<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
REGISTRATION NO. 333-88273
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EMBARK.COM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7375 94-3230831
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) No.)
</TABLE>
--------------------------
111 TOWNSEND STREET
SAN FRANCISCO, CA 94107
(415) 615-1500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------------------
YOUNG J. SHIN
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
EMBARK.COM, INC.
111 TOWNSEND STREET
SAN FRANCISCO, CA 94107
(415) 615-1500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
MARK P. TANOURY, ESQ. JOHN R. SAGAN, ESQ.
MATTHEW B. HEMINGTON, ESQ. KERRY T. SMITH, ESQ.
COOLEY GODWARD LLP MAYER, BROWN & PLATT
FIVE PALO ALTO SQUARE 190 SOUTH LASALLE STREET
3000 EL CAMINO REAL CHICAGO, IL 60603-3441
PALO ALTO, CA 94306-2155 (312) 782-0600
(650) 843-5000
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
The purpose of this Amendment No.1 is solely to file exhibits to the
Registration Statement as set forth below as in Item16 of PartII.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- --------- -------------------------------------------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1+ Amended and Restated Certificate of Incorporation of the Registrant to be effective following the
closing of this offering.
3.2+ Bylaws of the Registrant.
3.3* Amended and Restated Certificate of Incorporation of the Registrant.
4.1* Reference is made to Exhibits 3.1 through 3.3.
4.2* Specimen Stock Certificate.
4.3+ Fourth Amended and Restated Investor Rights Agreement dated September 30, 1999.
4.4+ Warrant to Purchase Shares of Series C Preferred Stock dated October 1, 1998.
5.1* Opinion of Cooley Godward LLP.
10.1+ Form of Indemnity Agreement.
10.2+ 1999 Equity Incentive Plan.
10.3+ 1999 Employee Stock Purchase Plan.
10.4+ 1999 Non-Employee Directors' Stock Option Plan.
10.5+ Standard Industrial/Commercial Single-Tenant Lease-Net by and between Ichi Juu Ichi, LLC and the
Registrant, dated March 4, 1999, with amendments thereto.
10.6+ Standard Industrial Lease--Gross, by and between 101 Townsend Association and the Registrant, dated
January 25, 1996, with amendments thereto.
10.7+ Rental Agreement by and between Civitas Equity Fund I, LLC and the Registrant, dated August 11, 1998.
10.8+ Senior Loan and Security Agreement No. 6182 by and between Phoenix Leasing Limited and the Registrant
dated, October 1, 1998, and Note No. 1 thereto dated January 1, 1999.
10.9* QuickStart Loan and Security Agreement by and between Silicon Valley Bank and the Registrant, dated
July 14, 1998.
10.10** Co-Branding Agreement, by and between United Airlines, Inc. and the Registrant, dated June 8, 1999.
10.11** Promotional Agreement, by and between VISA USA, Inc. and the Registrant, dated July 1, 1999.
10.12** Content License and Co-Branded Area Agreement by and between Excite, Inc. and Registrant, dated
September 30, 1999.
10.13** Content Agreement by and between Lycos and the Registrant, dated as of January, 1999.
23.1+ Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1+ Power of Attorney--reference is made to page II-5.
27.1+ Financial Data Schedule.
</TABLE>
- ------------------------
* To be filed by amendment.
+ Previously filed.
** Confidential treatment requested as to certain portions of this Exhibit.
Omitted portions will be filed separately with the Securities and Exchange
Commission.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of San
Francisco, State of California, on October 8, 1999.
<TABLE>
<S> <C> <C>
EMBARK.COM, INC.
By: /s/ YOUNG J. SHIN
-----------------------------------------
Young J. Shin
CHAIRMAN OF THE BOARD, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
</TABLE>
IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THESE DATES STATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Chairman of the Board,
/s/ YOUNG J. SHIN President and Chief
---------------------------- Executive Officer October 8, 1999
Young J. Shin (Principal Executive
Officer)
Vice President, Finance,
/s/ JUDY E. DAVID Chief Financial Officer
---------------------------- and Secretary (Principal October 8, 1999
Judy E. David Financial and Accounting
Officer)
HOWARD A. BERMAN* Executive Vice President,
---------------------------- Chief Operating Officer October 8, 1999
Howard A. Berman and Director
K. DAVID CHAO*
---------------------------- Director October 8, 1999
K. David Chao
PHILIP J. QUIGLEY*
---------------------------- Director October 8, 1999
Philip J. Quigley
CHARLES B. REED*
---------------------------- Director October 8, 1999
Charles B. Reed
GEORGE J. STILL, JR.*
---------------------------- Director October 8, 1999
George J. Still, Jr.
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ YOUNG J. SHIN October 8, 1999
-----------------------
Young J. Shin
ATTORNEY-IN-FACT
</TABLE>
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ----------- ----------------------------------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1+ Amended and Restated Certificate of Incorporation of the Registrant to be effective following
the closing of this offering.
3.2+ Bylaws of the Registrant.
3.3* Amended and Restated Certificate of Incorporation of the Registrant.
4.1* Reference is made to Exhibits 3.1 through 3.3.
4.2* Specimen Stock Certificate.
4.3+ Fourth Amended and Restated Investor Rights Agreement dated September 30, 1999.
4.4+ Warrant to Purchase Shares of Series C Preferred Stock dated October 1, 1998.
5.1* Opinion of Cooley Godward LLP.
10.1+ Form of Indemnity Agreement.
10.2+ 1999 Equity Incentive Plan.
10.3+ 1999 Employee Stock Purchase Plan.
10.4+ 1999 Non-Employee Directors' Stock Option Plan.
10.5+ Standard Industrial/Commercial Single-Tenant Lease-Net by and between Ichi Juu Ichi, LLC and
the Registrant, dated March 4, 1999, with amendments thereto.
10.6+ Standard Industrial Lease--Gross, by and between 101 Townsend Association and the Registrant,
dated January 25, 1996, with amendments thereto.
10.7+ Rental Agreement by and between Civitas Equity Fund I, LLC and the Registrant dated August 11,
1998.
10.8+ Senior Loan and Security Agreement No. 6182 by and between Phoenix Leasing Limited and the
Registrant, dated October 1, 1998, and Note No. 1 thereto dated January 1, 1999.
10.9* QuickStart Loan and Security Agreement by and between Silicon Valley Bank and the Registrant,
dated July 14, 1998.
10.10** Co-Branding Agreement, by and between United Airlines, Inc. and the Registrant, dated June 8,
1999.
10.11** Promotional Agreement, by and between VISA USA, Inc. and the Registrant, dated July 1, 1999.
10.12** Content License and Co-Branded Area Agreement by and between Excite, Inc. and Registrant,
dated September 30, 1999.
10.13** Content Agreement by and between Lycos and the Registrant, dated as of January, 1999.
23.1+ Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1+ Power of Attorney--reference is made to page II-5.
27.1+ Financial Data Schedule.
</TABLE>
- ------------------------
* To be filed by amendment.
+ Previously filed.
** Confidential treatment requested as to certain portions of this Exhibit.
Omitted portions will be filed separately with the Securities and Exchange
Commission.
<PAGE>
Exhibit 10.10
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
CO-BRANDING AGREEMENT
This Co-Branding Agreement (this "Agreement"), dated as of June 8, 1999,
is made by and between Snap Technologies, Inc. a California corporation having
its principal place of business at 111 Townsend St., San Francisco, CA 94107
("Snap"), and, United Airlines, Inc., a Delaware corporation having its
principal place of business at 1200 E. Algonquin Road, Elk Grove Township, IL
60007 ("Sponsor").
RECITALS
A. Snap provides access to applications and other information and
content regarding selecting and applying to and attending colleges and graduate
and professional degree programs to end users via the World Wide Web; and
B. Sponsor wishes to obtain sponsorship placement on Snap's web site
and access to certain information pertaining to Snap's end users.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
SECTION 1. DEFINITIONS
Wherever used in this Agreement with initial terms capitalized, the
following terms shall have the following defined meanings:
"CO-BRANDED PAGES" means pages of the Snap Web Site, to be developed
pursuant to Section 2.2 and hosted on the Snap Web Site, that display both the
Snap Brand Features and the Sponsor Brand Features, along with such Sponsor
Content, Snap Content and other content as the parties may agree upon.
"CONFIDENTIAL INFORMATION" means information of either party (whether of a
technical, business or other nature) which the other party knows or reasonably
should know to be confidential or proprietary information of such party.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
"EXCLUSIVE CATEGORY" means those product and/or service categories
identified on Exhibit A.
"SNAP BRAND FEATURES" means the Snap Marks and Snap's distinct brand
elements that appear from time to time in Snap's properties, ventures and
services worldwide and are protected under U.S. copyright law or for which Snap
has established trademark, service mark or trade dress rights and any
modifications to the foregoing that may be created during the term of this
Agreement.
CO-BRANDING AGREEMENT PAGE 1
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
"SNAP CONTENT" means any information, materials or content developed by
Snap for use on the Sponsor Web Site.
"SNAP MARKS" means those Trademarks of Snap set forth on Exhibit B hereto
and such other Trademarks as Snap may from time to time notify Sponsor to be
"Snap Marks" within the meaning of this Agreement.
"SNAP WEB SITE" means that Web Site, the primary home page for which is
located at URL http://www.collegedge.com (and any successor or replacement
thereof).
"SPONSOR CONTENT" means any information, materials or content supplied by
or on behalf of Sponsor, whether directly or indirectly, for use on the
Co-Branded Pages.
"SPONSOR BRAND FEATURES" means the Sponsor Marks and Sponsor's distinct
brand elements that appear from time to time in Sponsor's properties, ventures
and services worldwide and are protected under U.S. copyright law or for which
Sponsor has established trademark, service mark or trade dress rights and any
modifications to the foregoing that may be created during the term of this
Agreement.
"SPONSOR MARKS" means those Trademarks of Sponsor set forth on Exhibit B
hereto and such other Trademarks (if any) as Sponsor may from time to time
notify Snap in writing to be "Sponsor Marks" within the meaning of this
Agreement.
"SPONSOR WEB SITE" means that Web Site, the primary home page for which is
located at URL http://www.ual.com and any successor or replacement thereof.
"TERM" means the term of this Agreement as provided in Section 4.1.
"TRADEMARKS" means any trademarks, service marks, trade dress, trade
names, corporate names, proprietary logos or indicia and other source or
business identifiers.
"WEB SITE" means, with respect to any person or entity, all points of
presence and/or services maintained by such person or entity on the Internet
(including, without limitation, the World Wide Web) or on any successor public
data network. With respect to any Web Site maintained on the World Wide Web,
such Web Site includes all HTML pages (or similar unit of information presented
in any relevant data protocol) that either (a) are identified by the same
second-level domain (such as .com) or by the same equivalent level identifier in
any relevant address scheme, or (b) contain branding, graphics, navigation or
other characteristics such that a user reasonably would conclude that the pages
are part of an integrated information or service offering.
SECTION 2. CONTENT, CO-BRANDING AND LICENSES
2.1 CREATION OF CONTENT. Following the execution of this Agreement, Snap
and Sponsor will work in good faith to develop the content specified in Exhibit
C. All content to be included on the Co-Branded Pages shall be required to
comply with Snap's generally applicable content and technical guidelines.
2.2 CO-BRANDED PAGES. Following the execution of this Agreement, Snap
and Sponsor will work in good faith to develop the Co-Branded Pages which may
include all or part of the
CO-BRANDING AGREEMENT PAGE 2
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
Sponsor Content and/or the Snap Content. The Co-Branded Pages will have the
specifications set forth on Exhibit C. The Co-Branded Pages shall be required to
comply with Snap's generally applicable content and technical guidelines.
Sponsor will supply Sponsor Content and Sponsor Brand Features as agreed upon by
the parties for inclusion in the Co-Branded Pages. Following the development
thereof, Snap shall use commercially reasonable efforts to post and maintain the
Co-Branded Pages on the Snap Web Site. Snap may from time to time, in
consultation with Sponsor, update and modify the Co-Branded Pages but may not
change Sponsor content or Sponsor Brand Features, or do anything else with them,
without Sponsor's prior written consent.
2.3 LICENSES.
2.3.1 Subject to Section 2.4, Sponsor hereby grants Snap a
non-exclusive, revocable nontransferable, royalty-free, worldwide license to:
(a) use, reproduce, publish, perform and display the Sponsor Marks and
Sponsor Brand Features on the Co-Branded Pages; (b) link to the Sponsor Web
Site from the Co-Branded Pages and/or the Snap Web Site that contains the
Co-Branded Pages and (c) use, reproduce, publish, perform, and display the
Sponsor Content in and on the Co-Branded Pages. All goodwill arising out of
Snap's use of any of the Sponsor Marks shall inure solely to the benefit of
Sponsor.
2.3.2 Subject to Section 2.4, Snap hereby grants Sponsor a
non-exclusive, nontransferable, royalty-free, worldwide license to (a) use,
reproduce, publish, perform and display the Snap Marks and Snap Brand
Features on the Sponsor Web Site in connection with the logo link
contemplated by Section 2.l, and in connection with its promotional and
marketing activities contemplated by Section 2.5 and (b) use, reproduce,
publish, perform and display the Snap Content on the Sponsor Web Site or
other Sponsor properties as mutually agreed by the parties. All goodwill
arising out of Sponsor's use of any of the Snap's Marks shall inure solely to
the benefit of Snap.
2.4 APPROVAL OF TRADEMARK USAGE. Snap shall not use or exploit in any
manner any of the Sponsor Marks or Sponsor Brand Features, and Sponsor shall not
use or exploit in any manner any of the Snap Marks or Snap Brand Features,
except in such manner and media as may be specified in the other party's
trademark usage and branding guidelines or as the other party may consent to in
writing. Either party may revise such guidelines or revoke or modify any such
consent upon written notice to the other party.
2.5 PROMOTION OF SNAP SERVICES. Commencing upon the date of this
Agreement and thereafter throughout the Term Sponsor will use its commercially
reasonable efforts (subject to the terms of this Agreement) to generally promote
and market Snap and the Snap Web Site. In addition, Sponsor will perform those
specific promotional and marketing services specified on Exhibit D.
2.6 EXCLUSIVE SPONSORSHIP. During the Term, Snap will not grant any
third party any right to sponsor any products or services in the Exclusive
Category on or through the Snap Web Site. For the avoidance of doubt, the
parties acknowledge that the foregoing restriction applies only to persistent
sponsorship placement as judged by Sponsor at its discretion, and not to
run-of-site banner advertisements or other rotating promotional placements.
2.7 SNAP USER DATA. Snap will distribute marketing messages on behalf of
Sponsor to Snap's end users via electronic mail and other methods of
communication as mutually agreed by the parties. Furthermore, Snap will make
available to Sponsor necessary end user data as reasonably
CO-BRANDING AGREEMENT PAGE 3
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
appropriate for marketing purposes, including, without limitation,
pre-populating end user data into online frequent flier account applications.
Sponsor acknowledges that all such end user data that is generated by Snap is
valuable proprietary information of Snap and Sponsor agrees that any use of such
end user data will limited solely to use for purposes of delivering superior
travel values to Snap end users and for no other purpose. Furthermore, Sponsor
acknowledges that any use of Snap end user data shall be limited to the extent
allowed by and subject to Snap's agreement with such end users; provided,
however, that Snap represents and warrants that such agreements with its end
users will not increase Sponsor's duties or decrease its rights, nor reduce
Snaps obligation to Sponsor hereunder without Sponsor's prior written
permission.
SECTION 3. COMPENSATION AND REPORTING
3.1 UP-FRONT PAYMENT. Upon execution of this Agreement, Sponsor will pay
Snap the amounts set forth on Exhibit A as the "Up-Front Fee" in consideration
of Snap's development and integration of travel-related content for use on the
Co-Branded Pages and/or the Sponsor Web Site.
3.2 QUARTERLY FEE PAYMENTS. Sponsor will pay Snap the quarterly fees as
set forth below on Exhibit A hereto.
3.3 LAUNCH OF TRAVEL CO-BRANDED PAGES. After execution of this
Agreement, the parties shall work together cooperatively to determine a mutually
agreeable timeline for the launch of the Co-Branded Pages. If the parties
determine that an adjustment to the timing of quarterly payments hereunder is
appropriate, the parties may amend the quarterly payment schedule set forth on
Exhibit A hereto with a written amendment signed by both parties.
SECTION 4. TERM AND TERMINATION
4.1 TERM. The Term shall commence on the date of this Agreement and,
unless earlier terminated or extended as provided below, shall end as of
December 31, 2000.
4.2 TERMINATION. Either party may terminate the Term upon not less
than sixty (60) days prior written notice to the other party of any breach
hereof by such other party. In addition, either party may terminate the Term
immediately upon written notice in the event that the other party shall fail
to do business in the normal course or become subject to any bankruptcy,
assignment for creditors, corporate dissolution or similar proceeding.
4.3 EFFECT OF TERMINATION. Upon termination or expiration of the Term
for any reason, all rights and obligations of the parties under this Agreement
shall be extinguished, except that: (a) the rights and obligations of the
parties under Sections 5, 6, 7 and 8 of this Agreement, along with all accrued
payment obligations of Sponsor (i.e. the up-front payment referenced in Section
3.1 and set forth in Exhibit A hereof), shall survive any termination or
expiration of the Term.
4.4 RIGHT OF FIRST REFUSAL. In the event of termination or expiration
of this Agreement for other than a material breach of this Agreement by
Sponsor, upon notice from Sponsor delivered to Snap at least forty-five (45)
days prior to such expiration or termination, Snap shall negotiate in good
faith an agreement providing Sponsor with sponsorship rights similar to those
described herein on terms and conditions to be mutually agreed upon by the
parties. In the event that an agreement
CO-BRANDING AGREEMENT PAGE 4
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
between the parties is not executed within thirty (30) days following
delivery, of such notice to Snap, Snap shall be free thereafter to enter into
an such an agreement with any third party.
SECTION 5. REPRESENTATIONS AND WARRANTIES; INDEMNITY
5.1 SNAP REPRESENTATIONS AND WARRANTIES. Snap represents and warrants to
Sponsor that:
(a) it has full power and authority to enter into this Agreement;
(b) the execution, delivery and performance by Snap of this
Agreement will not violate any law, statute or other governmental regulation,
and will not violate any other agreement or instrument to which Snap is a party;
and
(c) the use of the Snap Content will not violate or infringe any
Intellectual Property Right or other right of any third party.
5.2 SPONSOR REPRESENTATIONS AND WARRANTIES. Sponsor represents and
warrants to Snap that:
(a) it has full power and authority to enter into this Agreement;
(b) neither the execution, delivery and performance by Sponsor of
this Agreement, nor the performance of ticketing services by Sponsor, in
connection with the Co-Branded Pages, will violate any law, statute or other
governmental regulation or any other agreement or instrument to which Sponsor is
a party; and
(c) the use of the Sponsor Content will not violate or infringe any
Intellectual Property Right or other right of any third party.
SECTION 6. EXCLUSIONS; NO LIABILITY
6.1 WARRANTIES EXCLUDED. NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING: (A) SNAP MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
SNAP WEB SITE, SNAP BRAND FEATURES OR ANY OTHER ITEMS OR SERVICES PROVIDED BY
SNAP, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING BY USAGE OF
TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT; (B) SPONSOR ACKNOWLEDGES THAT THE SNAP WEB SITE (INCLUDING ANY
SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY SNAP
IN CONNECTION WITH THE SNAP WEB SITE) AND SNAP BRAND FEATURES ARE PROVIDED "AS
IS" AND THAT SNAP MAKES NO WARRANTY THAT THE SNAP WEB SITE WILL BE FREE FROM
BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO THE SNAP WEB SITE WILL BE
UNINTERRUPTED; (C) SPONSOR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT
TO THE SPONSOR WEB SITE,
CO-BRANDING AGREEMENT PAGE 5
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
SPONSOR BRAND FEATURES OR ANY OTHER ITEMS OR SERVICES PROVIDED BY SPONSOR,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE,
COURSE OF DEALING OR COURSE OF PERFORMANCE, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT; AND (D) SNAP ACKNOWLEDGES THAT THE SPONSOR WEB SITE (INCLUDING
ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY
SPONSOR IN CONNECTION WITH THE SPONSOR WEB SITE) AND SPONSOR BRAND FEATURES ARE
PROVIDED "AS IS" AND THAT SPONSOR MAKES NO WARRANTY THAT THE SPONSOR WEB SITE
WILL BE FREE FROM BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO THE SPONSOR
WEB SITE WILL BE UNINTERRUPTED.
6.2 LIMITATION OF LIABILITY. NEITHER PARTY WILL HAVE ANY LIABILITY FOR,
AND EACH PARTY HEREBY WAIVES AND DISCLAIMS, ANY AND ALL CLAIMS AND CAUSES OF
ACTION AGAINST THE OTHER PARTY, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE AND STRICT LIABILITY), WARRANTY OR OTHERWISE, RELATING TO
ANY INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, IN EACH CASE, ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY BREACH HEREOF) OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7. OWNERSHIP
7.1 SPONSOR. As between the parties, Sponsor retains all right, title
and interest in and to the Sponsor Web Site, the Sponsor Content and the Sponsor
Marks and other Sponsor Brand Features, along with all Intellectual Property
Rights associated with any of the foregoing.
7.2 SNAP. As between the parties, Snap retains all right, title and
interest in and to: (a) the Snap Content, Snap Web Site (including, without
limitation, any and all Snap Web Site content (other than the Sponsor Content),
Sponsor generated data, URLs, domain names, technology, hardware, software,
code, know-how, techniques, algorithms, processes, user interfaces, "look and
feel", Trademarks and any other items posted thereon or used in connection or
associated therewith) and the Snap Marks and other Snap Brand Features, along
with all Intellectual Property Rights associated with any of the foregoing.
7.3 OTHER TRADEMARKS. Snap shall not register or attempt to register any
of the Sponsor Marks or any Trademarks which Sponsor reasonably deems to be
confusingly similar to any of the Sponsor Marks. Sponsor shall not register or
attempt to register any of the Snap Marks or any Trademarks which Snap
reasonably deems to be confusingly similar to any of the Snap Marks.
7.4 FURTHER ASSURANCES. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 7.
CO-BRANDING AGREEMENT PAGE 6
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
SECTION 8. GENERAL PROVISIONS
8.1 CONFIDENTIALITY. During the Term, and for a period of five (5) years
thereafter, the receiving party will not disclose to others or use for any
purpose of its own, other than in performance of this Agreement, any
Confidential Information of the other party. Each party shall take, at a
minimum, measures consistent with those taken to protect its own similar types
of Confidential Information (and in any event, at least reasonable measures) to
protect the other's Confidential Information against disclosures prohibited by
this Agreement. Each party acknowledges that its breach of the provisions of
this Section 8.1 will result in immediate and irreparable harm to the other and
that money damages alone would be inadequate to compensate such party.
Therefore, in the event of a breach of this Section 8.1 by either party the
other party may, in addition to other remedies, immediately obtain and enforce
injunctive relief prohibiting the breach or threatened breach or compelling
specific performance. Notwithstanding any other provision of this Agreement, the
restrictions set forth in this Section 8.1 shall not apply to any information
that: (i) is in or enters the public domain through no fault of the receiving
party; (ii) is disclosed to the receiving party by a third party legally
entitled to make such disclosure; (iii) is independently developed by the
receiving party without reference to any Confidential Information of the other
party; or (iv) is required to be disclosed by applicable law, regulation or
order of any governmental authority; provided, that in such event, the receiving
party shall provide the disclosing party with prior notice that is reasonable in
the circumstances of such disclosure and shall use reasonable efforts to
cooperate with the disclosing party to minimize the extent and scope of such
disclosure.
8.2 INDEPENDENT CONTRACTORS. Sponsor and Snap are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Sponsor and Snap. Neither party has any authority to enter into agreements of
any kind on behalf of the other party.
8.3 ASSIGNMENT. Neither party may assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party, not to be unreasonably withheld; except that
either party may, without the other party's consent, assign this Agreement or
any of its rights or delegate any of its duties under this Agreement: (a) to any
corporate affiliate of such party; or (b) to any purchaser of all or
substantially all of such party's assets or to any successor by way of merger,
consolidation or similar transaction. Subject to the foregoing, this Agreement
will be binding upon, enforceable by, and inure to the benefit of the parties
and their respective successors and assigns.
8.4 CHOICE OF LAW; FORUM SELECTION. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California without
reference to its choice of law rules. Sponsor hereby irrevocably consents to
personal jurisdiction and venue in the state and federal courts located in San
Francisco, California with respect to any actions, claims or proceedings arising
out of or in connection with this Agreement.
8.5 NONWAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
CO-BRANDING AGREEMENT PAGE 7
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
8.6 FORCE MAJEURE. Neither party shall be deemed to be in default of or
to have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly or
indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, other catastrophes or any other occurrences which are
beyond such party's reasonable control.
8.7 NOTICES. Any notice or other communication required or permitted to
be given hereunder shall be given in writing and delivered by first class U.S.
mail, in person, or mailed via confirmed facsimile or e-mail, or delivered by
courier service, properly addressed and stamped with the required postage, to
the person signing this agreement on behalf of the applicable party at its
address specified above and shall be deemed effective upon receipt. Either party
may from time to time change the person to receive notices or its address by
giving the other party notice of the change in accordance with this section:
8.8 INTEGRATION. This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements or negotiations between Snap and Sponsor
concerning the subject matter hereof, and cannot be amended except by a writing
signed by both parties. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and enforceable.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date set forth above.
SNAP: SPONSOR:
Snap Technologies United Airlines, Inc.
By: /s/ Howard Berman By: /s/ [*]
---------------------------------- --------------------------------------
Name: Howard Berman Name: [*]
-------------------------------- ------------------------------------
Title: Chief Operating Officer Title: Director Electronic Distribution
------------------------------- -----------------------------------
Date: June 8, 1999 Date: June 8, 1999
-------------------------------- ------------------------------------
CO-BRANDING AGREEMENT PAGE 8
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT A
PAYMENTS AND EXCLUSIVITY
1. The Exclusive Category is "PROVIDERS OF TRAVEL SERVICE".
2. The up-front payment called for by Section 3.1 will be [*].
3. Sponsor shall pay the following non-accrued obligation quarterly
fees on or prior to the following dates:
<TABLE>
<S> <C>
June 30, 1999 [*]
September 30, 1999 [*]
December 31, 1999 [*]
March 31, 2000 [*]
June 30, 2000 [*]
September 30, 2000 [*]
December 31, 2000 [*]
</TABLE>
CO-BRANDING AGREEMENT PAGE 9
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT B
TRADEMARKS
The following Trademarks of Sponsor as well as additional Trademarks of
Sponsor added at a later date related to the development of the United Student
Travel Center are "Sponsor Marks" as that term is used in this Agreement.
United Airlines logos (forthcoming)
CollegePlus logo (forthcoming)
The following Trademarks of Snap are "Snap Marks" as that term is used in
this Agreement:
[LOGO]
CO-BRANDING AGREEMENT PAGE 10
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT C
SPECIFICATIONS OF CONTENT AND CO-BRANDED PAGES
SNAP CONTENT
The following content shall be developed by Snap (with input from Sponsor)
and provided to Sponsor for inclusion on the Sponsor Web Site:
- - Travel related content on the "Going to School" section of the Snap site
for students seeking to enter college, graduate school, professional
schools or ESL programs. This content shall include but not be limited to
informational articles on how to pack for travel, frequent flyer programs,
and travel tips, etc. Content ideas or articles may be provided by Sponsor
or by Snap. Snap will edit or write these articles as necessary to fit the
overall tone of the site.
- - As other areas of the Snap site are developed that may pertain to travel,
Sponsor and Snap will look to develop travel related content in a similar
fashion as above.
- - Snap agrees to include Sponsor specials and e-fare related information in
Snap's monthly newsletter to Snap's registered users. The input will be
provided by Sponsor but may be adjusted by Snap to fit the overall tone of
the newsletter. The Sponsor's input to the newsletter may include buttons
or links back to the Sponsor's booking engine or its E-Fares-Registered
Trademark- so that users may, for example, actually book tickets or sign-up
for weekly E-Fare-Registered Trademark- notifications.
SPONSOR CONTENT
The following content shall be developed by Sponsor (with input from Snap)
and provided to Snap for inclusion on the Co-Branded Pages:
- - The Sponsor shall develop a student travel site that will include a
booking engine and E-Fares-Registered Trademark- engine. Snap users may link
to this site through the Snap store or through any other relevant pages on
the Snap site. Users who connect from the Snap site will be linked to or
from the Co-branded or Snap pages by a logo link containing the Snap Brand
Features to be supplied by Snap which links back to the Snap web site. This
logo link will be placed in a mutually acceptable "above the fold" location
on the Sponsor site (based on a 640x450 pixels screen).
- - Sponsor agrees that users who connect from the Snap site shall be at least
one click away from any page which mentions the CollegePlus or MileagePlus
First Card credit card.
- - Sponsor will work with Snap to develop content ideas and articles for the
"Going to School" and other areas on the Snap site as outlined above.
CO-BRANDING AGREEMENT PAGE 11
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT D
SPONSOR PROMOTIONAL ACTIVITIES
Sponsor and Snap shall work together to create mutually acceptable content
for inclusion on the "Going to School" section of the Snap Web Site.
On each page of the Sponsor Web Site linked to or from the Co-Branded
Pages or containing any Snap Content, Sponsor shall include, in a mutually
acceptable "above-the-fold" location (based on a 640x480 pixels screen), a logo
link containing the Snap Brand Features, to be supplied by Snap, which links
back to the Snap Web Site.
Sponsor shall make available to Snap [*] of advertising placements
(based on Sponsor's standard prices for the same or similar advertising) during
each the calendar years 1999 and 2000 in marketing vehicles owned or controlled
by Sponsor as reasonably requested by Snap for the purpose of marketing the
Co-Branded Pages and the services provided on such pages. The parties
acknowledge that Snap has elected to use HEMISPHERES magazine as the initial
marketing vehicle. Snap acknowledges that marketing pieces included in Sponsor's
marketing vehicles must be reasonably consistent with the overall message
delivered by such vehicle.
Sponsor shall develop a its new proprietary product category to be offered
through the Co-Branded Pages that shall represent a college-oriented electronic
fare based on Sponsor's E-Fare-Registered Trademark- product. It is the parties'
expectations that the investment required of Sponsor to deliver this new product
category to the relationship described in this Agreement shall be
approximately [*].
Sponsor shall make available to Snap [*] worth of travel on Sponsor's
airline ([*] in calendar 1999 and [*] in calendar 2000) to be given away by
Snap through a sweepstakes process as a promotional tool. Snap shall be free
to elect to give away domestic or international travel in its sole election
and will be credited [*] per domestic roundtrip ticket given away and [*] per
international roundtrip ticket given away. In the event that the parties
mutually determine that the sweepstakes form of promotion is a valuable
marketing tool, the parties may agree to make additional tickets available to
be given away.
CO-BRANDING AGREEMENT PAGE 12
SNAP CONFIDENTIAL
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
Exhibit 10.11
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
PROMOTIONAL AGREEMENT
EFFECTIVE DATE: JULY 1, 1999 ("EFFECTIVE DATE")
TERM OF AGREEMENT: JULY 1, 1999 THROUGH DECEMBER 31, 2000 ("TERM")
VISA CONTACT: MS. HEATHER GRAY
VISA PHONE NUMBER: (650) 432-4054
VISA FACSIMILE NUMBER:. (650) 432-1862
MERCHANT CONTACT: MR. TIMOTHY CHEN
MERCHANT PHONE NUMBER: (415) 778-6262
MERCHANT FACSIMILE NUMBER: (415) 778-6263
This Agreement (the "Agreement") is between VISA USA INC. ("Visa"), with its
principal place of business at 900 Metro Center Boulevard, Foster City,
California 94404 (mailing address P.O. Box 8999, San Francisco, CA 94128-8999)
on the one hand and SNAP TECHNOLOGIES, INC. (hereinafter "Merchant"), with its
principal place of business at 111 Townsend Street, San Francisco, California
94107, on the other.
In consideration of the mutual covenants and conditions set forth herein and in
Exhibits A, B, and C hereto, all of which are incorporated herein by reference,
Visa and Merchant agree as follows:
Subject to the terms and conditions specified in Exhibit A hereto, Visa shall
perform the obligations specified in Exhibit B hereto and Merchant shall perform
the obligations specified in Exhibit C hereto.
VISA U.S.A. INC. SNAP TECHNOLOGIES, INC.
("Visa") ("Merchant")
By: /s/ James O. Degracia By: /s/ Judy David
------------------------------------ ---------------------------------
Name: James O. Degracia Name: Judy David
---------------------------------- ------------------------------
Title: Senior Vice President Title: Chief Financial Officer
--------------------------------- -----------------------------
Date: 6/30/99 Date: 6/29/99
---------------------------------- ------------------------------
Approved By Legal M.P.
----------
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT A
STANDARD TERMS AND CONDITIONS
1. REPRESENTATIONS AND WARRANTIES. Merchant and Visa each warrant and
represent that (i) it has the power and authority to grant the rights and
perform the obligations to which it commits herein; (ii) the execution of the
Agreement by the person representing it will be sufficient to render the
Agreement binding upon it; and (iii) neither its performance hereunder nor the
exercise by the other party of rights granted by the warranting party hereunder
will violate any applicable laws or regulations, or the legal rights of any
third parties, or the terms of any other agreement to which the warranting party
is or becomes a party. Each party is separately responsible for ensuring that
its performance and grant of rights does not constitute any such violation
during the term of the Agreement. No party approval of advertising or other copy
submitted by another will relieve the other's responsibility under this Section.
2. USE OF TRADE AND SERVICE MARKS. Nothing contained herein will give either
party a license or other right to use the trade or service marks of the other
party. Any such use will require the prior written consent of the party that
owns the marks.
3. CONFIDENTIALITY. Merchant and Visa each agree that they will not use in any
way for their own account or the account of any third party, nor will they
disclose to any third party, any confidential information revealed to them by
the other party which is identified in writing as confidential prior to
disclosure. Each party will take such reasonable precautions to protect the
confidentiality of such information as are employed to protect the party's own
confidential information of a similar nature.
4. TERM AND TERMINATION. The Agreement will be effective on the date last
written above and will terminate after the completion of the Term. In the
event of expiration or early termination of the Agreement, the terms of
Section 3 above and Sections 5 and 9 below will forever survive the
termination of the Agreement. Either party may terminate the Agreement in the
event of a material default by the other party on any of its representations,
warranties, or obligations under the Agreement by the following procedure:
(i) that non-defaulting party will provide the defaulting party with written
notice specifying the particulars of the default; (ii) if the default is not
cured within thirty (30) days after such notice is given, the non-defaulting
party may terminate the Agreement immediately upon providing written notice
to the defaulting party. Additionally, either party may terminate the
Agreement for any reason upon sixty (60) days written notice to the other
party. In the case of termination prior to the natural expiration of the
Term, both parties will engage in good faith negotiations to arrange for a
mutually satisfactory end to the Agreement. In the event of any termination
prior to the natural expiration of the Term, Merchant will give Visa an
immediate pro-rata refund of all of the funds received from Visa pursuant to
this agreement based upon the number of days remaining until the end of the
Term at the time of termination divided by the total number of days in the
Term.
2
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
5. INDEMNIFICATION. Merchant will indemnify and hold harmless Visa, Visa
International Service Association and their respective Member financial
institutions, officers, directors, employees, agents, successors and assigns
from any claims, damages, liabilities, losses, government procedures and costs,
including reasonable attorneys' fees and costs of suit, arising out of (i)
Merchant's failure to comply with applicable laws and regulations, unauthorized
use of Visa's trademarks or negligence or willful misconduct in connection with
its performance of the Agreement; or (ii) Merchant's misrepresentation or breach
of any warranty, obligation or covenant of the Agreement.
Visa will indemnify and hold harmless Merchant and its officers, directors,
employees, franchisees, attorneys, agents, successors and assigns from any
claims, damages, liabilities, losses, government procedures and costs, including
reasonable attorneys' fees and costs of suit, arising from (i) Visa's failure to
comply with applicable laws and regulations, unauthorized use of Merchant's
trademarks or negligence or willful misconduct in connection with its
performance of the Agreement; or (ii) Visa's misrepresentation or breach of any
warranty, obligation or covenant of the Agreement.
Except in the case of third party claims, neither party will be obligated
to the other party for indirect, special, consequential, or incidental damages.
6. RELATIONSHIP OF THE PARTIES. Merchant and Visa are independent contractors,
and the Agreement does not create a partnership, joint venture,
employee/employer or other agency relationship between them.
7. ASSIGNMENT. The Agreement will be binding on and inure to the benefit of
each of the parties, their successors and assigns. It may not be assigned or
transferred, in whole or in part, without the written consent of the other
party. Any such assignment or transfer without consent will be void.
8. NOTICES. All notices and other communications required to be given under
the Agreement shall be in writing and shall be deemed to have been given (i)
when personally delivered; or (ii) three (3) business days after mailing,
postage prepaid, by certified mail; or (iii) when delivered (and receipted for)
by an overnight delivery service, addressed in each case to the parties at the
addresses set forth on the Agreement (in the case of notices to Visa, a copy of
any such notice shall also be delivered to the Visa U.S.A. Legal Department, in
care of the same Visa address), unless a different address shall have been
designated in writing.
9. GOVERNING LAW. The Agreement will be governed by the laws of the State of
California, without giving effect to its conflicts of law provisions.
10. PUBLICITY. The parties will consult with one another concerning the form
and substance of any press release or other public disclosure of the matters
covered by the Agreement, and will mutually agree on the form and substance of
any such disclosure before any such disclosure is made; provided, however, that
this obligation will not be deemed to prohibit any party from making any
disclosure which its counsel deems necessary in order to fulfill such party's
obligations under any applicable law.
3
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
11. EXCLUSIVITY. As used in this Agreement, "Visa Competitors" means the
following and all branded products and services operated thereby: MasterCard
International (e.g., Cirrus, Maestro), Mondex, American Express, Novus (e.g.,
Discover), First Data Corporation, Diners Club, Carte Blanche, Europay and
JCB. During the Term, Merchant agrees to provide Visa with category
exclusivity for all payment card advertising, marketing, promotions, and
placements on its site www.collegeedge.com (or on any derivations or
extensions thereof), "CollegeEdge Site", and will not participate in any
program or pilot with a Visa Competitor. This provision will not prohibit
Merchant from accepting any other credit, debit, charge card or travelers
cheque from Visa Competitors. Merchant further agrees that this exclusivity
clause pertains to all third party controlled frames that may appear on the
CollegeEdge Site.
12. ENTIRE AGREEMENT. The Agreement, and Exhibits A, B, and C thereto
constitute the entire agreement and understanding between Visa and Merchant, and
there are no other agreements, representatives, warranties or understandings
between Visa and Merchant with respect to the subject matter hereof. To the
extent that any other agreement, written or verbal, appears to exist between the
parties with respect to the subject matter hereof, the Agreement supersedes any
such agreement.
4
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT B
VISA'S OBLIGATIONS
DURING THE TERM, VISA AGREES TO PERFORM AS FOLLOWS:
A. PAYMENT. Visa will pay Merchant [*] for the obligations set forth in
Exhibit C. The first payment of [*] will be due thirty (30) days after the
later of the Effective Date or the receipt of a Merchant invoice referencing
this Agreement. The second and third payments each for [*] will be due
thirty days after receipt of a Merchant invoice to be sent to Visa on December
1, 1999 and August 31, 2000, respectively. If by July 31, 1999 or later, it is
determined by Visa, that Merchant is not fulfilling all of its obligations as
described in this Agreement, Visa's payment and expenditure obligations in
Sections A and B of this Exhibit will be reduced by a pro-rata amount based upon
the number of days after June 30, 1999 in which any of such obligation is not
met. The per day amount is based on Visa's total expenditure from Sections A and
B of this Exhibit divided by five hundred and forty (540) days.
B. MARKETING SUPPORT [*]. Visa will expend at least [*] to directly support
[*] on or through the CollegeEdge Site. Such financial support [*] will be
used for marketing activities which leverage certain aspects of the [*] and
may include but not be limited to: direct mail; joint promotions; statement
inserts and messages; online advertising; or other activities as may be
mutually agreed by the parties. Merchant understands that [*], and that Visa
will have no obligation related thereto.
C. EDUCATIONAL CONTENT. From time to time, Visa will provide Merchant with
content and/or links related to topics which may include but not be limited to
topics such as: credit card advantages; how credit cards work; budgeting advice;
credit card advice; shopping safely online; or other topics as may be mutually
agreed. Visa reserves the right to modify, alter, or delete any content provided
by Visa hereunder.
D. RANKIT LINK. Visa will investigate the opportunity to provide a
www.collegeedge.com placement and link on its web-site www.rankit.com.
E. VISA ATM LINK. Visa will provide Merchant with a link to its ATM locator
section of its www.visa.com website. Merchant reserves the right not to use the
Visa ATM link.
F. NEW IDEAS AND OPPORTUNITIES. Visa will use reasonable efforts to work with
Merchant in a cooperative effort on new ideas and opportunities which may
include without limitation payments related topics such as college tuition,
financial aid, campus cards, smart cards, and other products and services as may
be mutually agreed.
5
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
G. MUTUAL ECOMMERCE MARKETING PARTNERSHIPS. Visa will use reasonable efforts
to leverage Visa's eCommerce merchant marketing relationships with that of
Merchant's for joint promotional opportunities to the benefit of both parties.
H. BEST PRACTICES SUPPORT. Visa will use reasonable efforts to work with
Merchant through Merchant's acquiring financial institution as appropriate to
provide best practices support which may include but not be limited to topics
such as: security; payments infrastructure; fraud; operations; and other
educational tools.
6
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
EXHIBIT C
MERCHANT'S OBLIGATIONS
DURING THE TERM, MERCHANT AGREES TO PERFORM AS FOLLOWS:
A. SCOPE OF OBLIGATIONS. Merchant's Obligations apply to the CollegeEdge Site
and all linked pages and sites under the control of Merchant and/or its
affiliates.
B. DEFAULT PAYMENT CARD. Except as noted in Section D below, Merchant will
make Visa the Default Payment Card at all current and future points of
transaction, registration, or other areas where a customer can make a selection
or modification for method of payment. For purposes hereof, "Default Payment
Card" means that Visa will be the only payment card immediately viewable at the
card selection area prior to clicking on the pull down menu, and only after
clicking on the pull down menu will other payment options become viewable.
C. PROMINENT VISA PLACEMENTS. For purposes of this Agreement "Visa Placement",
means depiction of the Visa acceptance mark with a minimum pixel size of 43 X 27
and a Visa designation slogan, tagline, or copy reading either "CollegeEdge.com
prefers Visa", "Its everywhere you want to be", "Shop Safely", "Brought to you
by Visa", or "Get a Visa card", as solely determined by Visa, but based on
consideration of Merchant's desires, with a minimum font size of 12 points. At a
minimum, and except as noted in Section D below, Merchant will provide a
prominent Visa Placement at all of the following locations: i) for CollegeEdge
Store, above the fold Home Page, all Category Pages (e.g. College, Graduate,
Professional, Going to School, Gifts, Core Packages, etc.), and all sub-category
pages (e.g. The Checklist, Advice and Information Area related to getting or
using a Visa card, Travel Arrangements, Dormitory Furnishing, etc.), throughout
key areas in the transaction cycle which may include but not be limited to
shopping cart, security or guarantee pages, and directly adjacent to any points
of transaction, registration or other areas where a customer can make a
selection or modification for method of payment; ii) for College Application
Payment pages, throughout key areas in the payment cycle as may be mutually
determined, and directly adjacent to any points of transaction, registration or
other areas where a customer can make a selection or modification for method of
payment; iii) on pages highlighting multiple key sponsors; iv) on pages where
Visa provides content as described in Section C of Exhibit B or those pages
related to getting or using a Visa card, v) and, future successor pages thereof.
D. INITIAL COLLEGEEDGE STORE EXCEPTIONS. Visa understands that during the
first four months of the Agreement, Merchant will not be obligated to fulfill
its obligations in Sections B and C of this Exhibit C which directly relate to
those categories and/or sub-categories in the CollegeEdge Store which are
controlled by the third party subcontractor responsible for managing the user
interface and service/product fulfillment in such areas. Notwithstanding the
foregoing, Merchant will use best efforts to negotiate and influence such third
party to fulfill Merchant's Obligations as described in this Exhibit. Merchant
further agrees that such third party subcontractor will not promote or provide
any
7
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
branding of Visa Competitors on those pages in any way connected with the
CollegeEdge Site.
E. PAYMENT CARD SOLICITATIONS. Merchant agrees that the Visa acceptance mark
will appear on all payment products displayed on the CollegeEdge Site and
solicited through the CollegeEdge Site. Merchant further agrees that all
solicitations generated through the CollegeEdge Site will be for Visa payment
products only.
F. PAYMENT CONFIRMATION. Merchant will use reasonable efforts to include copy
reading "thank you for using Visa, the preferred card of CollegeEdge", or other
mutually agreed upon text, in all of its confirmation emails or pages for those
consumers who selected Visa as their form of payment.
G. QUARTERLY REPORT. Promptly at the end of each quarter, and for the quarter
immediately preceding (where applicable), Merchant will provide Visa with a
report which will include the information listed below related to consumer
purchasing patterns and payment card behavior. Merchant will provide aggregate
level information only.
- Merchant sales broken out by each payment method, including but
not limited to Visa, MasterCard, American Express, Discover, JCP,
cash, checks, money orders (collectively "Payment Methods")
- Merchant sales by type (e.g. college application, shopping
categories, sub-categories), by Payment Method
- Number of hits and click thru's on Visa Placements and credit card
solicitation offers (e.g. Get a Visa Card)
H. RANKIT LINK. Merchant will investigate the opportunity to provide a
www.rankit.com placement and link on the CollegeEdge Site.
I. NEW IDEAS AND OPPORTUNITIES. Merchant will use reasonable efforts to work
with Visa in a cooperative effort on new ideas and opportunities which may
include without limitation payments related topics such as college tuition,
financial aid, campus cards, smart cards, and other products and services as may
be mutually agreed.
J. MUTUAL ECOMMERCE MARKETING PARTNERSHIPS. Merchant will use reasonable
efforts to leverage its eCommerce marketing relationships with that of Visa's
for joint promotional opportunities to the benefit of both parties.
K. BEST PRACTICES SUPPORT. Merchant will use reasonable efforts to work with
Visa through Merchant's acquiring financial institution as appropriate to
cooperate with Visa on best practices topics which may include but not be
limited to: security; payments infrastructure; fraud; operations; and other
educational tools.
L. COMPETITIVE MARKS. Merchant agrees that no branding or logos of or
associated with any Visa Competitor will appear on any web site owned or
controlled by Merchant during the Term.
8
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
Exhibit 10.12
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
CONFIDENTIAL
CONTENT LICENSE AND CO-BRANDED AREA AGREEMENT
This agreement ("Agreement") is entered into as of the 30th day of September,
1999 ("Effective Date"), by and between Excite, Inc., a wholly owned
subsidiary of At Home Corporation, located at 450 Broadway, Redwood City,
California 94063 ("Excite@Home"), and Embark.com, a California corporation,
located at 111 Townsend Street San Francisco, CA 94107 ("Content Provider").
RECITALS
A. Excite@Home maintains a site on the Internet at http://www.Excite.com
and owns and/or manages related narrowband Web sites worldwide
(collectively, the "Excite Network") which, among other things, allow
its users to search for and access content and other sites on the
Internet.
B. Excite@Home maintains a broadband internet service currently available
to subscribers.
C. Excite@Home also maintains and/or manages certain Web pages which may be
delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies, and wireless technology (collectively, "Broadcast
Pages") which may incorporate content supplied to Excite@Home by third
parties for the purpose of providing value to Excite@Home users and
providing access to the content, products and/or services of such third
parties.
D. Content Provider owns or has the right to distribute certain education
and lifelong learning content and resources and maintains a related site
on the Internet at http://www.embark.com (the "Content Provider Site")
for which it wishes to generate increased traffic, user registrations
and educational transactions.
E. Excite@Home and Content Provider wish to distribute Content Provider's
content through the Excite Network, Broadcast Pages, and the
Excite@Home broadband internet service, establish and maintain related
co-branded pages in the Content Provider Site, establish links between
the Excite Network, Excite@Home broadband internet service and the
co-branded pages in the Content Provider Site and display banner
advertising promoting Content Provider on the Excite Network .
Therefore, the parties agree as follows:
1. PROMOTION ON THE EXCITE NETWORK
a) Content Provider will publish to Excite@Home subsets of its
content in an XML format (e.g. captions, brief 2 sentence
descriptions, news headlines, pointers into longer descriptions
and abstracts) in order for Excite@Home to integrate "portions"
of the content into its search results, directory results and other
areas of the Excite Network in order to drive traffic to the Co-
Branded Area, as defined below ("Content"). Content Provider will
also
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CONFIDENTIAL
provide database mappings necessary to maximize search integration
for the Co-Branded Area.
b) Excite@Home will create web pages incorporating the Content (the
"Content Pages).
c) Content Provider will be featured in relevant areas of the Excite
Network through a display of the Content. Content will be
displayed on the Excite Network as follows: programmed search
results, on the home page of the Education Channel and the home
pages of the following subchannels: [*] and subchannels as
mutually agreed by the parties. Content Provider may be featured,
outside the Education Channel, in additional areas that may
include [*] and relevant subchannels including [*] and other areas
as mutually agreed. In the event that Excite@Home alters the
taxonomy of the Education Channel, Excite@Home will consider in
good faith providing Content Provider similar placement in the new
channel design. All placements are subject to change to conform
to any redesign of the Excite Network, and/or changes/additions to
platform or technology; provided, however, in no event will the
placements be reduced in prominence or quality relative to the
placements described above.
d) The Content may be incorporated into certain additional pages in
the Excite Network and reasonable excerpts or portions of the
Content Previews may be incorporated into Broadcast Pages, at
Excite@Home's discretion.
e) Content Provider and Excite@Home will determine mutually agreeable
methods for the transmission and incorporation of updates to the
Content. Other than updates to the Content, Content Provider will
not alter the Content without Excite@Home's prior consent.
f) Excite@Home will have sole control over of the "look and feel" of
the Excite Network. Excite@Home will have sole control over of the
content, composition, "look and feel" and distribution of the
Broadcast Pages. Excite@Home will have sole responsibility for
providing, hosting and maintaining, at its expense, the Excite
Network and for providing and delivering the Broadcast Pages.
g) Content Provider will have sole responsibility for providing, at
its expense, the Content to Excite@Home.
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2. THE CO-BRANDED AREA
a) Content Provider will design and create Web pages ("Co-Branded
Pages" or, collectively, the "Co-Branded Area") with the
functionality and content described in Exhibit A (the "Co-Branded
Content"). Each Co-Branded Page will display the name and/or
brands of Content Provider and Excite@Home in substantially
similar size and prominence. The placement and appearance of
branding shall be consistent with branding across the Excite
Network, as it may be changed from time to time. Content Provider
and Excite@Home will collaborate on the "look and feel" of the
Co-Branded Pages including, but not limited to, the display,
appearance and placement of the parties' respective names and/or
brands and of advertising displayed on the Co-Branded Pages.
Excite@Home will have final approval over the "look and feel" of
the Co-Branded Pages, which approval will not be unreasonably
withheld.
b) The Co-Branded Area and Co-Branded Pages will comply with
Excite@Home guidelines including but not limited to page
performance standards, headers and other design/user interface
standards.
c) The Co-Branded Area will be hosted by Content Provider. The
Co-Branded Area will be displayed on a URL masked to the
Excite.com URL, or other URL as determined by Excite@Home and
Excite@Home will receive page view and reach credit. Content
Provider will have sole responsibility for providing and
maintaining, at its expense, the Content Provider Site, the
Co-Branded Area, the Co-Branded Content and any updates thereto.
d) Each Co-Branded Page will include one or more links to the Excite
Network. Excite@Home will supply Content Provider with the URLs
for these links.
e) Other than updates to the Co-Branded Content and to advertising
displayed on the Co-Branded Pages, Content Provider will not
change the Co-Branded Area without Excite@Home's prior consent,
which consent will not be unreasonably withheld.
f) Excite@Home may, upon thirty (30) days prior notice to Content
Provider, request reasonable revisions to the Co-Branded Area as
needed to reflect changes that will not adversely affect Content
Provider, such as changes to Excite@Home "look and feel",
Excite@Home's name and/or brand or changes to the URLs for the
links to the Excite Network. Content Provider will use reasonable
efforts to accommodate Excite@Home's requested changes within the
fifteen (15) day period.
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3. BROADBAND DISTRIBUTION
a) Content Provider will be featured on the Excite@Home Broadband
Internet Service. The Broadband Internet Service will be subject
to design, programming and look and feel standards that might be
different than those on the Excite Network. Placement on the
Broadband Internet Service will be substantially similar in the
level of promotion as provided on the Excite Network. Broadband
Internet Service means any Internet web site programmed by
Excite@Home and designed for users of high speed internet
connectivity.
b) Each page of the Co-Branded Area for the Excite@Home Broadband
Internet Service will display the name and/or brands of Content
Provider and Excite@Home in substantially similar size and
prominence. The placement and appearance of branding shall be
consistent with branding across the Excite@Home Broadband Internet
Service, as it may be changed from time to time.
4. ADVERTISING AND FEES
a) Excite@Home will be solely responsible for selling advertising on
the Content Pages and Co-Branded Pages.
b) Content Provider will pay Excite@Home Total Fees as shown in Table
A. Total Fees include Promotion Fees, Transaction Fees and
Advertising Fees, as defined below. Total Fees will be due at
the beginning of each applicable year and payable within thirty
days of the beginning of each applicable year. Any Additional
Transaction Payment, as defined below, due pursuant to Section
3(f) will be due within thirty (30) days of the end of each
calendar quarter.
TABLE A
Total Fees
Year 1: [*]
Year 2: [*]
Year 3: [*]
Year 1 is defined as the twelve month period between October 1,
1999 and September 30, 2000. Year 2 is defined as the twelve
month period between October 1, 2000 and September 30, 2001. Year
3 is defined as the sixteen month period between October 1, 2001
and January 31, 2003.
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c) Allocation of Total Fees:
(i) [*]
[*]
Year 1: [*]
Year 2: [*]
Year 3: [*]
(ii) [*]
Year 1: [*]
Year 2: [*]
Year 3: [*]
(iii) [*]
Year 1: [*]
Year 2: [*]
Year 3: [*]
d) Content Provider will pay Excite@Home on a quarterly basis [*] of
the Transaction Gross Margins in excess of [*] per quarter in
Year 1, [*] per quarter in Year Two and [*] per quarter in Year 3
which accrues to Content Provider during the applicable quarter
and which are generated by applicants who are referred from the
Co-Branded Areas of the Excite Network and the Excite@Home
Broadband Internet Service ("Additional Transaction Fee").
Transaction Gross Margins means revenue from transactions such as
[*] and [*] on the Co-Branded Areas less cost of goods sold.
e) In order to drive additional traffic to the Co-Branded Area, in
addition to the promotion and distribution provided in Sections 1
and 4, the Advertising Fee, as described above, will be applied to
the purchase of available advertising banners and sponsorship
inventory in the Education and [*] and other areas of Excite
Network and/or
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Broadband Internet Service as mutually agreed. Excite@Home will
provide advertising to Content Provider at preferred advertising
rates.
f) With each payment, Content Provider will provide to Excite@Home
documentation reasonably detailing the calculation of the payment.
g) Content Provider will maintain accurate records with respect to
the calculation of all payments due under this Agreement.
Excite@Home may, upon no less than thirty (30) days prior written
notice to Content Provider, cause an independent Certified Public
Accountant to inspect the records of Content Provider reasonably
related to the calculation of such payments during Content
Provider's normal business hours. The fees charged by such
Certified Public Accountant in connection with the inspection will
be paid by Excite@Home unless the payments made to Excite@Home are
determined to have been less than ninety-five percent (95%) of the
payment owed to Excite@Home, in which case Content Provider will
be responsible for the payment of the reasonable fees for such
inspection.
h) Neither party will make any public statement, press release or
other announcement relating to the terms of or existence of this
Agreement without the prior written approval of the other.
Notwithstanding the foregoing, either party hereby grants to the
other the right to issue an initial press release, the timing and
wording of which will be subject to the other party's reasonable
approval, regarding the relationship between Excite@Home and
Content Provider.
5. COMMUNITIES AND REGISTRATION
a) Co-Branded Pages will display links that point to Excite@Home
community products which include message boards, chat, clubs, home
pages, instant messaging, calendar, address book, email, photos
and any other community products developed by Excite@Home during
the term of this Agreement ("Community Products"). Content
Provider will not feature non-Excite@Home community products on
the Co-Branded Area without the written permission of Excite@Home.
b) Content Provider will, at Excite@Home's discretion, integrate the
Co-Branded Content with Excite@Home's Universal Registration
System. Content Provider will integrate according to
Excite@Home's technical and operational specifications. Each
party will incur their own costs related to the integration.
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CONFIDENTIAL
6. USAGE REPORTS AND USER DATA
a) Content Provider and Excite@Home will each provide the other via
email usage reports containing the information set forth in
Exhibit B ("Usage Reports"). Each Usage Report will cover a
calendar month and will be delivered within fifteen (15) days
following the end of the applicable month. The parties may, by
mutual written agreement, alter the content and the timing of the
delivery of the Usage Reports.
b) CONTENT PROVIDER AND EXCITE@HOME WILL USE REASONABLE EFFORTS TO
ENSURE THE ACCURACY OF THE USAGE REPORTS BUT NEITHER PARTY
WARRANTS THAT THE USAGE REPORTS WILL CONFORM TO ANY SPECIFICATIONS
AT ANY GIVEN TIME. NEITHER PARTY WILL BE HELD LIABLE FOR ANY
CLAIMS AS THEY RELATE TO SUCH USAGE REPORTS, EXCEPT TO THE EXTENT
THAT SUCH USAGE REPORTS SERVE AS THE BASIS FOR PAYMENTS UNDER THIS
AGREEMENT.
c) For the purpose of this Agreement, "User Data" shall mean all
information submitted by a user (the "User") in the Co-Branded
Area with the exception of data entered into a college's specific
application or inquiry system, trading data, credit card numbers,
checking account numbers, etc. "Individually Identifiable User
Data" shall mean that subset of "User Data" which can be
reasonably used to identify a specific individual such as their
name, address, phone number, etc.
d) Both parties acknowledge that any individual user of the
Internet could be a customer of Excite@Home, Inc. and/or Content
Provider through activities unrelated to this Agreement. Both
parties further acknowledge that any User Data gathered
independent of this Agreement, even for Users that utilize both
party's services, shall not be covered by this Agreement.
e) Both parties will provide to each other all User Data collected in
the Co-Branded Area in connection with this Agreement within
thirty (30) days following the end of each calendar month in a
standard electronic format to be mutually agreed upon by the
parties.
f) The User Data shall be deemed to be the joint property of the
parties, so long as the joint ownership of such data is not in
violation of the privacy policy of either party, provided,
however, Content Provider will provide Excite@Home the User Data
set described in Section 6 (h) below [*]
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CONFIDENTIAL
[*]
g) Both parties agree that they will not sell, disclose, transfer, or
rent the Individually Identifiable User Data to any third party,
nor will either party use said Individually Identifiable User Data
on behalf of any third party, without the express permission of
the User. In such cases where User permission for dissemination
of Individually Identifiable User Data has been obtained, Content
Provider shall use all reasonable efforts to include and enforce
within such dissemination contracts or agreements a requirement
for the inclusion of an unsubscribe feature in all email
communications generated by, or on behalf of, third party users of
said Individually Identifiable User Data. Content Provider agrees
that it will at all times maintain and comply with standards and
privacy policy that are no less protective of User Data than the
then current Excite@Home privacy policy and standards.
h) Content Provider agrees that for all customer registrations, a
minimum set of User Data shall be delivered in a format to be
defined by Excite@Home and which shall from time to time be
modified at Excite@Home's option. Nothing in this clause should
be interpreted to prevent Content Provider from collecting
additional information as is deemed desirable by mutual consent of
both parties.
7. CONTENT OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and
to the Content and the Co-Branded Content worldwide (including,
but not limited to, ownership of all copyrights and other
intellectual property rights therein). Subject to the terms and
conditions of this Agreement, Content Provider hereby grants to
Excite@Home a royalty-free, non-exclusive, worldwide license to
use, reproduce, distribute, transmit and publicly display the
Content in accordance with this Agreement and to sub-license the
Content to Excite@Home's parent, wholly-owned subsidiaries or to
joint ventures in which Excite@Home participates for the sole
purpose of using, reproducing, distributing, transmitting and
publicly displaying the Content in accordance with this Agreement.
b) Excite@Home will retain all right, title, and interest in and to
the Excite Network and the Broadcast Pages worldwide (including,
but not limited to, ownership of all copyrights, look and feel and
other intellectual property rights therein).
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8. TRADEMARK OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and
to its trademarks, service marks and trade names worldwide,
subject to the limited license granted to Excite@Home hereunder.
b) Excite@Home will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide, subject
to the limited license granted to Content Provider hereunder.
c) Each party hereby grants to the other a non-exclusive, limited
license to use its trademarks, service marks or trade names only
as specifically described in this Agreement. All such use shall
be in accordance with each party's reasonable policies regarding
advertising and trademark usage as established from time to time.
d) Upon the expiration or termination of this Agreement, each party
will cease using the trademarks, service marks and/or trade names
of the other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
9. TERM
The term of this Agreement will begin on the Effective Date and
will end on January 31, 2003. The Agreement will automatically
renew for terms of six (6) months each, unless either party
notifies the other in writing at least thirty (30) days prior to
automatic renewal that it does not wish to renew this Agreement.
10. PREMIER STATUS
Content Provider will be the premier provider of college search,
scholarship, financial aid, test preparation and online
applications on the Education Channel. Excite@Home will use
commercially reasonable efforts not to display content or banner
advertising from Content Provider Competitors or otherwise
promote, above the fold, the same content from the Content
Provider Competitors. Content Provider Competitors mean
Peterson's, College Board, [*], Princeton Review, and Kaplan. Upon
written notice from Content Provider, Excite@Home will remove
Content Provider Competitor advertising or promotion from the
Co-Branded Area as described above.
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11. TERMINATION
a) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following the notice to the
breaching party of the breach, with the following exceptions:
(i) In the event of three or more errors, failures or outages of
the Content or the Co-Branded Content in any thirty (30) day
period, Excite@Home may elect to immediately terminate this
Agreement upon written notice to Content Provider and enter
into an other arrangements for the acquisition of similar
content;
(ii) Content Provider will ensure that the Content and Co-Branded
Content will at all times be at least comparable to any
other source of similar topical content available on the
Internet in terms of the following factors, taken as a
whole: (i) breadth and depth of coverage, (ii) timeliness
of content updates and (iii) tools and functionality and
(iv) reputation and ranking based on a cross-section of
third party reviewers in terms of features, functionality,
quality and other qualitative factors. If the Content
becomes less comparable, as described above, Excite@Home
will inform Content Provider and provide Content Provider
with thirty (30) days to update the Content. In the event
that Content Provider fails to meet these quality criteria,
Excite@Home may terminate this agreement on thirty (30) days
written notice and enter into an other arrangements for the
acquisition of similar content
(iii) Notwithstanding the foregoing, Excite@Home may terminate
this Agreement if Content Provider fails to pay any amount
due hereunder and such non-payment remains uncured for
twenty-one (21) days following notice to the Content
Provider of non-payment.
b) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within thirty
(30) days thereof.
c) The provisions of this Section, Section 12 (Confidentiality),
Section 13 (Warranty and Indemnity), Section 14 (Limitation of
Liability) and Section 15 (Dispute Resolution) will survive any
termination or expiration of this Agreement.
12. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information"
means information about the disclosing party's (or its suppliers')
business or activities that is proprietary and confidential, which
shall include all business, financial, technical and other
information of a party marked or designated by such party as
"confidential" or "proprietary"; or information
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CONFIDENTIAL
which, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as confidential.
b) Confidential Information will not include information that (i) is
in or enters the public domain without breach of this Agreement,
(ii) the receiving party lawfully receives from a third party
without restriction on disclosure and without breach of a
nondisclosure obligation or (iii) the receiving party knew prior
to receiving such information from the disclosing party or
develops independently.
c) Each party agrees (i) that it will not disclose to any third party
or use any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that it
will take all reasonable measures to maintain the confidentiality
of all Confidential Information of the other party in its
possession or control, which will in no event be less than the
measures it uses to maintain the confidentiality of its own
information of similar importance.
d) Notwithstanding the foregoing, each party may disclose
Confidential Information (i) to the extent required by a court of
competent jurisdiction or other governmental authority or
otherwise as required by law or (ii) on a "need-to-know" basis
under an obligation of confidentiality to its legal counsel,
accountants, banks and other financing sources and their advisors.
e) The information contained in the Usage Reports provided by each
party hereunder will be deemed to be the Confidential Information
of the disclosing party.
f) The terms and conditions of this Agreement will be deemed to be
the Confidential Information of each party and will not be
disclosed without the written consent of the other party.
13. WARRANTY AND INDEMNITY
a) Content Provider warrants that it owns, or has obtained the right
to distribute and make available as specified in this Agreement,
any and all content provided to Excite@Home or made available to
third parties in connection with this Agreement.
b) Content Provider warrants that the Content will comply with the
description and technical specifications contained in Exhibit A.
Content Provider warrants that the Co-Branded Content will comply
with the description and technical specifications contained in
Exhibit B.
c) Content Provider will indemnify, defend and hold harmless
Excite@Home, its affiliates, officers, directors, employees,
consultants and agents from
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CONFIDENTIAL
any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
i) The breach of any warranty, representation or covenant in
this Agreement;
ii) Any claim that the Content or Co-Branded Content infringes
or violates any third party's copyright, patent, trade
secret, trademark, right of publicity or right of privacy or
contains any defamatory content; or
iii) Any claim arising from content displayed on the Content
Provider Site other than the Co-Branded Content.
Excite@Home will promptly notify Content Provider of any and all
such claims and will reasonably cooperate with Content Provider
with the defense and/or settlement thereof (which shall be under
the control of Content Provider); provided that, if any settlement
requires an affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally impacts Excite@Home in
any way and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall
require Excite@Home's written consent (not to be unreasonably
withheld or delayed) and Excite@Home may have its own counsel in
attendance at all proceedings and substantive negotiations
relating to such claim.
d) Excite will indemnify, defend and hold harmless Content Provider,
its affiliates, officers, directors, employees, consultants and
agents from any and all third party claims, liability, damages
and/or costs (including, but not limited to, attorneys fees)
arising from:
i) Its breach of any warranty, representation or covenant in
this Agreement; or
ii) Any claim arising from content displayed on the Excite
Network other than the Content or Co-Branded Pages.
Excite's obligation to indemnify Content Provider is conditioned
upon Content Provider promptly notifying Excite of any and all
such claims, unless the failure to notify does not materially and
adversely affect Excite's defense. Content Provider will
reasonably cooperate with Excite with the defense and/or settlement
thereof; provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts Content Provider in any way and such
obligation, liability, prejudice or impact can reasonably be expected
to be material, then such settlement shall require Content Provider's
written consent (not to be unreasonably withheld or delayed) and
Content Provider may have its own counsel in attendance at all
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proceedings and substantive negotiations relating to such claim at
Content Provider's sole cost and expense.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT
AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE REGARDING SUCH SUBJECT MATTER.
14. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 13(c), IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF
EXCITE@HOME FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL
NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY CONTENT PROVIDER TO
EXCITE@HOME HEREUNDER.
15. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names
and/or confidentiality would result in irreparable injury for
which there is no adequate remedy at law. Therefore, in the event
of any breach or threatened breach of a party's obligations
regarding trademarks, service marks or trade names or
confidentiality, the aggrieved party will be entitled to seek
equitable relief in addition to its other available legal remedies
in a court of competent jurisdiction. For the purposes of this
section only, the parties consent to venue in either the state
courts of the county in which Excite@Home has its principal place
of business or the United States District Court for the Northern
District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names and/or confidentiality, the parties will
first attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot be resolved
through good faith negotiation, the parties will refer the
dispute(s) to a mutually acceptable mediator for hearing in the
county in which Excite@Home has its principal place of business.
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c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement,
other than disputes arising from or concerning trademarks, service
marks or trade names and/or confidentiality, cannot be resolved
through good faith negotiation and mediation, the parties will
refer the dispute(s) to the American Arbitration Association for
resolution through binding arbitration by a single arbitrator
pursuant to the American Arbitration Association's rules
applicable to commercial disputes. The arbitration will be held
in the county in which Excite@Home has its principal place of
business.
16. GENERAL
a) ASSIGNMENT. Neither party may assign this Agreement, in whole or
in part, without the other party's written consent (which will not
be unreasonably withheld), except that no such consent will be
required in connection with a merger, reorganization or sale of
all, or substantially all, of such party's assets. Any attempt to
assign this Agreement other than as permitted above will be null
and void.
b) GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of California,
notwithstanding the actual state or country of residence or
incorporation of Content Provider.
c) NOTICE. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed
facsimile, confirmed email or certified or registered mail, return
receipt requested, and will be deemed given upon personal
delivery, one (1) day after deposit with express courier, upon
confirmation of receipt of facsimile or email or five (5) days
after deposit in the mail. Notices will be sent to a party at its
address set forth below or such other address as that party may
specify in writing pursuant to this Section.
d) NO AGENCY. The parties are independent contractors and will have
no power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not
be construed to create or imply any partnership, agency or joint
venture.
e) FORCE MAJEURE. Any delay in or failure of performance by either
party under this Agreement will not be considered a breach of this
Agreement and will be excused to the extent caused by any
occurrence beyond the reasonable control of such party including,
but not limited to, acts of God, power outages and governmental
restrictions.
f) SEVERABILITY. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or
arbitrator, the remaining portions of the Agreement will remain in
full force and effect.
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g) ENTIRE AGREEMENT. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement
may only be modified, or any rights under it waived, by a written
document executed by both parties.
Embark.com Excite, Inc.
By: /s/ Alexander P. Doll By: /s/ Mark C. Stevens
-------------------------- ----------------------------
Name: Alexander P. Doll Name: Mark C. Stevens
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Title: VP Strategy & Business Dev. Title: EVP
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Date: September 30, 1999 Date: 30 September 1999
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111 Townsend Street 450 Broadway
San Francisco, CA 94107 Redwood City, California 94063
(415) 778-6262 (voice) 415.568.6000 (voice)
(415) 778-6263 (fax) 415.568.6030 (fax)
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* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
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CONFIDENTIAL
EXHIBIT A
CONTENT AND FUNCTIONALITY DESCRIPTION FOR CO-BRANDED AREA
1. College & Universities database with detailed information on each, and
links to their homepages
2. Grad School Database (with similar information)
3. Law school Database (with similar information)
4. MBA Database (with similar information)
5. ESL program listing (with a smaller number of profiles)
6. Scholarship database
7. Financial aid road maps/information/calculators for College, MBA, law,
and grad school applicants
8. Choosing a major information for college applicants
9. Soft content and advice for College, grad, MBA, law, parents, and
international students
10. Links to WebApps and Recruiter
11. Test Preparation - initially SAT tools, practice tests and information
[*], adding more tests later.
12. Other content to be mutually agreed such as Lifelong learning and
Continuing Education, including database of online classes [*], English
as a Second Language Programs, Alternative Education Opportunities, Take
a Class and Online Education.
16
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
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CONFIDENTIAL
EXHIBIT B
DESCRIPTION AND FORMAT OF USAGE REPORTS
Content Provider will provide Excite@Home, on a monthly basis or on a basis
that is mutually agreed by both parties, usage reports containing the
following information:
- - Total number of page views generated by links from the Excite Network to
the Co-Branded Area.
Excite@Home will provide Content Provider, on a monthly basis or on a basis
that is mutually agreed by both parties, usage reports containing the
following information:
- - Total number of page views generated by links from the Excite Network to
the Content Pages.
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* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
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CONFIDENTIAL
EXHIBIT C
EXCITE@HOME COMPETITORS
Amazon.com
America OnLine, Netscape
AltaVista
Ask.com
Askjeeves
Broadcast.com
Disney
Dogpile.com
Geocities
Go Network
Goto.com
Go2net.com
HotBot
Infoseek
LookSmart
Lycos Network
Microsoft/Hotmail
Miningco.com
NBC
RealNetworks
Roadrunner
Search.com
Snap
Time Warner
Xoom
Yahoo
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* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
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Exhibit 10.13
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
CONTENT AGREEMENT
This Agreement, dated as of January 30, 1999 (the "Effective Date"), is
made by and between Lycos, Inc., a Delaware corporation with a principal place
of business at 400-2 Totten Pond Road, Waltham, MA 02154 ("Lycos"), and Snap
Technologies, Inc., a California corporation with a principal place of business
at 101 Townsend Street, Suite 333, San Francisco, California 94107 ("Snap").
RECITALS
WHEREAS Lycos is the owner or licensee of certain Web services which are
accessible through the URLs www.lycos.com (the "Lycos Site"), www.tripod.com,
www.angelfire.com, www.mailcity.com and www.whowhere.com (all sites are
collectively referred to as the "Lycos Network"); and
WHEREAS Snap operates an Internet site with a URL www.collegeedge.com
(the "Snap Site") that provides content regarding colleges and graduate schools
("Content"); and
WHEREAS Lycos wants to establish a link from the Lycos Site to a
co-branded version of the Snap Site (the "Co-branded Site") in order to make the
Content easily accessible to Lycos' users; and
WHEREAS Snap wants to establish the Co-branded Site and have it linked
to the Lycos Site in order to expose the Content to Lycos' users;
NOW, THEREFORE, Lycos and Snap hereby agree as follows:
1. LINKS. Lycos will place links, at its sole discretion, from relevant
portions of the Lycos Site to the Co-branded Site. When Lycos creates an area of
the Lycos Network dedicated to educational content targeted to users under the
age of eighteen, Lycos will place a link to the Co-branded Site in such area.
2. CO-BRANDED SITE.
a. OPERATING AND SERVING. Snap shall launch the Co-branded Site
on March 18, 1999 (the "Launch Date"), unless otherwise agreed to by the
parties. Snap will operate and serve the Co-branded Site in a manner
consistent with the present quality standards of Lycos and which meets
response performance standards for Lycos users at least as good as those of
the Lycos Site. In addition, Snap will be responsible for system operation
software costs, hardware costs, and network costs. Snap will generate weekly
traffic reports and provide Lycos with traffic reports. Snap will be responsible
for integration of Lycos' ad serving software with the Co-branded Site. Snap
shall not sell or place advertisements or sponsorships on any page of the
Co-Branded Site for any entity or person and shall not sell any merchandise or
other items on any page of the Co-branded Site without the prior approval of
Lycos. In addition, without Lycos' prior
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
approval, Snap shall not place a link to the Snap Site or any other site on the
Co-branded Site. Additional services and functionality that are developed by
Snap for the Snap Site (or any successor to it) will be provided by Snap at no
cost so that the Co-Branded Site is maintained at a level substantially equal to
the Snap Site as it appears from time to time. Lycos may elect not to include on
the Co-branded Site any such additional services and functionality. Lycos shall
have the right to provide online access to the Co-Branded Site to Lycos'
subsidiaries, joint venture partners of Lycos, and licensees of the Lycos Web
services.
b. LOOK AND FEEL; BRANDING. Lycos shall create and design the
"look and feel" of the Co-branded Site. The Co-branded Site shall include Snap's
logo (subject to Lycos' approval) displayed on each page, unless otherwise
agreed to by both parties. Lycos, in its sole discretion, shall determine the
URL of the Co-branded site.
3. ADVERTISING. In its sole discretion, Lycos will sell either or
both advertising or sponsorships on the Co-branded Site. The Net Revenue from
[*] will be split [*]. "Net Revenue" means [*]. Payment will be made in the
month following the quarter in which Lycos actually receives the revenues.
Snap will have the right, at its expense (except as provided below) to audit
Lycos' books and records for the purpose of verifying Net Revenues. Such
audits will be made not more than once per year, on not less than ten (10)
days written notice, during regular business hours, by auditors reasonably
acceptable to Lycos. If the auditor's figures reflect Net Revenues higher
than those reported by Lycos, Lycos will pay the difference. If the auditor's
figures vary more than 10% from the figures provided by Lycos, Lycos will
also pay the reasonable cost of the audit.
4. TEASERS. Lycos may use portions of the Content to create "teasers"
to be displayed, in Lycos' sole discretion, throughout the Lycos Site to entice
users to view the Co-branded Site.
5. COLLEGE FEES. Snap will pay Lycos [*] of the fees (the "College
Fees") charged by Snap to the colleges and universities whose applications
are displayed on the Co-branded Site. Payment will be made in the month
following the month in which Snap begins displaying a college's or
university's application on the Co-branded Site. Snap will provide Lycos with
monthly reports regarding the College Fees invoiced and collected during the
prior month. Lycos will have the right, at its expense (except as provided
below) to audit Snap's books and records for the purpose of verifying the
College Fees. Such audits will be made not more than once per year, on not
less than ten (10) days written notice, during regular business hours, by
auditors reasonably acceptable to Snap. If the auditor's figures reflect
College Fees higher than those reported by Snap, Snap will pay the
difference. If the auditor's figures vary more than 10% from the figures
provided by Snap, Snap will also pay the reasonable cost of the audit.
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
6. LICENSES. To the extent access to the Co-branded Site is deemed a
use, public display, transmission, distribution or reproduction of the
Content, or to the extent the Content is actually used, publicly displayed,
transmitted, distributed or reproduced on the Lycos Site, Snap hereby grants
Lycos a non-transferable (except as provided herein), royalty-free (except
as provided herein), worldwide license to use, publicly display, transmit,
distribute and reproduce the Content during the Term solely for the purposes
described herein. In addition, subject to the terms and conditions of this
Agreement, Lycos hereby grants Snap, and Snap hereby grants Lycos, the right
to reproduce and display the other's logos, trademarks, trade names and other
similar identifying material solely for the purposes described herein.
7. NO INFRINGEMENT. Each party has the right to enter into this
Agreement and to grant the licenses provided herein. Each party represents and
warrants that neither its Internet site nor any elements or parts thereof (other
than content placed on such site by a third party, of which the site owner does
not have actual knowledge) will violate or infringe upon the patent, copyright,
literary, privacy, publicity, trademark, service mark or any other personal or
property right of any person, nor will same constitute a libel or defamation of
any person or entity. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND WARRANTIES,
NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABIITY OR OTHERWISE
WHICH WOULD EXTEND BEYOND THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN.
8. INDEMNIFICATION. Each party agrees to indemnify and hold harmless
the other party and the other party's officers, directors, shareholders,
employees, accountants, attorneys, agents, affiliates, subsidiaries, successors
and assigns from and against any and all third party claims, damages,
liabilities, costs and expenses, including reasonable legal fees and expenses,
arising out of or related to any breach of any warranty, representation,
covenant or agreement made by the indemnifying party in this Agreement. The
foregoing indemnity is conditioned upon: prompt written notice by the
indemnified party to the indemnifying party of any claim, action or demand for
which indemnity is claimed; complete control of the defense and settlement
thereof by the indemnifying party; and such reasonable cooperation by the
indemnified party in the defense as the indemnifying party may request.
9. PRESS RELEASES. The parties may jointly prepare press releases
concerning the existence of this Agreement and the terms hereof. Otherwise, no
public statements concerning the existence or terms of this Agreement will be
made or released to any medium except with the prior approval of both parties or
as required by law.
10. CONFIDENTIALITY. During the Term of this Agreement and thereafter,
each party will use and reproduce the other party's Confidential Information
only for purposes of this Agreement and only to the extent necessary for such
purpose and will
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
restrict disclosure of the other party's Confidential Information to its
employees, consultants or independent contractors with a need to know and
will not disclose the other party's Confidential Information to any third
party without the prior written approval of the other party. Notwithstanding
the foregoing, it will not be a breach of this Agreement for either party to
disclose Confidential Information of the other party if required to do so
under law or in a judicial or other governmental investigation or proceeding,
provided the other party has been given prior notice and the disclosing party
has sought all available safeguards against widespread dissemination prior to
such disclosure. As used in this Agreement, the term "Confidential
Information" refers to: (i) the terms and conditions of this Agreement; (ii)
each party's trade secrets, business plans, strategies, methods and/or
practices; and (iii) any other information relating to either party or its
business that is not generally known to the public, including but not limited
to information about either party's personnel, products, customers, marketing
strategies, services or future business plans. Notwithstanding the foregoing,
the term "Confidential Information" specifically excludes (A) information
that is now in the public domain or subsequently enters the public domain by
publication or otherwise through no action or fault of the other party; (B)
information that is known to either party without restriction, prior to
receipt from the other party under this Agreement, from its own independent
sources as evidenced by such party's written records, and which was not
acquired, directly or indirectly, from the other party; (C) information that
either party receives from any third party reasonably known by such receiving
party to have a legal right to transmit such information, and not under any
obligation to keep such information confidential; and (D) information
independently developed by either party's employees or agents provided that
either party can show that those same employees or agents had no access to
the Confidential Information received hereunder.
11. TERM. The term ("Term") of this Agreement will commence on the
Effective Date and continue until December 31, 2000 unless terminated earlier as
provided below. This Agreement will renew automatically for successive one year
periods unless either party gives written notice of non-renewal to the other
party at least thirty (30) days prior to any such renewal date.
12. TERMINATION. Either party may terminate this Agreement (a) if the
other party files a petition for bankruptcy, becomes insolvent, or makes an
assignment for the benefit of its creditors, or a receiver is appointed for
the other party or its business; (b) upon the occurrence of a material breach
of a material provision by the other party if such breach is not cured within
thirty (30) days after written notice is received by the breaching party
identifying the matter constituting the material breach; (c) upon thirty (30)
days written notice if the other party's product or service, viewed as a
whole, ceases to be competitive with substantially similar services then
being offered by third parties; or (d) by mutual consent of the parties. In
addition, Lycos may terminate this Agreement on [*] written notice.
13. RELATIONSHIP OF PARTIES. Snap and Lycos are independent
contractors under this Agreement, and nothing herein will be construed to
create a partnership, joint venture or agency relationship between them.
Neither party has authority to enter into
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
agreements of any kind on behalf of the other.
14. CHOICE OF LAW AND FORUM. This Agreement, its interpretation,
performance or any breach thereof, will be construed in accordance with, and all
questions with respect thereto will be determined by, the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and wholly to
be performed within said state. Both parties hereby consent to the personal
jurisdiction of the Commonwealth of Massachusetts, acknowledge that venue is
proper in any state or Federal court in the Commonwealth of Massachusetts, agree
that any action related to this Agreement must be brought in a state or Federal
court in the Commonwealth of Massachusetts, and waive any objection it has or
may have in the future with respect to any of the foregoing.
15. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements between the parties concerning the
subject matter, and cannot be amended except by a writing signed by both
parties. No party hereto has relied on any statement, representation or promise
of any other party or with any other officer, agent, employee or attorney for
the other party in executing this Agreement except as expressly stated herein.
16. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures will be considered original signatures.
17. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH
DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE
OR ANTICIPATED PROFITS OR LOST BUSINESS; PROVIDED THAT THIS SECTION DOES NOT
LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (A) WILLFUL AND MALICIOUS
MISCONDUCT; (B) DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY; (C)
BODILY INJURY OR DEATH CAUSED BY NEGLIGENCE; OR (D) INDEMNIFICATION OR
CONFIDENTIALITY OBLIGATIONS HEREUNDER.
18. SURVIVAL. All terms of this Agreement which by their nature extend
beyond its termination remain in effect until fulfilled, and apply to respective
successors and assigns.
* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
<PAGE>
Executed as an instrument under seal as of the date first written above:
Snap Technologies, Inc. Lycos, Inc.
By: /s/ Howard A. Berman By: /s/ Edward M. Philip
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Name: Howard A. Berman Name: Edward M. Philip
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Title: E.V.P., C.O.O. Title: C.O.O.
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Date: Feb. 5, 1999 Date: 2/10/99
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* Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
