Exhibit 10.1
CONTENT PARTNERING PROGRAM FOR WORLDGATE(SM) INTERNATIONAL
Terms and Conditions
Prepared for
KWIK WEB
This agreement (the "Agreement"), dated as of September 22, 1998, (the
"Effective Date"), by and between KWIK WEB ("KWIK WEB") and WORLDGATE
COMMUNICATIONS, INC. ("WG", with KWIK WEB and WG also being individually and
collectively referred to herein as a "Party" or the "Parties", as is applicable)
sets forth the terms and conditions under which KWIK WEB and WG will cooperate
to permit users of the WorldGate Internet Access Service (the "Service") to link
to certain Internet materials (as further described herein) through the use of
the Service. For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, KWIK WEB and WG agree as follows:
1. If and as further described in Exhibit A (which is incorporated herein by
reference) KWIK WEB shall provide to WG hereunder (i) Internet materials and/or
(ii) Channel HyperLinking(SM) program description data. If so indicated in
Exhibit A Partner is also a provider of television programming which is intended
to be linked to the described Internet materials through the use of the Service.
Such Internet materials, program description data and television programming
provided by Partner are individually and collectively referred to herein as the
"Content". In addition, KWIK WEB shall provide to WG the right to use, subject
to reasonable guidelines by KWIK WEB as are typically associated with trademark,
logo or trade name usage, a logo or other graphic identifier commonly associated
with KWIK WEB (the "Identifier") as a linking trigger within WG's user interface
for the Service to select access to the Internet Content as part of using the
Service. As between KWIK WEB and WG such Identifier and Content as are furnished
hereunder by KWIK WEB are and shall remain the property of KWIK WEB, and WG
disclaims any right hereunder in and to such Identifier and Content other than
the right to use the same in accordance herewith and solely for the purposes
stated herein. As between KWIK WEB and WG such Service, including the user
interface for the same, is and shall remain the property of WG, and KWIK WEB
disclaims any right hereunder in and to such Service.
2. KWIK WEB hereby authorizes WG to provide to users of the Service access to
and use of the Content. KWIK WEB further authorizes WG to process and store the
Internet material and program description data Content solely as reasonably
required to ensure delivery of the Content to a television display with
high-quality and reduced access time, provided that no right is granted
hereunder to modify the substance of the Content or the information included
therein. WG agrees that it shall not use such Identifier or Content in any
manner intended to or even reasonably likely to cause confusion as to the
ownership of the same or to diminish any good will associated therewith. KWIK
WEB represents and warrants that (x) it has and that it will maintain sufficient
right, title, interest and authority in, to and with respect to the Content and
Identifier to provide them hereunder and to authorize WG to use the same in
accordance with these terms and conditions, (y) to the best of its knowledge and
belief such Content is not now, and as it is made available during the term
hereof will not be, false, libelous, defamatory, obscene, an invasion of privacy
or an infringement of the intellectual property rights of any third party, and
(z) such Content will continue to be available during the term of this Agreement
with minimal interruption except as may be occasioned by an event of force
majeure or as reasonably required to create and maintain such Content and the
computer systems on which such Content is hosted.
3. Any Internet Content provided hereunder shall be provided in an HTML or
other generally acceptable Internet file/addressing format which is suitable for
use with the WG Internet access service. AnyChannel HyperLinking(SM) program
description data provided hereunder shall be provided in accordance with the
CHIPS specification as set forth in Exhibit C. The Identifier shall be provided
in a JPEG or other generally acceptable, high quality graphic file format for
integration by WG into its user interface. KWIK WEB will use commercially
reasonable efforts to cause such Content and Identifier to be and to be
maintained current, and to make available to WG in a timely manner such updates
as are reasonably required for this purpose. Each Party will use commercially
reasonable efforts to promptly notify the other of changes in the materials and
technologies for which they are responsible hereunder which materially affect
the access to and use of the Content as part of the Service.
4. WG will use commercially reasonable efforts to promptly include such
Content and Identifier within the Service as set forth in Exhibit A. KWIK WEB,
however, acknowledges and agrees that (i) subject to the guidelines and
restrictions as set forth in these terms and conditions, WG retains the right,
in its sole discretion, to create, maintain and manage the Service, including
its user interface and the placement, prominence and frequency of usage of all
such identifiers and content therein, (ii) the use of KWIK WEB's Identifier and
Content may not be possible or appropriate at all times or in all cable systems
and/or markets where the WG Internet access service is deployed, and that (iii)
such Service will include other content and other identifiers, some of which may
relate to services and products which may be comparable to those offered by KWIK
WEB. WG represents and warrants that (x) it has and that it will maintain
sufficient right, title, interest and authority in, to and with respect to the
Service to provide to KWIK WEB a medium for displaying the Identifiers and
accessing the Content in accordance with these terms and conditions, (y) to the
best of its knowledge and belief such Service (excluding the Content and
Interface) is not now, and as it is made available during the term hereof will
not be, false, libelous, defamatory, obscene, an invasion of privacy or an
infringement of the intellectual property rights of any third party, and (z)
such Service will continue to be available during the term of this Agreement
with minimal interruption except as may be occasioned by an event of force
majeure or as reasonably required to create and maintain such Service and the
computer systems on which such Service is hosted.
5. KWIK WEB will cooperate with WG to promote the content linkage afforded by
the Service, including (i) issuing a jointly approved press release with respect
to its participation as a content partner, within ten (10) business days of the
effective date of this Agreement, (ii) exercising commercially reasonable
efforts to develop Content specific to and compatible with the Service and its
customer base, (iii) providing to WG one or more excerpts from the Internet
materials included in the Content for WG's reproduction and use solely in
demonstrations and promotion of the Service and the content linkage afforded
thereby (subject to the aforesaid guidelines and restrictions with respect to
trademark, logo and trade name usage in Section 1, hereof), and (iv)
authorizing, and KWIK WEB does hereby authorize, WG to identify KWIK WEB as a
content partner, and as a Channel HyperLinking partner if so indicated in
Exhibit A, through the display of KWIK WEB's name and logo (subject to the
aforesaid guidelines and restrictions with respect to trademark, logo and trade
name usage in Section 1, hereof) within listings of content and Channel
HyperLinking partners.
6. Subject to any applicable obligations, laws or regulations with respect to
confidentiality, privacy and/or other legal or contractual restraints, the
parties will reasonably cooperate to provide to each other various census and
marketing data as they may obtain in association with the use of the Content by
users of the Service. The Parties, however, acknowledge and agree that
information about any specific user of the Service may not be reproduced or in
any way distributed or disclosed without the prior consent of the user and then
only in accordance with the then prevailing laws and regulations relating to
privacy. Furthermore, general statistical information about the users (not
specific to or identifiable with any particular user) of the Service may be
distributed by KWIK WEB to other parties only as an indistinguishable part of
aggregated statistical information about the overall user base for the Content.
KWIK WEB may not knowingly solicit such users of the Service without WG or the
applicable user's prior written consent.
7. KWIK WEB acknowledges and agrees that access to and use of the Content by
users of the Service creates value for KWIK WEB through the exposure to the
Content and Identifiers as part of the Service, and by or as a result of "hits"
initiated, ad impressions accessed and transactions consummated by users of the
Service, through Channel HyperLinking(SM), "click-throughs", e-mail and
otherwise (collectively the "Content Usage"). KWIK WEB agrees to compensate WG
for this Content Usage in the manner set forth in the attached Exhibit B (which
is incorporated herein by reference.) For purposes of determining such
compensation the Parties will cooperate and share information as reasonably
required to determine the Content Usage. The Parties further agree to provide to
the other's independent auditors, on a confidential basis, access to their books
and records as reasonably required to determine an verify the accuracy of the
Content Usage and the compensation due hereunder, as further set forth in
Exhibit B.
8. This Agreement shall commence and become effective as of the Effective Date
and expire on the expiration date set forth below, provided, however, that the
resulting term of this Agreement may be extended with the mutual written
agreement of the parties. Either Party may, however, terminate their
participation hereunder, effective immediately, if the other Party defaults on
any material representation, warranty, covenant or obligation as set forth
herein, provided the non-defaulting Party has first notified the defaulting
Party in writing providing with reasonable specificity the nature of the default
and affording the other Party at least forty-five days after such written notice
to remedy the default. For purposes of this paragraph a default shall be deemed
to include (i) the filing of a petition by or against a Party or the
adjudication of bankruptcy with respect to a Party, (ii) insolvency of a Party,
appointment of a receiver for a Party, or the assignment or other arrangement
for the benefit of a Party's creditors pursuant to any bankruptcy law, or (iii)
the discontinuance of business by a Party.
9. Each Party represents and warrants that it has the right, power and
authority to enter into this Agreement and to fulfill its obligations hereunder.
Except as is expressly set forth herein neither Party makes any representations
or warranties, whether statutory, express or implied, and all such other
representations and warranties are hereby disclaimed. Each Party shall
indemnify, defend and hold harmless, the other, its subsidiaries and affiliates,
and their employees, agents, officers, directors, and permitted successors and
assigns, from and against all claims, actions, suits, costs, liabilities,
damages, and expenses (including reasonable attorneys' fees) directly arising
from a breach of such indemnifying Party's representations, warranties,
covenants and obligations hereunder. In the event a Party is entitled to
indemnification hereunder, the Party so entitled shall notify the indemnifying
Party in writing of the matter to which such indemnification applies and the
indemnifying Party shall undertake the defense of such matter. The Party
entitled to indemnification hereunder shall reasonably cooperate with the
Indemnifying Party with respect to such defense and shall be entitled to
participate in such defense, each at its own cost and expense.
10. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE,
INCLUDING LOST REVENUE OR PROFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF
SUCH DAMAGES IN ADVANCE.
11. This Agreement has been made and shall be construed under the laws of the
State of Delaware without giving effect to such state's conflict of law
principles. Nothing in this Agreement shall be deemed, and the Parties do not
intend to create, any joint venture, principal/agent relationship or any other
relationship which might entitle one Party to represent or bind the other. This
Agreement and any written confidentiality agreement which may exist between the
parties represent the entire understanding with respect to the subject matter
hereof. No rights or licenses are to be deemed granted herein by implication or
estoppel, and all such other rights not expressly granted herein, including all
associated intellectual property rights, are reserved to the Party originally
possessing the same. This Agreement may only be modified by a written instrument
signed by authorized representatives of both parties. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision, nor shall any waiver constitute a continuing waiver. This
Agreement may only be assigned by a Party to a parent or a subsidiary controlled
by or under common control with the Party, or as part of the sale or other
transfer of the entire business to which this Agreement pertains. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns. This Agreement may be executed in
any number of counterparts, each of which when so executed shall constitute one
and the same instrument. For purposes hereof an executed facsimile copy of this
Agreement shall be deemed to be an original. Unless otherwise provided in this
Agreement, all notices required under this Agreement shall be in writing and
shall be effective for all purposes upon receipt. Notices may be provided by (i)
personal delivery or delivery by messenger, express or similar courier service,
(ii) by U.S. first class certified or registered mail, postage prepaid, or (iii)
transmitted by telecopier or facsimile, addressed as set forth herein or to such
other address as a Party may I duly notify the other Party in accordance
herewith.
12. As used herein the terms "herewith", "herein", "hereunder" and other words
of similar import refer to these terms and conditions as a whole, including any
exhibits hereto, as the same may from time to time be
amended or supplemented and not to any subdivision contained in this Agreement.
The term "including" when used herein is not intended to be exclusive and in all
cases shall mean "including without limitation." Pronouns used in this
Agreement shall be deemed to include the masculine and feminine and all terms in
this Agreement used in the singular shall be deemed to include the plural and
vice versa, except as the context may reasonably require. This Agreement has
been negotiated by both parties and their respective counsel and shall be fairly
interpreted in accordance with its terms and without any rules of construction
relating to which Party drafted the Agreement.
Expiration Date: One (1) Year from Effective Date
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By our signature below we agree to become content partners as outlined above:
As Executed by KWIK WEB
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ Tel.: ▇▇▇-▇▇▇-▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Title: E-mail: ▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇:
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
And as Executed and Accepted by WorldGate Communications*:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Tel.: ▇▇▇-▇▇▇-▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Title: Vice President, Strategic Programs E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. - ▇▇▇. 300 Date: September 22, 1998
Bensalem, PA 19020
*Copies of any notices outside of routine remittances shall also be provided to
the attention of the General Counsel at the address indicated.
EXHIBIT A
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SPECIFICATIONS OF CONTENT TO BE PROVIDED AS PART OF THE SERVICE
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[_] By checking this box PARTNER will participate in WG's Channel
HyperLinking(SM) program and hereby agrees to provide Channel HyperLinking
program description data, as defined in Exhibit C, with respect to the
television programming listed below:
[_] By checking this box PARTNER will participate in WG's Channel
HyperLinking(SM) program and hereby agrees to provide the Channel
HyperLinking capable programming listed below:
[X] By checking the following box PARTNER ▇▇▇▇▇▇ agrees to provide the Internet
materials listed below:
EXHIBIT B
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COMPENSATION FOR CONTENT USAGE
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1. During the initial term of this Agreement WG will waive any fees which may
be chargeable to PARTNER associated with the screen positioning or
frequency of rotation of PARTNER's Identifier with WG's user interface.
2. During the initial term of this Agreement PARTNER will pay to WG a fee of
(i) Twelve ($12.00) dollars for each customer which registers for an annual
subscription, or (ii) Nine ($9.95) dollars and ninety-five cents for each
customer which registers for a monthly subscription of PARTNER's web page
service through the use of the WorldGate Service.
3. Within fifteen (15) days after the end of each calendar month hereunder,
PARTNER shall furnish to WG a written report setting forth the data with
respect to the hits, transactions and subscriptions for which fees are due
hereunder during such calendar month and the computation of the amounts
payable with respect thereto. Each report shall be accompanied by the
payment of the aggregate amount due hereunder with respect to that calendar
month.
4. PARTNER shall keep books and records in sufficient detail to permit ready
and accurate determination of any amounts payable by it hereunder. WG shall
have the right, on one occasion per calendar year, during PARTNER's normal
business hours, on not less than ten (10) business days' prior notice, to
cause a certified public accountant or firm of such accountants to audit
such books and records to verify any such determination or application.
PARTNER shall provide all reasonable cooperation. WG shall pay all cost of
such accountants unless such audit determines an unremedied discrepancy of
at least five thousand dollars ($5,000.) or 5% of the aggregate amount
under audit, whichever is the lesser. In such event PARTNER shall pay all
such cost.
EXHIBIT C
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CHIPS(SM) SPECIFICATION
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1. Channel HyperLinking Information Provider Stream ("CHIPS") data for
television programming shall include at least the following identifying
information (i) program name, (ii) program airing date, (iii) program start
time based upon a twenty-four hour clock, EST (non-daylight savings), (iv)
program duration based upon a twenty-four hour clock, EST (non-daylight
savings), (v) program description, and (vi) the specific Internet Uniform
Resource Locator (URL) which is to be associated with the identified program.
2. CHIPS data is to be provided in the following two formats unless otherwise
agreed by the parties in writing: (i) Internet based data, delivered via the
Internet in a generally available file format suitable for transfer as an
e-mail attachment or under a standard file transfer protocol (FTP), and (ii)
a real time data stream which is encoded and broadcast as part of a broadcast
signal for the television programming. Further specifications and examples
for both formats, as well as a Channel HyperLinking Developers Kit will be
made available to PARTNER upon execution of this Content Partnering Program
Agreement.