Exhibit 10.24
(EXECUTION VERSION)
LICENSE AND SERVICES AGREEMENT
BETWEEN
TICKETMASTER ONLINE-CITYSEARCH, INC.
AND
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
THIS AGREEMENT (the "Agreement") is entered into as of April 6, 2000
("COMMENCEMENT DATE"), by and between Ticketmaster Online-CitySearch, Inc., a
Delaware corporation and having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("TMCS"), and ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
corporation organized and existing under the laws of Japan and having its
principal offices at ▇-▇ ▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
("PARTNER") (collectively, "PARTIES" or individually, a "PARTY").
WHEREAS, TMCS is a leading provider of locally-relevant online information
and transaction services related to going out and getting things done, and
for that purpose has developed a variety of proprietary business practices
and supporting technologies;
WHEREAS, PARTNER is a newly formed company formed for, among other things, a
purpose of exploiting the intellectual property and certain technologies
discussed herein and thereby conducting certain businesses;
WHEREAS, PARTNER has advised TMCS that PARTNER was incorporated by Kadokawa
Shoten Publishing Co., LTD.("KADOKAWA"), a Japanese company engaged, among
other things, in the publishing business as its wholly owned subsidiary , and
that, in accordance with the provisions of that certain Shareholders'
Agreement (the "SHAREHOLDERS' AGREEMENT") to be executed by and among
Kadokawa, TMCS and certain Japanese investors, such as Sumitomo Corporation
("SUMITOMO"), Trans Cosmos, Inc. ("TRANS COSMOS"), and JCB Co., Ltd., each a
corporation organized and existing under the laws of Japan, (each an
"INVESTOR" and collectively, the "INVESTORS"), Investors and TMCS are
intended to become shareholders of PARTNER;
WHEREAS, TMCS wishes to grant PARTNER, and PARTNER wishes to receive, among
other things, a license to use the TMCS System, as defined in Section 1.1
below, and on the terms and conditions set forth in this Agreement; and
WHEREAS, TMCS and PARTNER also desire to enter into certain content,
branding, distribution and traffic sharing arrangements in connection with
their respective online local information and transaction businesses.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth below, the Parties agree as follows:
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1. DEFINITIONS. The terms set forth below shall have the following
meanings for the purpose of this Agreement.
1.1 "BUSINESS SYSTEMS" means the TMCS proprietary methods and information
for exploiting the Technology Systems, as defined below in this
Section, to provide the Community Information Service, as defined in
Section 1.2 below and described in Appendix A, including documentation
and as updated from time to time. "TECHNOLOGY SYSTEMS" means the TMCS
Technology Systems described in Appendix A, including any
documentation, and any Upgrades, as defined in Section 1.5 below,
excluding any technology systems licensed to PARTNER directly from
third parties or which are generally commercially available. The
technological version of the database and web server used in connection
with the relevant Technology System shall be the latest version of
those generally available to Network Affiliates anywhere in the world.
"TMCS SYSTEM" means the Technology Systems and the Business Systems.
1.2 "COMMUNITY INFORMATION SERVICE" or "CIS" means the service of
providing, through the use of the TMCS System, information of interest
to residents of, and visitors to, a territory regarding such topics as
may be designated from time to time. "PARTNER COMMUNITY INFORMATION
SERVICE" or "JCIS" means the CIS created by PARTNER pursuant to this
Agreement, which shall provide information within the Territory, as
defined in Section 1.4 below, regarding such topics as the Parties
shall agree from time to time. "PARTNER CUSTOMIZATIONS" means
customizations to the TMCS System made by or on behalf of, and at the
direction of, PARTNER that alter the TMCS System for the purpose of
changing, enhancing or adding functionality to the JCIS, including
changes required to make the Technology Systems work in the Japanese
language or affecting the tag and template functionality provided by
TMCS and the Partner Development Kit, and shall not include any
content, methods, business models or ideas developed or provided by
PARTNER that do not relate to the TMCS System.
1.3 "NETWORK AFFILIATE" means any entity operating a CIS other than
PARTNER.
1.4 "TERRITORY" means the country of Japan. As between the Parties, PARTNER
reserves all rights in the Two Byte Customizations and the Non-Two Byte
Customizations both as defined in Section 10.1.1 below, including the
possibility of entering into a license agreement with respect to same
exclusively within the Territory, provided, however, that such license
agreement does not violate the confidentiality, non-competition and
territorial provisions of this Agreement, it being understood that the
Two Byte Customizations include the underlying TMCS System and cannot
be independently licensed to third parties by PARTNER outside the
Territory.
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1.5 "UPGRADES" means those enhancements or modifications, additions and
updates to the Technology Systems compatible with the unmodified TMCS
application made generally available without charge by TMCS to its
Network Affiliates. Such Upgrades may or may not include, at TMCS'
discretion, additional applications that are built on top of the
underlying CIS.
2. GRANT OF RIGHTS.
2.1 GRANT. In consideration of the payment by PARTNER of the first annual
License Fee, as defined in Section 7.1 below, and Initial Installation
and Consulting Fee, as provided in Section 7.1 below, and subject to
the terms of this Agreement, TMCS hereby grants to PARTNER during the
Term, as defined in Section 3.1 below, of this Agreement, including any
extension of the Term of this Agreement pursuant to Section 3.1 hereof,
a non-transferable license to use the TMCS System to create and operate
the JCIS, and to prepare PARTNER Customizations solely in connection
with the JCIS. PARTNER may not use the TMCS System for any purpose
outside the Territory. The Parties acknowledge that the license granted
herein does not include information or technology relating to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇ or any of the other web
sites owned or operated by TMCS. PARTNER may not sub-license the
foregoing rights except with the consent of TMCS and each shareholder
of PARTNER that holds in excess of 2% of the then issued and
outstanding shares in PARTNER. Any sub-licensee hereunder shall be
bound by Sections 1, 2, 4.1, 4.2, 4.4, 4.5, 4.6, 4.7, 6 and 8 through
24 of this Agreement, where and to the extent those Sections are
applicable to a sub-licensee hereunder, and PARTNER and any
sub-licensee hereunder shall be jointly and severally liable for
breaches by any sub-licensee. Notwithstanding the foregoing, PARTNER
shall have no rights to sub-license the foregoing rights to any entity
in which a Competitor (as defined in Section 11 below) has any equity
interest.
2.2 EXCLUSIVITY. The rights granted herein from TMCS to PARTNER are
exclusive with respect to the TMCS System in the Territory, during the
Term, including any extended period of the Term if this Agreement is
renewed pursuant to Section 3.1 herein, provided that in the event that
PARTNER breaches Section 4.3 of this Agreement, PARTNER will forfeit
the exclusivity granted to PARTNER.
3. TERM AND OPTION TO RENEW.
3.1 AGREEMENT TERM. The initial term of this Agreement shall begin on the
Commencement Date and continue until five (5) years after the date of
the Launch, as defined in Section 4.3 below, of the first city/region
in the Territory unless earlier terminated as provided in this
Agreement ("TERM"). The Term shall automatically renew for one two (2)
year increment unless PARTNER gives TMCS notice, at least ninety (90)
days prior to the expiration of the Term, that the Term will not be
renewed. In the event that the Term renews,
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PARTNER will pay TMCS a renewal license fee of One Million Dollars
(US$1,000,000) for the two year renewal term, which fee will be due
within ten business days of the renewal date. Upon the expiration of
the first renewal of the Term, the Parties agree to negotiate in good
faith toward one or more further extensions of the Term.
4. OBLIGATIONS OF PARTNER.
4.1 CREATION AND OPERATION OF SITE. At no charge to TMCS, PARTNER agrees to
create the JCIS, including, without limitation, making such
modifications as PARTNER believes are required to cause the Technology
Systems to function in accordance with TMCS' standards when used with
the Japanese language. TMCS shall render assistance to PARTNER as
provided in Section 5 of this Agreement. After the Launch (as defined
in Section 4.3 below), PARTNER shall exercise commercially reasonable
efforts to operate the JCIS twenty-four (24) hours each day, seven (7)
days each week, except for limited periods required for servicing.
PARTNER shall adhere to the operating obligations described in Appendix
C. PARTNER shall be solely responsible for acquisition and/or creation,
update and management of content for the JCIS in the Territory.
4.2 CO-BRANDING. PARTNER shall co-brand the JCIS with the name, logos,
trademarks and other proprietary material ("MARKS") that are provided
by TMCS together with the phrase, "part of the TMCS network" or similar
wording as such phrase may be changed by TMCS over time. Such co-brand
shall be contained on the home page and on each section home page of
such JCIS, and the TMCS Marks shall appear above-the-fold and be
reasonable in appearance on each such page.
4.3 LAUNCH. Subject to the terms of this Agreement, PARTNER agrees to use
its best efforts to make the JCIS available to the public via the World
Wide Web on the Internet ("LAUNCH") in at least one city/region in the
Territory by October 31, 2000.
4.4 PRELAUNCH OBLIGATIONS. In preparation for and prior to Launch, PARTNER
shall, at its expense:
4.4.1 Designate and train appropriate management and technical personnel, as
agreed to by both Parties, to complete its responsibilities according
to the PARTNER Operating Obligations attached as Appendix C.
4.4.2 Provide its personnel with reasonably sufficient resources to use the
TMCS System.
4.4.3 Send its staff to TMCS' offices for training on a schedule as mutually
agreed to by the Parties. This training will be free of charge, with
the exception of
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travel, lodging and entertainment expenses for PARTNER attendees,
which will be PARTNER's responsibility.
4.4.4 Provide TMCS with remote login access to diagnose problems and to
support and maintain the JCIS.
4.5 PROMOTION. PARTNER shall, and shall use its best efforts to cause each
of the Investors to, diligently promote the JCIS using their respective
traditional commercial assets in the Territory.
4.6 THIRD PARTY HARDWARE AND SOFTWARE. At no cost to TMCS, PARTNER shall
acquire all third party hardware and software (including licenses,
support or upgrades) required to operate the TMCS System that are not
included in the Technology Systems. When feasible and as available,
TMCS shall, upon PARTNER's request, assist PARTNER in obtaining and
executing license(s) for such hardware or software on more favorable
terms than are otherwise available to PARTNER, with no additional cost
due to TMCS' involvement.
4.7 KEY PERFORMANCE INDICATOR AND BEST BUSINESS PRACTICES. Subject to any
applicable confidentiality or non-disclosure obligations, PARTNER may
choose to share with TMCS and the other Network Affiliates its best
practices relating to the Launch and operation of the JCIS, including
key performance indicator information similar to the data requested in
Appendix E within twenty (20) calendar days of the end of each month
end. PARTNER acknowledges that it will only be entitled to share the
best practices and other key performance indicator information of TMCS
and the other Network Affiliates to the extent that it shares its own
such information.
5. OBLIGATIONS OF TMCS.
5.1 TMCS SERVICES. TMCS shall create and provide PARTNER with a detailed
Launch plan for the JCIS and also provide PARTNER with initial
installation assistance (timing of delivery is outlined in Appendix B),
Upgrade installation assistance, consulting services, technical advice
and other services associated with installing, upgrading and
maintaining the TMCS System. PARTNER acknowledges that such
installation, upgrades, services and advice will relate to the version
of the Technology Systems designed to function in the English language
and that PARTNER will be solely responsible for performing those
PARTNER Customizations to make the Technology Systems work with the
Japanese language, in accordance with TMCS's standards. TMCS shall
advise and consult with PARTNER from time to time as to the scope of
consulting, installation, training and other services necessary or
desirable for the creation, improvement, maintenance, operation and
promotion of the JCIS, and shall perform only those services requested
in advance by PARTNER. TMCS shall provide PARTNER with the creation of
the aforesaid Launch plan, training of PARTNER staff as provided in
Section 4.4.3 and all reasonable Launch-related
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assistance at no additional cost to PARTNER through the earlier of the
Launch of the JCIS in the first city/region in the Territory or October
31, 2000. Thereafter, such services shall be provided by TMCS at the
rates set forth in Appendix D hereto, except as otherwise provided
herein; provided however that in the event that the delay in Launching
the JCIS after October 31, 2000 is caused by TMCS, PARTNER will not be
obligated to pay TMCS for such services until after the Launch of the
JCIS in at least one city/region in the Territory.
5.2 UPGRADES. As provided in Section 5.1 above, TMCS shall assist in the
installation and implementation of Upgrades as requested by PARTNER and
as reasonably necessary. PARTNER agrees to accept and install all
Upgrades, provided, however, that this shall not be applicable in the
event that PARTNER finds technical difficulties. Unless explicitly
stated to the contrary, fees paid by PARTNER in accordance with Section
7.2 do not include the costs of any third party equipment or third
party software necessary for compatibility with the Upgrades or any
PARTNER Customizations necessary to make the Upgrades work with the
Japanese language. The lists of such third party equipment and third
party software will be attached to this Agreement as an amendment after
they have been agreed to by the Parties. TMCS will provide the Upgrades
to PARTNER and provide a reasonable amount of training and support to
PARTNER to install the Upgrades. All costs of such installation, along
with customization of any other portions of the PARTNER's system to
work with the Upgrades (such as further Two Byte Customizations) will
be borne by PARTNER and not TMCS.
5.3 EFFECT OF PARTNER CUSTOMIZATIONS. PARTNER acknowledges that PARTNER
Customizations may make it more difficult to integrate Upgrades to the
TMCS Technology Systems. PARTNER shall be responsible for any
additional costs incurred by TMCS in performing Upgrades due to the
PARTNER Customizations.
5.4 SUPPORT. TMCS is not obligated to maintain any portions of the TMCS
System replaced by Upgrades after the date six (6) months following the
provision of such Upgrade to PARTNER. TMCS shall provide PARTNER with
Upgrades, provided, however, that TMCS shall so provide PARTNER with
Upgrades only after TMCS has released and reasonably tested such
Upgrades in its owned and operated markets.
5.5 PROMOTION. TMCS shall promote the JCIS online by inclusion of each
Launched JCIS city on the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ home page
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇) and by inclusion thereof in other TMCS city
guide offerings, subject to approval of local editors.
5.6 HOSTING AND SUPPORT SERVICES. PARTNER shall host, design, produce,
▇▇▇▇, and provide customer service and maintenance services for the
JCIS, and
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assume all costs related to such services. To the extent that
PARTNER requests consulting assistance from TMCS for these items in
excess of the normal assistance rendered by TMCS to a Network Affiliate
after the Launch of the JCIS in the first city/region in the Territory,
and unless otherwise provided herein, PARTNER shall pay TMCS for such
services at the rates set forth in Appendix D.
5.7 REMEDY OF DEFECTS. Upon request from PARTNER made within one year of
TMCS's installation of TMCS System or system element thereof or
Upgrades, TMCS shall, within two business days, and at its own cost,
analyze any material failure (a "DEFECT") of the Technology Systems in
conformance with the specifications set forth in Appendix A, where such
Defect has a material effect upon any aspect of the operation of the
JCIS. Thereafter, as soon after receipt of the above request from
PARTNER as is commercially reasonably possible, TMCS shall at its own
cost resolve the Defect or create a suitable fix or workaround. The
provisions herein constitute PARTNER's sole remedy in the event of a
Defect if the Defect is corrected or a commercially reasonable
workaround is made available within 90 days of the date TMCS received
notice of the Defect. If the Defect is not corrected or a suitable
workaround made available within 90 days of the date TMCS receives
notice of the Defect, then PARTNER may terminate this Agreement. Upon
such termination, the provisions of Section 8.4 will apply. In
particular, PARTNER will have no rights to recover anything other than
direct damages as a result of such termination and the provisions of
Section 9.6 will apply. Such termination shall not release either Party
from its obligations which were incurred prior to such termination. The
Parties acknowledge that the specifications in Appendix A may be
amended from time to time by agreement of the Parties.
5.8 EXCLUSIONS. TMCS's obligations under this Agreement, including, without
limitation, Section 5.7 above, shall not extend to problems or
obligations that result from the following: (i) PARTNER 's failure to
implement all releases and Upgrades to the Technology Systems that are
provided to PARTNER by TMCS pursuant to Section 5.4 above; (ii) changes
to the operating system or physical, hardware or software environment
that adversely affect the Technology Systems, including, without
limitation, PARTNER Customizations, other than those made, directed,
suggested or advised by TMCS; (iii) any alterations of or additions to
the Technology Systems other than those made, directed, suggested or
advised by TMCS in the case of services, or those made, directed,
suggested or advised by TMCS in the case of products, including,
without limitation, PARTNER Customizations and any interface between
the PARTNER Customizations and the Technology Systems; (iv) misuse of
the Technology Systems by Parties other than TMCS and those acting
under the direction of TMCS; (v) use of the Technology Systems in
conjunction with products not supplied or approved by TMCS; or (vi) any
software or hardware not provided by TMCS.
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5.9 SOURCE CODE. Within five (5) days after payment of the Initial
Installation and Consulting Fee and the initial portion of the License
Fee under Section 7.1 below, TMCS shall deliver the source code to the
CIS Technology Systems and any related information as PARTNER
reasonably requires to PARTNER and will schedule initial training in
same with PARTNER. PARTNER shall use such source code for the sole
purpose of creating, improving, maintaining and operating the JCIS
under this Agreement and shall treat it as Confidential Information in
accordance with Section 12 hereof.
5.10 KEY PERFORMANCE INDICATOR AND BEST BUSINESS PRACTICES. Provided PARTNER
has supplied TMCS with the requisite information, and subject to
Section 4.7 above, TMCS shall inform PARTNER as requested by PARTNER
from time to time of PARTNER's performance relative to the key
performance indicators for all Network Affiliates, including TMCS owned
and operated services, provided that such information is then
available. TMCS also agrees to share its best practices relating to CIS
with PARTNER at no additional cost to PARTNER, subject to any
applicable confidentiality or non-disclosure obligations and subject
further to Section 4.7 above.
6. OTHER OBLIGATIONS OF THE PARTIES.
6.1 LINKING. Each Party agrees to consent (and TMCS agrees to use
commercially reasonable efforts to cause its Network Affiliates to
consent) to reasonable and appropriate links to designated pages on its
site from the other Party's web site, or Network Affiliates' web sites.
The JCIS shall include prominent hypertext links and TMCS icons "above
the fold" on the entry page, area, topic and keyword pages within the
JCIS and less prominent hypertext links and TMCS icons "above the fold"
on all other pages within the JCIS. PARTNER shall provide and maintain
hypertext links to the TMCS home page and TMCS icons on other pages
within the JCIS as the Parties may agree.
6.2 DELAY IN PERFORMANCE. Each Party acknowledges that any delay in the
performance of its obligations is likely to cause delay in the
performance by the other Party of its obligations. Neither Party will
be in default of its obligations under this Agreement to the extent
that such Party's act or omission is caused by delay of the other
Party.
6.3 REFERRALS. TMCS shall refer to PARTNER any inquiries that it receives
relating to advertising and the supply of goods or services by means of
the TMCS System, inside the Territory. PARTNER shall refer to TMCS any
inquiries PARTNER receives with respect to advertising, and the supply
of goods or services on the TMCS network outside of the Territory.
6.4 INTERFACE COMPATIBILITY. The Parties agree that the JCIS shall in
general have an overall interface and functionality that is not
confusing to typical TMCS
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users entering the JCIS; subject to differences required or appropriate
relating to differences between American and Japanese cultures, the use
of Japanese scripts such as Kanji instead of or in addition to Roman
characters. PARTNER agrees to maintain an interface in the JCIS that
preserves in general the major functional elements in similar relative
positions and sizes to those elements located within the TMCS service,
provided, however, that this will subject to the contents provided,
from time to time, from shareholders of PARTNER to PARTNER.
Additionally, the JCIS is expected to contain similar content
categories as most of the CIS, including categories which may be based
upon local restaurants and bars, movies, music, the arts, sports,
shopping and visitor information and services. If the Parties dispute
the evolution of their respective interfaces, they agree to meet and
confer to address reasonable concerns of either Party, and to make
commercially reasonable efforts to accommodate such concerns, subject
to the differences in cultures and written language.
6.5 USER REGISTRATION DATABASE. Subject to the JCIS Privacy Policy jointly
established by TMCS and PARTNER, PARTNER shall provide TMCS with
aggregate information on its users collected by the JCIS through
"personalization," subscription or other online user registration
services.
6.6 CONTENT, BRANDING, DISTRIBUTION AND TRAFFIC SHARING ARRANGEMENTS.
Subject to any applicable confidentiality or non-disclosure
obligations, each Party shall, upon the request of the other Party,
enter into content, branding, distribution and/or traffic sharing
arrangements with such other Party on terms and conditions negotiated
by the Parties in good faith with due regard to customary industry
practice.
6.7 ▇▇▇▇▇.▇▇▇. PARTNER may, in its sole discretion, agree to distribute
TMCS' ▇▇▇▇▇.▇▇▇ online matchmaking service on the JCIS in a manner
mutually acceptable to the Parties, but which will include at least one
above the fold ▇▇▇▇▇.▇▇▇ logo which will be linked to a ▇▇▇▇▇.▇▇▇ home
page designed for the Japanese market. In addition, PARTNER may, in its
sole discretion, include prominent links to ▇▇▇▇▇.▇▇▇ in the JCIS in
contextually relevant areas of the site. If PARTNER chooses to so
participate, TMCS will host and maintain a special co-branded version
of the ▇▇▇▇▇.▇▇▇ matchmaking service and a separate Japanese data base
to which users will link from the JCIS. In exchange for this placement
on the JCIS, TMCS shall pay to PARTNER 30% of the subscription revenues
collected by TMCS from matchmaking subscriptions generated by users
directed to the co-branded version of the ▇▇▇▇▇.▇▇▇ site from the JCIS.
7. FEES AND PAYMENTS.
7.1 LICENSE FEE. In consideration of the initial delivery of Technology
Systems and Business Systems and the continued exclusivity in favor of
PARTNER in the Territory for the Term, PARTNER agrees to pay TMCS a
"License Fee" in the amount of Five Million Dollars (US$5,000,000) in
total in five (5) annual installments of One Million Dollars
(US$1,000,000) each. The first installment
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payment of One Million Dollar (US$1,000,000) shall be payable within
seven days after this Agreement is executed and each of the other four
US$1,000,000 installment payments shall be payable on each anniversary
of the earlier to occur of (i) thirty (30) days after Launch of the
first city/region in the Territory or (ii) October 31, 2000. Each of
these installment payments will become non-refundable upon payment to
TMCS.
In consideration of the obligations of TMCS to provide PARTNER with
initial installation of the TMCS System and training and consulting in
connection with PARTNER's Launch of the first city/region in the
Territory, PARTNER agrees to pay TMCS a one time, non-refundable
"Initial Installation and Consulting Fee" of (Y)333,333,333 payable
within seven days after this Agreement is executed.
7.2 CONSULTING SERVICE FEES, MATERIALS AND EXPENSES. Except as explicitly
provided herein, ongoing business system transfers, technology and
business consulting services, training, participation in conferences
and teleconferences, and other technology, know-how and services as may
be necessary or desirable for PARTNER's online local information and
transaction businesses shall be billed on a time and materials basis.
Consulting fee rates are set out in Appendix D hereto. As set out in
Appendix D, such rates are subject to periodic adjustment. However,
such rates shall not be adjusted until after the first anniversary of
the date hereof at the earliest and in no event shall such rates be
adjusted by more than twenty percent (20%) per year. TMCS shall notify
PARTNER in writing of any change in such rates at least thirty (30)
days prior to the effective date of such change. All invoices and
requests for payment by TMCS shall be accompanied by appropriate
documentation. Consulting fees and materials shall be paid in U.S.
Dollars and are due within thirty (30) days of receipt of invoice.
7.3 COORDINATED ADVERTISING REVENUES. From time to time, each Party
("OFFEROR") may offer to the other Party ("OFFEREE") the opportunity to
sell advertisements for placement simultaneously on Offeror's and
Offeree's online services. In the event the Offeree places such
advertisements on its service, the Offeree shall pay the Offeror thirty
percent (30%) of gross revenues received for such advertisements, and
Offeree shall retain the remainder.
7.4 TAXES AND FREIGHT. If PARTNER shall be required to deduct any
withholding taxes imposed on any payments owed to TMCS hereunder,
PARTNER may deduct such taxes from the amount owed to TMCS and will
furnish TMCS tax receipts certifying the fact that those withholding
taxes have been paid for the purpose of TMCS's use in the U. S. for tax
purposes. PARTNER shall indemnify and hold TMCS harmless from any taxes
and duties, including any Japanese consumption tax but not including
any Japanese withholding tax that may be due from time to time, as may
be levied upon TMCS for goods and services provided under this
Agreement in accordance with applicable Japanese
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tax laws. PARTNER shall pay to TMCS the cost of all media, insurance,
freight and delivery charges reasonably incurred in connection with the
supply of any goods or services to PARTNER under this Agreement.
7.5 OVERDUE PAYMENTS/DISPUTED PAYMENTS. Each invoice provided hereunder
will include a reconciliation of outstanding invoices and recent
payments. If either Party defaults in payment of any undisputed amount
due under this Agreement, the other Party reserves the right to charge
interest on all amounts outstanding at the rate of one and one half
percent (1.5%) per month, or the maximum rate allowed by law, whichever
is less, from the date of default until the date of payment of the
amount outstanding. If PARTNER disputes any invoiced amount, PARTNER
shall nonetheless pay the balance of the invoiced amounts other than
any such disputed amounts. PARTNER shall give written notice to TMCS of
the full reasons for dispute of the disputed amounts within thirty (30)
days of receipt of invoice.
8. DEFAULT/BREACH/TERMINATION.
8.1 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall be deemed to occur if:
(i) except as provided in (vii) below, either Party fails to fulfill or
perform any material obligation of this Agreement, including, but not
limited to Section 5.7 of this Agreement, other than an obligation to
pay money, that is not cured within sixty (60) days after receipt of
written of notice of such default; (ii) either Party is in default of
any payments, and fails to cure default within thirty (30) days of
receipt of invoice; (iii) any proceedings are commenced, voluntary or
involuntary, under any United States or Japanese bankruptcy law or
debtor's relief law; (iv) an attachment is levied in respect of
substantial debts (other than debts being contested in good faith) of a
Party; (v) either Party is liquidated or dissolved; (vi) PARTNER fails
to issue shares before June 15, 2000 in exchange for cash payments in
an amount equivalent to at least (Y)3 billion yen for such shares (if
TMCS doesn't pay its share of the capital, this alone will not be an
Event of Default); or (vii) either Party fails to cure its failure to
fulfill or perform its obligation under Section 10, 12 or 13 of this
Agreement immediately upon receipt of written notice of such failure
from the other Party. In addition, any material breach of the
Shareholders' Agreement by any party thereto other than TMCS, which
breach continues uncured for thirty (30) days, shall be deemed as an
Event of Default hereunder if such material breach affects TMCS's
rights hereunder adversely and therefore deeming such material breach
as an Event of Default would be reasonable.
8.2 TERMINATION IN EVENT OF DEFAULT. In the event that either Party is
responsible for an Event of Default, the other Party may, by giving
notice in writing while such Event of Default is continuing, terminate
this Agreement, setting out the reasons and referring to this provision
of this Agreement; provided, however, that this Section 8.2 shall not
be applicable where Section 5.7 of this Agreement is applicable and
such termination shall not release the Party responsible for an Event
of Default from making all payments then due to the other Party.
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8.3 SUSPENSION OF PERFORMANCE. In the event that either Party breaches any
material term of this Agreement, whether as to the payment of money or
otherwise, and fails to cure such default within thirty (30) days after
notice specifying such default and requesting it be corrected, the
other Party may, in addition to any other remedy it may have under this
Agreement, suspend the performance of its obligations for so long as
such default continues, and no such failure to perform shall be
considered a breach of this Agreement for so long the default remains
uncured.
8.4 RIGHTS AND DUTIES UPON EXPIRATION OR TERMINATION. PARTNER and all
sub-licensees (if any) shall cease use of the TMCS System immediately
on the effective date of any termination or expiration of this
Agreement. PARTNER shall, within ninety (90) days of the effective date
of any termination or expiration of this Agreement, return to TMCS all
originals and copies of the TMCS System or certify their destruction or
permanent erasure on the effective date of any termination or
expiration of this Agreement from PARTNER's systems. Each Party shall
immediately cease using the other Party's Marks. Notwithstanding the
foregoing provided in this Section, if this Agreement is terminated by
PARTNER in accordance with Section 8.2 upon the occurrence of a TMCS
Event of Default, or in accordance with Section 5.7, PARTNER shall be
entitled, at its option, (i) to continue to operate, use, improve and
otherwise modify the JCIS in the Territory using the TMCS System then
available to PARTNER and all PARTNER Customizations without any
obligation to pay any installments of the License Fee not due and
payable on such date of termination, but subject to all of the other
same terms and conditions of the license granted to PARTNER hereunder
and having each Party comply with all of their obligations hereunder;
provided, however, that the exclusivity granted to PARTNER under
Section 2.2 hereof and each Party's use of the other Party's Marks
shall immediately cease upon such termination or (ii) pursue any other
remedies available under this Agreement or at law.
8.5 LIQUIDATED DAMAGES. As provided above, in the Event of Default under
Section 8.1 (vi) hereof, TMCS shall be entitled to terminate this
Agreement immediately upon written notice to PARTNER with no further
obligations between the Parties hereto except that TMCS shall return to
PARTNER all funds paid by PARTNER to TMCS hereunder except for
US$1,000,000 which TMCS shall be entitled to retain as liquidated
damages from such Event of Default. The foregoing will be TMCS'
exclusive remedy in such Event of Default. IT IS ACKNOWLEDGED BY THE
PARTIES HERETO THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE,
IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY PRIOR TO
SIGNING THIS AGREEMENT, THE AMOUNT OF DAMAGES WHICH WOULD BE SUFFERED
BY TMCS IN THE EVENT OFDEFAULT UNDER SECTION 8.1 (vi) HEREOF.
THEREFORE, IN THE EVENT OF DEFAULT UNDER SECTION 8.1 (vi) HEREOF, TMCS
SHALL BE ENTITLED TO LIQUIDATED
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DAMAGES IN THE AMOUNT OF ONE MILLION DOLLARS ($1,000,000).
9. WARRANTIES AND INDEMNITIES.
9.1 STANDARD WARRANTIES. Each Party warrants and represents that: (i) it is
a corporation duly formed and validly existing, and, in the case of
TMCS, in good standing under the laws of its state and/or country of
incorporation; (ii) it has the right, power and authority to enter into
this Agreement and to perform its obligations; (iii) the execution and
delivery of this Agreement and the performance of its obligations have
been duly authorized; (iv) performance of its obligations hereunder
will not violate any applicable law or regulation or any contract,
license or other agreement to which such Party is party; and (v) its
covenants, representations and warranties in this Agreement are true
and correct.
9.2 TMCS WARRANTIES. TMCS warrants that it owns or controls the necessary
copyright, trade secret, trademark and service ▇▇▇▇ rights and title to
the TMCS System and any products or services provided by TMCS to
PARTNER (other than those which TMCS notifies PARTNER are the property
of third parties) to perform its obligations hereunder and that such
performance of its obligations or the use of the TMCS System by PARTNER
under this Agreement (and in accordance with any licensing agreements
entered into by PARTNER with any third parties providing property to
PARTNER, or to TMCS for provision to PARTNER, in connection with this
Agreement) will not violate any applicable U.S. law and/or regulation,
any Japanese law and/or regulation relating to intellectual property
rights or the proprietary or personal rights of any third party.
PARTNER's sole remedy, and TMCS's sole liability, for breach of such
warranty shall be TMCS's indemnity obligations under Section 9.5
hereof. TMCS assumes no liability for infringement claims arising from
the combination of the TMCS System with products not provided by TMCS
if the cause of such infringement claims relates only to such products
not provided by TMCS or provided by third parties to TMCS for delivery
to PARTNER. TMCS shall not be obligated to refund any portion of the
fees paid hereunder if PARTNER abandons its efforts to modify the
Technology Systems to support the Japanese language after reasonable
commercial efforts are made by PARTNER to do so; provided that in such
event PARTNER shall be released from making further payments hereunder
and shall lose its rights to exclusivity within the Territory after
TMCS receives notice of such abandonment of the effort to so modify the
Technology Systems.
9.3 NO WARRANTIES REGARDING FINANCIAL SUCCESS. Neither Party makes any
warranties nor representations, express or implied, as to the
anticipated revenue to be generated from the license of the TMCS System
hereby or the profitability of the business to be conducted under this
Agreement. Other than as expressly set forth in this Agreement, each
Party hereby disclaims all warranties with respect to any products,
services, or software provided under this Agreement, whether such
13
warranties are express or implied, oral or written, including without
limitation any and all implied warranties of merchantability, fitness
for a particular purpose, or non-infringement. TMCS makes no warranties
whatsoever regarding the Business Systems' capability of supporting the
Japanese language. PARTNER acknowledges that the Business Systems have
never been publicly used with a "two byte" language such as Japanese,
that TMCS expects the Business Systems to require extensive and
expensive modification to support Japanese and that TMCS makes no
representation or warranty that the Business Systems can be so
modified. PARTNER further agrees that TMCS shall not be obligated to
refund any portion of the fees paid hereunder if PARTNER abandons its
efforts to modify the Business Systems to support the Japanese language
after reasonable commercial efforts are made by PARTNER to do so;
provided that in such event PARTNER shall be released from making
further payments hereunder and shall lose its rights to exclusivity
within the Territory after TMCS receives notice of such abandonment of
the effort to so modify the Business Systems.
9.4 PARTNER WARRANTIES. PARTNER warrants that it or its permitted
sub-licensees will own or control the necessary copyright, trade
secret, trademark and service ▇▇▇▇ rights or any other title, as the
case may be, in and to the JCIS, PARTNER Customizations, any products
or services provided by PARTNER to TMCS, and the content on JCIS
necessary to perform its obligations hereunder. PARTNER further
represents, warrants, and covenants that its performance under this
Agreement will not violate any applicable law and/or regulation or the
proprietary or personal rights of any third party.
9.5 INDEMNITY. Each Party, at its own expense, shall defend, indemnify, and
hold harmless the other Party and/or each of its affiliates, officers
or directors from any claim, loss, debt, liability, damage, obligation,
demand, judgment, or settlement of any nature (including attorneys'
fees and costs of defending same), incurred by the other Party and/or
each of its affiliates, officers or directors, arising from or relating
to a breach of the warranties in Section 9 and Section 10 of this
Agreement provided that the indemnified Party provides the indemnifying
Party with (i) prompt notice of such claim, (ii) sole control over the
defense and (iii) proper and full information and assistance to settle
and/or defend any such claim, at the indemnifying Party's expense. The
indemnified Party may participate, at its own expense, in the defense
of any such claim.
9.6 LIMITATION OF LIABILITY. EXCEPT BY WAY OF INDEMNITY UNDER SECTION 9.5,
FOR BREACH OF THE WARRANTIES MADE IN SECTIONS 9, 10, 12 AND 13 THE
MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PURSUANT TO
THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY PARTNER TO
TMCS UNDER THIS AGREEMENT, AND NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES
ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT,
TORT,
14
OR OTHERWISE; PROVIDED HOWEVER THAT THIS SHALL NOT BE APPLICABLE
FOR ANY DAMAGES FROM INFRINGEMENT OF ANY THIRD PARTY'S INTELLECTUAL
PROPERTY RIGHT.
10. COPYRIGHT AND TRADEMARK RIGHTS.
10.1 OWNERSHIP OF INTELLECTUAL PROPERTY.
10.1.1 TMCS SYSTEM. As between the Parties, TMCS shall retain ownership of the
TMCS System, the source code for the TMCS System and all materials,
enhancements, improvements and Upgrades, except as expressly otherwise
provided herein. PARTNER shall reproduce on PARTNER Customizations all
applicable proprietary notices and legends that appear on the TMCS
System, and shall not make any grant of interest or license in the TMCS
System or any part thereof to any third party without TMCS's prior
written consent except as permitted by Section 2.1 hereof. PARTNER
agrees to disclose and provide copies of all PARTNER Customizations to
TMCS. As between the Parties, PARTNER shall retain all right, title and
interest in and to the content contained in the JCIS and the PARTNER
Customizations and all copyright, patent, proprietary information and
other intellectual property rights relating thereto. If and to the
extent permitted by the Investors and/or shareholders of PARTNER who
have certain rights in the PARTNER Customizations, TMCS shall have a
non-exclusive, non-transferable, royalty-free, perpetual license with
the right to sublicense such rights to certain PARTNER Customizations
(as defined, the "NON-TWO BYTE CUSTOMIZATIONS") to use such Non-Two
Byte Customizations outside the Territory in conjunction with or for
the TMCS System. The Non-Two Byte Customizations will consist of all
PARTNER Customizations except those which consist of, or are primarily
related to, the changes made to the TMCS System to enable it to be used
with "two byte" languages such as Japanese (the "TWO BYTE
CUSTOMIZATIONS"). If and to the extent permitted by the Investors
and/or shareholders of PARTNER who have certain rights to the PARTNER
Customizations, TMCS shall have a non-exclusive, non-transferable,
royalty-free, perpetual license without the right to sublicense such
rights to use such Two Byte Customizations outside the Territory in
conjunction with or for the TMCS System. Each Party hereby reserves any
rights not explicitly granted in this Agreement. Each Party agrees to
take all precautions to maintain control over, and the confidentiality
of, the other Party's Intellectual Property (as defined below) which it
takes with respect to its own most sensitive Intellectual Property.
PARTNER further agrees to cooperate with TMCS' efforts to stop
unauthorized uses of its Intellectual Property in the Territory.
PARTNER acknowledges that notwithstanding its agreement to provide
rights in the PARTNER Customizations to Investors and/or shareholders
of PARTNER who have created the PARTNER Customizations, no Investor or
shareholders of PARTNER will have any rights to use such PARTNER
Customizations or any other portions of the TMCS System for any purpose
outside of Japan.
15
10.1.2 JCIS CONTENT. Unless provided to PARTNER by TMCS, as between the
Parties, PARTNER shall own all right, title and interest in and to the
content in the JCIS, including all logos, copy, information, and other
content of any nature. Without limiting the generality of the
foregoing, TMCS acknowledges that one or more of the Investors and/or
shareholders of PARTNER may have certain right, title, and interest in
and to the JCIS content.
10.2 NOTICE OF INFRINGEMENT/FURTHER ASSURANCES. Each Party shall promptly
notify the other in the event that it becomes aware of any infringement
of the other Party's copyright, trademark or other intellectual
property rights embodied in materials related to the subject matter of
this Agreement (collectively, "INTELLECTUAL PROPERTY"), including the
TMCS System, the JCIS, or the PARTNER Customizations. Each Party shall
at its sole cost take all steps necessary in its discretion to protect
its Intellectual Property rights relating to this Agreement. The other
Party shall, at the first Party's expense, actively cooperate in such
proceedings as reasonably requested. At the requesting Party's sole
cost and expense, the other Party shall execute reasonable documents
necessary to secure ownership or protection of the Intellectual
Property of the requesting Party under the provisions of this
Agreement.
10.3 TRADEMARK LICENSES.
10.3.1 CROSS LICENSE. During the Term as it may be extended upon renewal
hereof pursuant to Section 3.1, TMCS grants to PARTNER the right to use
the trademarks, service marks and trade names adopted by TMCS along
with marks that TMCS may adopt from time to time ("TMCS MARKS"), solely
to place icons and links from the JCIS to the TMCS web sites and in
material conformance with TMCS policies and direction for such use.
TMCS hereby reserves all rights in the TMCS Marks not explicitly
granted in this Section 10. During the Term as it may be extended upon
renewal hereof pursuant to Section 3.1, PARTNER grants to TMCS the
right to use the trademarks, service marks, and trade names adopted by
PARTNER ("PARTNER MARKS") solely to place icons and links from the TMCS
web sites to the JCIS and in material compliance with PARTNER's
policies and direction for such use. PARTNER hereby reserves all rights
in the PARTNER Marks not explicitly granted in this Section 10. Each
Party shall execute such documents and render such assistance as may be
requested by the other Party to have such Party's rights and licenses
to use such other Party's Marks in accordance with this Section 10.3
duly registered with competent authorities.
10.3.2 APPROVAL OF TRADEMARKS. Each Party shall submit to the other all
representations of the other Party's Marks that it intends to use, for
such other Party's prior approval, which is not to be unreasonably
withheld or delayed.
10.3.3 GOODWILL IN MARKS. If either Party, in the course of performing its
services under this Agreement, or in connection with the operation of
this
16
Agreement, acquires any goodwill or reputation accruing in any of
the other Party's Marks, all such goodwill or reputation shall
automatically vest in and inure to the benefit of such other Party.
Neither Party shall challenge the validity of the other Party's
ownership of, or apply for registration for, the other Party's Marks
with the United States or Japanese Patent and Trademark Office,
InterNIC, or any other body, domestic or foreign, that registers or
adjudicates rights to names, domain names, marks, or logos.
11. ASSIGNMENT OR CHANGE OF CONTROL. Either Party may assign this Agreement
to a party acquiring all, or substantially all, of that Party's assets,
except that PARTNER shall not assign this Agreement to a competitor of
TMCS. Competitors of TMCS shall mean Yahoo!, Excite, ▇▇▇▇.▇▇▇,
Microsoft, America Online, Digital Cities, Zip2 Corporation, CityView,
CityWeb, Real Cities and/or similar online services publishing or
assisting others to publish local community information which are
reasonably agreed upon between the Parties from time to time and whose
names are provided in writing to PARTNER periodically (collectively,
"COMPETITORS"). In the event a Competitor gains control of PARTNER
through a stock purchase, merger, consolidation or other form of
amalgamation, TMCS shall have the right to terminate this Agreement
immediately upon written notice. In no other instances may a Party
assign or delegate this Agreement or any of its rights or obligations
hereunder to any third party without the prior written consent of the
other Party.
12. CONFIDENTIALITY.
12.1 CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION" means the terms
and conditions of this Agreement and any information disclosed by
either Party or any Network Affiliate to a Party or to any Network
Affiliate pursuant to the terms and conditions of this Agreement,
either directly or indirectly, in writing, orally (so long as such oral
information is put down in writing and delivered to the Party receiving
the oral information within 30 days of disclosure by the disclosing
Party) or by inspection of tangible objects which is designated, orally
(which designation is put down in writing within 30 days) or in
writing, as "Confidential," "Proprietary" or some similar designation.
Confidential Information shall not, however, include any information
which (i) was publicly known prior to the time of disclosure by the
disclosing Party or Disclosing Network Affiliate; (ii) becomes publicly
known after disclosure by the disclosing Party or Network Affiliate to
the receiving Party or receiving Network Affiliate through no action or
inaction of the receiving Party or receiving Network Affiliate; (iii)
is already in the possession of the receiving Party or receiving
Network Affiliate at the time of disclosure by the disclosing Party or
disclosing Network Affiliate; (iv) is obtained by the receiving Party
or receiving Network Affiliate from a third party without a breach of
any obligations of confidentiality of such third party to the party
wishing to keep such information confidential; or (v) is independently
developed by the receiving Party or receiving Network Affiliate without
use of or reference to the disclosing Party's or disclosing Network
Affiliate's Confidential Information.
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12.2 NON-USE AND NON-DISCLOSURE. Except as provided or contemplated herein,
each Party agrees not to use any Confidential Information disclosed by
or belonging to the other Party. Each Party agrees not to disclose any
Confidential Information disclosed by or belonging to the other Party
to third parties or to such Party's employees, except (i) to those
third parties, and to those employees, agents, or representatives
(including attorneys and accountants) of such Party and its affiliates
(collectively, the "Receiving Persons") who are required to have the
information in order to exercise the receiving Party's rights and
perform the receiving Party's obligations under this Agreement,
provided, however, that the receiving Party shall enter into a
confidentiality agreement with the Receiving Persons, pursuant to which
the Receiving Persons shall be subject to substantially the same
confidentiality obligations as those imposed on the receiving Party
hereunder, and those imposed by Section 10.1.1 on Investors or
shareholders of PARTNER in the case the Receiving Persons are Investors
or shareholders of PARTNER, unless such Receiving Persons are otherwise
already required to comply with confidentiality obligations at a level
no less restrictive on the receiving Party than those imposed under
this Section 12.2 or under Section 10.1.1, and (ii) as required by law
to be disclosed by the receiving Party, provided that the receiving
Party gives the disclosing Party prompt notice of such requirement
prior to such disclosure and assistance in obtaining an order
protecting the information from public disclosure or narrowing such
disclosure to the fullest extent reasonably possible. Neither Party
shall reverse engineer, disassemble or decompile any prototypes,
software or other tangible objects which embody the other Party's
Confidential Information and which are provided to the Party under this
Agreement.
13. MAINTENANCE AND DISPOSITION OF CONFIDENTIAL INFORMATION. Each Party
agrees that it shall take reasonable measures to protect the secrecy of
and avoid the disclosure and unauthorized use of the Confidential
Information of the other Party. Neither Party shall remove any property
of the other from the latter's premises without the latter's prior
written consent. Immediately upon expiration or termination of this
Agreement, subject to the provisions of Section 8.4 hereof, each Party
shall (i) immediately cease all use of Confidential Information of the
other, (ii) return or destroy all copies of Confidential Information of
the disclosing Party and all memoranda, notes or other written material
(whether in written or electronic form), or those portions thereof,
that contain such Confidential Information or extracts thereof, and
(iii) provide certification of the return or destruction of the other's
Confidential Information, signed by an officer of the Party, upon
request of the other Party.
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14. NON-COMPETITION AND NON-SOLICITATION. For purposes of this paragraph,
(a) "Affiliate" shall mean (i) a party controlled by, controlling, or
under common control with, another party or (ii) any party which owns
15% or more of the stock of PARTNER and (b) "control" shall mean the
power, directly or indirectly, to appoint or elect a majority of the
board of directors or other governing body of a business entity. During
the effective term of the Agreement, as it may be extended upon renewal
pursuant its terms, each of TMCS and PARTNER shall not, and shall cause
all of its Affiliates not to, engage in any business of providing
online local information and transaction services substantially similar
to or competitive with those conducted by PARTNER in Japan under the
Agreement (in the case of TMCS) or those conducted by TMCS outside
Japan (in the case of PARTNER). The Parties acknowledge that the
foregoing restrictions do not apply to (a) any business that is being
conducted by any party affected by the restrictions on the date this
Agreement is signed, (b) any business to be jointly conducted with TMCS
by any of the affected parties in the future or (c) any other business
to which TMCS consents in writing. From the Commencement Date and
extending one year after expiration or termination of this Agreement,
neither Party shall solicit for employment nor hire nor retain as a
consultant any person who has been compensated by the other Party for
services rendered during the prior calendar year, without the consent
of the other Party.
15. WAIVER OF JURY TRIAL/INJUNCTIVE RELIEF. PARTNER and TMCS specifically
waive any right to trial by jury in any court with respect to any
contractual, tortious or statutory claim, counterclaim or cross-claim
against the other arising out of or connected in any way to this
Agreement, because the Parties hereto, both of whom are represented by
counsel, believe that the complex commercial and professional aspects
of their dealing with each other make a jury determination neither
desirable nor appropriate. Both Parties acknowledge that any breach by
one Party of its obligations hereunder will cause the other Party
irreparable harm for which there is no adequate remedy at law and, in
the event of such breach, such other Party shall be entitled to
injunctive or other equitable relief.
16. UNENFORCEABILITY. Any Section of this Agreement, or any part thereof,
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable any
provisions in any other jurisdiction.
19
17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire
agreement between the Parties concerning the subject matter of this
Agreement, and supercedes and terminates all former agreements,
arrangements or understandings pertaining to the subject matter of this
Agreement, including, without limiting the generality of this
Agreement, all licenses and rights granted thereunder. This Agreement
is intended by the Parties as a final expression of their agreement and
as a complete and true statement of terms. Except as and only to the
extent expressly incorporated by reference in this Agreement, no course
of prior dealings between the Parties and no usage of trade shall be
relevant or admissible to supplement, explain or vary any of the terms
of this Agreement. Any waiver, variation or amendment of any term or
condition of this Agreement shall be effective only if signed by
authorized representatives of both Parties.
18. PRESS RELEASES AND ADVERTISING. Neither Party shall issue, publish or
display any press releases, announcements, advertisements, or
exhibitions of any kind using any trademarks, service marks, or trade
names of the other Party or regarding this Agreement or the terms of
this Agreement without the express written agreement of the other
Party, which shall not be unreasonably withheld or delayed. The Parties
will endeavor to coordinate the content and timing of any press
releases.
19. FORCE MAJEURE. Notwithstanding any other provision in this Agreement,
no default, delay or failure to perform on the part of either Party
shall be considered a breach of this Agreement if such default, delay
or failure to perform is shown to be due entirely to an act of God;
strike, lockout or other interference with work; war, declared or
undeclared; blockade; riot; lightning; fire; earthquake; storm; flood;
explosion; governmental or quasi governmental restraint, expropriation,
prohibition, intervention, direction, or embargo; uncontrollable
unavailability or delay in availability of Internet or World Wide Web
access, global postal or courier services, equipment or transport;
inability to obtain or delay of governmental or quasi governmental
approvals, consents, permits, licenses, authorities, or allocations; or
any other cause whether of the kind specifically enumerated above or
otherwise which is not reasonably within the control of the Party
affected.
20. NO WAIVER. Any failure to enforce any rights under this Agreement,
irrespective of the length of time for which such failure continues, or
any acquiescence in any default of the performance of any obligation
under this Agreement or delay in respect of the same by a Party shall
not constitute a waiver of those or any other rights or alter the
rights of the Party not in default to enforce those rights in respect
of the same or any future default.
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21. GOVERNING LAW/ARBITRATION/LANGUAGE. This Agreement and the legal
relations of the Parties shall be governed by and construed in
accordance with the applicable laws of the State of California, United
States of America. The Parties agree that except for claims for a
preliminary injunction, temporary restraining order or other temporary
equitable relief, which may be brought in any court of competent
jurisdiction, any controversy or claim arising out of or relating to
this Agreement, or breach thereof, shall be settled by arbitration
administered by the International Chamber of Commerce under its rules
of arbitration then in effect and held in a "neutral" English-speaking
country such as the United Kingdom, Australia or Singapore, and shall
be conducted in the English language before a panel of three (3)
arbitrators. The decision of the arbitrators shall be binding and
conclusive upon the Parties and their successors and assigns, and
judgment upon the award of the arbitrators may be entered in any court
having competent jurisdiction. This Agreement shall be interpreted in
the English language.
22. RELATIONSHIP OF THE PARTIES. Neither Party, nor any contractor or
sublicensee of such Party, shall have any right, power or authority, or
represent that it has the right, power or authority, to bind the other
Party, or to assume or to create any obligation or responsibility,
express or implied, on behalf of the other Party or in the other
Party's name. Nothing stated in this Agreement shall be construed as
constituting PARTNER and TMCS as partners, or creating the relationship
of principal and agent between PARTNER and TMCS.
23. NOTICES. Any notice or other communication required or permitted to be
served by a Party on the other Party pursuant to this Agreement shall
be in writing and shall be deemed served upon delivery by courier
service or registered mail. Notice shall be prominently marked for the
attention of persons designated below for receiving such notice.
Notices shall be delivered to the following persons:
If to PARTNER: If to TMCS:
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Ticketmaster Online-CitySearch, Inc
▇-▇ ▇▇▇▇▇-▇▇▇, , ▇▇▇▇▇▇▇-▇▇ 790 East Colorado Blvd., Ste. 200
Tokyo 102-0076 ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ (▇) ▇▇▇▇-▇▇▇▇ Telephone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇▇▇ (▇) ▇▇▇▇-▇▇▇▇ Fax: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to With a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
General Counsel
24. SURVIVAL OF PROVISIONS. Sections 1. 8.2, 8.4, 9.5, 9.6, 10, 12 and 13,
the last sentence of Section 14, Sections 15 through 23 of this
Agreement shall survive its
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expiration or earlier termination.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their
representatives duly authorized in that regard on the day and year
first set forth above.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Ticketmaster Online-CitySearch, Inc.
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Signed: Signed:
-------------------------------- ------------------------------
Title: Representative Director Title: Chief Executive Officer
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