EXHIBIT 10.44
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___________________________________________________________________
AMENDED AND RESTATED AGREEMENT
by and among
StarMedia Network, Inc.,
Advanced Multimedia Group, Inc.
AND
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
dated as of
November 19, 1999
__________________________________________________________
AGREEMENT
This Amended and Restated Agreement ("Agreement") is made as of this
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19th day of November, 1999 among Advanced Multimedia Group, Inc., a Florida
corporation, with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
("AMG"), ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, a Nevada corporation with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇") and StarMedia
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Network, Inc., a Delaware corporation, with offices at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("StarMedia").
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WHEREAS, StarMedia operates various Websites targeted at Spanish- and
Portuguese-speaking audiences including a Website ("Periscopio") which contains,
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among other channels, a Financial Services channel (the "Periscopio Financial
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Channel");
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WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ operates a Website targeted at English-
speaking audiences that provides financial services and content and wishes to
make a similar Spanish- and Portuguese-language Website (the "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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Latin Website") available through the Periscopio Financial Channel;
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WHEREAS, AMG and StarMedia entered into an Agreement dated as of
August 6, 1999, as amended (the "Original Agreement"), whereby AMG agreed to
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find a Financial Services Company to act as the financial services provider for
Periscopio; and
WHEREAS, StarMedia now wishes to grant ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ certain rights
as one of the Founding Sponsors of Periscopio and as the Founding Sponsor of the
Periscopio Financial Channel in exchange for which ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will remit
to StarMedia and StarMedia will remit to AMG certain sums as set forth herein.
NOW THEREFORE, in consideration of the premises, and the mutual
promises and understandings set forth in this Amended and Restated Agreement,
AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and StarMedia hereby agree as to amend and restate the
Original Agreement in its entirety as follows:
1. Definitions. Terms not otherwise defined in the body of this
Amended and Restated Agreement shall have the following meanings:
"AMG Materials" means the content, branding identification and
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software provided by AMG in connection with this Amended and Restated Agreement,
including without limitation text, graphics, multimedia presentations, images,
animations, computer programs, data, designs, storyboards, scripts, and
specifications, and all forms of trademarks, service marks and corporate and
brand identification and indicia, including without limitation word marks, logos
and other picture marks, phrases, jingles, composite marks, corporate,
commercial and institutional images, product designations and identifications,
whether registered or not (the "AMG Marks").
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An "Affiliate" of or a Person or "Affiliated with" a specified Person
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means another Person that, directly or indirectly, controls, is controlled by or
is under common control
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with, the Person specified (other than independent contractors and leased
employees). For purposes of such definition, a Person shall be deemed to have
control over any other Person if: (a) such Person directly or indirectly or
acting through one or more other Persons owns, controls, or has power to vote
fifty percent (50%) or more of the equity interests of the other Person; (b)
such Person controls, in any manner, the election of a majority of the
directors, managers or trustees (or persons exercising similar responsibilities)
of the other Person; or (c) such Person directly or indirectly controls the
management or policies of the other Person.
"Derivative Content" means the Licensed Content as modified,
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translated into a language other than English, or enhanced by or on behalf of
StarMedia in accordance with the terms of this Amended and Restated Agreement.
"Eligible Customers" means all Persons who purchase Financial Services
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(or services related thereto that generate Eligible Sales Revenues) from
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website after viewing one or more Pages on the Periscopio
Financial Channel containing links or promotional information relating to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or its Affiliates.
"Eligible Sales Revenues" means all gross sales revenues, excluding
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sales taxes, generated from sales of Financial Services and services related
thereto, including, without limitation, revenues derived from management of
accounts, investment advice, investment banking, trading/brokerage transactions,
insurance and insurance product sales, mutual fund sales and newsletter or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website subscriptions, to Eligible Customers.
"▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials" means the Licensed Content, branding
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identification and software provided by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in connection with this
Amended and Restated Agreement, including without limitation, text, graphics,
multimedia presentations, images, animations, computer programs, data, designs,
storyboards, scripts and specifications, and all forms of trademarks, service
marks and corporate and brand identification and indicia, including without
limitation word marks, logos and other picture marks, phrases, jingles,
composite marks, corporate commercial and institutional images, product
designations and identifications, whether registered or not (the
"▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks").
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"Financial Content" means the publication, dissemination and provision
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of financial information and content over the Internet, including real-time and
delayed stock, equities, mutual funds, money markets, commodities, indices and
option watchers, screeners and other research tools, quotes, a search feature,
IPO information, daily market reports and summaries, daily mutual fund articles,
Wall Street commentary, small cap stock articles and related content, broker and
analyst recommendations, SEC filings, industry sectors, personal finance tools
and information, daily world currency data, charts, analysis, newsletters,
investigative reports, articles, profiles, and chat rooms as well as other
Internet-delivered financial communications, advice, and personalized or
customized information.
"Financial Services" means banking, loans, insurance and trading of
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securities.
"Financial Services Company" means any Person, including
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▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, that provides some or all of the Financial Content or
Financial Services.
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"Founding Sponsor" means (i) with respect to the Periscopio Website,
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that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be designated and referred to as one of the founding
sponsors in any press releases relating to the Periscopio Website and (ii) with
respect to the Periscopio Financial Channel, that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be
designated as the founding sponsor of the Periscopio Financial Channel, with a
premier presence on its Home Page.
A "Frame" or "Framing" means any spatial subdivision or separation of
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a display such that more than one HTML (or successor protocol) document is
simultaneously perceptible therein.
"Home Page" means that HTML (or successor protocol) Page which is the
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root or principal entry point into a Website or any portion of a Website.
"Intellectual Property Rights" means any and all patent, trademark,
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service ▇▇▇▇, copyright, trade secret or other proprietary or similar rights or
interests whether or not registered or registrable, and related applications for
statutory protection thereof, and the rights to make such applications.
"Launch Date" means the date that is [sixty (60)] days from the date
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of this Amended and Restated Agreement.
"Licensed Content" means the material provided by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as
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set forth in this Amended and Restated Agreement or as provided throughout the
Term of this Amended and Restated Agreement upon agreement of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
and StarMedia (including, without limitation, all text, pictures, audio, video
and graphics contained therein) and any improvements, supplements, updates,
revisions and/or corrections thereto.
"Link" means a pointer to an Internet address, Page or other service
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which can be activated through a user interface.
"Page" means, with respect to any Website, any HTML (or successor
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protocol) document containing content (whether in-line, linked or framed) which
can be accessed so as to be viewed, listened to, stored, reproduced or made use
of by a user with the aid of a suitable device and software.
"Page View" means the request of, and successful and complete delivery
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of a Page containing AMG or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, Derivative Content
and/or a Link to the Periscopio Financial Channel to (i) a Visitor to the
Periscopio Financial Channel or (ii) three Persons who access the Periscopio
Site Home Page.
"Periscopio Site" means the Periscopio Website and underlying Websites
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maintained by or for StarMedia and/or its Affiliates at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ (and/or any successor or additional addresses and the
country indicators thereof), including without limitation, the content featured
therein.
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"Person" means any individual, corporation, company, voluntary
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association, partnership, joint venture, trust, unincorporated organization,
government (or any agency, instrumentality or political subdivision thereof) or
any other entity.
"Premier" display on a Page means that the presentation described
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(except with respect to banner advertisements) shall be displayed continuously
and shall be larger in size and no less conspicuous or noticeable than that of
any other Financial Services Company and displayed prior to that of any other
Financial Services Company on any such Page and at the top of any menu or list
containing Financial Services Companies which is on or within any such Page.
"Prominent" display on a Page means display "above the fold" on an 800
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x 600 resolution CRT, meaning that a Visitor first observing the Page in
question on any monitoring device will see, without scrolling, the entirety of
the AMG/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials.
"StarMedia Materials" means the content, branding identification and
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software provided by StarMedia and its Affiliates in connection with this
Amended and Restated Agreement, including without limitation text, graphics,
multimedia presentations, images, animations, computer programs, data, designs,
storyboards, scripts, and specifications, and all forms of trademarks, service
marks and corporate and brand identification and indicia, including without
limitation word marks, logos and other picture marks, phrases, jingles,
composite marks, corporate, commercial and institutional images, product
designations and identifications, whether registered or not ("StarMedia Marks").
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"StarMedia Money Channel" means the channel related to money and
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finances on the StarMedia Site.
"StarMedia Site" means the StarMedia Website and underlying Websites
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maintained by or for StarMedia and/or its Affiliates at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
(and/or any successor or additional addresses and the country indicators
thereof), including, without limitation, the content featured therein.
"StarMedia Specifications" means the technical specifications, format
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and requirements necessary for presentation and display of Licensed Content on
and through the Periscopio Site. The StarMedia Specifications in effect as of
the date hereof are attached hereto as Exhibit A to the Amended and Restated
Agreement.
"Technology" means all software, methods of operation, hardware
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designs, interfaces, specifications and documentation in respect of the
foregoing.
"U.S. Financial Content" means Financial Content pertaining to the
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U.S. markets.
"U.S. Financial Services" means Financial Services pertaining to the
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U.S. markets.
"Visitor" means any individual that accesses the Periscopio Financial
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Channel.
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"Website" means a set of one or more Pages related by links specified
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by its provider, including at least one Page stored at a network address
controlled by, or assigned by a host to, its provider, which is provided over
the Internet under the Hypertext Transfer Protocol (or successor protocol). For
the avoidance of ambiguity, Websites include one Website which may be a mirror
image or duplicate, in whole or in part, or even containing modifications from
an original Website.
2. Designation and Placement of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
2.1 Designation. Pursuant to the terms and subject to the
conditions of this Amended and Restated Agreement, during the Term:
(a) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will be designated as one of the Founding
Sponsors of Periscopio and as the Founding Sponsor of the Periscopio Financial
Channel;
(b) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will be provided with Premier and Prominent
presence on the Home Page of the Periscopio Financial Channel (which presence
includes a continuous Link to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website), with other
Financial Services Companies being limited to banners and/or buttons that appear
on the Periscopio Financial Channel;
(c) whenever StarMedia refers to its founding sponsors in
StarMedia marketing materials, StarMedia shall indicate ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s
status as a Founding Sponsor, in a manner that is at least equivalent to the
references to any other founding sponsors of Periscopio and StarMedia;
(d) StarMedia shall provide a permanent hot Link to the AMG
Website on the bottom of the Home Page of the Periscopio Financial Channel,
which Link shall state "presented by AMG" or words of similar import, to the
extent such statement is not prohibited by agreements between StarMedia and
third-party technology providers;
(e) whenever StarMedia provides a button or banner promoting the
Periscopio Financial Channel, such button or banner shall state that the
Periscopio Financial Channel is "sponsored by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇";
(f) whenever StarMedia recommends, suggests or otherwise
provides users with lists of Financial Services Companies that offer products
and services competitive with those offered by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ on the StarMedia
Money Channel or other similar channel, StarMedia shall include ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
among such Financial Services Companies and provide a Link to the Periscopio
Financial Channel;
(g) StarMedia shall promote the Periscopio Financial Channel on
the StarMedia Money Channel and shall indicate therein that the Periscopio
Financial Channel is "sponsored by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇";
(h) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be the exclusive provider of U.S.
Financial Content and U.S. Financial Services on the Periscopio Financial
Channel, provided, however, that if StarMedia provides (directly or though
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agreements with third parties) any U.S.
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Financial Content or U.S. Financial Services prior to the date of this
Agreement, StarMedia may continue to do so, and provided, further, that under no
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circumstances shall StarMedia be prohibited from promoting, advertising,
offering or marketing U.S. Financial Content or U.S. Financial Services (other
than that provided by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) anywhere on the StarMedia Site or the
Periscopio Site if ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is not at such time offering similar U.S.
Financial Content or U.S. Financial Services to Visitors to the Periscopio
Financial Channel, subject to the following limitations: (i) StarMedia shall not
enter into new agreements with third-party providers of U.S. Financial Content
or U.S. Financial Services with respect to the Periscopio Financial Channel
during the Beta Period, and (ii) thereafter, StarMedia shall notify
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in writing of its desire to offer specific U.S. Financial
Content or U.S. Financial Services on the Periscopio Financial Channel itself or
through a third-party, and shall provide ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ with reasonable
opportunity to offer such content, prior to doing so itself or through a third
party; and
(i) StarMedia shall not allow any other Financial Services
Company to offer the same Financial Services on the Periscopio Financial Channel
that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ offers on the Periscopio Financial Channel, other than
advertisements of any such Financial Services.
2.2 Advertising.
(a) During the Term of this Amended and Restated Agreement, StarMedia
shall deliver, whether on the Periscopio Site or the StarMedia Site or any other
StarMedia property as agreed to by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, no less than fifteen
million (15,000,000) advertising impressions promoting ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website (the "Advertising Impressions") to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ at a rate of $100
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per 1,000 Advertising Impressions (the "Rate"), ten percent (10%) of which will
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include a reference to AMG. In addition, at ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s request from
time to time, StarMedia will deliver additional Advertising Impressions, over
and above the fifteen million (15,000,000) Advertising Impressions commitment
set forth herein, up to an additional ten million (10,000,000) Advertising
Impressions. Such Advertising Impressions may be in the form of banners,
buttons and/or advertisements. Subject to Section 2.1(c), StarMedia shall be
solely responsible for determining the placement and rotation frequency of the
Advertising Impressions, provided, however, that at least ten percent (10%) of
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the Advertising Impressions shall be placed on the Home Page of the StarMedia
Site and provided, further, that StarMedia shall deliver no less than 1,000,000
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Advertising Impressions during the Beta Period; no less than 2,800,000
Advertising Impressions during the first year of the Additional Period; no less
than 4,200,000 Advertising Impressions during the second year of the Additional
Period; and no less than 7,000,000 Advertising Impressions during the third year
of the Additional Period. The content of all Advertising Impressions shall be
jointly determined by the parties, and neither party shall unreasonably withhold
or delay its approval.
(b) In the event that StarMedia fails to deliver the requisite number
of Advertising Impressions in any given year as set forth in Section 2.2(a),
StarMedia shall, at AMG/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s option: (i) deliver an appropriate
number of "make good" Advertising Impressions during the first quarter of the
following year, provided, however, that if the failure occurs during the final
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year of the Term, this Amended and Restated Agreement shall
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be extended to allow StarMedia to provide such "make good" Advertising
Impressions; or (ii) pay ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ an amount equal to the value of the
shortfall in Advertising Impressions, based on the Rate set forth in Section
2.2(a).
2.3 Development and Maintenance of AMG Materials and the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials. AMG shall be responsible for developing,
maintaining and providing, on a non-exclusive basis, the AMG Materials for
inclusion within the Periscopio Financial Channel, in the format and otherwise
consistent with the StarMedia Specifications. Upon thirty (30) days' written
notice, StarMedia may enhance or modify the StarMedia Specifications, so long as
such enhancements do not require an expenditure in excess of $25,000 per annum
for any year of the Additional Period.
2.4 Design and Maintenance of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website on the
Periscopio Site., ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be solely responsible for designing,
implementing, maintaining and updating the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website.
StarMedia shall have the right to approve all uses of the StarMedia Marks on the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website, which approval shall not be unreasonably
withheld or delayed. StarMedia shall provide consulting services to a client
services team, including writers, producers and designers hired by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to work on the development, translation, maintenance and
integration of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, Financial Content and Financial
Services on the Periscopio Financial Channel. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall ensure that
the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website meets the following requirements:
(a) following the Launch Date, the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website shall be fully functioning and available to visitors on a twenty-four
(24) hour per day, seven (7) day per week basis during the Term of this Amended
and Restated Agreement, with the exception of regular maintenance downtime
periods and minor service interruptions.
(b) The ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website will permit Visitors to
order Financial Services and shall permit Visitors to, at their option, (i) use
a secure on-line credit card ordering interface employing standard encryption
technology, or (ii) submit orders via e-mail or telephone (using a toll-free
telephone number), or by mail;
(c) All pages contained in the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website
will be compatible with Netscape Navigator 3.0 or higher and Microsoft Internet
Explorer 3.0 or higher, in each case with JavaScript support, and will not
require any additional software "plug-ins" not included in the standard versions
of such browsers, other than Real Networks, Inc.'s standard (freeware) RealMedia
plug-in; and
(d) All pages on the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website will be
viewable within the StarMedia browser screen frame set, and no page on the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website shall terminate, modify or otherwise violate the
integrity of the StarMedia screen frame set or deploy a new browser window.
(e) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall meet a delivery schedule as agreed to
by StarMedia and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ within thirty days of the date of this
Agreement, provided,
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however, that if no delivery schedule is agreed to, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall meet
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the delivery schedule provided by StarMedia (the "Delivery Schedule").
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2.5 Licensed Content. StarMedia shall have the exclusive right to
incorporate the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website into the Periscopio Site and to
host, Frame and co-brand the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website on the Periscopio
Site in accordance with the terms of this Amended and Restated Agreement,
including, but not limited to, the terms of Exhibit A. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby
grants to StarMedia, and StarMedia hereby accepts, for the Term of this Amended
and Restated Agreement and subject to its conditions, the exclusive right,
license and privilege throughout the world in the Spanish and Portuguese
languages (i) to use, reproduce, archive, display, perform, market, publish,
distribute and transmit, in whole or in part, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials and any
Derivative Content in connection with the Periscopio Site, and (ii) to modify or
enhance, with the prior consent of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, the Licensed Content; in
each case by any delivery method or means or in any medium whether now known or
hereafter devised, or to refrain therefrom, including, but not limited to, dial-
up, wireless, cable, satellite or broadband. A schedule for incorporation of
the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Site into the Periscopio Site shall be agreed to by
the parties within thirty (30) days of the date of this Amended and Restated
Agreement.
2.6 Design and Technical Specifications. The parties shall jointly
determine, from time to time, appropriate technical, design and performance
specifications for the incorporation of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website on
the Periscopio Site and shall work together to determine initial changes to the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website design, layout, and navigational features and
other technical, design and performance characteristics. Such changes shall be
implemented by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as soon as reasonably practicable. StarMedia
and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ may jointly determine additional design changes to the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website from time to time in the future, which
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall implement as soon as soon as reasonably practicable. At
a minimum, the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website shall comply with the technical,
design and performance specifications set forth in Exhibit A, attached hereto.
2.7 Testing. In advance of the Launch Date, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall
have thoroughly tested all ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Technology and components of the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website and shall ensure adequate performance,
reliability and compliance with specifications set forth herein. Any additional
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Technology or components added to the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website following the Launch Date shall be subjected to similar testing
procedures. StarMedia may from time to time prescribe specific testing
procedures, which ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall undertake to the extent that such
procedures can be completed without unreasonable effort and resources on
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s part.
2.8 Technical Specifications. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide
StarMedia with such information and documentation as StarMedia may reasonably
request with respect to the configuration and technical specifications of the
systems employed to operate the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website, including the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website server administration requirements, the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website architecture and a troubleshooting guide.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall provide StarMedia with updates to such
9
information from time to time whenever changes in the configuration or
specifications of the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website are made. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall also develop, implement and provide to StarMedia reasonably satisfactory
back-up contingency procedures for any system failures which could materially
impair user access to the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website.
2.9 Financial Newsletters and E-mail. StarMedia shall provide
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ with the opportunity to allow Visitors, through a buttons or
Links on the Periscopio Financial Channel, to subscribe to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
financial newsletters via e-mail, and, subject to StarMedia's privacy policy,
to receive e-mail alerts and other communications.
2.10 Advertising Revenue Sharing. StarMedia shall pay
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ on a monthly basis the following percentage of Net Advertising
Revenue sold by StarMedia. For purposes of this Amended and Restated Agreement,
"Net Advertising Revenue" means cash receipts of revenue (as determined in
-----------------------
accordance with U.S. generally accepted accounting principles) generated from
the sale of advertising on Licensor Qualifying Pages (the "Gross Advertising
-----------------
Revenues"), less (i) applicable international sales, value added and withholding
--------
taxes and (ii) twenty percent (20%) of Gross Advertising Revenues. For purposes
hereof, "Licensor Qualifying Pages" means Pages of the Periscopio Site that
-------------------------
consist entirely (100%) of the Licensed Content or Derivative Content and shall
specifically not include those Pages containing "teasers" to the Licensed
Content or Derivative Content. The parties understand and agree that StarMedia
may enter into additional contractual revenue-sharing arrangements with third
parties to increase site traffic and advertising revenues. To the extent that
any additional revenue sharing rights shall apply to any Net Advertising
Revenues, the parties' respective share of such Net Advertising Revenues shall
be proportionately reduced such that the percentage ratios mentioned below are
maintained:
(a) until a total of $14,250,000 in receipts from advertising revenues
has been remitted to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, StarMedia shall pay ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ an
amount equal to seventy-five percent (75%) of Net Advertising Revenues; and
(b) once a total of $14,250,000 in receipts from advertising revenues
has been remitted to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, StarMedia shall pay ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ an
amount equal to fifty percent (50%) of Net Advertising Revenues.
2.11 Advertising Revenue Goals. StarMedia shall endeavor to remit to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ a minimum of $14,250,000 in receipts from Net Advertising
Revenues actually earned and collected by Starmedia during the Term of this
Amended and Restated Agreement (the "Advertising Revenue Goal"). The Net
------------------------
Advertising Revenue shall be remitted by StarMedia to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as
follows:
(a) First Year of the Additional Period: $3 million as follows:
-----------------------------------
(i) Beta Period to end of first quarter of the first year of the
Additional Period: $420,000;
(ii) Second quarter of first year of the Additional Period:
$600,000;
(iii) Third quarter of the first year of the Additional Period:
$800,000;
(iv) Fourth quarter of the first year of the Additional Period:
$1,180,000.
(b) Second Year of the Additional Period: $5 million as follows:
------------------------------------
(i) First quarter of the second year of the Additional Period:
$755,000;
(ii) Second quarter of the second year of the Additional Period:
$1,025,000;
(iii) Third quarter of the second year of the Additional Period:
$1,325,000;
(iv) Fourth quarter of the second year of the Additional Period:
$1,895,000.
(c) Third Year of the Additional Period: $6.25 million as follows:
-----------------------------------
(i) First quarter of the third year of the Additional Period:
$820,000;
(ii) Second quarter of the third year of the Additional Period:
$1,225,000;
(iii) Third quarter of the third year of the Additional Period:
$1,675,000;
(iv) Fourth quarter of the third year of the Additional Period:
$2,530,000.
In the event that StarMedia fails to make the full payment due during any
quarter pursuant to this Section 2.11, StarMedia shall remit to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
one hundred percent (100%) of the Net Advertising Revenues derived from
advertising sold on Licensor Qualified Pages during the following calendar
quarter (the "Cure Quarter"). If, following the Cure Quarter, StarMedia is
------------
still unable to fully offset any such shortfall, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ may deduct an
amount equal to the remaining shortfall from the Placement Fee (as defined in
Section 8.2(b)) due the month following the Cure Quarter, provided, however,
-------- -------
that (i) in any event the amount to which ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is entitled to deduct
under this paragraph shall not exceed the amount of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s next
monthly Placement Fee and (ii) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall have no remedy under this
paragraph if, at the end of any given Cure Quarter, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is
delinquent in meeting any of the delivery dates in the Delivery Schedule, as
defined in Section 2.4(e). If a shortfall persists for three months despite the
remedies set forth in this paragraph, the parties shall meet in good faith to
discuss alternative means of remedying such shortfall.
2.12 Cooperation. Representatives of StarMedia and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(who may include the contact persons set forth in Section 6.1) shall meet on a
regular basis throughout the Term to discuss enhancement of the business
relationship set forth in this Amended and Restated Agreement, including the
possibility of making available additional Financial Services and Financial
Content of interest to Visitors to the Periscopio Financial Channel,
establishing Links to related Websites, developing new products and partnerships
and sharing information and data.
3. Intellectual Property
3.1 Intellectual Property Rights of AMG/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. All
rights, title and interest in and to all AMG Materials and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Materials, including without limitation the AMG Marks and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Marks, and including without limitation all Intellectual Property Rights therein
and thereto, shall remain with and vest in AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and their
Affiliates, respectively. All use of the AMG Materials and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Materials by StarMedia parties shall inure to the benefit of AMG,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and their Affiliates, respectively. AMG and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
hereby grant to StarMedia a nonexclusive, nontransferable, nonsublicensable,
royalty-free, worldwide license to use, display, perform, reproduce and
distribute all AMG Materials and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, including
without limitation the AMG Marks and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks, solely as set
forth in this Amended and Restated Agreement. With respect to the AMG Materials
and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, including without limitation the AMG Marks
and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks, StarMedia acknowledges and agrees that: (a) the
AMG Materials and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, including without limitation
the AMG Marks and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks, are owned exclusively by AMG,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and their Affiliates, respectively; and (b) except as set forth
in this Amended and Restated Agreement, StarMedia has no rights, title or
interest in or to the AMG Materials or the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials, including
without limitation the AMG Marks and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks. StarMedia
agrees: (w) not to apply for registration of the AMG Marks or the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks (or any ▇▇▇▇ confusingly similar thereto) anywhere in the
world; (x) not to engage, participate or otherwise become involved in any
activity or course of action that diminishes and/or tarnishes the image and/or
reputation of AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and their Affiliates or any AMG or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇; (y) not to use any of the AMG Marks or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Marks except as authorized by AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or this Amended and Restated
Agreement; and (z) not to challenge AMG's and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s and their
Affiliates' rights in the AMG Marks or the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Marks.
3.2 Intellectual Property Rights of Starmedia All rights, title and
interest in and to all StarMedia Materials, including without limitation the
StarMedia Marks, and including without limitation all Intellectual Property
Rights therein and thereto, shall remain with and vest in StarMedia and its
Affiliates. All use of the StarMedia Materials by AMG or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall
inure to the benefit of StarMedia. StarMedia hereby grants to AMG and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ a nonexclusive, nontransferable, nonsublicensable, royalty-
free, worldwide license to use, display, perform, reproduce and distribute all
StarMedia Materials, including without limitation the StarMedia Marks, solely as
set forth in this Amended and Restated Agreement. With respect to the StarMedia
Materials, including without limitation the StarMedia
Marks, AMG and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ acknowledge and agree that: (a) the StarMedia
Materials, including without limitation the StarMedia Marks, are owned
exclusively by StarMedia and its Affiliates; and (b) except as set forth in this
Amended and Restated Agreement, neither AMG nor ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ has any rights,
title or interest in or to the StarMedia Materials, including without limitation
the StarMedia Marks. AMG and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ agree: (w) not to apply for
registration of the StarMedia Marks (or any ▇▇▇▇ confusingly similar thereto)
anywhere in the world; (x) not to engage, participate or otherwise become
involved in any activity or course of action that diminishes and/or tarnishes
the image and/or reputation of StarMedia and its Affiliates or any StarMedia
▇▇▇▇; (y) not to use any of the StarMedia Marks except as authorized by
StarMedia or this Amended and Restated Agreement; and (z) not to challenge
StarMedia's and its Affiliates' rights in the StarMedia Marks.
4. Representations and Warranties and Covenants
4.1 General Representations, Warranties and Covenants. Each party
represents, warrants and covenants to the others that: (a) the execution,
delivery and performance of this Amended and Restated Agreement by such party
are within the corporate and/or other powers of such party and have been duly
authorized by all necessary corporate and/or other action on the part of such
party; (b) this Amended and Restated Agreement has been duly executed and
delivered by such party and constitutes a valid and binding agreement of such
party, enforceable against such party in accordance with its terms, and does not
conflict with any other agreements by which such party may be bound; (c) such
party will comply with and adhere to applicable laws and regulations in the
performance of its responsibilities hereunder.
4.2 AMG Materials and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials. AMG and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ are each solely responsible for any liability arising out of or
relating to (a) the AMG Materials and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials,
respectively and/or (b) any materials (other than the StarMedia Materials) to
which users can Link through the AMG Materials or the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Materials. Each of AMG and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ represents and warrants that they
hold the necessary rights to permit the use of the AMG Materials and the
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials as required for the purposes of this Amended and
Restated Agreement, and that the AMG Materials and the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Materials will not violate any applicable laws or rights of any third parties.
StarMedia represents and warrants that it either owns or has the right to
provide the Technology to be provided by it hereunder in accordance with this
Amended and Restated Agreement.
4.3 Starmedia Materials. StarMedia is solely responsible for any
liability arising out of or relating to (a) the StarMedia Materials and/or (b)
any material (other than the AMG Materials or the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials) to
which Visitors can link through any Page on the StarMedia Site or the Periscopio
Site containing AMG Materials or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Materials ("StarMedia Links").
---------------
StarMedia represents and warrants that it holds the necessary rights to permit
the use of the StarMedia Materials as required for the purposes of this Amended
and Restated Agreement; and that the neither the StarMedia Materials nor the
StarMedia Links will violate any applicable laws or rights of any third parties.
StarMedia represents and warrants that it either owns or has the right to
provide the StarMedia Technology to be provided by it hereunder in accordance
with this Amended and Restated Agreement.
4.4 Viruses. Each party covenants to the others that, with respect
to any Technology provided by it or its Affiliates hereunder, it shall utilize
its best efforts to ensure that such Technology does not and will not contain
any program, routine, device or other undisclosed feature, including without
limitation, a so-called time bomb, virus, software lock, dropdead device,
malicious logic, worm, Trojan horse or trap or back door which is designed to
delete, disable, deactivate, interfere with or otherwise harm any software,
program, data, device, system or service, or which is intended to provide
unauthorized access or to produce unauthorized modifications (collectively
"disabling procedures"). This covenant is intended to apply regardless of
whether such disabling procedures are authorized by any such party to be
included in such Technology. If any portion of any such Technology is supplied
by any vendor, licensor or contractor of any such party, such party shall obtain
comparable covenants from such vendor, licensor or contractor and such party
shall take appropriate action to assure that such portions so provided are free
from disabling procedures. Notwithstanding anything to the contrary contained
in this Amended and Restated Agreement, each party agrees to notify the other
parties immediately upon the discovery of any disabling procedures that are or
may be included in any such Technology. If disabling procedures are discovered
or reasonably suspected to be present in any such Technology, the party which
provided such Technology agrees to take immediate action, at its own expense, to
identify and eradicate such disabling procedures and carry out any recovery
necessary to remedy any impact of such disabling procedures.
4.5 Year 2000. StarMedia represents, warrants and covenants to the
other parties that the Periscopio Financial Channel and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
represents, warrants and covenants to StarMedia that the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website and any and all Technology necessary for their operation (collectively
the "Periscopio Site Technology" and the "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Technology"),
-------------------------- ---------------------------
including without limitation, any function, process, system or other device or
item, regardless of the particular date, year, century or other chronological
variable: (a) will accurately process date information (e.g., accept date input,
provide date output and perform calculations and comparisons on dates and
portions of dates); (b) will function without interruption due to a change in
date, ensuring that any results, data or information processed, generated or
transmitted in connection therewith, shall be correct, valid and not adversely
affected; and, if applicable (c) will include date data century recognition,
calculations which accommodate same century and multi-century date values and
formulae, as well as date data interfaces (to application and operating system
software, as applicable) reflecting the correct date, year and century. In the
event that, at any time, the Periscopio Site Technology or the
AMG/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Technology or any other related Technology is found not to
conform with this warranty, the responsible party, upon receipt of notice of
such nonconformance, shall correct any such nonconformance so as to enable such
Technology to function in full conformance herewith.
4.6 Provision of Financial Content and Financial Services.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ represents, warrants and covenants to StarMedia that the
provision and performance of the Financial Content and Financial Services by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or through Links or other connections established by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) pursuant to or in connection with this Amended and Restated
Agreement will not violate or conflict with any constitutions, statutes,
ordinances, codes, rules, regulations, rulings, or judicial decisions of any
U.S. or non-U.S. federal, state, county, city or other governmental authority,
agency or instrumentality.
4.7 NO FURTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AMENDED AND RESTATED AGREEMENT, NO PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS
CONTEMPLATED HEREBY AND TECHNOLOGY PROVIDED HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
5. Confidential Information; Press Releases; Export Restrictions
5.1 Confidentiality.
(a) Confidential Information. The term "Confidential Information"
------------------------
means information or data, including without limitation, computer programs,
code, algorithms, names and expertise of employees and consultants, know-how,
formulas, processes, ideas, inventions, (whether patentable or not), trade
secrets, schematics and other technical, business and customer information,
financial and product development plans, forecasts and strategies, furnished by
one party or its Affiliates to the other hereunder. Each of AMG,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and StarMedia shall (i) hold all Confidential Information in
confidence and take all reasonable precautions to protect such Confidential
Information (including, without limitation, all precautions such Person employs
with respect to its own confidential materials of a similar nature), (ii) not
divulge any such Confidential Information of such other Person or any
information derived therefrom to any third person except to its employees,
independent contractors or Affiliates that have a need to know such information
to further the permitted use thereof pursuant to this Amended and Restated
Agreement, that have entered into appropriate written agreements sufficient to
comply with the terms hereof and that are informed of the non-disclosure
obligations contained herein, (iii) not make any use whatsoever, at any time, of
any Confidential Information of such other Person except to the extent necessary
to exercise any right or license granted under, or perform any obligations under
this Amended and Restated Agreement, (iv) not remove or export any such
Confidential Information of another Person from the country of such other
Person, and (v) not copy (except as reasonably necessary to exercise the rights
or obligations under this Amended and Restated Agreement) or reverse engineer or
reverse compile any Confidential Information of such other Person which is
computer code. For purpose of this Section 5.1, Confidential Information of
Affiliates of each party shall be treated as Confidential Information of such
Person. The foregoing obligations shall survive for a period of five (5) years
from the date of termination or expiration of this Amended and Restated
Agreement. Without granting any right or license, the foregoing obligations
shall not apply to the extent that the receiving Person can demonstrate that
such Confidential Information of the such other Person (A) is in the public
domain and is available at the time of disclosure or which thereafter enters the
public domain and is available through no improper action or inaction by the
receiving Person or any Affiliate, agent or employee of the receiving Person, or
(B) was in its possession or known by the receiving Person prior to receipt from
the disclosing Person, or (C) was rightfully disclosed to the receiving Person
by a third party without restriction, or (D) is independently developed by the
receiving Person without reference to such Confidential Information of the
disclosing Person, or (E) is required to be disclosed pursuant to any statutory
or regulatory authority, provided the disclosing Person is given prompt notice
of such requirement and the scope of such disclosure is limited to
the maximum extent consistent with compliance with such authority, or (F) is
required to be disclosed by a court order, provided the disclosing Person is
given prompt notice of such order and given the opportunity to contest it and
the scope of the disclosure is limited to the maximum extent consistent with
compliance with such order. Information shall not be deemed known to such Person
or publicly known for purposes of the above exceptions (x) merely because it is
embraced by more general information in the prior possession of such Person or
others, or (y) merely because it is expressed in public material in general
terms not specifically the same as the Confidential Information. The terms of
confidentiality under this Amended and Restated Agreement shall not be construed
to limit any bound Person's right to independently develop or acquire products
without use of the disclosing Person's Confidential Information. Further, each
bound Person shall be free to use, for any purpose, the residuals resulting from
access to or work with such Confidential Information, provided such Person shall
maintain the confidentiality of the Confidential Information as provided herein.
Upon termination or expiration of this Amended and Restated Agreement for any
reason, each bound Person will return to the disclosing Person (or certify the
destruction of) all tangible manifestations (including computer records) of the
disclosing Person's Confidential Information and certify the deletion or
destruction of any other manifestations of same, in any medium.
(b) Confidentiality of Amended and Restated Agreement. Except (i)
-------------------------------------------------
to the extent required by applicable law or regulation, (ii) to assert its
rights hereunder (iii) in connection with financing where the prospective
provider of financing agrees to be bound by the confidentiality provisions of
this Amended and Restated Agreement or (iv) for disclosures to its own employees
and independent contractors on a "need to know" basis, AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
StarMedia shall not disclose the terms of this Amended and Restated Agreement or
the subject matter hereof without the prior written consent of AMG or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (in the case of StarMedia or StarMedia (in the case of AMG or
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), which consent shall not be unreasonably withheld or delayed.
(c) Injunctive Relief. AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and StarMedia
-----------------
expressly agree that monetary damages would be inadequate to compensate the
other for any breach of this Section 5.1, that any such breach or threatened
breach of this Section 5.1 will cause irreparable injury to AMG and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (in the case of a breach by StarMedia) or StarMedia (in the
case of a breach by AMG or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) and that, in addition to any other
remedies that may be available, at law or in equity, AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
StarMedia shall be entitled to seek injunctive relief against the threatened
breach of any provision of this Section 5.1 or the continuation of any such
breach without the necessity of proving actual damages or posting a bond.
5.2 Press Releases. Neither party shall issue any press release or
other public statement, in any form and at any time, regarding this Amended and
Restated Agreement, the transactions contemplated herein, or any other party,
its Affiliates or employees without the prior written consent of the other
party, which shall not be unreasonably withheld or delayed.
5.3 Export Restrictions. Each party will comply with all export
laws and restrictions and regulations of the U.S. Department of State,
Department of Commerce or other United States or foreign agency or authority,
and will not export or re-export any product or any
direct product thereof in violation of any such restrictions, laws or
regulations, or without all necessary approvals. As applicable, each party (and
each StarMedia party) shall obtain and bear all expenses relating to any
necessary licenses and/or exemptions with respect to its own export from the
U.S.
6. Management and Reporting
6.1 Contact Persons. Each party shall designate appropriate staff
members to act as the principal points of contact between StarMedia,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and AMG for the implementation and operation of such party's
performance and the obtaining of necessary approvals hereunder. The project
managers will be responsible for coordinating efforts applicable to this Amended
and Restated Agreement and reporting and resolving issues that may arise on day-
to-day working basis. The initial such staff members are as follows:
For AMG: ▇▇▇▇ ▇▇▇▇▇▇
For ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇▇▇
For StarMedia: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Each party may change such staff member upon written notice to the other.
6.2 Security. StarMedia shall, in the case of the Periscopio Site,
and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall, in the case of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website,
utilize their best efforts to establish and maintain safeguards against, a
disaster, loss or alteration of or unauthorized access to such Site. At all
times during the Term, such safeguards shall be consistent with accepted
industry standards.
6.3 Reporting. Each calendar quarter during the Term, StarMedia
shall provide AMG with a report, audited by ABC or a successor auditor,
detailing for the preceding quarter the total number of Page Views. On a
monthly basis during the Term, StarMedia shall provide ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ with a
report detailing, for the preceding month, the total number of Advertising
Impressions and Page Views delivered as well as the click-through rates on such
Advertising Impressions that contain a link to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website
and any other tracking or aggregate data the parties may mutually agree upon.
7. Indemnification
7.1 Indemnity. Each party will defend, indemnify, save and hold
harmless each other party and the officers, directors, agents, affiliates,
distributors, franchisees and employees of each other party from any and all
third-party claims, demands, liabilities, costs or expenses, including
reasonable outside and in-house attorneys' fees (the "Liabilities"), resulting
-----------
from the indemnifying party's material breach of any obligation, duty,
representation or warranty of this Amended and Restated Agreement, except where
Liabilities result from the gross negligence or knowing and willful misconduct
of each other party.
7.2 Claims. Each party agrees to promptly notify each other party
in writing of any indemnifiable claim and give each other party the opportunity
to defend or negotiate a settlement of any such claim at such other party's
expense, provided, however, that the failure to provide such notice will not
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result in a loss of such right to indemnification except to the extent that the
indemnifying party has been prejudiced by the same. StarMedia reserves the
right, at its own expense, to assume the exclusive defense and control of any
matter otherwise subject to indemnification by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or AMG
hereunder, and in such event, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and/or AMG shall have no further
obligation to provide indemnification for such matter hereunder. In the event
of a breach by any party which results in a lawsuit or other proceeding for any
remedy available under this Amended and Restated Agreement, the prevailing party
or parties shall be entitled to reimbursement from the breaching party or
parties of its reasonable attorneys' fees and expenses (whether incurred in
arbitration, at trial or on appeal).
8. Payment, Term and Termination
8.1 Payment by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall make the
following payments to StarMedia:
a) a non-refundable production fee of $750,000, payable as
follows:
$150,000 of which shall be paid within forty-five (45) days
of execution of this Amended and Restated Agreement; and
$250,000 of which shall be paid within seventy-five days of
execution of this Amended and Restated Agreement;
$350,000 of which shall be paid within one hundred and
twenty (120) days of execution of this Amended and Restated
Agreement.
b) an advertising fee of $150,000, payable as follows:
$50,000 within one hundred and fifty (150) days of execution
of this Amended and Restated Agreement;
$100,000 within one hundred and eighty (180) days of
execution of this Amended and Restated Agreement.
8.2 Additional Payments by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall
make the following payments to StarMedia:
a) an advertising fee of $1,100,000, payable as follows;
$22,920 per month during the first year following the date
of this Amended and Restated Agreement;
$28,650 per month during the second year following the date
of this Amended and Restated Agreement;
$40,100 per month during the third year following the date
of this Amended and Restated Agreement.
b) a placement fee (the "Placement Fee") of $4,000,000, which
-------------
shall be payable as follows:
$50,000 per month during the first year following the date
of this Amended and Restated Agreement;
$100,000 per month during the second year following the date
of this Amended and Restated Agreement;
$183,333 per month during the third year following the date
of this Amended and Restated Agreement.
c) royalties with respect to Eligible Sales Revenues, as
follows:
during the first year of the Additional Period, the greater
of (i) U.S.$375,000 or (ii) 2.5% of actual Eligible Sales
Revenues;
during the second year of the Additional Period, the greater
of (i) U.S.$625,000 or (ii) 2.5% of actual Eligible Sales
Revenues; and
during the third year of the Additional Period, the greater
of (i) U.S.$1,050,000 or (ii) 3.0% of actual Eligible Sales
Revenues.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ guarantees royalties payments of at least U.S.$2,050,000 to
StarMedia.
8.3 Payment by Starmedia. StarMedia shall pay to AMG seven percent
(7%) of all payments received by StarMedia pursuant to this Amended and Restated
Agreement and the advertising insertion order executed by StarMedia and
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as of the date hereof. Such payments shall be made no later
than fifteen (15) days after receipt of funds by StarMedia pursuant to this
Amended and Restated Agreement. Any payments not received by such date shall
accrue interest at two percent (2%) above the Prime rate then in effect.
Payment shall be made by StarMedia to AMG in United States currency, exclusive
to taxes. Payments shall be made by electronic transfer or check reasonably
acceptable to AMG. Each payment shall be accompanied by a statement signed by
an officer of StarMedia which specifies in reasonable detail the method of
calculating the amount remitted and containing such information as AMG may
reasonably request in order to allow AMG to verify the accuracy of the
computations set forth in such statement.
8.4 Tracking Eligible Sales Revenues. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will be
solely responsible for tracking Eligible Sales Revenues, and will collect and
retain sufficient
information to allow it to calculate the amounts to be remitted to StarMedia. In
particular, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will record, for each customer sales transaction,
sufficient information to determine whether the sales revenue generated by such
sale is Eligible Sales Revenue. In order to facilitate identification of
Eligible Customers and Eligible Sales Revenues, the parties agree to take the
following measures throughout the Term of this Amended and Restated Agreement:
(a) Links to Unique URL. All hyperlinks to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-------------------
Latin Website implemented by StarMedia shall point to one or more unique URLs
determined by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Designated URLs"). Such Designated URLs
---------------
shall be reserved exclusively for customers referred by StarMedia. On the
Designated URLs, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not advertise or otherwise promote or
market any products or services of Competitors of StarMedia, as that term is
defined on Exhibit C, attached hereto. Any customer accessing such Designated
URLs shall be an Eligible Customer. Accordingly, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall take
all reasonable measures to ensure that any revenues generated from such Eligible
Customers are designated as Eligible Sales Revenues, and all subsequent sales to
such Eligible Customers shall be Eligible Sales Revenues.
(b) StarMedia Cookies. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall cause a "cookie"
-----------------
to be placed on the system of each user accessing ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website
from the Periscopio Financial Channel or any StarMedia Site (the "StarMedia
---------
Cookie"). Such StarMedia Cookie shall serve to identify such user as an
------
Eligible Customer. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall modify ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website
to cause ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website to ascertain whether a StarMedia Cookie
is present on the system of each customer accessing ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website. If such a StarMedia Cookie is present, all subsequent sales to such
customer shall be Eligible Sales Revenues.
(c) Telephone and Mail Orders. In order to allow identification
-------------------------
of Eligible Sales Revenues based on orders placed by telephone or by mail rather
than on-line, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall design ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website to
display unique telephone numbers and/or addresses for placing orders, requesting
catalogs and the like to all users who (i) access the Designated URLs, or (ii)
have a StarMedia Cookie on their system. Users submitting reservations, orders,
catalog requests and the like to such unique addresses or telephone numbers
shall be designated Eligible Customers in ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s records, and all
subsequent sales to such customers shall be Eligible Sales Revenues.
(d) Permanent Designation. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall take all
---------------------
necessary measures to ensure that once it is determined that a person is an
Eligible Customer, such person is permanently designated as such in
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s accounts, records and databases, and that any sales to such
person are recorded as Eligible Sales Revenues and segregated from
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s other revenues.
8.5 Monthly Payments. The payments due pursuant to Section 8.1 and
8.2 of this Amended and Restated Agreement shall be paid to StarMedia within
fifteen (15) days of the end of each calendar month. Any payments not received
by such date shall accrue interest at 2% above the Prime rate then in effect.
Payment shall be made by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to StarMedia in United States
currency, exclusive of any taxes. Payments shall be made by electronic transfer
20
or check reasonably acceptable to StarMedia. Each payment shall be accompanied
by a statement signed by an officer of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ which specifies in
reasonable detail the method of calculating the amount remitted and containing
such information as StarMedia may reasonably request in order to allow StarMedia
to verify the accuracy of the computations set forth in such statement. Upon
request, StarMedia shall provide to r[delete] ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ a receipt for
each payment received from ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
8.6 Term. Except as otherwise specifically provided herein, this
Amended and Restated Agreement shall commence as of the date hereof and shall
continue in full force and effect during the Term, as set forth below. The
period from the date hereof through the date that is six (6) months thereafter
shall be known as the "Beta Period" and the period from the end of the Beta
-----------
Period through the day that is three (3) years thereafter shall be known as the
"Additional Period" (together, the "Term").
----------------- ----
8.7 Termination.
(a) Default. Except as set forth in Sections 8.7(b) and (c) below,
-------
if either party materially defaults in any of its obligations pursuant to this
Amended and Restated Agreement or fails to make a material payment under this
Amended and Restated Agreement (a "Material Default"), the other party may
----------------
deliver a written notice of intent to terminate this Amended and Restated
Agreement for Material Default. If such Material Default is not corrected
within thirty (30) days after receipt of such written notice, the non-defaulting
party may terminate this Amended and Restated Agreement effective immediately
upon written notice to the other parties. In the event ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ commits
a Material Default that is not cured within the applicable cure period,
StarMedia may, at its sole discretion, grant AMG the right to designate a New
Financial Services Provider, subject to the approval of StarMedia, which shall
not be unreasonably withheld or delayed. In the event AMG designates a New
Financial Services Provider pursuant to this section, AMG and/or the New
Financial Services Provider shall promptly cure the existing default and AMG
shall cause the New Financial Services Provider to agree to be bound by the
terms and conditions of this Amended and Restated Agreement and, as of such
time, all references to "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" in this Amended and Restated
Agreement shall refer to the New Financial Services Provider.
(b) By StarMedia This Amended and Restated Agreement shall be
------------
terminable by StarMedia if (i) the Visitors to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website or
the Licensor Qualifying Pages are Dissatisfied (as defined below) with customer
support offered by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, based on user surveys taken from a random,
representative sample of such Visitors; (ii) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ does not engage in
"best practices" with respect to regulatory compliance (iii) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
fails to offer a range of Financial Content that is competitive (in features,
variety or quality) to that offered by competing Websites; (iv) at the end of
any given quarter during the Term, the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website fails to
meet an uptime of 99.5%; or (v) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ fails to meet the delivery
dates in the Delivery Schedule, defined in Section 2.4(e). ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
shall be entitled to a cure period of no less than sixty (60) days after the
receipt of written notice, which outlines in detail the factual basis for
termination pursuant to points (i), (ii), (iii), (iv) or (v) above (the "Cure
----
Period") to take any corrective measures deemed necessary by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
------
to address the matters set forth in the notice. For the purpose of
21
this Section 8.7(b), the determination of whether Visitors are "Dissatisfied"
with the customer support offered by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be made in
accordance with the following procedure: StarMedia may in its sole discretion
and from time to time obtain user surveys in a form reasonably acceptable to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ from random, representative samples of Visitors to
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website (a "Visitor Survey"), and shall promptly notify
--------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in writing in the event any such survey yields results that
indicate that fifty percent (50%) or more of the surveyed Visitors are
dissatisfied with the customer support offered by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; ( b) upon
the expiration of the Cure Period, StarMedia shall conduct a second Visitor
Survey, if applicable, to assess the improvement of overall customer support
satisfaction; and ( c) Visitors shall be deemed Dissatisfied in the event the
second Visitor Survey again yields results that indicate that fifty percent
(50%) or more of surveyed Visitors are dissatisfied with the customer support
offered by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(c) Effect of Termination. Upon termination of this Amended and
---------------------
Restated Agreement (i) the rights and licenses granted pursuant to this Amended
and Restated Agreement shall terminate; (ii) each party shall cease all further
use of and shall return to the other party, within thirty (30) days, all
tangible items in its possession which are proprietary to such other party; and
(iii) each party shall cease to use all intellectual property of the other
party, including without limitation all trademarks of the other party.
(d) Survival. Notwithstanding the foregoing, the provisions of Article
--------
5 , Article 7, Section 8.8 and Article 10 hereof shall survive any termination
or cancellation of this Amended and Restated Agreement.
(e) Post-Termination Obligations . After the expiration or
-----------------------------
termination of this Amended and Restated Agreement, each party shall ensure that
it removes all links from the other party's Websites. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall
pay to StarMedia, no more than thirty (30) days following the termination of the
Amended and Restated Agreement, all amounts owed to StarMedia, including without
limitation all amounts owed StarMedia under Article 8 of this Amended and
Restated Agreement with respect to Eligible Sales Revenues for periods prior to
termination of the Amended and Restated Agreement.
8.8 Audits. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall keep complete and accurate books
and records of their activities hereunder and all relevant information needed to
audit compliance with this Amended and Restated Agreement. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
agrees to allow mutually acceptable independent auditors, which auditors shall
not be compensated on a contingency basis and shall be bound to keep all
information confidential except as necessary to disclose discrepancies to
StarMedia, to audit and analyze relevant records of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to ensure
compliance with all terms of this Amended and Restated Agreement. Any such audit
shall be permitted within fifteen (15) days of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s receipt from
StarMedia of a written request to audit, during normal business hours, at a time
mutually agreed upon. The cost of such an audit shall be borne by StarMedia
unless a material discrepancy is found, in which case the cost of the audit
shall be borne by and/or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. A discrepancy shall be deemed
material if it involves a payment or adjustment of more than five percent (5%)
of the amount actually due from ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in any given three (3)
consecutive calendar month period. Audits shall occur no more frequently than
twice per year, shall not interfere unreasonably with
22
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s business activities and shall be conducted in
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s facilities. Within five (5) days of receipt of a request
therefor from StarMedia or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, respectively, shall reimburse
StarMedia for the amount of any discrepancy arising out of such audit which
indicates that StarMedia is owed amounts hereunder as well as the costs of the
audit, if applicable, as provided above.
8.9 Taxes. Except for taxes based upon StarMedia's income with
respect to payments received from ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be
responsible for and pay all taxes, including sales, use, or value-added taxes,
duties, withholding taxes and other assessments now or hereafter imposed, that
relate to or arise as a consequence of this Amended and Restated Agreement. Upon
written request, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall present to StarMedia evidence of payment
of all applicable taxes .
9. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF THE OBLIGATIONS
CONTAINED IN ARTICLES 5 AND 7, IN NO EVENT SHALL ANY PARTY (OR THEIR AFFILIATES)
BE LIABLE TO ANY PERSON FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION
OF ANY KIND WITH RESPECT TO THIS AMENDED AND RESTATED AGREEMENT, WHETHER BASED
ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
10. General
10.1 Assignment. No party may assign this Amended and Restated
Agreement without the prior written consent of the other party; provided,
--------
however, that any party may assign this Amended and Restated Agreement to any
-------
parent, subsidiary, affiliate or any successor in interest to all or
substantially all the business of such party. Any attempted or purported
assignment without such required consent is void and a material breach of this
Amended and Restated Agreement. Subject to the foregoing, this Amended and
Restated Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto. Notwithstanding the
foregoing, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees to assign this Amended and Restated Agreement
to any new Financial Services Provider designated pursuant to Section 8.7(a) of
this Amended and Restated Agreement.
10.2 Force Majeure. No party hereto will be responsible for any
failure to perform its obligations under this Amended and Restated Agreement
(other than obligations to pay money) caused by an event reasonably beyond its
control, including but not limited to, the infrastructure of the Internet, wars,
riots, labor strikes, natural disasters, or any law, regulation, ordinance or
other act or order of any court, government or governmental agency. Obligations
hereunder, however, will in no event be excused but will be suspended only until
the cessation of any cause of such failure. In the event that such force majeure
should obstruct performance of this Amended and Restated Agreement for more than
one (1) month, the parties hereto shall consult with each other to determine
whether this Amended and Restated Agreement should be modified. The party facing
an event of force majeure shall use its best endeavors in order to
23
remedy that situation as well as to minimize its effects. A party experiencing
an event of force majeure shall notify the other party as soon as possible after
its occurrence.
10.3 No Joint Venture. The sole relationship between the parties is
that of independent contractors. Nothing in this Amended and Restated Agreement
is intended to or shall be construed to create a partnership, joint venture,
agency, sales representative or employment relationship between the parties.
Neither party shall make any warranties or representations, or assume or create
any obligations, on the other party's behalf. Each party shall be solely
responsible for the actions of its respective employees, agents, and
representatives.
10.4 Alternate Use By Starmedia. Nothing in this Amended and Restated
Agreement shall be construed to prohibit or prevent StarMedia and its Affiliates
from using StarMedia Materials or any substantially equivalent content in
connection with any products or offerings of StarMedia or its Affiliates or
otherwise provide, license or authorize the use of the StarMedia Materials to
third parties (for free or a fee, in StarMedia's and its Affiliates' sole and
absolute discretion) and nothing in this Amended and Restated Agreement shall be
deemed or construed to adversely affect such right. This Amended and Restated
Agreement shall not restrict StarMedia from developing new products or services,
improving existing products or services, or marketing any new, improved or
existing products or services.
10.5 Entire Agreement. This Amended and Restated Agreement amends the
restates the Original Agreement in its entirety and is the complete agreement
between the parties with respect to its subject matter, and supersedes and
replaces all prior or contemporaneous understandings, communications, and
agreements, written or oral, regarding such subject matter. The parties further
agree that, as of the date of this Amended and Restated Agreement, the Original
Agreement shall be null and void and of no further force or effect and any and
all current and future obligations of either party thereunder are hereby fully
and forever discharged, provided, however, that any obligation of StarMedia to
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make payments arising prior to the date of this Amended and Restated Agreement
shall survive and be payable pursuant to the terms of the Original Agreement.
10.6 Amendment; Waiver. This Amended and Restated Agreement may not
be modified, nor may any provision hereof be waived or amended, except in
writing duly signed by authorized representatives of AMG, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
StarMedia. A waiver with respect to one event shall not be construed as
continuing, or as a bar to or waiver of any right or remedy as to subsequent
events.
10.7 Severability. If any provision hereof is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
reformed without further action by the parties, to the extent necessary to make
such provision valid and enforceable, and no other provisions hereof shall be
affected or impaired thereby.
10.8 Governing Law. This Amended and Restated Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflict of laws provisions.
25
10.9 Jurisdiction. Any judicial proceeding brought with respect to
this Amended and Restated Agreement must be brought in a court of competent
jurisdiction of the State of New York located in the County of New York or in
the United States District Court in and for the Southern District of New York.
By execution and delivery of this Amended and Restated Agreement, each party (i)
accepts, generally and unconditionally, the exclusive jurisdiction of such
courts and any related appellate court, and irrevocably agrees to be bound by
any judgment rendered thereby in connection with this Amended and Restated
Agreement, (ii) irrevocably waives any objection it may now or hereafter have as
to the venue of any such suit, action or proceeding brought in such a court or
that such court is an inconvenient forum and (iii) agrees that service of
process in any such action or proceeding may be effected (A) by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to its address set forth in Section 10.13 or (B) in any
other manner permitted by law.
10.10 No Third Party Beneficiaries. Nothing express or implied in
this Amended and Restated Agreement is intended to confer, nor shall anything
herein confer, upon any person other than the parties and the respective
successors or assigns of the parties, any rights, remedies, obligations or
liabilities whatsoever.
10.11 Fees And Expenses. Each party shall be responsible for the
payment of its own costs and expenses, including without limitation attorneys'
fees and expenses, in connection with the negotiation and execution of this
Amended and Restated Agreement.
10.12 Recovery Of Costs And Expenses. If either party brings an
action against the other party to enforce its rights under this Amended and
Restated Agreement, the prevailing party shall be entitled to recover its costs
and expenses incurred in connection with such action and all appeals of such
action, including without limitation reasonable attorneys' fees and costs.
10.13 Notices. All notices and requests in connection with this
Amended and Restated Agreement shall be deemed given as of the day they are
received either by e-mail, fax, messenger, delivery service, or in the United
States of America mails, postage prepaid, certified or registered, return
receipt requested, and addressed as follows:
If to AMG to: ▇▇▇▇ ▇▇▇▇▇▇
Advanced Multimedia Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ 33139If to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ :
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
25
If to StarMedia to: StarMedia Network, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Operating Officer
Notices shall be deemed effective upon receipt or, if delivery is not effected
by reason of some fault of the addressee, when tendered.
10.14 Counterparts; Facsimiles. This Amended and Restated Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original. Facsimile copies hereof shall be deemed to be originals.
IN WITNESS WHEREOF, the parties to this Amended and Restated Agreement
by their duly authorized representatives have executed this Amended and Restated
Agreement in one or more counterpart(s) as of the date first above written.
STARMEDIA NETWORK, INC. ADVANCED MULTIMEDIA GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ Kamsfuser By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Title: SVP Gloabal Sales Title: President
------------------------------- -------------------------------
Name: ▇▇▇▇▇▇▇ Kamsfuser Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Executive Vice President
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Exhibit A: The Starmedia
Design and Technical Specifications
-----------------------------------
1. Co-Branding. The ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website shall be co-
-----------
branded by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and StarMedia in a manner agreed to by
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and StarMedia prior to the Launch Date. The ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Latin Website shall not be Framed, shall have the look and feel of the
Periscopio Site and shall be designed and maintained in accordance with the
specifications, guidelines and templates set forth in Exhibit B, attached
hereto. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall maintain and update the ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website in accordance with such design guidelines. 2. Third Party Website
-------------------
Links. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website shall not contain hyperlinks to any
-----
Website not maintained by StarMedia or its Affiliates without the prior written
consent of StarMedia. Any third-party Website Linked to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
Website with StarMedia's consent shall be displayed in a new browser window
which is launched automatically upon user selection of the Link. Such new
browser window shall not exceed a size of 300x350 pixels.
3. Cookies. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall allow StarMedia to set a
-------
"cookie" upon a user first accessing ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website, and before
any pages are served to the user. Such cookie shall be in the format determined
by StarMedia.
4. StarMedia Community Links. The main or most heavily-trafficked
-------------------------
Page on ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website (the "▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Home Page") shall
---------------------------
prominently display buttons containing Links to the StarMedia Mail, StarMedia
TalkPlanet, StarMedia Orbita, StarMedia Bulletin Boards and other StarMedia
community services which may be introduced by StarMedia from time to time, in
the format specified by StarMedia. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website shall not
promote or contain Links to any Internet-based services other than those of
StarMedia, including without limitation any e-mail, chat, bulletin board,
homepage design and hosting, or instant messaging services.
5. Browser Standards. All Licensed Content shall be compatible with
-----------------
Microsoft Internet Explorer version 3.0 or higher and Netscape Navigator version
3.0 or higher, in each case with Javascript support.
6. Plugins; Java. No Licensed Content or ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-------------
Technology shall require the installation or use of any "plug-ins" (i.e. any
components not contained in the standard versions of Microsoft Internet Explorer
version 3.0 or higher and Netscape Navigator version 3.0 or higher), with the
exception of the standard (freeware) versions of RealNetworks, Inc.'s RealMedia
plug-in. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall not employ Java appelts on any portion of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website which is less than two mouse clicks away from
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Home Page (the "Principal Pages"). ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin
---------------
Website shall not employ Java for any navigation functions.
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7. Page and Image Sizes. The aggregate size of all components
--------------------
(including all text and graphics files) on each Principal Page shall not exceed
45 KB. The aggregate size of all components of all pages on ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Latin Website other than the Principal Pages shall not exceed 25 KB. No single
image on any page on ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website (including Principal Pages)
shall exceed 10 KB in size.
8. Updates. All material changes to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website
-------
(other than updating of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website Content in the ordinary
course) shall be subject to StarMedia's prior review and consent, which will not
be reasonably withheld.
9. Personalization. To the extent feasible and appropriate,
---------------
StarMedia and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall use their respective best efforts to
"personalize" aspects of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website by customizing the
content or functionality of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website in accordance with
specific user information contained in StarMedia's user database.
10. Modification of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website. Prior to the
------------------------------------------------
Initial Service Date, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall make such modifications,
enhancements and alterations to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website as are necessary
to meet each of the requirements set forth in this Amended and Restated
Agreement. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be responsible for procuring, developing,
installing, licensing and/or modifying all such hardware, software, collateral
systems and other assets as are necessary to meet the requirements set forth in
this Amended and Restated Agreement at its sole expense, provided that StarMedia
may, in its discretion, provide ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ with reasonable assistance in
conforming with these requirements. All modifications and enhancements
necessary to meet the requirements set forth in this Amended and Restated
Agreement shall have been completed prior to the Initial Service Date. To the
extent desirable or necessary to accomplish the foregoing, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ may
develop a secondary internal (non-Web accessible) mirror Website which
implements the foregoing requirements, in lieu of modifying the primary
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website, provided that such secondary Website contains
all of the Licensed Content and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Technology, features and
functionality of the primary ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website.
11. Inspection and Testing by StarMedia. From time to time prior to
------------------------------------
the Initial Service Date, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall allow StarMedia's staff
reasonable access to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website and the underlying servers,
software and systems, and shall facilitate any systems tests and evaluations as
the StarMedia staff may reasonably require in order to ensure ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Latin Website meets the minimum requirements for integration with the StarMedia
Services. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall promptly correct any problems or deficiencies
identified by StarMedia no less than ten days prior to the Initial Service Date.
In the event that ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ fails to correct problems or deficiencies
identified by StarMedia to the reasonable satisfaction of StarMedia prior to the
Initial Service Date, StarMedia shall have the right to terminate this Amended
and Restated Agreement pursuant to Section 8.7 hereof.
12. StarMedia Logon Procedure. Visitors to the StarMedia Services
--------------------------
will be requested to complete the ordinary procedure for accessing the StarMedia
Services, including selection of
-3-
the Visitor's language of preference and country of origin. StarMedia reserves
the right to modify the required user login procedure from time to time in its
sole discretion. Following completion of the Visitor login procedure, the
StarMedia Web servers will display the StarMedia screen Frame and will then link
to ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website and display ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website
within the StarMedia screen Frame. The initial Page displayed shall be the Home
Page of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website unless StarMedia and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
jointly determine to develop and implement a procedure allowing users to
directly point to and access other pages within ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Latin Website.
-4-
Exhibit B:
----------
Design Guidelines
Typical Periscopio Page is divided into three primary areas, each with 3
primary sub-areas:
Header
Branding and location of the search engine
User Login and Identification
Primary Product Links
Body
Primary Content Area
Columns: left and right
Secondary Content Area
Footer
Anchor Link to Home Page of Periscopio and other important Pages of
Periscopio
Other Footer Links to other areas of Perscopio
Copyright and Disclaimers
I. HEADER
Templates to be provided by Periscopio. Need to be updatable upon receipt
of new template within 24 hours.
Branding and Search Portal: Periscopio (and partner) branding area, Links to
Periscopio Home Page. Search engine allows searching of Periscopio, Guide,
Internet, and Translated searches.
User Login and Identification: Links to registration services and user help.
Primary Product Links: Links to Periscopio community services, including e-mail,
chat, etc.
II. BODY
Primary Content Area - the primary content of the area. It can be a single
area, or divided into two columns, one that uses 1/3 of the area, the second
uses 2/3.
Examples:
Single Area: Listing of discussion forums
Split Area: 1/3 listing of discussion topics
-5-
2/3 text of current topic
Secondary Content Area - used for related content. This area
highlights other products, content and features elsewhere on the Site related
to what the user is seeing/doing in the primary content area.
Examples:
Primary: News artcile | Secondary: Related articles and
guide categories
Primary: Discussion forum | Secondary: Related articles,
chats, clubs
III. Footer
Templates provided by Periscopio. Need to be updatable upon receipt
of new template within 24 hours.
Anchor links to Home Page -
Primary Footer Links - How to make Periscopio your Home Page, Announcements,
etc.
Copyright and Disclaimers - Standard legal. Need to modify for ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
inclusion.
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