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EXHIBIT 10.15
CONFIDENTIAL
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED MATERIALS HAVE BEEN INDICATED WITH
ASTERISKS.
AUCTION SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of August 23, 1999 ("Effective
Date"), by and between Excite, Inc., a wholly owned subsidiary of At Home
Corporation, a Delaware corporation located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("Excite") and FairMarket, Inc., a Delaware corporation located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, CA 94063 ("FairMarket" or
"Auction Services Provider").
RECITALS
A. Excite maintains sites on the Internet at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇ (the
"Excite Site"), at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Classifieds2000
Site") and at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Webcrawler Site"), and owns
and/or manages related Web sites worldwide which, among other things,
allow its users to search for and access content and other sites on the
Internet. "Excite Network" shall mean the following narrowband web sites
owned and/or operated by Excite (including any narrowband versions or
upgrades thereof): Excite Site, Webcrawler Site and Classifieds2000 Site,
but shall not include Excite's business portal located at ▇▇▇.▇▇▇▇.▇▇▇
(including any versions, upgrades, successors or replacements thereof) or
any broadband site.
B. Auction Services Provider owns and operates a back-end auction service
("FairMarket Auction Service(s)"), which it provides to third party
internet sites. FairMarket also owns or manages a related site on the
internet at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ ("FairMarket Site" or "Auction
Services Provider Site"). "FairMarket Network" shall mean the network of
sites of FairMarket customers for whom FairMarket hosts private label
auction services similar to the private label auction services as defined
herein.
C. Excite and Auction Services Provider wish to develop a co-branded version
of the FairMarket Auction Services, which will be developed and
maintained by Auction Services Provider on an integrated basis with the
Excite Network ("Co-Branded Site").
1. CO-BRANDED SERVICE
a) FairMarket will develop, host, and maintain, at its expense, the
Co-Branded Site in accordance with the specifications defined in
Exhibit A.
b) FairMarket will be responsible for all system operation software
costs, hardware costs and operation costs incurred in connection
with the development and operation of the Co-Branded Site. The
Co-Branded Site shall utilize the functional specifications
described in FairMarket's "Community AuctionPlace Features,
version 4.0 ", which is attached hereto as Exhibit E, and as may
be changed from time to time. The Co-Branded Site shall be
developed and maintained at no additional charge to Excite.
c) FairMarket and Excite will work together to develop and launch the
Co-Branded Site in accordance with the development schedule
detailed in Exhibit B.
d) Excite will display links to the Co-Branded Site in a variety of
locations across the Excite Network. At a minimum, Excite will
provide links from the ▇▇▇▇▇▇.▇▇▇ homepage and the toolbar of the
Excite Classifieds service. If for any reason Excite determines
that such links are no longer in its best interests, Excite may
remove the links so long as Excite provides links to the
Co-Branded Site, from the Excite Network or from other site(s)
controlled by Excite, which afford the Co-Branded Service a level
of promotion similar to or greater than that provided by the
original links. In addition, Excite may display links from home
pages, links from shopping pages, inclusion in emails, links from
search results pages, links from category pages, and links from
other contextually relevant pages within the Excite Network to
relevant areas within the Co-Branded Site. Excite will have sole
discretion and control over the placement and positioning of such
links.
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CONFIDENTIAL
e) Excite will have sole control over the "look and feel" of the
Excite Network. Excite will have sole responsibility for providing
and maintaining, at its expense, the Excite Network and any
hardware or labor or software (including updates thereto)
reasonably necessary to maintain the Excite Network as described
herein.
2. ADVERTISING ON THE CO-BRANDED SITE
a) Excite will sell and serve (when available) all advertising on the
Co-Branded Site, including, but not limited to banner advertising
and Excite sponsorship module advertising. Excite will have the
right to sell and serve such advertising on all pages within the
Co-Branded Site. FairMarket will work with Excite, and accommodate
Excite's technical requirements, to serve dynamic targeted banners
and sponsorship placements, and create and target additional
advertising positions within the Co-Branded Site.
b) Excite will pay FairMarket, on a quarterly basis, *** per cent
(***%) of "Net Advertising Revenue" (gross advertising revenue
less sales costs not to exceed *** per cent (***%)) collected from
such advertising.
c) Excite will not sell advertising on the Co-Branded Site to
FairMarket Named Competitors. "FairMarket Named Competitors" shall
include eBay and Amazon Auctions. FairMarket may add to or replace
company names on the list of FairMarket Named Competitors under
the following conditions: (i) Excite must approve any such change,
such approval not to be unreasonably withheld, (ii) the total
number of FairMarket Named Competitors does not exceed five
companies, (iii) the list may not be changed more than once per
calendar quarter and (iv) no company may be added to the list with
which Excite has a material existing advertising relationship at
the time of such intended addition.
d) As soon as reasonably possible, FairMarket will work with Excite
to enable the promotion of Excite's preferred financial services
provider on the Co-Branded Site. To the extent that the Co-Branded
Site offers buyer registration forms and/or credit card processing
service(s), such services will present Excite's preferred
financial services provider as the default credit card provider,
and in any event more prominently than it presents the names or
logos of any competing companies including, but not limited to,
credit card companies.
3. TRANSACTION REVENUE
a) "Seller(s)" shall mean a user who lists product(s) or service(s)
for sale on the FairMarket Network.
b) "Buyer(s)" shall mean a user who successfully bids for product(s)
or service(s) on the FairMarket Network.
c) "Transaction Fees" shall mean ***.
d) "Listing Fees" shall mean any fee charged to a Seller for placing
any listing of products or services on the Co-Branded Site.
e) "Gross Transaction Revenue" shall mean *** per cent (***%) of
Listing Fees charged to Sellers on the Co-Branded Site, plus ***
per cent (***%) of all Transaction Fees (using the Co-Branded
Site's then-current transaction fee schedule) resulting from
transactions in which the Buyer used the Co-Branded Site
(regardless of whether the Seller uses the Co-Branded Site or
another site within the FairMarket Network), plus *** per cent
(***%) of all Transaction Fees resulting from transactions in
which a Seller used the Co-Branded Site (regardless of whether
the Buyer uses the Co-Branded Site or another site within the
FairMarket Network).
*** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
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CONFIDENTIAL
f) "Net Transaction Revenue" shall mean actual Gross Transaction
Revenue less returns or similar credits and credit card and other
processing costs (collectively not to exceed 2.5% of Gross
Transaction Revenue).
g) "Shared Transaction Revenue" shall mean *** per cent (***%) of Net
Transaction Revenue.
h) FairMarket shall determine the amount, if any, of Transaction Fees
and Listing Fees for the Co-Branded Site. FairMarket will take
into consideration current industry pricing and the competitive
environment when setting pricing, and will establish pricing
comparable to that charged by leading independent auction sites
and other leading portals. Unless expressly requested or
authorized by Excite, under no circumstances will the Transaction
Fees or Listing Fees on the Co-Branded Site be higher in aggregate
than those on any of FairMarket's other similar co-branded auction
services. Unless expressly requested and authorized by Excite,
under no circumstances after the initial launch period (not to
exceed three (3) months following the Effective Date) will the
Transaction Fees or Listing Fees on the Co-Branded Site be zero.
i) Subject to the minimum revenue guarantee described in Section 3.j.
below, FairMarket will pay Excite, on a quarterly basis, the
Shared Transaction Revenue within thirty (30) days following the
end of each quarter.
j) For contract years in which total Excite-initiated "User Visits"
(the number of sessions in the Co-Branded Site that were initiated
via links or banners on the Excite Network, as well as visits
initiated directly via a URL) exceeds the "Minimum Guaranteed
Visit" numbers below, FairMarket will pay Excite the greater of:
(i) Shared Transaction Revenue or (ii) the Minimum Revenue
Guarantee (defined below).
Contract Year Minimum Revenue Guarantee Minimum Guaranteed Visits
Year 1 $0.8 Million *** Visits
Year 2 $2.1 Million *** Visits
Year 3 $4.6 Million *** Visits
Year 4 $7.0 Million *** Visits
Year 5 $8.4 Million *** Visits
k) FairMarket agrees to remit to Excite any balance due on the
Minimum Revenue Guarantee no later than 90 days following the end
of each contract year. Minimum Guarantees are viewed on a contract
year annual basis and not on a cumulative basis; for example, any
Minimum Revenue Guarantee that FairMarket paid to Excite in a
given year would never be paid back by Excite in future years,
even if FairMarket exceeded minimum payments in future years.
4. ADVERTISING ON THE EXCITE NETWORK
a) For a two-year period beginning on the Effective Date, Excite will
provide FairMarket with advertising services as defined in Exhibit
D and subject to the standard Terms and Conditions as described
therein.
b) In exchange for advertising services described in 4.a), FairMarket
will pay Excite $2.5 million per quarter, for a total of $20
million over eight quarters. Excite will invoice FairMarket for
actual advertising services delivered at the end of each calendar
quarter. The parties expect that the delivery of such advertising
and resulting Excite recognition of accrual of advertising revenue
will begin at approximately the same time as the launch of the
Co-Branded Site,
*** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
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CONFIDENTIAL
which is expected to be early in Q4 1999. All such fees will be
due within thirty days of invoice.
c) The parties expect that changes to the agreed-upon advertising
placements may be desirable at various points during the two-year
term of this advertising commitment. In the event that one or more
of the defined placements or services does not perform to
FairMarket's satisfaction or is no longer available on the Excite
Network, the parties will work together in good faith to replace
the insertion order describing such placement or service with an
insertion order describing a new placement or service of similar
value. FairMarket will be not be charged any penalty fees for such
changes. The parties will not make such changes more than once per
calendar quarter.
d) All banner, sponsorship and/or other promotional advertising will
refer to "Excite Auctions" and will be directed to click through
to the Co-Branded Site.
e) FairMarket will develop at its expense the creative to be used in
banner and sponsorship placement advertising. All such creative
will be utilized subject to Excite's approval, such approval not
to be unreasonably withheld.
5. PREFERRED PARTNER PROMOTION
a) During the Term (as defined in Section 6(a)), subject to the
exclusions listed in Section 5.b), 5.c) and 5.d) below, Excite
will not form a relationship with any third party company, other
than FairMarket, to provide private label or co-branded services
of the following types for the Excite Network sites: (i)
person-to-person Auction Services, (ii) merchant-to-person Auction
Services, or (iii) Classified Advertising Services for the
Auction-related Classified Categories.
b) Excite retains the option to enter into one or more relationships
with third parties to provide the following services, which may be
co-branded or private label auction services: (i) reverse
auctions, (ii) Auction Services involving rare and authenticated
goods and (iii) merchant-to-person and person-to-person auction
services for its broadband service(s). In such cases, Excite will
discuss its functionality needs with FairMarket to determine if
comparable functionality will be available from FairMarket within
the time frame required by Excite. If FairMarket develops
comparable functionality within such time frame, Excite will
consider the FairMarket offering, but is free to select either
FairMarket or a third party, although Excite agrees to view
FairMarket as the "incumbent" in such circumstances.
c) In the event that Excite wishes to offer its users co-branded
person-to-person or co-branded merchant-to-person auction services
or functionality, which are not provided by the Co-Branded Site,
Excite will notify FairMarket of its intention to provide such
services. If FairMarket is unable to provide such services within
ninety (90) days, Excite may, in its sole discretion, form one or
more relationships with any third parties for the provision of
such services.
d) The parties acknowledge that Excite has and will form
relationships with third parties for the provision of private
label or co-branded services not primarily focused on
person-to-person or merchant-to-consumer auctions. In some cases,
such private label or co-branded service(s) may include a
person-to-person or merchant-to-consumer auction component related
to the specific service or category offered. Such relationships
are not focused on person-to-person or merchant-to-person auctions
and therefore will be excluded from the restriction described in
Section 5.a.
e) FairMarket shall promote Excite's participation as a partner in
its private label program in ongoing press materials, and in
marketing collateral related to such program; provided that all
uses of Excite Marks in marketing and promotional materials shall
require the prior review and approval of Excite.
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CONFIDENTIAL
f) FairMarket will not develop or promote a proprietary Auction
Services or Classified Advertising Services destination site,
including any site under the FairMarket, or any other name, at any
time during the Term. All links on the FairMarket site referencing
a live auction or classifieds service shall link to the Co-Branded
Site or other FairMarket third-party partner site. Following the
first anniversary of the Effective Date, FairMarket shall have the
option to develop and promote a proprietary Auction Services or
Classified Advertising Services destination site if the total
visits to the Co-Branded Site falls below 3 million visits in any
3-month period.
g) Excite will promote the Co-Branded Site to the merchant customers
of its retail shopping service. FairMarket will use its best
efforts to relate its auction and classifieds category hierarchy,
per Excite's direction, to the category hierarchy presented in
Excite's retail shopping service, to enable Excite's merchant
customers to distribute product listings through both services via
a single or parallel data feed.
h) FairMarket, at its sole discretion, may refer its merchant
customers seeking a retail shopping distribution partnership to
the Excite Shopping Service ("ESS"). FairMarket will not promote
ESS to its merchant customers any less that it promotes any
similar third party online retail shopping service with comparable
revenue-sharing arrangements.
i) Excite shall promote Excite's participation as a partner in the
FairMarket Network in ongoing press materials for the Excite
Auctions service, and in printed marketing collateral for the
Excite Auctions service; provided that all uses of FairMarket
Marks in marketing and promotional materials shall require the
prior review and approval of FairMarket.
6. TERM
a) The Term of the Agreement shall begin on the Effective Date and
will continue for five (5) years.
b) Following the initial term, the Agreement will automatically renew
for twelve (12) month terms until cancelled in writing by either
party at least thirty (30) days prior to the end of the
then-current term. In renewal terms, neither the traffic
guarantees by Excite or revenue guarantees from FairMarket shall
apply. All other financial arrangements will carry forward unless
the parties agree otherwise prior to any renewal.
7. TERMINATION
a) Either party may terminate this Agreement if the other party
breaches any material obligation hereunder and such breach remains
uncured for thirty (30) days following the receipt of written
notice to the breaching party of the breach and the notifying
party's intention to terminate.
b) Notwithstanding the provisions set forth in 7.a) above, Excite
shall have the following termination rights:
i. In the event of three or more unplanned outages (each for a
period of fifteen (15) minutes or longer and each in a
separate 24-hour period) of the Co-Branded Site in any
thirty (30) day period, or in the event of one or more
major unplanned outage (for a period of five (5) hours or
longer) of the Co-Branded Site in any thirty (30) day
period, Excite may immediately terminate the Agreement
without notice and without a cure period.
ii. If the quality of the Co-Branded Site and FairMarket
Auction Services are not at least comparable to any other
auction service on the Internet, based on ranking by a
cross-section of third party reviewers (to be recommended
by Excite and approved by
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FairMarket, such approval not to be unreasonably withheld)
in terms of features and functionality including user
interface, product services, accessibility and reliability
(the "Default Standard"), Excite shall notify FairMarket in
writing, and FairMarket shall use its best efforts to bring
the Co-Branded Site and FairMarket Auction Services to the
Default Standard. If Excite determines that FairMarket has
not met the Default Standard within sixty (60) days
following such notification, Excite will no longer be bound
to the placement requirements outlined in Section 1.d. or
the relationship restrictions defined in Section 5.a.
iii. In the event that any undisputed Auction Services Provider
payment to Excite remains unpaid after it is due, Excite
shall notify Auction Services Provider of such delinquency
and Excite's intention to terminate, and Auction Services
Provider shall have five (5) business days to cure, after
which, if any portion remains unpaid, Excite may
immediately terminate this Agreement without further notice
and without a cure period.
iv. During the term of the Agreement, in the event that an
Excite Named Competitor acquires FairMarket, or merges with
FairMarket or acquires control of all or substantially all
of FairMarket's assets, Excite may terminate the Agreement
by providing ninety (90) days written notice within ninety
(90) days of Excite's notification of such merger or
acquisition. Should Excite choose not to terminate the
Agreement during this period, FairMarket will continue to
provide Excite with a level of service, which is, at a
minimum, consistent with that level of service provided to
Excite up to the point of such merger or acquisition.
c) Upon termination of this Agreement, Excite and the Excite Network
shall immediately discontinue all use of the Co-Branded Site and
return to Auction Services Provider, or destroy, all intellectual
property belonging to Auction Services Provider.
d) All payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within thirty
(30) days of such termination or expiration.
e) The provisions of Section 11 (Confidentiality), Section 12
(Warranty and Indemnity), Section 13 (Limitation of Liability) and
Section 14 (Dispute Resolution) shall survive any termination or
expiration of the Agreement.
8. USAGE REPORTS AND USER DATA
a) In addition to the usage reports made available to Excite via the
Administrative Module (as defined in Exhibit A), FairMarket will
provide weekly and monthly usage reports as detailed in Exhibit C
("Usage Reports").
b) For the purpose of this Agreement, "User Data" shall mean all
information submitted by a user of the Co-Branded Site ("User") to
either party to this Agreement. "Individually Identifiable User
Data" shall mean data which can be reasonably used to identify a
specific individual such as their name, address, phone number,
etc.
c) Both parties acknowledge that any individual user of the Internet
could be a customer of Excite, Inc. and/or Auction Services
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.
d) Excite shall retain all rights to any User Data obtained through
this Agreement. Excite will have full access to all User Data via
the Administrative Module (as defined in Exhibit A). Upon
expiration or termination of the Agreement, FairMarket will
provide to Excite any User Data not available to Excite at the
time of such termination or expiration; such User Data will be
provided in an electronic format to be agreed upon by the parties
and will be provided to Excite within thirty (30) days following
such termination or expiration.
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e) During the Term, Excite hereby grants FairMarket a limited license
to aggregate and use the User Data only as follows. In the case of
User submitted listings, Excite grants FairMarket the right to
aggregate and distribute such listings across the FairMarket
Network. Excite agrees that FairMarket shall be able to utilize
aggregate information for the purposes of improving the Co-Branded
Site. FairMarket may utilize, at its sole discretion, aggregated
data from the Co-Branded Site when aggregated with data from
FairMarket's other customers.
f) 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, Auction
Services 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.
9. SERVICE OWNERSHIP AND LICENSE
Auction Services Provider will retain all right, title and interest in
and to its service worldwide (including, but not limited to, ownership
of all copyrights and other intellectual property rights therein).
During the term of this Agreement, and subject to the terms and
conditions of this Agreement, Auction Services Provider hereby grants
to Excite a royalty-free, non-exclusive, worldwide license to use,
distribute, transmit and publicly display the Co-Branded Site in
accordance with this Agreement and to sub-license the Co-Branded Site
to Excite's wholly-owned subsidiaries or joint ventures in which Excite
participates for the sole purpose of using, distributing, transmitting
and publicly displaying the Co-Branded Site in accordance with this
Agreement.
10. TRADEMARK OWNERSHIP AND LICENSE
a) Auction Services 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 hereunder.
b) Excite 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 Auction Services Provider
hereunder.
c) Each party ("Licensor") hereby grants to the other a
non-exclusive, limited license to use Licensor's trademarks,
service marks or trade names only as specifically described in
this Agreement. All such use shall be in accordance with
Licensor's reasonable policies regarding advertising and
trademark usage, as shall be established or changed from time
to time, in each party's sole discretion.
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.
11. 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
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or designated by such party as "confidential" or
"proprietary"; or information 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 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.
12. WARRANTY AND INDEMNITY
a) Each of FairMarket and Excite warrants that it owns, or has
obtained all necessary rights to distribute and make available
as specified in this Agreement, any and all information,
service or content provided to the other party or made
available to third parties in connection with this Agreement,
including without limitation in the case of FairMarket, the
FairMarket Auction Service(s).
b) Auction Services Provider warrants that the Co-Branded Site
will comply with the description and technical specifications
as contemplated by this Agreement and all Exhibits. FairMarket
represents and warrants that the Co-Branded Site, the
FairMarket Auction Services and or any other software or
content supplied by FairMarket hereunder is designed to be
used prior to, during and after the calendar year 2000 A.D.,
and that the software will operate during each such time
period without error relating to date data.
c) Each of FairMarket and Excite will indemnify, defend and hold
harmless the other party, 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, reasonable attorneys fees) arising from:
i) The breach of any warranty, representation or
covenant by FairMarket or Excite, as applicable, in
this Agreement; or
ii) Any claim that the Co-Branded Site or any all
information, service or content provided to Excite or
FairMarket, as applicable or made available to third
parties by FairMarket or Excite, as applicable, in
connection with this Agreement infringes or violates
any third party's copyright, patent, trade secret,
trademark, right of publicity or right of privacy or
contains any defamatory content.
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A party seeking indemnification hereunder will promptly notify
the other party of any and all such claims and will reasonably
cooperate with such other party in 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 the indemnified
party in any way and such obligation, liability, prejudice or
impact can reasonably be expected to be material, then such
settlement shall require the indemnified party's written
consent (not to be unreasonably withheld or delayed) and the
indemnified party may, at its sole cost and expense, have its
own counsel in attendance at all proceedings and substantive
negotiations relating to such claim.
d) EXCEPT AS SPECIFIED IN THIS AGREEMENT, INCLUDING ALL EXHIBITS,
NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE
SUBJECT MATTER OF THIS AGREEMENT AND HEREBY SPECIFICALLY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.
13. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 11.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 A PARTY 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
THE OTHER PARTY TO SUCH PARTY HEREUNDER.
14. 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 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 has its principal
place of business.
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 has its
principal place of business.
15. 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
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CONFIDENTIAL
will be required in connection with a merger, reorganization
or sale of all, or substantially all, of such party's capital
stock or 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 FairMarket.
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 caused by any occurrence
beyond the reasonable control of such party including, but not
limited to, acts of God, power outages and governmental
restrictions will not be considered a breach of this Agreement
and such performance will be excused for the number of days
such occurrence reasonably prevents performance, but in no
case will such excuse extend beyond six (6) months.
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.
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.
Excite, Inc. FairMarket, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel and Title: CEO
Secretary
Date: 8/23/99 Date: 8/23/99
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