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EXHIBIT 10.21
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") dated as of April 20, 2000, is entered
into by and between MSNBC Interactive News LLC ("MSNBC Interactive") a Delaware
limited liability company with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and i3 Mobile, Inc. ("i3 Mobile"), a Delaware
corporation, with its principal offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. DEFINITIONS.
(a) "Content" means all information and material, whether or not
protected by copyright, including but not limited to text, images, and other
multimedia data, provided or made available to i3 Mobile as part of the
Service.
(b) "Content Provider" means a third party from whom MSNBC
Interactive acquires the right to distribute Content provided or made
available as part of the Service.
(c) "Designated Resellers" means SBC Communications and any other
third party wireless network operators that are subsequently approved in
writing by MSNBC Interactive through which i3 Mobile distributes the Headlines
to Users, subject to the terms of this Agreement.
(d) "Headlines" means brief text headlines of articles, each of which
may include a synopsis of such article, consisting of no more than 100
characters each, which are selected by MSNBC Interactive from (i) the top news
story on MSNBC Interactive, (ii) the top entertainment/arts story of MSNBC
Interactive, and (iii) any other articles of interest provided by MSNBC
Interactive.
(e) "Service" means i3's delivery of personalized information to
users of wireless devices such as mobile phones, pagers and personal digital
assistants through our distribution relationships with wireless network
operators.
(f) "Users" means all third parties to whom i3 Mobile may license,
sell, transfer, make available or otherwise distribute the Service.
2. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement,
MSNBC Interactive grants i3 Mobile a non-exclusive, non-transferable license to
distribute the Headlines only through the Designated Resellers that have been
approved by MSNBC Interactive (per section 1(c) above) in North America solely
for the purpose of being viewed on Users' wireless devices such as mobile
telephones and personal digital assistants. Each Designated Reseller shall have
the right to market and distribute the Headlines solely to such Designated
Reseller's subscribers.
3. OBLIGATIONS OF I3 MOBILE.
(a) Fees. In consideration for the services to be rendered by MSNBC
Interactive herein, i3 Mobile shall pay MSNBC Interactive Fifty Thousand Dollars
(US$50,000.00) upon the execution of this Agreement.
(b) Attribution to MSNBC Interactive. i3 Mobile shall include attribution to
MSNBC Interactive with respect to each Headline made available to Users
hereunder. Such attribution shall consist of the phrase "▇▇▇▇▇.▇▇▇" at the
beginning of each Headline, with such attribution appearing as
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text that is of a point size equal to that of the related Headline. i3 Mobile
shall require that all Designated Resellers pass through such attribution to
Users without alteration.
(c) Preferred Placement. i3 Mobile guarantees that the Headlines provided by
MSNBC Interactive hereunder shall be the exclusive news and entertainment
content appearing on the free tier of Designated Resellers wireless data
services. To the extent technically feasible within i3 Mobile's wireless
platform, the Headlines shall be accorded Preferred Placement (as defined below)
in the news and entertainment categories on all other platforms on which the
Headlines are placed; provided, that such Preferred Placement shall not be
subject to any exclusivity or Preferred Placement for such type of content which
has been contracted for prior to the Effective Date by a third party not
affiliated with i3 Mobile. Preferred Placement shall mean (i) where a link to or
display of a Content appears on a list, such link or Content is in the default,
top-most and left-most position; or (b) when a link to or display of Content
appears in a format other than a list, the link or Content is more visually
prominent, or at a higher rate of exposure, than other Content Providers.
(d) Technology and Back-end Processing. i3 Mobile shall be responsible for
all hosting and delivery of the Headlines, technical support, contractual
arrangements with Designated Resellers and other necessary parties, customer
service and all other issues involved in managing the relationship with
Designated Resellers and Users. i3 Mobile shall ensure that all Headlines are
delivered to Designated Resellers on a timely basis, but in any event within ten
(10) minutes of their scheduled delivery to Users.
(e) Marketing. i3 Mobile will ensure that MSNBC Interactive receives (i)
marketing support equal to that of any other content provider appearing within a
Designated Resellers' free tier of wireless data, and (ii) marketing support
equal to that made available to any other similarly situated provider on each
additional platform on which the Headlines appear. At any time during the Term
(as defined below), MSNBC Interactive may request, and i3 Mobile shall promptly
provide, an officer's certificate certifying that i3 Mobile has been and remains
in compliance with this Section.
(f) Promotion. Subject to the provisions of the letter agreement, dated
December 29, 1999, between i3 Mobile (formerly Intelligent Information
Incorporated) and NBC Interactive Media, Inc. (the "Letter Agreement"), and
where otherwise applicable, i3 Mobile will make an aggregate of five percent
(5%) of its unused inventory of wireless advertising taglines available to MSNBC
Interactive (a copy of the letter is attached hereto as Appendix A and made a
part hereof). The value of this inventory for purpose of this Agreement shall be
calculated at the i3 Mobile's rate card for run of service taglines in effect at
the time such taglines are ordered. The taglines shall promote the products and
services of MSNBC Interactive and its affiliates, and may not advertise, promote
or mention any other product, service, web site or third party whatsoever
without the prior written consent of i3 Mobile. In addition, with respect to the
placement or delivery of such taglines on any particular wireless network, i3
Mobile may reject such taglines if they would compete with or violate the rights
of any other advertiser, sponsor or i3 Mobile distribution partner, as
determined by i3 Mobile in its sole discretion and in good faith.
(g) Review by MSNBC Interactive. i3 Mobile shall provide MSNBC Interactive
with reasonable access to i3 Mobile's technology and systems for distribution of
the Headlines to Users for the purpose of reviewing i3 Mobile's compliance with
the terms and conditions of this Agreement.
(h) Reporting. i3 Mobile shall provide MSNBC Interactive with monthly
reports regarding user data that is collected or otherwise received by i3 Mobile
in connection with the delivery of the Headlines to Designated Resellers and
Users, including without limitation and to the extent
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permitted and as technically feasible the number of Users that elect to receive
Headlines, the percentage of all eligible Users that elect to receive Headlines,
the number of Users that receive Headlines for free versus on a subscription
basis, the names and e-mail addresses of Users who elect to receive Headlines,
and any other usable data or information that is reasonably requested by MSNBC
Interactive (the "User Data"). All User Data shall be provided on both an
aggregate basis and broken down by Designated Reseller. Such User Data shall be
delivered to MSNBC Interactive via e-mail or FTP in a machine-readable format as
reasonably specified by MSNBC Interactive. MSNBC Interactive may use the User
Data for its own internal purposes, and may sell, distribute or share such User
Data with its affiliates and partners; provided, that MSNBC Interactive shall be
required to comply with the privacy policy of each applicable Designated
Reseller. Neither i3 Mobile nor any Designated Reseller may license, sell,
distribute or share such User Data with third parties unless such User Data is
(i) aggregated with data collected with respect to other Content Providers, it
being understood that the User Data collected hereunder shall never constitute a
majority of any aggregated pool of data licensed, sold, distributed or shared by
i3 Mobile or any Designated Reseller, and (ii) in no way traceable to or
identifiable as information of, or directly related to, MSNBC Interactive or its
affiliates.
4. OBLIGATIONS OF MSNBC INTERACTIVE. Subject to the terms and conditions
of this Agreement, MSNBC Interactive shall provide at least four (4) Headlines
per day to i3 Mobile, with two (2) Headlines being made available by 9:30 a.m.
Eastern time and two (2) headlines being made available at 4:00 Eastern time.
The Headlines shall be made available to i3 Mobile via e-mail or other mutually
agreed upon electronic means. MSNBC Interactive shall use commercially
reasonable efforts to maintain the timeliness of the Content; provided, that i3
Mobile acknowledges that, in part, MSNBC Interactive relies on the performance
of Content Providers and technology providers outside the control of MSNBC
Interactive in order to provide the Headlines.
5. MARKETING
(a) Expenses. i3 Mobile shall be responsible for all expenses incurred
by i3 Mobile in promoting and marketing the Headlines, unless such expenses have
been agreed to be paid by MSNBC Interactive or a third party advertiser in
writing in advance.
(b) Use of Trademarks. i3 Mobile acknowledges that MSNBC Interactive's
trademarks are the sole and exclusive property of MSNBC Interactive. i3 Mobile
shall use its best efforts to name MSNBC Interactive as one of its premier
information services in its formal promotional and marketing materials relating
to the Designated Resellers services. MSNBC Interactive agrees that i3 Mobile
has the right to use the MSNBC Interactive Trademarks set forth on Appendix B to
this Agreement in its own marketing and advertising materials, subject to the
terms of this Agreement and with the prior written approval of MSNBC
Interactive, such approval not to be unreasonably withheld.
(c) Prior Approval. i3 Mobile agrees to submit to MSNBC Interactive for
prior written approval all press releases, advertising or other promotional
materials that reference the Headline services or use MSNBC Interactive's
company name or trademarks not less than fifteen (15) days before the proposed
use. MSNBC Interactive shall not unreasonably withhold its approval. Unless
notice of approval or disapproval is received within (10) days of receipt of
promotional materials, approval shall be deemed granted. i3 Mobile shall be
solely responsible for insuring that Designated Resellers and Users use the
trademark solely in such form as has been previously approved by MSNBC
Interactive.
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6. EDITORIAL CONTROL. MSNBC Interactive shall retain sole editorial
control over the content and presentation of the Headlines; provided, that i3
Mobile may make changes to the formatting of the Headlines, subject to
consultation with MSNBC Interactive, in order to meet wireless display
equipment formats. i3 Mobile shall not edit, abridge, rewrite or in any way
alter the Headlines, or create any work derived from the Headlines, without the
prior written consent of MSNBC Interactive.
7. PROPERTY AND PROPRIETARY RIGHTS. All rights in and to any and all
Content furnished by MSNBC Interactive or any of its Affiliates in connection
with this Agreement, including without limitation the Headlines, shall remain in
MSNBC Interactive or such Affiliate, as the case may be, and no right, title or
interest in or to any of the same is granted, transferred or assigned to i3
Mobile by this Agreement.
8. PAYMENT. Neither party shall be required to pay in fees to the other
party in connection with the services contemplated by this Agreement.
9. TERM AND TERMINATION.
(a) Term. This term of this Agreement shall commence on the
Effective Date and shall remain in effect for an Initial Term of two (2) years.
This Agreement shall renew automatically for successive one year Renewal Terms
unless either party notifies the other party in writing, at least ninety (90)
days before the end of the Initial Term or any Renewal Term, of its election not
to renew.
(b) Termination.
(i) Breach. Either party may terminate this Agreement at any time
if the other party breaches any material provision of this Agreement. Such
termination shall take effect (i) if the breach is incapable of cure, then
immediately upon the breaching party's receipt of a written notice of
termination which identifies the breach, or (ii) if the breach, capable of being
cured, has not been cured within thirty (30) days after receipt of written
notice from the non-breaching party identifying the breach, then immediately
upon receipt of a written notice of termination received within thirty (30) days
of the end or such thirty (30) day period.
(ii) Insolvency. Either party may terminate this Agreement by
written notice to the other if the other party becomes insolvent, makes a
general assignment for the benefit of creditors, permits the appointment of a
receiver for its business or assets, or takes steps to wind up or terminate its
business.
(iii) Obligations Upon Termination. Effective upon termination of
the Agreement, i3 Mobile shall immediately cease (A) licensing, selling,
transferring, making available or otherwise distributing the Headlines, (B)
accessing, using or re-transmitting the Headlines, and (C) use of MSNBC
Interactive's Trademarks. Within thirty (30) days of termination, i3 Mobile
shall either (X) erase and purge the Headlines from any on-line and off-line
storage media and certify in writing to MSNBC Interactive that such erasure and
purge has been completed, or (Y) certify in writing to MSNBC Interactive that
certain Content has been retained in creating back-ups during the normal course
of business and that such Content shall not be used in any manner whatsoever
without the prior consent of MSNBC Interactive.
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10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF MSNBC INTERACTIVE. MSNBC
INTERACTIVE REPRESENTS AND WARRANTS TO i3 MOBILE, AND COVENANTS AND AGREES WITH
i3 MOBILE, THAT (A) IT HAS THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT,
(B) ITS PERFORMANCE HEREUNDER IT SHALL OBEY ALL APPLICABLE LAWS, REGULATIONS AND
RULES OF ANY GOVERNMENT BODY OR AGENCY OR OTHER COMPETENT AUTHORITY, (C) IT HAS
THE RIGHT AND AUTHORITY TO GRANT TO i3 MOBILE THE RIGHTS IN THE HEADLINES
GRANTED HEREUNDER, AND (D) IT IS UNDER NO OBLIGATION OR RESTRICTION, NOR WILL IT
ASSUME ANY SUCH OBLIGATION OR RESTRICTION, THAT DOES OR WOULD INTERFERE OR
CONFLICT WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF i3 MOBILE. i3 MOBILE REPRESENTS
AND WARRANTS TO MSNBC INTERACTIVE, AND COVENANTS AND AGREES WITH MSNBC
INTERACTIVE, THAT (A) IT HAS THE RIGHT AND AUTHORITY TO ENTER INTO THIS
AGREEMENT, (B) ITS PERFORMANCE HEREUNDER IT SHALL OBEY ALL APPLICABLE LAWS,
REGULATIONS AND RULES OF ANY GOVERNMENT BODY OR AGENCY OR OTHER COMPETENT
AUTHORITY, (C) IT IS UNDER NO OBLIGATION OR RESTRICTION, NOR WILL IT ASSUME ANY
SUCH OBLIGATION OR RESTRICTION, THAT DOES OR WOULD INTERFERE OR CONFLICT WITH
ITS OBLIGATIONS UNDER THIS AGREEMENT, AND (D) THE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER SHALL NOT VIOLATE ANY THIRD PARTY AGREEMENT (INCLUDING ANY AGREEMENTS
BETWEEN i3 MOBILE AND ITS USERS.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, EACH
PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO
THIS AGREEMENT, PERFORMANCE UNDER THIS AGREEMENT, THE HEADLINES AND CONTENT, AND
EACH PARTY'S COMPUTING AND DISTRIBUTION SYSTEM.
13. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION
OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY,
NOR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENGS OR
SUPPLIERS, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR
INDIRECT DAMAGES, OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF WARRANTY OR
ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), AND IRRESPECTIVE OF
WHETHER THE PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBLITY OF ANY SUCH LOSS
OR DAMAGE. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE AMOUNTS PAYABLE HEREUNDER
ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREE THAT THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
14. INDEMNIFICATION.
(a) Infringement Indemnification. MSNBC Interactive shall indemnify,
defend and hold harmless i3 Mobile from and against any and all losses, claims,
liabilities, damages, costs and expenses (including, without limitation,
reasonable attorneys' fees) arising out of or incurred by i3 Mobile as a result
of any actual claim, action, proceeding or suit (each, a "Claim") alleging that
the licensing, use, reproduction, display, publishing or distribution of the
Headlines by i3
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Mobile in accordance with the terms and conditions of this Agreement constitutes
an infringement of any patent, copyright, trademark, trade secret, or other
proprietary right of any third party.
(b) Cross Indemnity. Each party (the "Indemnifying Party") shall
indemnify and hold harmless the other party, its affiliates, and their
respective officers, directors, members, employees and agents (the "Indemnified
Party") from and against any and all Claims instituted by third parties, as well
as any and all losses, liabilities, damages, costs and expenses (including
reasonable attorneys fees) arising out of or accruing from (a) any
misrepresentation or breach of the Indemnifying Party's representations and
warranties set forth in this Agreement; and (b) any non-compliance by the
Indemnifying Party with any covenants, agreements or undertakings of such party
contained in or made pursuant to this Agreement.
15. CONFIDENTIALITY.
(a) General. During the Term and for a period of two (2) years thereafter,
each party shall treat as confidential all Confidential Information of the other
party, shall not use such Confidential Information except as set forth herein,
and shall not disclose such Confidential Information to any third party.
Confidential Information shall mean all materials that are deemed confidential
and competitively sensitive to the disclosing party, including, without
limitation: capital, marketing or business plans; privileged documents, budgets
and strategies; customer/client lists and records; marketing studies; financial
information; projections; cost estimates; cost and pricing practices; personnel
records; trade secrets; minutes; data; technical designs; drawings;
specifications; techniques; test results; engineering reports; program code;
research; documents; electronic transmissions; analyses; compilations and
studies, or copies of extracts thereof, whether recorded or unrecorded (in
whatever medium) possessed by the disclosing party or used in the disclosing
party's business. Without limiting the foregoing, each of the parties shall use
at least the same degree of care which it uses to prevent the disclosure of its
own confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other party under this
Agreement, but in no event less than reasonable care. Each party shall promptly
notify the other party of any actual or suspected misuse or unauthorized
disclosure of the other party's Confidential Information. Upon expiration or
termination of this Agreement, each party shall return all Confidential
Information received from the other party. Any breach of the restrictions
contained in this Section is a breach of this Agreement that may cause
irreparable harm to the non-breaching party. Any such breach shall entitle the
non-breaching party to injunctive relief in addition to all legal remedies.
(b) Exclusions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which (i) was in the public domain at the time it was disclosed or has entered
the public domain through no fault of the receiving party, (ii) was known to the
receiving party, without restriction, at the time of disclosure, (iii) is
disclosed with the prior written approval of the disclosing party, (iv) was
independently developed by the receiving party without any use of the
Confidential Information, as reasonably demonstrated by the receiving party, (v)
becomes known to the receiving party, without restriction, from a source other
than the disclosing party without breach of this Agreement by the receiving
party and otherwise not in violation of the disclosing party's rights, (vi) is
disclosed generally to third parties by the disclosing party without
restrictions similar to those contained in this Agreement, or (vii) is disclosed
pursuant to the order or requirement of a court, administrative agency, or other
governmental body; provided, that the receiving party shall provide prompt
notice thereof to the disclosing party to enable the disclosing party to seek a
protective order or otherwise prevent or restrict such disclosure. Each party
shall be entitled to disclose the existence of this Agreement, but agrees that
the terms and conditions of this Agreement shall be treated as Confidential
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Information and shall not be disclosed to any third party; provided, that each
party may disclose the terms and conditions of this Agreement (A) as required by
any court or other governmental body, (B) as otherwise required by law, (C) to
legal counsel of the parties, (D) in confidence, to accountants, banks and
financing sources and their respective advisors, (E) if necessary in connection
with the enforcement of this Agreement or rights under this Agreement, or (F) in
confidence, in connection with an actual or proposed merger, acquisition or
similar transaction.
16. MISCELLANEOUS.
(a) Binding Nature and Assignment. This Agreement shall be binding on the
parties hereto and their respective successors and assigns, but neither party
may assign this Agreement without the prior written consent of the other, such
consent not to be unreasonably withheld; provided, however, that this Agreement
may be assigned by MSNBC Interactive to a direct or indirect parent, subsidiary
or affiliate without consent of i3 Mobile.
(b) Compliance with Law. Each party shall comply with all applicable laws,
codes, ordinances, rules and regulations of the federal, state and local
governments, and of any and all political subdivisions and regulatory
authorities thereof. Each party shall obtain all necessary permits and licenses
required in connection with the performance of it obligations hereunder.
(c) Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier or overnight delivery service, or forty-eight (48) hours after
being deposited in the regular mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at such party's
address as set forth in the preamble of this Agreement. Either party hereto may
from time to time change its address for notification purposes by giving the
other prior written notice of the new address and the date upon which it will
become effective.
(d) Headings. The article and section headings used herein are for
reference and convenience only and shall not enter into the interpretation
hereof.
(e) Relationship of Parties. i3 Mobile, in furnishing services to MSNBC
Interactive hereunder, is acting only as an independent contractor and assumes
full responsibilities for each of its employees and shall be solely responsible
for the payment of compensation to its personnel. This Agreement does not
constitute either party as the agent or legal representative of the other party
and does not create a partnership or joint venture between them.
(f) Severability. If any provision of this Agreement is declared or found
to be illegal, unenforceable or void, then both parties shall be relieved of
all obligations arising under such provision, but only to the extent that such
provision is illegal, unenforceable or void, it being the intent and agreement
of the parties that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it legal and enforceable while
preserving its intent or, if that is not possible, by substituting therefor
another provision that is legal and enforceable and achieves the same
objective. If the remainder of this Agreement shall not be affected by such
declaration or finding and is capable of substantial performance, then, each
provision not so affected shall be enforced to the extent permitted by law.
(g) Press Releases. Except to the extent required by applicable law or as
otherwise specified herein, any use by one party of the other party's name,
trademarks or service marks in any press releases, customer lists, marketing
materials or other announcements concerning the matters covered by this
Agreement, or for promotional, advertising or other purposes, shall require the
other party's prior written approval; provided, that MSNBC Interactive shall
have the right to
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approve any description of MSNBC Interactive and the transactions contemplated
by this Agreement which are included in any documents filed by i3 Mobile with
the Securities and Exchange Commission, such approval not to be unreasonably
withheld.
(h) Waivers. No delay or omission by either party hereto to exercise any
right or power hereunder shall impair such right or power or be construed to be
a waiver thereof. A waiver by either of the parties hereto of any of the
covenants to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. All remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise.
(i) Force Majeure. If the performance of this Agreement or any obligation
hereunder is prevented, restricted or interfered with by reason of fire or other
casualty or accident, acts of God, severe weather conditions, war or other
violence, any law, order, proclamation, regulation, ordinance, demand or
requirement of any governmental agency, or any other act or condition beyond the
reasonable control of the parties hereto, the party whose performance is so
affected shall be excused from such performance; provided, that if either party
invokes this Section for any consecutive period of thirty (30) days or longer,
then the other party may immediately terminate this Agreement without penalty,
upon written notice to such invoking party.
(j) Survival of Terms. Termination or expiration of this Agreement for any
reason shall not terminate any rights, liabilities or obligations that have
either accrued prior to the effective date of termination of this Agreement or
which the parties have expressly agreed shall survive any such termination or
expiration.
(k) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and there
are no written or oral representations, understandings or agreements relative
hereto which are not fully expressed herein. This Agreement is intended to be
the sole and exclusive statement of the agreement between the parties hereto
with respect to the subject matter hereof and any other terms or conditions
included in any forms utilized or exchanged by the parties hereto shall be of no
force or effect and shall not be incorporated herein or be binding unless
expressly agreed to in writing by both parties hereto. No change, amendment,
waiver or discharge hereof shall be valid unless in writing and signed by an
authorized representative of the party against which such change, amendment,
waiver or discharge is sought to be enforced.
(l) Governing Law; Jurisdiction. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the state and federal courts of New York County, New
York. In any action or suit to enforce any right or remedy under this Agreement
or to interpret any provision of this Agreement, the prevailing party shall be
entitled to recover its costs, including reasonable attorneys' fees.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, i3 Mobile and MSNBC Interactive have each caused this
Distribution Agreement to be executed and delivered by its duly authorized
officer, to be effective as of the Effective Date.
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I3 MOBILE, INC. MSNBC INTERACTIVE NEWS L.L.C.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Signature Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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Printed Name Printed Name
PRESIDENT AND CEO DIRECTOR
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Title Title
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APPENDIX A
NBC LETTER
NBC Interactive Media, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
December 29, 1999
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
President & CEO
Intelligent Information Incorporated
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇:
As you know, we at NBC Interactive Media ("NBC") are excited about working with
Intelligent Information Incorporated ("III") regarding a wireless distribution
deal for certain of our interactive properties. Pending the execution of one or
more definitive distribution agreements (each, a "Distribution Agreement") and
certain other documentation as more fully described below, this letter agreement
will confirm our discussions regarding our relationship as follows:
1. Distribution. (a) III shall make wireless distribution services
available to NBC and its affiliates (including, for example, NBC Internet, Inc.,
MSNBC Interactive News LLC and ▇▇▇▇.▇▇▇ LLC) (each, an "NBC Entity") for use in
connection with their interactive content offerings. III shall provide each NBC
Entity with a Distribution Agreement with terms and conditions, including
marketing fee allocations and distribution and performance metrics, no less
favorable to such NBC Entity than those provided to any other customer of III
contracting for a similar volume of services.
(b) Following execution of any Distribution Agreement, to the
extent III offers a lower price or a more favorable marketing fee allocation
to any customer contracting for a similar volume of services, such lower price
shall automatically be applied on a going forward basis to each of the
Distribution Agreements. At any time during the term of the Distribution
Agreements, an NBC Entity may request, and III shall promptly provide, an
officer's certificate certifying that III has been and remains in compliance
with this Section.
2. Preferred Placement: Each Distribution Agreement shall provide, to the
extent technically feasible within the III wireless services, Preferred
Placement (as defined below) for NBC's interactive properties and affiliates
with respect to the type of content distributed pursuant to such Distribution
Agreement (for example, a Distribution Agreement for ▇▇▇▇▇.▇▇▇ would provide
Preferred Placement for MSNBC in the news category); provided that III shall not
be
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required to provide such Preferred Placement if exclusivity or Preferred
Placement for such type of content has been provided, prior to the execution of
the Distribution Agreement, to a third party not affiliated with III. Preferred
Placement shall mean (a) where a link to or display of content appears on a
list, such link or content is in the default, top-most and left-most position;
or (b) when a link to or display or content appears in a format other than a
list, the link or content is more visually prominent, or at a higher rate of
exposure, than other content partners.
3. Promotion: (a) III will make five percent (5%) of its unused inventory
of wireless advertising taglines available to the interactive properties of the
NBC Entities following execution of any Distribution Agreement; provided that if
more than one NBC Entity enters into a Distribution Agreement, the first two NBC
Entities that enter into Distribution Agreements with III shall allocate such
unused inventory equally between them. The value of this inventory for purpose
of this Agreement shall be calculated at the III rate card for run of service
taglines in effect at the time such taglines are ordered.
(b) The taglines shall promote the products and services of NBC and
its affiliates, and may not advertise, promote or mention any other product,
service, web site or third party whatsoever without the prior written consent of
III. In addition, with respect to the placement or delivery of such taglines on
any particular wireless network, III may reject such taglines if they would
compete with or violate the rights of any other advertiser, sponsor or III
distribution partner, as determined by III in its sole discretion and in good
faith.
(c) III will provide marketing funds at a mutually agreed upon
level to NBC and the NBC Entities in support of the joint wireless initiatives
of III and the NBC Entities, but in no event shall the amount of marketing
funds provided to NBC and the NBC Entities be less than the value of the
advertising taglines provided to NBC and the NBC Entities. These funds will be
used in support of marketing activities at the discretion of the parties.
4. Warrants. (a) Upon execution of each Distribution Agreement by III and
NBC Entity, III will grant to NBC for distribution to itself or, pursuant to
NBC's instructions, in whole or in part, to such NBC Entity, a fully-vested
warrant (each, a "Warrant") to purchase up to 20,000 shares of III's Common
Stock at an exercise price equal to $10.00 per share. In the event the first
Distribution Agreement is executed on or before March 31, 2000, the Warrant
granted in consideration therefore shall be for 30,000 shares (the "Bonus
Shares"). The aggregate number of shares available hereunder, including the
Bonus Shares, shall not exceed 110,000 shares. NBC shall use its commercially
reasonable efforts to cause the NBC Entities to enter into Distribution
Agreements with III.
(b) Each Warrant shall expire three (3) years following its issuance
and shall not terminate upon an initial public offering or change of control of
III. Subject to any relevant securities laws, rules and regulations, each
Warrant, as well as the equity acquired through exercise thereof, will be freely
transferable by NBC or such NBC Entity and may be exercised in whole or in part.
When exercising any Warrant, NBC or such NBC Entity shall have the right to
either (i) purchase the total number of shares of equity which such Warrant
entitles NBC or such NBC Entity to purchase at the exercise price described
above or (ii) receive the net number of shares of equity arising from the
difference between the market price of such equity at the date of exercise and
the exercise price for the Warrant.
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5. Public Relations. Each party will issue a press release announcing the
relationship between the parties, with each such press release subject to the
approval of the other party. NBC will provide a reasonable level of public
relations resources to promote the strategic alliance between of III and NBC.
6. Term. The term of this Letter Agreement shall be two (2) years and,
during such period, each NBC Entity shall have the right to enter into a
Distribution Agreement with a term of up to three (3) years, with each such term
commencing upon the execution of each such Distribution Agreement.
Sincerely,
NBC Interactive Media, Inc.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Acknowledged and agreed:
Intelligent Information Incorporated
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
President & CEO
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APPENDIX B
MSNBC TRADEMARKS