to the extent that disclosure is: (a) required by
applicable law, or in connection with the disclosing Party's
performance of its obligations or the exercise of its rights and
remedies hereunder, or the consummation of the transactions
contemplated hereby or (b) to accountants, lawyers or other
professionals engaged by the disclosing Party in connection with the
disclosing Party's tax or financial or regulatory reporting or
accounting.
9.2 No Third-Party Beneficiaries. Except as otherwise expressly provided
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herein, this Agreement shall not confer any rights or remedies upon
any Person other than the Parties, their respective successors and
permitted assigns.
9.3 Entire Agreement. This Agreement (including any documents, exhibits
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or schedules referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or
oral, to the extent they are related in any way to the subject matter
hereof, including, without limitation, that certain Sales Agreement
Term Sheet dated July 25, 2000 between the Parties.
9.4 Succession and Assignment. This Agreement shall be binding upon and
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inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. InfoSpace may assign this
Agreement, upon no less than thirty (30) days' written notice to
USSEARCH, to its parent corporation, or to any wholly or partially
owned domestic or foreign subsidiary or joint venture thereof,
provided that the assignee assumes, and agrees in writing to perform,
all of InfoSpace's executory obligations and InfoSpace guarantees
performance by the assignee throughout the Term. In addition,
InfoSpace may, upon no less than thirty (30) days' prior written
notice to USSEARCH, assign its rights under this
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Agreement to any entity acquiring all or substantially all of the
assets of the InfoSpace. Notwithstanding the above provision, in no
event may InfoSpace assign this Agreement to any direct competitors of
USSEARCH without USSEARCH's prior written consent.
9.5 Counterparts. This Agreement may be executed in two or more
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counterparts, and by different Parties on separate counterparts, each
of which shall be deemed an original but all of which together will
constitute one and the same instrument.
9.6 Headings. The Section headings contained in this Agreement are
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inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.7 Notices. Any notice, consent, report, demand, document or other item
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to be delivered to a Party hereunder shall be deemed delivered and
received: (a) when given in writing and personally delivered to the
Person designated below for the applicable Party; (b) one (1) day
after delivery to Federal Express or an other nationally known "next-
day" delivery service with delivery charges prepaid for delivery the
following business day to the Person designated below for the
applicable Party; or (c) upon delivery by the United States Postal
Service, first-class registered or certified mail, postage prepaid,
return receipt requested; and in any such case shall be delivered to
the address or addresses indicated for such Party below, and/or to
such other Person or address as such Party may from time to time by
written notice designate to the other:
If to USSEARCH:
--------------
USSEARCH.com Inc.
5401 Beethoven Street
Los Angeles, CA 90066
Attention: Karol Pollock, Esq., Vice President
and General Counsel
Tel. No.: (310) 302-6327
Fax No.: (310) 578-5649
If to InfoSpace:
---------------
InfoSpace, Inc.
601 108th Street, NE
Bellevue, WA
Attention: Tammy Halstead
Tel. No.: (425) 602-0540
Fax No.: (____)
14
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Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any Party may change the address to
which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in the
manner herein set forth.
9.8 Amendments; Waivers. No amendment or waiver of any provision of this
-------------------
Agreement shall be valid unless the same shall be in writing and
signed by all of the Parties. No delay or omission in the exercise of
any right or remedy accruing to a Party upon any breach under this
Agreement shall impair such right or remedy or be construed as a
waiver of any such breach theretofore or thereafter occurring. The
waiver by a Party of any breach of any term, covenant or condition
herein stated shall not be deemed to be a waiver of any other breach,
or of a subsequent breach of the same or any other term, covenant or
condition herein contained. Except as otherwise expressly provided
herein to the contrary, (a) all rights, powers, options, or remedies
afforded to either Party hereunder or by law shall be cumulative and
not alternative, and (b) the exercise of one right, power, option, or
remedy shall not bar other rights, powers, options or remedies allowed
herein or by law.
9.9 Severability. Any term or provision of this Agreement that is
------------
invalid or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
9.10 Expenses. Each Party will bear its own costs and expenses (including
--------
legal fees and expenses) incurred in connection with the preparation,
negotiation and consummation of this Agreement.
9.11 Construction. The Parties have participated jointly in the negotiation
------------
and drafting of this Agreement and have had competent counsel of their
own choosing. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted
jointly by all the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of
any of the provisions of this Agreement. This Agreement shall be given
a fair and reasonable construction in accordance with the intention of
the Parties and without regard to or aid of California Civil Code
Section 1654 or California Code of Civil Procedure Section 1864.
15
<PAGE>
9.12 Incorporation of Exhibits and Schedules. Any exhibits or schedules
---------------------------------------
identified in this Agreement are incorporated herein by reference and
made a part hereof.
9.13 Attorneys' Fees. Should any Party institute any action or proceeding
---------------
to enforce any provision of this Agreement, or for damages by reason
of an alleged breach of any provision of this Agreement, or for a
declaration of rights hereunder, the prevailing Party in any such
action shall be entitled to receive from the other Party against which
such action or proceeding was brought all costs and expenses,
including reasonable attorneys= fees, incurred by the prevailing Party
in connection with such action or proceeding.
9.14 Time of Essence. Time is of the essence of this Agreement.
---------------
9.15 Period Calculations. Any period of time specified in this Agreement
-------------------
which would otherwise end upon a non-business day shall be extended
to, and shall end upon, the next following business day.
9.16 Further Assurances. Each Party shall from time to time execute,
------------------
acknowledge and deliver such further instruments and perform such
additional acts as the another Party may reasonably request to
effectuate the intent of this Agreement.
9.17 California Law. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND
--------------
DELIVERED AT, AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO ANY
PRINCIPLES OF CONFLICTS OF LAW).
9.18 Signer's Authority. Each individual who executes this Agreement or
------------------
any document contemplated hereby on behalf of a Party (the
"Represented Party"), acting in his or her personal capacity, hereby:
(a) personally represents and warrants to the other Party that (i) he
or she has all the requisite power and authority to execute and
deliver this Agreement and any such document on behalf of the
Represented Party, and (ii) his or her execution and delivery of this
Agreement and any such document on behalf of the Represented Party and
the performance of the Represented Party's obligations hereunder or
thereunder are authorized by, and are not in violation of or in
conflict with, and do not constitute a default under any term or
provision of, the Represented Party's constituent or organizational
documents, including without limitation, (if applicable) its articles
of incorporation, by-laws, trust agreement, membership agreement or
operating
16
<PAGE>
agreement; (b) indemnifies, holds harmless and agrees to defend (with
counsel reasonably acceptable to the other Party) from and against any
and all claims, losses, liabilities, costs or expenses, including,
without limitation, reasonable attorneys' fees), arising out of, or in
connection with, any actual or alleged breach of his or her
representations and warranties in subpart (a) above; and (c)
understands and agrees that the other Party will have personal
recourse against him or her for any breach by him or her of his or her
representations, warranties or agreements in this Section.
9.19 Jurisdiction. AS PART OF THE CONSIDERATION FOR THIS AGREEMENT AND
------------
REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF
BUSINESS OF ANY PARTY, EACH PARTY HEREBY CONSENTS AND AGREES THAT THE
SUPERIOR COURT OF LOS ANGELES COUNTY, OR, THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
PARTIES PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATED TO THIS AGREEMENT. EACH PARTY EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT,
COMMENCED IN ANY SUCH COURT, AND EACH PARTY HEREBY WAIVES ANY
OBJECTION WHICH SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS, AND HEREBY
----- --- ----------
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HEREBY WAIVES PERSONAL
SERVICE OF SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT, AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
SUCH PARTY AT THE ADDRESS SET FORTH IN THIS AGREEMENT, AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
PARTY=S ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER DEPOSIT IN THE
U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS AGREEMENT SHALL
BE DEEMED (OR OPERATE) TO AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE
ENFORCEMENT BY ANY PARTY OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH
FORUM OR THE TAKING OF ANY ACTION
17
<PAGE>
UNDER THIS AGREEMENT TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
FORUM OR JURISDICTION.
9.20 Parties' Relationship. Notwithstanding any provision of this
---------------------
Agreement or any document or transaction contemplated hereby to the
contrary: (a) the relationship between the USSearch on the one hand
and InfoSpace on the other in connection with this Agreement is
intended to be, and the Parties specifically agree that it is, limited
to a contractual relationship between two third-parties in a
commercial transaction between sophisticated commercial entities
dealing with each other on an arm's-length basis; and (b) no Party is
intended to be, and the Parties specifically agree that no Party is,
by virtue of this Agreement or the transactions contemplated hereby, a
partner, joint venturer, fiduciary, quasi-fiduciary, alter-ego,
manager, shareholder, controlling person of the other Party, and no
Party intends to assume any such status or any duties, obligations or
limitations associated therewith.
9.21 Investigation. Notwithstanding any past, present or future right of
-------------
either Party to investigate the affairs of the other Party and
notwithstanding any past, present or future knowledge of facts
determined or determinable by such Party pursuant to such
investigation or right of investigation, such Party has the right to
rely fully upon the representations, warranties, covenants and
agreements now or hereafter made by the other Party hereunder.
9.22 Waiver of Jury Trial. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT
--------------------
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a)
ARISING UNDER THIS AGREEMENT OR ANY OTHER DOCUMENTS OR INSTRUMENT
ATTACHED HERETO, REFERRED TO HEREIN OR DELIVERED IN CONNECTION
HEREWITH, OR (b) IN ANY WAY CONNECTED HEREWITH, OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT EACH PARTY TO THIS AGREEMENT MAY FILE
------- - ----
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT OR
OTHER GOVERNMENTAL BODY AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY
JURY.
18
<PAGE>
BY PLACING ITS INITIALS BELOW, EACH PARTY SIGNIFIES THAT IT HAS READ,
UNDERSTOOD AND AGREED TO THIS SECTION.
USSEARCH's INITIALS: /s/ KLP ; InfoSpace's INITIALS: /s/ TDH ,
--------- -------------
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
NOTE: THIS AGREEMENT CONTAINS A WAIVER OF THE RIGHT TO A JURY TRIAL;
READ CAREFULLY BEFORE EXECUTING.
InfoSpace, Inc. USSEARCH.com Inc.
By: /s/ TAMMY D. HALSTEAD By: /S/ KAROL POLLOCK
----------------------------- -----------------------------
Name: Tammy D. Halstead Name: Karol Pollock
--------------------------- ---------------------------
Its: SUP and CAO Its: General Counsel
---------------------------- ----------------------------
19
<PAGE>
1. DEFINITIONS: In addition to any other terms defined elsewhere herein, the
following terms have the following meanings:
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, taxes, liens, losses, disbursements, expenses, and fees,
including court costs and attorneys' fees and expenses, in each case:
(a) net of any insurance recoveries (except to the extent such
recoveries increase the cost of insurance, through retrospective
adjustments or otherwise), (b) net of any tax benefit, after taking
into account any tax detriment of any indemnity, and (c) after
accounting for the time cost of money using the prime rate of the
largest (in terms of assets) U.S. bank as the discount rate.
"Affiliate" means any Person who or which may control, be controlled
by, or be under common control with, another Person, including,
without limitation, the other Person's employees, agents,
representatives, licensees, permittees, contractors or subcontractors,
where control means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through ownership of voting securities, by
contract, or otherwise.
"Agreement" means this Agreement (as the same may be amended from time
to time), and includes all schedules or exhibits attached hereto.
"Governmental Body" means any commonwealth, national, state,
territorial, regional, provincial, municipal, parish or local
jurisdiction of any kind (whether within or outside the U.S.
(including, without limitation, those of the U.S., or any state,
district, province, city or town therein); or any governmental,
judicial, legislative, executive or monetary authority or regulatory
body, or any subdivision, agency, commission or authority of any such
jurisdiction; or any quasi-governmental or private body exercising any
regulatory authority thereunder; or any court, arbitrator, grand jury
or other judicial or quasi-judicial tribunal, agency or department.
"Laws" means all applicable statutes, laws (federal, national, state,
local, foreign, common or otherwise), treaties, ordinances,
regulations, rules, codes, orders, judgments, permits, licenses,
certificates, orders, directives, requests for information, notices,
writs, injunctions, decrees or like action of any Governmental Body.
20
<PAGE>
SCHEDULE 1
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether
due or to become due).
"Person" means an individual natural person, a corporation, a
partnership, an association, a trust or any other entity or
organization, including, without limitation, a Governmental Body.
21
<PAGE>
SCHEDULE I
--------------------------------------------------------------------------------
Inventory Calendar Monthly Impressions
--------- ----------------------------
--------------------------------------------------------------------------------
[***]
*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER
GRANTING CONFIDENTIAL TREATMENT OF SUCH INFORMATION.
EXHIBIT A
22
<PAGE>
Performance Requirements
. Run-of-site button, banner, and textlink placement at US Search.com option
(this includes realtime access to Infospace ad servers, and ability to
rotate "best performers")
Allow US Search.com to "Sublet" button space to its Affiliates
Preferred advertiser positioning
. Bold and/or colored textlink, priority positioning above other advertisers
(including both vertical and horizontal nav bar position)
. Preferred positioning
. Exclusivity: Exclusivity on the home page of the Public Records channel on
the Infospace Web site and elsewhere, as agreed
Strategic real-estate mapping-Tighter integration within Portal
(Tailor advertisements toward whatever high-impression area where US Search is
positioned)
. example: InfoSpace Business Section-buttons/textlinks directed towards
business verification
. example: InfoSpace WP Add/Remove Listing Section-customized button
directed towards users that want to know what others can find out about
them
Public Records Channel within Infospace (similar to InfoSpace's Law Channel)
. Stays within the InfoSpace domain
. Provides end-user with content for Information Search, Verification,
Employment Screening, and specifics about certain public record searching
(e.g., county records)
. US Search.com sponsorship-positioned buttons and links to US Search's site
. The Public Records link on Infospace's web directory will link to this
channel (currently links directly to US Search's site)
. US Search.com ability to edit copy and make current content offerings on
page, subject to InfoSpace approval
Metrics
. Monthly review sessions with both Parties' teams
. Additional metrics to be discussed
Project Launches (Services to be agreed and defined by both Parties)
$ Global extension-InfoSpace to expand US Search.com services
$ Special launch of new US Search.com validation and verification services in
various shopping auction business and professional services sites.
Continuous promotion of these services to relevant areas of the InfoSpace
Network.
EXHIBIT B
23
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EXHIBIT B
24
