U S WEST AND SHARP TECHNOLOGY
WEB SITE LINKING, CO BRANDED SITE DEVELOPMENT,
MARKETING, AND REVENUE SHARING AGREEMENT FOR U S ▇▇▇▇.▇▇▇
This Web site Linking, Co-branded Site Development, and Revenue Sharing
Agreement ("Agreement"), is effective as of September 15, 1998 between Sharp
Technology, a Delaware corporation having a place of business at Sharp
Technology, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("Sharp Technology")
and U S WEST Communications, Inc., a Colorado corporation, having a place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("USW").
1. Purpose. USW desires to provide links to a Co-branded Site developed by
Sharp Technology ("Sites") and engage in other activities on the terms and
conditions set forth in this Agreement.
2. Responsibilities of the Parties.
2.1. Co-branded Area Site Development:
2.1.1. Sharp Technology shall:
(a) in cooperation with USW, develop and host a co-branded, localized
version(s) of the Sharp Technology Site and associated Web page(s) or linked
item(s) on the U S ▇▇▇▇.▇▇▇ Web site ("Co-branded Area(s)"). Specific content
features are solely the creation and responsibility of Sharp Technology. USW is
not a content provider and acts as a passive conduit only. A Co- branded Area
shall be developed for U S ▇▇▇▇.▇▇▇. Each page of each Co-branded Area shall
minimally contain a graphic and Site link back to the U S ▇▇▇▇.▇▇▇ Web site home
page.
(b) be responsible for the quality, technical accuracy, completeness, and
coordination of all information, specifications, and other items and services
furnished under this Agreement. If Sharp Technology fails to meet applicable
professional standards, Sharp Technology shall correct or revise any error or
deficiencies in the development.
(c) create a partner bridge page with a USW partner logo in cooperation with USW
on relevant Sharp Technology Web sites (including at least the Web site
currently located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/) The USW partner logo will link
back to the U S ▇▇▇▇.▇▇▇ Product Web Site (currently located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇)
(d) create ad banner slots in cooperation with USW.
2.2. Linking:
2.1.1. Sharp Technology shall:
(a) establish and maintain hypertext links ("Site links") from the Co-branded
Sharp Technology Site located at Uniform Resource Locator ("URL")
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/ to the U S ▇▇▇▇.▇▇▇ Site. The Site link shall consist
of a graphic of USW's choice to be displayed in a size which is 450 wide by 67
pixels high. Specific Sharp Technology Site links shall be limited to each Co-
branded Area.
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(b) provide a logo and hypertext ▇▇▇▇-up language ("HTML") that together shall
be displayed in the relevant Content Provider area of the U S ▇▇▇▇.▇▇▇ Site
("Sharp Technology Button").
2.2.2. USW shall:
(a) establish and maintain Site links from the U S ▇▇▇▇.▇▇▇ Site to the
corresponding level of each Co-branded Area by way of the Sharp Technology
Button.
(b) work with Sharp Technology, on an ongoing basis, to identify areas
within the USW Site where it would be appropriate to provide Site links to the
Co-branded Areas based on users seeking information of a type included in such
Co-branded Areas.
2.3 Use Of The ▇▇▇▇.
(a) Use by Licensee; Ownership of the ▇▇▇▇. Licensee may use the ▇▇▇▇ so
long as that use conforms to the terms of this Agreement. Licensee acknowledges
that Licensor is the owner of the ▇▇▇▇. Licensee shall not at any time do or
suffer to be done any act or thing which will in any way impair the rights of
Licensor in and to the ▇▇▇▇ or the goodwill inherent in such ▇▇▇▇. It is
understood that Licensee shall not acquire and shall not claim any title to the
▇▇▇▇ adverse to Licensor by virtue of the license granted herein, or through the
Licensee's use of the ▇▇▇▇, it being expressly agreed that all use of the ▇▇▇▇
by Licensee shall inure to the benefit of Licensor. Licensee is estopped from
challenging the validity of the ▇▇▇▇ or from setting up any claim adverse to
Licensor.
(b) Use and Appearance of the Marks. Licensee shall comply with the
conditions set forth in the Licensor's Corporate Identity Guidelines, as may be
amended from time to time, or as directed by Licensor, with respect to the
style, color, appearance and manner of use of the ▇▇▇▇. Prior to producing,
distributing or displaying any advertising or other material containing the
Marks, Licensee shall obtain prior written approval from Licensor. Licensee is
solely responsible for ensuring that any uses of the ▇▇▇▇ in any advertising or
promotional materials or otherwise is approved by Licensor.
(c) Quality Control and Right To Inspect. Licensee shall maintain a standard
of quality for the Services offered under the ▇▇▇▇ commensurate with standards
previously achieved and maintained by Licensor and its subsidiaries, and shall,
at a minimum, provide the Services in compliance with all laws and regulations.
Representatives of Licensor shall have the right, at reasonable times to visit
Licensees facilities or inspect the rendering of the Services to ensure
compliance with this paragraph.
2.4. Advertising Banners in Co-branded Site.
2.4.1. The parties agree to work together in identifying and pursuing
advertising opportunities. These efforts are for banner advertising placement
within the Co-branded Site.
2.4.2. Each party will submit to the other party, for its prior written
approval, which shall not be unreasonably withheld or delayed, any marketing,
advertising, press releases, and all other promotional materials related to the
Co-branded Site that reference the other party and/or its Marks (the
"Materials"). Each party shall solicit and reasonably consider the views of the
other party in designing and implementing such Materials. Once approved, the
Materials (other than press releases) may be used by a party for the purpose of
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promoting the Co-branded Site contained therein and reused for such purpose
until such approval is withdrawn with reasonable prior notice. In the event such
approval is withdrawn, (which either party may do at its sole discretion)
existing inventories of Material may be depleted. Notwithstanding the foregoing,
either party may issue press releases and other disclosures as required by law
or as reasonably advised by legal counsel without the consent of the other party
and, in such event, prompt notice thereof shall be provided to the other party.
2.5. General.
2.5.1. Each party shall be solely responsible for supplying and managing its
Site(s) at its own expense and neither party shall have any obligations
whatsoever with respect to the Site(s) of the other. Each party shall manage,
review, delete, edit, create, update and otherwise manage all content and/or
services available on or through its respective Site(s). Neither party has any
obligation to pre-screen content posted by users of its Site(s).
2.5.2. The customers who purchase the software packages through this
partnership, shall be considered to be shared customers. Customer information
shall be shared between these two companies but only for the purposes of
tracking the customers sale and for customer follow-up by the partnership.
Neither party shall provide to any third parties any of a customer's personal
information regarding specific users, including, without limitation, their names
and addresses or any other information the provision of which could violate any
privacy or other rights of users or third parties. Neither party will be
required to include in any reports any information the provision of which to the
other would cause such party to violate any law, rule or regulation or any
contractual or legal obligation of such party to any other person.
2.5.3. Each party shall: (i) provide the other with specified graphic files
and Site link addresses and notify the other in advance of any changes in its
URL(s) and, (ii) if developed and maintained by a party, provide a Site link
from such party's appropriate business alliance index (or similar link listing
index) to the other party's Site(s).
2.5.4. Sharp Technology shall promptly inform USW of (i) any information
related to its Site(s) that could reasonably lead to a claim, demand, or
liability of or against the other party by any third party; and (ii) any changes
in its Site which would substantially change the content in any area to which
the other party has linked.
2.5.5. Each party retains the right, in its sole discretion, to immediately
cease linking to the other party's Site(s) if in such party's opinion, the other
party's Site(s) infringes on or violates any applicable law or regulation; any
proprietary right of any third party; or is defamatory, obscene, offensive or
controversial. Notwithstanding any exercise of, or failure to exercise, such
right, each party shall have the sole and exclusive responsibility for its
respective Site(s).
2.5.6. Sharp Technology shall retain all right, title, and interest in and
to the Sharp Technology Site. USW shall retain all right, title, and interest in
and to the U S ▇▇▇▇.▇▇▇ Sites. The parties will jointly retain all right, title,
and interest in and to the Co-branded Areas.
3. REVENUE SHARING.
3.1. Ad Banners Advertising Revenue. USW and/or its agents and Sharp
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Technology shall sell all advertisement for display in the Co-branded Area and
the revenue from each sale will be allocated as 50% of the gross revenues (net
of agency commissions, taxes, duties or credits) to USW.
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3.1.1. Revenue amounts due under this Agreement shall be made by Sharp
Technology within forty-five (45) days of the end of each quarter representing
payments for the preceding calendar quarter. Reports containing sufficient
information for the calculation of such amounts will be provided USW. In the
event there is a dispute regarding the amount due, upon reasonable request, a
party will provide copies of all records or other documentation relevant to the
calculation of such amounts. The parties agree to maintain records supporting
fees payable by either party for a period of three (3) years following the date
that the payment was made. The relevant portion of such records and accounts
shall be available for inspection and audit by an auditing Party or its
representative (but not more than once in any twelve (12) month period) during
regular business hours and upon reasonable advance written notice.
3.1.2. Each party agrees to pay directly taxes it incurs under the law.
3.2. Software Distribution and Associated Billing. Order Fulfillment, and
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Customer Support. USW and/or its agents and Sharp Technology shah sell the
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NetSnitch/NetCoach/DrY2K/DrY2KPro and associated software packages as displayed
in the Co-branded Area. The revenue from each sale will be allocated as 50% of
the gross revenues for the Consumer and SOHO versions, and 25% of the gross
revenues for the Small Business and Enterprise versions (net of taxes, duties or
credits) to USW.
3.2.2. The software version and computing platforms to be supported for all
distributed software as well as the pricing structure for these software
packages shall be determined by Sharp Technology and USW jointly.
3.2.3. Customer support for the Co-branded Area and
NetSnitch/NetCoach/DrY2K/DrY2KPro software packages shall be provided by Sharp
Technology. Technical support which is provided by e-mail and FAX shall be free
to the customer. Should the residential or small business customer desire
telephone-based support, the customer shall be billed $14.95 per telephone call.
Enterprise business customers shall receive free technical support for one year.
Billing for these services shall be directly to the customer via their credit
card and be handled by the technical support desk. Sharp Technology shall be
responsible for all costs associated with this technical support desk.
3.2.4. Customer billing will initially be provided by Sharp Technology and
eventually migrated over to the U S WEST billing systems. The date for this
migration will need to be agreed upon by both parties. Billing will initially be
done by credit card or digital checking. Eventually, all billing for all
software packages distributed using USW channels and the Co-branded Area shall
be handled by USW at which time billing may occur by placement on the USW ▇▇▇▇
or a credit card.
3.2.5. Order fulfillment will be accomplished through online downloading of
the software package. Customers who order this software as a gift will first be
sent an online greeting card for later downloading. The infrastructure required
for supporting the greeting card and software download process will be provided
and supported by Sharp Technology as part of the Co-branded Area. Should
customers desire to receive a hard copy of the software (i.e., via
Floppy-diskette) then an extra fee will be billed to the customer and this fee
will be used to cover the additional manufacturing, distribution, and relevant
shipping and handling costs. Billing for this fulfillment process will be
handled in accordance with the defined billing procedures.
3.2.6. Revenue amounts due under this Agreement shall be made by Sharp
Technology within forty-five (45) days of the end of each quarter representing
payments for the preceding calendar quarter. Reports containing sufficient
information for the calculation of such amounts will be provided USW. In the
event there is a dispute regarding the amount due, upon reasonable request, a
party will provide copies of all records or other documentation relevant to the
calculation of such amounts. The parties agree to maintain records supporting
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fees payable by either party for a period of three (3) years following the date
that the payment was made. The relevant portion of such records and accounts
shall be available for inspection and audit by an auditing Party or its
representative (but not more than once in any twelve (12) month period) during
regular business hours and upon reasonable advance written notice.
3.2.7. Each party agrees to pay directly taxes it incurs under the law.
3.2.8. Additional software packages or items beyond
NetSnitch/NetCoach/DrY2K/DrY2KPro may only be added to the Co-branded Area upon
agreement by both Sharp Technology and USW. An Addendum to this agreement should
be created and approved by both parties for each additional suite of software
packages or items to be sold in the Co- branded Area.
3.2.9. All software applications provided to the customer from Sharp
Technology will by Year 2000 software compliant.
4. MARKETING.
4.1 Both Sharp Technology and USW agree to pursue joint marketing
opportunities including but not limited to direct mail, print advertising, and
telemarketing. Costs for such marketing efforts, the audience reached, and the
manner of advertising will be agreed upon by both parties before such activities
commence.
5. TERM/TERMINATION.
5.1. The initial term of this Agreement shall begin on the Effective Date
and shall continue for one year. Either party may terminate this Agreement at
any time upon sixty (60) days written notice.
5.2. Notwithstanding anything to the contrary herein, upon written notice,
either party may immediately terminate this Agreement, in whole or in part,
without liability to the other party, if such party cancels their Site(s) or any
component thereof necessary to offer the Site links as contemplated hereby.
5.3. Upon the termination or expiration of this Agreement, (i) each party
shall promptly return all confidential and proprietary information and other
information, documents, manuals, equipment and other materials belonging to the
other party; (ii) each party shall immediately cease using all Materials of the
other party in any form; (iii) each party shall terminate the Site links
established pursuant to this Agreement; and (iv) all licenses granted herein
shall terminate.
6. CONFIDENTIALITY.
6.1. Each party acknowledges and agrees that any and all information
relating to the other party's business and not publicly known including, without
limitation, the contents of this Agreement, technical processes and formulas,
source codes, names, addresses and information about users and advertisers,
product designs, sales, costs and other unpublished financial information,
product plans, and marketing data is confidential and proprietary information.
Each party agrees that it shall take reasonable steps, at least substantially
equivalent to the steps as it takes to protect its own proprietary information,
during the term of this Agreement, and for a period of one (1) year following
termination of this Agreement, to prevent the duplication or disclosure of any
such confidential and proprietary information, other than by or to its employees
or agents who must have access to such information to perform such party's
obligations hereunder, who shall each treat such information as provided herein,
and as may be required by either of the parties for public or private financing.
To the extent that such information is publicly known, already known by, or in
the possession of the non-disclosing party; is independently developed by the
non-disclosing party; is thereafter rightly obtained by the non-disclosing party
from a source other than the disclosing party; or is required to be disclosed by
law, regulation, or court order; then there shall be no restriction of the use
of such information.
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7. REPRESENTATIONS WARRANTIES AND INDEMNIFICATION.
7.1. Representations and Warranties. USW represents and warrants to Sharp
---------------------------------
Technology that (i) its Sites are or will be functional Internet sites
accessible to subscribers of U S ▇▇▇▇.▇▇▇; (ii) the Sites do not and will not
contain any content, materials, advertising or services that infringe on or
violate any applicable law or regulation, any proprietary right of any third
party (including copyright, trademark, patent, and trade secret), or which is
defamatory, obscene or offensive; (iii) it has the right and authority to enter
into and perform all obligations under this Agreement; and (iv) it shall comply
with all applicable laws, statutes, ordinances, rules and regulations with
respect to its Sites. In the event of an error, delay, defect, breakdown or
failure of its Site, USW's obligation shall be limited to the use of reasonable
diligence under the circumstances to restore its Sites to operation.
7.2. Representations and Warranties. Sharp Technology represents and
---------------------------------
warrants to USW that (i) all Co-branded Areas will be developed in a workmanlike
manner and with professional diligence and skill in accordance with applicable
professional and industry standards; (ii) all Co-branded Areas will conform to
the specifications and functions set forth in this Agreement, including Exhibit
A; (iii) its Site(s) are or will be functional Internet site(s) accessible to
subscribers and users of the Internet; (iv) the Co Branded Areas do not and will
not contain any content, materials, advertising or services that infringe on or
violate any applicable law or regulation, any proprietary right of any third
party (including copyright, trademark, patent, and trade secret); (v) the Sites
do not and will not contain any content, materials, advertising or services that
give rise to any private cause of action, or which is defamatory, obscene or
offensive; (vi) it has the right and authority to enter into and perform all
obligations under this Agreement; and (vii) it shall comply with all applicable
laws, statutes, ordinances, rules and regulations with respect to its Site(s).
In the event of an error, delay, defect, breakdown or failure of its Site, Sharp
Technology's obligation shall be limited to the use of reasonable diligence
under the circumstances to restore its Site(s) to operation.
7.3 Indemnity. Each party will defend, indemnify, save and hold harmless the
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other party, the other party's Affiliates, and their officers, directors,
agents, and employees from any and all third-party claims, demands, liabilities,
costs or expenses, including reasonable attorneys' fees ("Liabilities"),
resulting from the indemnifying party's breach of any material duty,
representation, or warranty contained in this Agreement, except there shall be
no obligation to indemnify, defend, save and hold harmless where Liabilities
result from the gross negligence or knowing and willful misconduct of the other
party. Each party agrees to (i) promptly notify the other party in writing of
any indemnifiable claim and (ii) give the other party the opportunity to defend
or negotiate a settlement of any such claim at such other party's expense and
cooperate fully with the other party, at that other party's expense, in
defending or settling such claim. Each party reserves the right, at its own
expense, to participate in the defense of any matter otherwise subject to
indemnification by the other party.
8. LIMITATION OF LIABILITY AND DISCLAIMER.
8.1. LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY SET
FORTH IN THIS AGREEMENT OR DAMAGES FOR PERSONAL INJURY OR PROPERTY
DAMAGE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING
FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS, EXCEPT THAT EITHER PARTY SHALL BE
ENTITLED TO RECEIVE CONSEQUENTIAL DAMAGES FOR A BREACH OF ANY LICENSES
GRANTED UNDER THIS AGREEMENT.
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8.2. NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
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AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY MATTER SUBJECT TO THIS AGREEMENT, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
9. GENERAL PROVISIONS.
9.1. Amendment. No change, amendment or modification of any provision of
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this Agreement shall be valid unless set forth in a written instrument signed by
both parties. This Agreement sets forth the entire agreement and supersedes any
and all prior agreements, written or oral, of the parties with respect to the
transactions set forth herein.
9.2. Assignment. Neither this Agreement, nor any rights hereunder in whole
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or in part, shall be assignable or otherwise transferable by either party;
provided that either party may assign or transfer this Agreement and rights and
obligations hereunder to any current or future Affiliate or successor if such
assignee agrees in writing to the terms and conditions herein.
9.3. Compliance with Laws. This Agreement and the parties' actions under
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this Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental or regulatory agency orders.
9.4 Construction. In the event that any provision of this Agreement
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conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid by a court with jurisdiction over the parties to
this Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect. There shall be no presumption for or against either party as a
result of such party being the principle drafter of this Agreement.
9.5. Dispute Resolution. Any claim, controversy or dispute between the
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parties, the parties' Affiliates, their agents, employees, officers, or
directors ("Dispute") shall be resolved by arbitration conducted by a single
arbitrator engaged in the practice of law and familiar with the subject matter
of the Dispute, under the then current rules of the American Arbitration
Association ("AAA"). The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, not state
law, shall govern the arbitrability of all Disputes. The arbitrator shall have
authority to award compensatory damages only. The arbitrator's award shall be
final and binding and may be entered in any court having jurisdiction thereof.
Each party shall bear its own costs and attorneys' fees and shall share equally
in the fees and expenses of the arbitrator. The arbitration shall occur in the
City and State of the party against whom the arbitration is brought, and the
laws of such state shall govern the construction and interpretation of the
Agreement. It is expressly agreed that the arbitrator shall be authorized to
issue injunctive relief pending an award in arbitration and either party may
seek relief in an appropriate court of law to enforce such determination by an
arbitrator.
9.6 Independent Contractors. The parties to this Agreement are independent
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contractors. Neither party is an agent, representative, or partner of the other
party. Neither party shall have any right, power or authority to enter into any
agreement for, or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the parties or to impose any liability attributable to such a relationship upon
either party.
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9.7. No Waiver. The failure of either party to insist upon or enforce strict
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performance by the other party of any provision of this Agreement, or to
exercise any right under this Agreement, shall not be construed as a waiver or
relinquishment of such party's right to enforce any such provision or right in
any other instance.
9.8 Notice. Any notice, approval, request, authorization, direction or other
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communication under this Agreement shall be given in writing and shall be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail; (ii) on the delivery date if delivered personally
to the party to whom the same is directed; (iii) one (1) business day after
deposit with a commercial overnight carrier with written verification of
receipt; or (iv) five (5) business days after the mailing date whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available to the Contact at the address of the party to whom the same is
directed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above
written.
Sharp Technology U S West Communications, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_________________________ _________________________
Authorized Signature Authorized Signature
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
_________________________ _________________________
Name Typed or Printed Name Typed or Printed
President 12/8/1998 Director - US ▇▇▇▇.▇▇▇ - 12/16/1998
_________________________ _________________________
Title Title
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