AMENDED AND RESTATED AGREEMENT
------------------------------
This Amended and Restated Agreement, dated as of November 13, 1998 (the
"Effective Date") amends, supercedes and restates the original Agreement, dated
as of June 26, 1998, as amended on October 30, 1998, and is made by and between
Lycos, Inc., a Delaware corporation with a principal place of business at ▇▇▇-▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (including its subsidiary Tripod, Inc.,
"Lycos"), and Insurion, Inc., a Pennsylvania corporation with a principal place
of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Insurion") (Lycos and
Insurion are each a "Party," and collectively, the "Parties"). This Amended and
Restated Agreement shall be referred to herein as the "Agreement."
Recitals
--------
A. Lycos is the owner or licensee of certain Web services
(collectively, the "Lycos Services"), which are accessible through the Lycos
Site (as defined below);
B. Insurion conducts the Relevant Business (as defined below), and is
the operator of certain Web services (the "Insurion Services"), which are
accessible through the Insurion Site (as defined below);
C. Lycos would like to promote and provide Graphical Links and Banners
within the Lycos Services to the Co-Branded Site (as defined below) so that
users of the Lycos Services may have access to the Insurion Services; and
D. Insurion wants to establish the Co-Branded Site and have it linked
to the Lycos Site in order to expose the Insurion Services to Lycos' users.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lycos and Insurion hereby agree as
follows:
Terms
1. Definitions.
a. "Above the Fold" means the first displayed portion of a Web page
that is visible without scrolling.
b. "Banner" means an advertising strip as reflected on Lycos' current
rate card that is capable of displaying dynamic graphics and other content and
embedded links. An example of a Banner as contemplated by this Agreement is
found on Exhibit C.
c. "Co-Branded Site" means the co-branded version of the Insurion Site.
d. "Confidential Information" has the meaning set forth in Section 9.
e. "Co-Sponsored Policies" means insurance policies: (i) that are
underwritten by a third party insurance provider who has engaged Insurion to act
as an agent to market and sell such policies through the Insurion Site; (ii)
that are purchased through online registration on the Co-Branded Site during the
Term by a user who accessed the Co-Branded Site through an Online Promotion; and
(iii) for which Insurion ultimately receives the premium payment from such user.
f. "First Term" means the first 12 months of the Term.
g. "Graphical Link" means an advertising space on a Web page, as
reflected on Lycos' current rate card, that contains a graphical/HTML hypertext
link to another Web page. An example of a Graphical Link as contemplated by this
Agreement is found on Exhibit C.
h. "Impressions" means a user exposure to a page on the Lycos Site
containing an Online Promotion as such exposure is reasonably determined and
measured by Lycos in accordance with standard methodologies and practices
customary in the industry.
i. "Insurion Policies" means insurance policies: (i) that are
underwritten by Provident or a designee of Provident, as the principal insurance
provider; (ii) that are purchased through online registration on the Co-Branded
Site during the Term by a user who accessed the Co-Branded Site from an Online
Promotion; and (iii) for which Insurion ultimately receives the premium payment
from such user.
j. "Insurion Site" means the Internet site located at the URL
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other site as Insurion may designate as a successor
site.
k. "Lycos Services" means the Web services which are owned or licensed
by Lycos and which are accessible through the Lycos Site.
l. "Lycos Site" means the Internet site located at the URL
▇▇▇.▇▇▇▇▇.▇▇▇.
m. "Online Promotions" means the Graphical Links and Banners delivered
by Lycos pursuant to Section 2.a. below..
n. "Permanent Placement" means a Banner or Graphical Link that
permanently appears on a specified Web page.
o. "Promotions" means Banners, Permanent Placements, Graphical Links,
buttons and other online promotional content.
p. "Provident" means Provident American Insurance Corporation,
Insurion's present parent company.
q. "Referral Fee" means any commission fee and/or referral fee paid by
a co-sponsored insurance provider to Insurion directly as consideration for
sourcing premiums for Co-
2
Sponsored Policies. Expressly excluded are administrative fees, application
fees, association fees, up-front slotting fees or advertising and marketing
fees.
r. "Relevant Business" means the marketing and sale through the
Internet or other online services, .... .
s. "Second Term" means the last 12 months of the Term.
t. "Tripod Site" means the Internet site located at the URL
▇▇▇.▇▇▇▇▇▇.▇▇▇.
2. Lycos' Obligations:
a. Site Integration Lycos shall provide Online Promotions (Above the
Fold for at least the Guaranteed Impression levels described in Section 2.d. of
this Agreement) linked to the Co-Branded Site from the following places:
(i) on the top level page and in all second level Guides
(Attachment 1) (excepting the categories Women and Diseases)
of the Health Web Guide.
(ii) on the top level page of the results from searches or queries
(Exhibit B) of the key words listed in Exhibit A.
(iii) on the top level page of the Small Biz Guide, (Attachment 2)
within the Business Web Guide.
(iv) on the top level page of the Careers Web Guide, (Attachment 3)
which is currently accessible from the Lycos Site home page.
(v) on the top level page of the Insurance and Taxes second level
Guides, (Attachment 4) which are currently within the Money
Web Guide.
(vi) on the top level page of the "Shopping for Life Insurance,"
"Health Insurance," "Spousal Health Plans," and "Your HMO"
Community Guides (Attachment 6) linked from the Insurance
Guide second level page (which is currently within the Money
Web Guide).
(vii) at Lycos' discretion, on the Tripod home page, Tripod member
home pages and Tripod targeted properties, including the
Health/Fitness, Sports, Jobs/Career, Money/Business and
Women's areas (Attachment 5).
(viii) as mutually agreed by the parties, on the Lycos Site home
page and on other Lycos pages.
Subject to the requirements of this Section 2.a., the Parties will determine the
location and type of each Online Promotion displayed throughout the Lycos Site
and may phase in certain types of Online Promotions as they are developed by
Insurion and as required in order to maximize the
3
strategic value of the Online Promotions as determined and agreed to by the
Parties (such determination and agreement not to be unreasonably withheld in
light of quantifiable performance metrics). The Parties agree that the Online
Promotions will be prominently displayed to maximize the exposure of Insurion as
Lycos's exclusive provider of services and products related to the Relevant
Business. Lycos may, in its own discretion, redesign pages of the Lycos and
Tripod Sites; provided that Lycos will monitor and adjust accordingly the
location and placement of the Online Promotions as changes are made in the
applicable areas of the Lycos or Tripod Sites.
b. Omitted.
c. Exclusivity. During the Term, Lycos shall not enter into any
agreement or other arrangement pursuant to which Lycos agrees to promote or
display any kind of Promotions in the Lycos Site and the Tripod Site for any
entity or organization engaging in the Relevant Business.
d. Guaranteed Impressions. Lycos guarantees to provide Insurion with
.... in the ...., and .... in the ..... Lycos may spread the impressions over
the Term to account for the ramp-up of the Co-Branded Site and for the natural
growth of Internet users, as follows: .... of the Online Promotion Impressions
will be delivered in the .... of the ....; .... in the ....; .... in the ....;
.... in the ....; and .... in the ..... During the ...., Lycos shall deliver the
guaranteed Online Promotion Impressions evenly, taking into account natural
growth. If Lycos fails to meet any of these targets, the remaining Online
Promotion Impressions will be pro rated and delivered accordingly over the
remainder of the .... or ...., as applicable.
e. Overdelivery. Lycos may, with the prior approval of Insurion,
provide overdelivery of Impressions at a rate ....; provided that such
overdelivery will be limited to .... . If Insurion does not purchase these
additional impressions from .... , Lycos will deliver the base Impression levels
specified above and will manage the inventory on the Lycos Site accordingly.
Lycos may sell such Impressions to any entity other than an entity engaged in
the Relevant Business. In the event that Insurion purchases the additional
Impressions from .... and Lycos delivers more than ...., Lycos will provide the
Impressions over .... to Insurion at no charge.
f. Makegood Period. If at the end of the ...., Insurion has not sold
...., Lycos will continue to provide Impressions until the earlier of .... or
until .... have been sold (the "Makegood Period"). The Makegood Period shall
terminate and the .... shall begin when either: (i) Insurion has sold ....; or
(ii) Insurion sells .... in the Makegood Period. If the Makegood Period
terminates pursuant to (i) or (ii) above, Insurion shall pay to Lycos, upon
termination of the Makegood Period, the .... Prepaid Referral Fee installment.
No Pre-Paid Referral Fees (as defined in Section 2(b)) will be due during the
Makegood Period. In addition, if at the end of the Term, Insurion has not sold
.... , Lycos will continue to provide Impressions at the same rate as just prior
to the end of the Term until the earlier of a period of .... or until .... have
been sold.
g. Header File. Lycos shall provide Insurion with a header file (the
"Header File") that shall be 600x100 pixels.
3. Insurion's Obligations
4
a. Exclusivity Payments. Insurion has paid Lycos .... for the
exclusivity provided by Lycos during .... In addition, during ..., Insurion
shall pay Lycos ... which will be in ... installments of ... commencing on the
first day of ....
b. Pre-Paid Referral Fees.
i. First Term. During the ...., Insurion shall pay Lycos .... (the
"Pre-Paid Referral Fee"). Insurion has paid Lycos .... The balance of ... shall
be paid in .... installments of .... The first installment will be due on the
... of the Term. The .... remaining payments will be made on the last day of
each successive .... period thereafter. This Pre-Paid Referral Fee is guaranteed
to Lycos regardless of transactions achieved by Insurion and will be recouped
from any Affiliated Branding Revenue Share (as described Section 3(d)), and
Policy Fees (as described Section 3(c)) owed by Insurion to Lycos.
ii. Second Term. Except as otherwise provided in Section 2(f),
during the ...., Insurion shall pay Lycos .... which will be paid in ....
installments of .... commencing on the first day of the ..... This Pre-Paid
Referral Fee is guaranteed to Lycos regardless of transactions achieved by
Insurion and will be recouped from any Affiliated Branding Revenue Share (as
described in Section 3(d)), and Policy Fees (as described in Section 3(c)) owed
by Insurion to Lycos.
iii. Underdelivery. If Lycos has delivered fewer than .... at the
end of the .... and Insurion has not sold ...., then the Pre-Paid Referral Fees
for the .... will be prorated by the percentage of actual Impressions delivered
by Lycos in the ..... For example, if at the end of the ...., Lycos has only
delivered .... of the .... guaranteed to Insurion, then Insurion quarterly
payments commencing on the first day of the .... will be reduced by .... of the
amount specified above.
c. Policy Fees. During the Term, Insurion shall pay Lycos .... sold as
follows: (1) .... upon signing and receipt of the premium for such ....; (2)
....upon renewal (....anniversary); and (3) .... upon renewal (....
anniversary). Notwithstanding the above, Insurion shall pay Lycos .... sold,
paid as follows: (1) .... upon signing and receipt of the premium; and (2) ....
upon renewal (.... anniversary).
d. Ongoing Incremental Revenues. In the event Insurion contracts with
another person or entity to provide advertising sponsorship for all or a portion
of the Co-branded Site, Insurion shall provide Lycos with .... of all ongoing
incremental revenues (reasonable program set-up fees are excluded) received from
that branding partner. In the event that Lycos contracts with another person or
entity to provide advertising sponsorship for all or a portion of the Co-branded
Site, Insurion shall provide Lycos with .... of all ongoing incremental revenues
(reasonable program set-up fees are excluded) received from that branding
partner. All such fees due Lycos shall be referred to as the "Affiliated
Branding Revenue Share". Both Lycos and Insurion must approve all branding
partners, which approval shall not be unreasonably withheld or delayed. Payment
shall be made in the month following the month in which Insurion actually
receives the ongoing incremental revenues. Lycos shall have the right, at its
expense (except as provided below) to audit Insurion's books and records for the
purpose of verifying the Affiliate Branding Revenue Share. If the auditor's
figures reflect an Affiliated Branding Revenue Share
5
higher than those reported by Insurion, Insurion shall pay the difference. If
the auditor's figures vary more than .... from the figures provided by Insurion,
Insurion shall also pay the reasonable cost of the audit.
e. Referral and Policy Revenue. If Insurion sells more than ...
Co-Sponsored Policies, Insurion shall pay Lycos ... of all Referral Fees
("Co-sponsor Revenue Share") received by Insurion from such insurance
co-sponsors from the sale of the Co-Sponsored Policies in excess of ...
Co-Sponsored Policies. Payment shall be made quarterly. Lycos shall have the
right, at its expense (except as provided below) to audit Insurion's books and
records for the purpose of verifying the Co-sponsor Revenue Share. If the
auditor's figures reflect an Co-sponsor Revenue Share higher than those reported
by Insurion, Insurion shall pay the difference. If the auditor's figures vary
more than ... from the figures provided by Insurion, Insurion shall also pay the
reasonable cost of the audit.
f. Insurion Site. Insurion shall launch the Insurion Site between March
1, 1999 and May 1, 1999, and shall give Lycos thirty days prior notice of the
launch.
g. Co-Branded Site. Insurion shall launch the Co-Branded Site within
thirty (30) days after the date of launch of the Insurion Site. Insurion shall
operate and serve the Co-Branded Site in a manner consistent with the present
quality standards of Lycos and which meets response performance standards for
Lycos users at least as good as those of the Lycos Site. In addition, Insurion
will be responsible for system operation software costs, hardware costs, and
network costs. Insurion will generate daily traffic reports and provide Lycos
with audited traffic reports. Insurion will be responsible for integration of
Lycos' ad serving software (Accipter) with the Co-Branded Site. Additional
services and functionality that are developed by Insurion for the Insurion Site
(or any successor to it) will be provided by Insurion at no cost so that the
Co-Branded Site is maintained at a level substantially equal to the Insurion
Site as it appears from time to time. The Co-Branded Site will include the Lycos
frame surrounding the Content, but with Insurion's logo (hyperlinked to the
Insurion Site) displayed on each page. The URL of the Co-Branded Site will be
substantially similar to ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇.▇▇▇. Insurion shall include the
Header File on each page that is served on the Co-Branded Site.
h. Lycos Site. Lycos will be responsible for ensuring that the Lycos
Site functions with reasonable reliability and in a commercially reasonable
manner consistent with the present quality and performance standards of Lycos
throughout the Term.
i. Online Promotions. Insurion shall provide to Lycos all content for
the Online Promotions, which content Lycos shall be delivered by Lycos in
accordance with this Agreement. The content provided by Insurion will be of
equal or greater quality than that provided by Insurion to any other third party
for online use.
6
j. User Registration Data. To the extent permitted by any applicable
laws or contractual obligations, Insurion will provide Lycos with general
aggregated demographic registration data on all Lycos users who visit the
Co-Branded Site, whenever such registration data is collected from a Lycos user
and can be done readily without incurring material costs or burden. Such
aggregate demographic registration data will not include specific individual
information.
4. Term. The term ("Term") of this Agreement shall commence on the date that
Insurion launches the Co-Branded Site and continue for twenty-four ( 24) months
unless extended pursuant to Section 1(f) above or terminated earlier as provided
in Section 9 below.
5. Trademark Licenses:
a. Lycos hereby grants during the Term to Insurion a non-exclusive,
royalty-free, non-transferable license to reproduce, display and publish Lycos'
trademarks, tradenames, service marks, logos and the like that may be delivered
by Lycos to Insurion solely for the purposes specified in this Agreement (the
"Lycos Marks"). Any use of the Lycos Marks by Insurion must comply with
reasonable usage guidelines communicated by Lycos to Insurion from time to time.
Nothing contained in this Agreement will give Insurion any right, title or
interest in or to the Lycos Marks or the goodwill associated therewith, except
the limited usage rights expressly provided above. Insurion acknowledges and
agrees that as between Lycos and Insurion, Lycos is the sole owner of all rights
in and to the Lycos Marks.
b. Insurion hereby grants Lycos during the Term a non-exclusive,
royalty-free, non-transferable license to reproduce, display and publish
Insurion's trademarks, tradenames, service marks, logos and the like that may be
delivered by Insurion to Lycos solely for the purposes specified in this
Agreement (the "Insurion Marks"). Any use of the Insurion Marks by Lycos must
comply with reasonable usage guidelines communicated by Insurion to Lycos from
time to time. Nothing contained in this Agreement will give Lycos any right,
title or interest in or to the Insurion Marks or the goodwill associated
therewith, except the limited usage rights expressly provided above. Lycos
acknowledges and agrees that as between Insurion and Lycos, Insurion is the sole
owner of all rights in and to the Insurion Marks.
6. Representations and Warranties:
a. Each Party. Each party hereby represents and warrants as follows:
i. Corporate Power. Such party is duly organized and validly
existing under the laws of the state of its incorporation and has full corporate
power and authority to enter into this Agreement and to carry out the provisions
hereof.
ii. Due Authorization. Such party is duly authorized to execute and
deliver this Agreement and to perform its obligations hereunder.
iii. Binding Agreement. This Agreement is a legal and valid
obligation binding upon it and enforceable with its terms. The execution,
delivery and performance of this
7
Agreement by such party does not conflict with any agreement, instrument or
understanding, oral or written, to which it is a party or by which it may be
bound, nor violate any law or regulation of any court, governmental body or
administrative or other agency having jurisdiction over it.
iv. Intellectual Property Rights. Each Party has, and will have
throughout the Term, all full unrestricted rights to use and exploit and to
grant or otherwise permit the other Party to use and exploit its Marks and other
intellectual property that may be provided by it to the other Party as
contemplated by this Agreement and that the other Party's use of its Marks and
such other intellectual property as contemplated by this Agreement will not
infringe any trademark or other intellectual property right of any third party
within the United States. If either Party's (the "Infringing Party")
intellectual property rights are alleged or held to infringe the intellectual
property rights of a third party, the Infringing Party shall, at its own
expense, and in its sole discretion, (1) procure for the non-Infringing Party
the right to continue to use the allegedly infringing intellectual property or
(2) replace or modify the intellectual property to make it non-infringing;
provided, however, if neither option is possible or economically feasible and if
the inability to use such intellectual property would cause a material breach of
this Agreement (as determined by the non-Infringing Party), the Infringing Party
may terminate this Agreement.
The representations and warranties and covenants in this Section 6
are continuous in nature and shall be deemed to have been given by each party at
execution of this Agreement and at each stage of performance hereunder. These
representations, warranties and covenants shall survive termination or
expiration of this Agreement.
7. Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 6 ABOVE,
EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LYCOS SPECIFICALLY
DISCLAIMS ALL LIABILITY FOR THE INSURION SITE AND THE CONTENT THEREIN, AND
INSURION SPECIFICALLY DISCLAIMS ALL LIABILITY FOR THE LYCOS SITE, THE TRIPOD
SITE AND THE CONTENT THEREIN.
8. Indemnification.
a. Insurion Indemnity. Insurion will at all times defend, indemnify and
hold harmless Lycos and its officers, directors, shareholders, employees,
accountants, attorneys, agents, successors and assigns from and against any and
all third party claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, arising out of or relating to: (a) any
breach or alleged breach of any warranty, representation, covenant or agreement
made by Insurion in this Agreement, (b)the development, operation or maintenance
of the Insurion Site or the Co-Branded Site, including claims of infringement or
misappropriation of intellectual property rights; or (c) claims of infringement
or misappropriation of intellectual property rights as a result of the
authorized use by Lycos of the Insurion Marks or any content provided by
Insurion to Lycos expressly for display in connection with or as part of the
Online Promotions in accordance with this Agreement.
8
b. Lycos Indemnity. Lycos will at all times defend, indemnify and hold
harmless Insurion and its officers, directors, shareholders, employees,
accountants, attorneys, agents, successors and assigns from and against any and
all third party claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, arising out of or relating to: (a) any
breach or alleged breach of any warranty, representation, covenant or agreement
made by Lycos in this Agreement; (b) the development, operation or maintenance
of the Lycos Site, including claims of infringement or misappropriation of
intellectual property rights; or (c) claims of infringement or misappropriation
of intellectual property rights as a result of the authorized use by Insurion of
the Lycos Marks or any content provided by Lycos to Insurion expressly for
display on the Co-Branded Site in accordance with this Agreement(but
specifically excluding such claims relating to any content posted by users and
appearing in search results, chat or bulletin boards).
c. Indemnification Procedures. If an indemnifiable claim should be made
against either Party, the Indemnified Party shall promptly notify the other
Party (the "Indemnifying Party"). If an Indemnified Party provides such notice,
the Indemnified Party shall permit the Indemnifying Party to control the
defense, disposition or settlement of the matter at its own expense; provided
that the Indemnifying Party shall not, without the consent of the Indemnified
Party enter into any settlement or agree to any disposition that imposes an
obligation on the Indemnified Party that is not wholly discharged or
dischargeable by the Indemnifying Party, or imposes any conditions or
obligations on the Indemnified Party other than the payment of monies that are
readily measurable for purposes of determining the monetary indemnification or
reimbursement obligations of Indemnifying Party. The Indemnified Party shall
notify Indemnifying Party promptly of any claim for which Indemnifying Party is
responsible and shall cooperate with Indemnifying Party in every commercially
reasonable way to facilitate defense of any such claim; provided that the
Indemnified Party's failure to notify Indemnifying Party shall not diminish
Indemnifying Party's obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of such failure. An
Indemnified Party shall at all times have the option to participate in any
matter or litigation through counsel of its own selection and at its own
expense.
9. Confidentiality, Press Releases.
a. Use and Non-Disclosure. The Parties agree and acknowledge that, as a
result of negotiating, entering into and performing this Agreement, each Party
has and will have access to certain of the other Party's Confidential
Information (as defined below). Each Party also understands and agrees that
misuse and/or disclosure of that information could adversely affect the other
Party's business. Accordingly, the parties agree that, during the Term and
thereafter, each party shall use and reproduce the other party's Confidential
Information only for purposes of this Agreement and only to the extent necessary
for such purpose and shall restrict disclosure of the other party's Confidential
Information to its employees, consultants or independent contractors with a need
to know and who are under a legal or contractual duty to maintain
confidentiality and shall not disclose the other party's Confidential
Information to any third party without the prior written approval of the other
party . Notwithstanding the foregoing, it shall not be a breach of this
Agreement for either party to disclose Confidential Information of the other
9
party if required to do so under law or in a judicial or other governmental
investigation or proceeding, provided the other party has been given prior
notice and the disclosing party has sought all available safeguards against
widespread dissemination prior to such disclosure.
b. Confidential Information Defined. As used in this Agreement, the term
"Confidential Information" refers to: (i) the terms and conditions of this
Agreement; (ii) each party's trade secrets, business plans, strategies, methods
and/or practices; and (iii) other information relating to either party that is
not generally known to the public, including information about either party's
personnel, products, customers, marketing strategies, services or future
business plans. Notwithstanding the foregoing, the term "Confidential
Information" specifically excludes (A) information that is now in the public
domain or subsequently enters the public domain by publication or otherwise
through no action or fault of the other party; (B) information that is known to
either party without restriction, prior to receipt from the other party under
this Agreement, from its own independent sources as evidenced by such party's
written records, and which was not acquired, directly or indirectly, from the
other party; (C) information that either party receives from any third party
reasonably known by such receiving party to have a legal right to transmit such
information, and not under any obligation to keep such information confidential;
and (D) information independently developed by either party's employees or
agents provided that either party can show that those same employees or agents
had no access to the Confidential Information received hereunder.
c. Press Releases. Within two weeks of the Effective Date, Lycos and
Insurion will jointly prepare press releases concerning the existence of this
Agreement and the terms hereof. Otherwise, no public statements concerning the
existence or terms of this Agreement shall be made or released to any medium
except with the prior approval of Lycos and Insurion or as required by law.
10. Termination.
a. Omitted.
b. Launch. If after executing this Agreement, Insurion knows of any
material reason that would. preclude the Insurion Site from launching before
April 1, 1999, Insurion must disclose such material information to Lycos and
Lycos shall have the option of canceling this agreement, and keeping all monies
paid as of the date of such notice to Lycos. If Insurion does not launch the
Insurion Site and the Co-Branded Site by April 1, 1999, either party will have
the option to cancel the contract, in which case Lycos shall keep all monies
paid to Lycos as of the date of notice of such cancellation.
c. After The First Term. If at the end of the First Term Insurion has
failed to sell policies for which Provident or its designee is the principal
provider, then Insurion will have the option to terminate this Agreement on
fourteen days written notice to Lycos, provided that such notice must be made
within two week of the end of the First Term.
d. Makegood Period. If during the Makegood Period, Insurion fails to sell
Insurion Policies , Insurion and Lycos will have the option to terminate this
Agreement upon fourteen days written notice to the other party. If Insurion
elects to so terminate, Insurion shall not be
10
obligated to pay Lycos any amount due Lycos arising from the sale of any
policies during that first quarter of the Makegood Period . If the Makegood
Period ends and Insurion has not sold a cumulative total of Insurion Policies ,
this Agreement will terminate on the last day of the Makegood Period.
e. Product Quality. If at the end of the first 12 months of the Term,
Lycos reasonably determines that the Relevant Business products and services
provided by Insurion to users are not competitive with other similar products
and services based on price, form and function, Lycos may terminate this
Agreement upon fourteen days written notice to Insurion.
f. Additional. Either party may terminate this Agreement if (a) the
other party files a petition for bankruptcy or is adjudicated bankrupt; (b) a
petition in bankruptcy is filed against the other party and such petition is not
dismissed within sixty (60) days of the filing date; (c) the other party becomes
insolvent or makes an assignment for the benefit of its creditors pursuant to
any bankruptcy law; (d) a receiver is appointed for the other party or its
business; (e) upon the occurrence of a material breach of a material provision
by the other party if such breach is not cured within thirty (30) days after
written notice is received by the breaching party identifying the matter
constituting the material breach; (f) upon thirty (30) days written notice if
the other party's service, viewed as a whole, ceases to be competitive with
substantially similar services then being offered by third parties; or (g) by
mutual consent of the parties.
g. No Further Payments. Upon termination or expiration of this
Agreement, Insurion will make no further payments under Section 3.e. However,
Insurion will make those payments earned by Lycos as of the date of termination
or expiration unless this Agreement is terminated by Insurion pursuant to 10.f.
above.
11. Force Majeure. In the event that either party is prevented from performing,
or is unable to perform, any of its obligations under this Agreement due to any
cause beyond the reasonable control of the party invoking this provision, the
affected party's performance shall be excused and the time for performance shall
be extended for the period of delay or inability to perform due to such
occurrence.
12. Relationship of Parties. Insurion and Lycos are independent contractors
under this Agreement, and nothing herein shall be construed to create a
partnership, joint venture or agency relationship between Insurion and Lycos.
Neither party has authority to enter into agreements of any kind on behalf of
the other.
13. Assignment, Binding Effect. This Agreement may not be assigned by either
Party, except (a) to the transfer of substantially all of the business
operations of such Party (whether by sale, stock sale, merger or otherwise) or
(b) to any entity that controls, is controlled by or is under common control
with such Party; provided that Insurion demonstrates to Lycos' reasonable
satisfaction that such assignee has financial resources at least as good as
those of Insurion.
14. Choice of Law and Forum. This Agreement, its interpretation, performance or
any breach thereof, shall be construed in accordance with, and all questions
with respect thereto shall
11
be determined by, the laws of the Commonwealth of Massachusetts applicable to
contracts entered into and wholly to be performed within said state. Insurion
hereby consents to the personal jurisdiction of the Commonwealth of
Massachusetts, acknowledges that venue is proper in any state or Federal court
in the Commonwealth of Massachusetts, agrees that any action related to this
Agreement must be brought in a state or Federal court in the Commonwealth of
Massachusetts, and waives any objection Insurion has or may have in the future
with respect to any of the foregoing.
15. Good Faith. The parties agree to act in good faith with respect to each
provision of this Agreement and any dispute that may arise related hereto.
16. Additional Documents/Information. The parties agree to sign and/or provide
such additional documents and/or information as may reasonably be required to
carry out the intent of this Agreement and to effectuate its purposes.
17. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
18. No Waiver. The waiver by either party of a breach or a default of any
provision of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
19. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns.
20. Severability. Each provision of this Agreement shall be severable from every
other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
21. Notices. All notice required to be given under this Agreement must be given
in writing and delivered either in hand, by certified mail, return receipt
requested, postage pre-paid, or by Federal Express or other recognized overnight
delivery service, all delivery charges pre-paid, and addressed:
If to Lycos: Lycos, Inc.
▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
12
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esquire
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
A Professional Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Insurion: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Insurion, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
22. Entire Agreement. This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements between Lycos and Insurion concerning the
subject matter, and cannot be amended except by a writing signed by both
parties. No party hereto has relied on any statement, representation or promise
of any other party or with any other officer, agent, employee or attorney for
the other party in executing this Agreement except as expressly stated herein.
23. Limitations of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORSEEABLE OR THAT PARTY HAS BEEN
ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM SUCH PARTY'S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY
PROVISION OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY'S SITE (INCLUDING
SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, HOWEVER, THIS SECTION SHALL NOT LIMIT EITHER PARTY'S LIABILITY
TO THE OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES TO
REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH CAUSED BY
NEGLIGENCE; (D) INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (E) LOST PROFITS
DIRECTLY RELATED TO BREACH OF CONTRACT.
13
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
INSURION, INC. LYCOS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------- ----------------------------
Title: President and Chief Executive Officer Title: Chief Operating Officer
-------------------------------------- ----------------------------
Date: November 13, 1998 Date: November 13, 1998
-------------------------------------- ----------------------------
14
Exhibit A - Key Words
--------------------------------------------------------------------
...
...
...