1
EXHIBIT 10.23
* Confidential Treatment Requested Under
17 C.F.R. Section 200.80(b)4),
200.83 and 230.406
[MP3 LETTERHEAD]
This ("Agreement") is made and entered into February 18,
1999 ("Effective Date"), by and between Xing Technology, Inc., located at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("Xing") and ▇▇▇.▇▇▇, Inc.,
having an address at ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("▇▇▇.▇▇▇").
▇▇▇.▇▇▇ owns and operates the website located at ▇▇▇.▇▇▇.▇▇▇ (the "Website").
1. Form of Sponsorship. During the term of this Agreement ▇▇▇.▇▇▇ shall
include the Xing Technology product Audiocatalyst (or other single Xing
product of Xing's choosing) on "The Best" pages for "Encoders", "CD
Rippers" and when a new product is available the "Players" and "All In One"
sections for both Windows and Macintosh users.
2. [***]. The product featuring a screenshot, promotional paragraph and rating
shall appear at the beginning of the "The Best" products listed. In the
event that [***] then [***]. In the event that [***], the product shall
remain on the pages and the terms of this contract shall still remain in
full force.
3. Sponsor Fees. Xing Technology agrees to pay ▇▇▇.▇▇▇, during the term of
this Agreement, as follows: (i) [***] payable on the Effective Date; (ii)
[***] payable on or before one month subsequent to the Effective Date;
(iii) [***] payable on or before two months subsequent to the Effective
Date; (iv) [***] payable on or before three months subsequent to the
Effective Date; (v) [***] payable on or before four months subsequent to
the Effective Date; (vi) [***] payable on or before five months subsequent
to the Effective Date; (vii) [***] payable on or before six months
subsequent to the Effective Date; (viii) [***] payable on or before seven
months subsequent to the Effective Date; (ix) [***] payable on or before
eight months subsequent to the Effective Date; (x) [***] payable on or
before nine months subsequent to the Effective Date; (xi) [***] payable
on or before ten months subsequent to the Effective Date; [***] payable
on or before eleven months subsequent to the Effective Date. Any late
payments under this Agreement will be assessed a service fee of one and
one-half percent (1.5%) per month, to the extent allowed by law.
4. Impressions. ▇▇▇.▇▇▇ agrees to deliver a guaranteed minimum of [***]
Impressions during the first thirty (30) days. Thereafter, the number of
impressions delivered will increase at the rate of [***] impressions per
month for the term of this Agreement. The Impressions shall be delivered at
the rate of [***] per 1,000 impressions. An "Impression" is defined as the
display of the Xing banner to a user on the ▇▇▇.▇▇▇ site.
* CONFIDENTIAL TREATMENT REQUEST(ED)
2
5. Impression Fees. Xing Technology agrees to pay ▇▇▇.▇▇▇, during the term of
this Agreement, as follows: (i) [***] payable on the Effective Date; (ii)
[***] payable on or before one month subsequent to the Effective Date;
(iii) [***] payable on or before two months subsequent to the Effective
Date; (iv) [***] payable on or before three months subsequent to the
Effective Date; (v) [***] payable on or before four months subsequent to
the Effective Date; (vi) [***] payable on or before five months subsequent
to the Effective Date; (vii) [***] payable on or before six months
subsequent to the Effective Date; (viii) [***] payable on or before seven
months subsequent to the Effective Date; (ix) [***] payable on or before
eight months subsequent to the Effective Date; (x) [***] payable on or
before nine months subsequent to the Effective Date; (xi) [***] payable on
or before ten months subsequent to the Effective Date; [***] payable on or
before eleven months subsequent to the Effective Date; Any late payments
under this Agreement will be assessed a service fee of one and one-half
percent (1.5%) per month, to the extent allowed by law. If ▇▇▇.▇▇▇ fails to
deliver the required number of Impressions in any given period, Xing has
the option of either receiving additional Impressions in a subsequent
period to make good for the Impressions not delivered or to pay for only
those Impressions delivered.
6. Term and Termination. This Agreement shall commence on the Effective Date
and shall remain in full force and effect until 12 months subsequent to the
Effective Date.
7. Measurement. Upon request Xing shall have access to pertinent statistics
related to Impressions covering the period of this contract. Xing agrees to
accept ▇▇▇.▇▇▇'s measurement of Impressions according to ▇▇▇.▇▇▇'s logs and
other tracking devices and/or software ▇▇▇.▇▇▇ may use.
8. Representations and Warranties. Xing is solely responsible for any legal
liability arising out of or relating to the content of the software or
banner and any material to which users can link through the software or
banner. Xing represents and warrants that the software or banner will not:
(i) infringe of any third party's copyright, patent, trademark, trade
secret or other proprietary rights or rights of publicity or privacy; (ii)
violate any law, statute, ordinance or regulation, including without
limitation any laws regarding unfair competition, antidiscrimination or
false advertising; (iii) be pornographic or obscene; (iv) be defamatory or
trade libelous; or (v) contain viruses other harmful programming routines.
Xing agrees to defend, indemnify and hold harmless ▇▇▇.▇▇▇ and its
directors, officers, agents and employees for any and all losses, costs,
liabilities or expenses (including without limitation reasonable attorneys'
and expert witnesses' fees) incurred or arising from: (a) any breach of the
foregoing representations or warranties; (b) any claim arising from the
sale of license of Ticket's goods or services; or (c) any other act,
omission or representation by Xing. ▇▇▇.▇▇▇ may participate in the defense
at its option and expense.
9. No Consequential Damages. Except for claims arising under section 6, in no
event will either party be liable for any special, indirect, incidental or
consequential damages.
* CONFIDENTIAL TREATMENT REQUEST(ED)
3
10. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflict of law principles thereof. Any claim arising out of or related to
this Agreement must be brought exclusively in the state or federal courts
located in San Diego County, California, and each party hereby consent to
the jurisdiction thereof. In any action to enforce this Agreement the
prevailing party will be entitled to costs and attorneys' fees. This
Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior discussions,
documents, agreements and prior course of dealing, and shall not be
effective until signed by both parties. This Agreement may not be assigned
by Xing without ▇▇▇.▇▇▇'s written consent, which shall be promptly granted
or denied and not unreasonably withheld. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is created by this Agreement.
11. Page Targeting. In the event that ▇▇▇.▇▇▇ implements the ability to target
as to specific pages on the site such as Software, Hardware, Encoders
etc., then Xing shall have the opportunity to [***] under this contract on
those pages [***]. The monthly impression fees [***] however the number of
impressions are to be [***] to be determined at that time. The [***] will
not exceed [***]. If Xing chooses to not [***], Xing's impressions will be
randomly distributed on the remaining unsold pages at the current rate of
[***] per thousand impressions.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------- --------------------------
Representative of ▇▇▇.▇▇▇ Representative of Xing
▇▇▇▇ ▇▇▇▇▇▇ - VP-Sales ▇▇▇▇ ▇▇▇▇▇▇, CFO
-------------------------- --------------------------
Printed Name & Position Printed Name & Position
2-18-99 2-18-99
-------------------------- --------------------------
Date Date
* Confidential Treatment Requested.