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EXHIBIT 10.18
ADVERTISING AGREEMENT
This Agreement, dated as of April 22, 1999, is made and entered into by
and between ▇▇▇▇▇▇.▇▇▇. Inc. ("▇▇▇▇▇▇.▇▇▇"), and ▇▇▇▇.▇▇▇. Inc. ("Company"),
▇▇▇▇▇▇.▇▇▇ and Company sometimes are referred to collectively as the "Parties"
and individually as a "Party." ▇▇▇▇▇▇.▇▇▇ and Company agree as follows:
SECTION 1. DEFINITIONS
"ADVERTISING PLACEMENT" means any link, advertisement or other
advertising placement provided for in Section 2 or Section 3.
"AFFILIATE" means, with respect to either Party, any individual or
entity that directly or indirectly controls, is controlled by or is under common
control with that Party, or which Party beneficially owns at least fifty percent
(50%) of the equity interests therein.
"▇▇▇▇▇▇.▇▇▇ SITE" means the Web Site identified by the URL
▇▇▇.▇▇▇▇▇▇.▇▇▇ (and any successors or replacements).
"COMPANY SITE" means the Web Site identified by the URL ▇▇▇.▇▇▇▇.▇▇▇
(and any successors or replacements).
"CONFIDENTIAL INFORMATION" means non-public information and know-how of
the Disclosing Party which, by the nature of the circumstances surrounding
disclosure, ought in good faith to be treated as proprietary and/or
confidential, or which has been or is designated as proprietary and/or
confidential, including without limitation any information exchanged between the
Parties under Sections 5.2 and 5.3 of this Agreement. Confidential Information
does not include information that the Receiving Party can show: (a) was known by
the Receiving Party prior to disclosure thereof by the Disclosing Party; (b) was
in or entered the public domain through no fault of the Receiving Party; (c) is
disclosed to the Receiving Party by a third party legally entitled to make such
disclosure without violation of any obligation of confidentiality; or (d) is
independently developed by the Receiving Party without reference to any
Confidential Information of the Disclosing Party.
"DISCLOSING PARTY" means a Party that discloses Confidential Information
to the other Party in connection with this Agreement.
"HOME PAGE" means, with respect to a Web Site, the Web page designated
by the operator of the Web Site as the initial and primary end user interface
for the Web Site.
"INTELLECTUAL PROPERTY RIGHT" means any patent, copyright, trademark,
trade dress, trade name or trade secret right and any other intellectual
property or proprietary right.
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"JUMP PAGE" means the Web page maintained on the ▇▇▇▇▇▇.▇▇▇ Site, by or
for ▇▇▇▇▇▇.▇▇▇. in accordance with Section 2.1.1.
"NEW COMPANY CUSTOMER" means any individual or entity that accesses the
Company site via a hypertext link embedded in any Advertisement Placement on the
▇▇▇▇▇▇.▇▇▇ Site and that either (a) purchases a product or service from Company
or any or its Affiliates before leaving the Company Site by any means, or (b)
places at least one product or service in a shopping basket or on a shopping
list (or similar data construct) or otherwise identifies, selects or takes other
affirmative steps to order a product or service in a manner that is recorded and
maintained on the Company Site, then leaves the Company Site by any means, and
subsequently returns to the Company Site and purchases any such identified
product or service.
"NEW ▇▇▇▇▇▇.▇▇▇ CUSTOMER" means any individual or entity that accesses
the ▇▇▇▇▇▇.▇▇▇ Site via a hypertext link embedded in any Advertising Placement
on the Company Site and that either (a) purchases a product service from
▇▇▇▇▇▇.▇▇▇ or any of its Affiliates before leaving the ▇▇▇▇▇▇.▇▇▇ Site by any
means, or (b) places at least one product or service in a shopping basket or on
a shopping list (or similar data construct) or otherwise identifies, selects or
takes other affirmative steps to order a product or service in a manner that is
recorded and maintained on the Company Site, then leaves the ▇▇▇▇▇▇.▇▇▇ Site by
any means, and subsequently returns to the ▇▇▇▇▇▇.▇▇▇ Site and purchases any
such identified product or service.
"RECEIVING PARTY" means a Party that receives Confidential Information
from the other Party in connection with this Agreement.
"TERM" means the term of this Agreement as defined in Section 9.
"WEB SITE" means any point of presence maintained on the Internet or on
any other public data network. With respect to any Web Site maintained on the
World Wide Web or any successor public data network, such Web Site includes all
HTML pages (or similar unit of information presented in any relevant data
protocol) that either (a) are identified by the same second-level domain (such
as ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇) or by the same equivalent level identifier in any
relevant address scheme, or (b) contain branding, graphics, navigation or other
characteristics such that a user reasonably would conclude that the pages are
part of an integrated information or service offering.
SECTION 2. OBLIGATIONS OF AMAZON
2.1 ONLINE PROMOTIONS
2.1.1 During the Term, ▇▇▇▇▇▇.▇▇▇ will create and maintain a Web
page within the ▇▇▇▇▇▇.▇▇▇ Site that contains (a) advertising text and/or
graphics introducing ▇▇▇▇▇▇.▇▇▇ users to the Company Site, and (b) a hypertext
link that permits ▇▇▇▇▇▇.▇▇▇ users to navigate directly to the Home Page of the
Company Site. The content,
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functionality, placement and appearance of the Jump Page and the Company-related
text and/or graphics contained in the Jump Page will be solely determined by
▇▇▇▇▇▇.▇▇▇ after consulting with Company, subject to the implementation process
outlined in Section 4 and the requirements of Section 6.3.
2.1.2 During the Term, ▇▇▇▇▇▇.▇▇▇ will place and maintain on the
▇▇▇▇▇▇.▇▇▇ Site one or more hypertext links from selected areas of the
▇▇▇▇▇▇.▇▇▇ Site to the Jump Page, in accordance with and subject to the terms
and conditions of this Agreement. The quantity, location, timing, content,
appearance, functionality and similar characteristics of such hypertext links
will be determined by ▇▇▇▇▇▇.▇▇▇ after consulting with Company, subject to the
implementation process outlined in Section 4, and will be limited by, among
other things, the impact on user experience, availability of space and other
business considerations. Notwithstanding anything to the contrary contained in
this Agreement, ▇▇▇▇▇▇.▇▇▇ will have no obligation to place a Company-related
hypertext link on the Home Page of the ▇▇▇▇▇▇.▇▇▇ Site.
2.1.3 Subject to ▇▇▇▇▇▇.▇▇▇'s specific approval, and by way of
example only, ▇▇▇▇▇▇.▇▇▇ may provide hypertext links to the Jump Page from (a)
certain order confirmation Web pages within the ▇▇▇▇▇▇.▇▇▇ Site, and (b)
relevant ▇▇▇▇▇▇.▇▇▇ Delivers e-mails.
2.1.4 If, during the Term, ▇▇▇▇▇▇.▇▇▇ creates and maintains an
area within the ▇▇▇▇▇▇.▇▇▇ Site that aggregates advertising placements for the
Web Sites of companies in which ▇▇▇▇▇▇.▇▇▇ has equity investments. ▇▇▇▇▇▇.▇▇▇
will include a hypertext link to the Jump Page in such area of the ▇▇▇▇▇▇.▇▇▇
Site. The size and prominence of such link will be determined by ▇▇▇▇▇▇.▇▇▇ in
its discretion.
2.2 LAUNCH-RELATED PROMOTIONS
2.2.1 Promptly after the execution of this Agreement, ▇▇▇▇▇▇.▇▇▇
and Company will (a) prepare and distribute a press release announcing the
transaction, and (b) organize related media events and/or media interviews. If
mutually agreed, the Parties may undertake additional public relations
activities. The contents and timing of the release (or releases) and additional
activities, if any, will be mutually agreed by the Parties. Neither Party will
issue any further press releases, make any other disclosures regarding this
Agreement or its terms or use the other Party's trademarks, trade names or other
proprietary marks without the other Party's prior written consent.
2.2.2 For a period of sixty (60) days following the date of this
Agreement, ▇▇▇▇▇▇.▇▇▇ will be available to provide a reasonable amount of
marketing advice to Company (as established by the Parties based on their
reasonable determination as to the required level of support and subject to
▇▇▇▇▇▇.▇▇▇'s marketing capacity and other business constraints) to assist
Company in the planning for the launch of the activities contemplated herein and
the Company Site.
SECTION 3. OBLIGATIONS OF COMPANY
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During the Term, Company will place and maintain on the Home Page of the
Company Site such ▇▇▇▇▇▇.▇▇▇ advertising message as ▇▇▇▇▇▇.▇▇▇ may develop and
provide to Company, in accordance with and subject to the implementation process
outlined in Section 4 and the other terms and conditions of this Agreement. The
advertising message will include a link to such Web page on the ▇▇▇▇▇▇.▇▇▇ Site
as is designated by ▇▇▇▇▇▇.▇▇▇. The placement and size of such advertising
message will be determined by Company after consulting with ▇▇▇▇▇▇.▇▇▇, subject
to the implementation process outlined in Section 4, and will be limited by,
among other things, the impact on user experience, availability of space and
other business considerations.
SECTION 4. IMPLEMENTATION
4.1 ACCOUNT MANAGERS. Each Party will assign an account manager (which
manager shall be subject to change from time to time by the assigning Party upon
written notice to the other Party) to facilitate coordination of the Parties'
performance of their obligations hereunder (including, without limitation, in
the creation and monitoring of the Advertising Placements).
4.2 COOPERATION. During the Term, the Parties will cooperate in good
faith and use commercially reasonable efforts to (a) establish and implement
procedures and processes for proposing, creating, approving and implementing the
Advertising Placements under this Agreement, and (b) develop, test and implement
the Advertising Placements in accordance with such procedures and processes and
the terms and conditions of this Agreement.
4.3 APPROVAL. All Advertising Placements placed on a Party's Web Site
will be subject to such Party's written approval prior to the time the same go
live on the Web Site. No such approval will be unreasonably withheld or delayed.
SECTION 5. COMPENSATION
5.1 GENERAL. Except as expressly provided for elsewhere in this
Agreement, each Party will be responsible for all costs and expenses incurred by
such Party in performing its obligations under this Agreement, and the
Advertising Placements, license rights and other activities under this Agreement
will be provided and undertaken by the Parties free of charge.
5.2 REFERRAL FEES. Beginning with the seventh month of the Term and for
each three month period of the Term thereafter ("Quarter"), Company will, within
fifteen (15) days after the end of such Quarter, pay to ▇▇▇▇▇▇.▇▇▇ a referral
fee of [*] dollars ([*]) for each New Company Customer acquired by the Company
during the Quarter. Each such payment will be accompanied by a written statement
setting forth the number of New Company Customers and the Company's calculation
of the referral fees for such Quarter. Any payment owing by Company to
▇▇▇▇▇▇.▇▇▇ under this Section 5.2 will be reduced by an amount equal to [*]
dollars ([*]) for each New ▇▇▇▇▇▇.▇▇▇ Customer that ▇▇▇▇▇▇.▇▇▇ acquires during
the Quarter covered by such payment. Any amounts not paid when due will be
subject to a finance charge equal to one and one-half percent (1.5%) per month
or the
[*] CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SEC.
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highest rate allowable by law, whichever is less, determined and compounded
daily from the date due until the date paid. Payment of such finance charges
will not excuse or cure any breach or default for late payment. In no event will
the Company be required to make more than one payment to ▇▇▇▇▇▇.▇▇▇, nor
▇▇▇▇▇▇.▇▇▇ be required to reduce a payment made by the Company, during the Term
with respect to any individual or entity that constitutes a New Company Customer
or a New ▇▇▇▇▇▇.▇▇▇ Customer, respectively.
5.3 RECORDS AND AUDIT. Company will maintain complete and accurate
records of all New Company Customers. ▇▇▇▇▇▇.▇▇▇ will maintain complete and
accurate records of all New ▇▇▇▇▇▇.▇▇▇ Customers. Each Party may, at its
expense, examine or audit such records no more than once every twelve months in
order to verify the referral fees payable under this Agreement. Any such audit
will be conducted, to the extent possible, in a manner that does not
unreasonably interfere with the audited Party's business operations. To the
extent a Party uses an independent auditor to conduct such audit, the
independent auditor shall agree in writing to maintain the confidentiality of
information obtained during such audit. If any audit reveals an underpayment of
more than ten percent (10%) of the amounts due to ▇▇▇▇▇▇.▇▇▇ for any month,
Company will reimburse ▇▇▇▇▇▇.▇▇▇ for the costs of such audit.
SECTION 6. PROPRIETARY RIGHTS
6.1 OWNERSHIP. Subject to the license granted to Company under Section
6.2, ▇▇▇▇▇▇.▇▇▇ hereby reserves all of its right, title and interest in its
Intellectual Property Rights including, without limitation, all right, title and
interest in and to all trademarks, trade dress, logos, insignia and
copyrightable materials supplied by ▇▇▇▇▇▇.▇▇▇ to Company hereunder. Subject to
the foregoing and the license granted to ▇▇▇▇▇▇.▇▇▇ under Section 6.3. Company
reserves all of its right, title and interest in its Intellectual Property
Rights, including, without limitation, all right, title and interest in and to
all trademarks, trade dress, logos, insignia and copyrightable materials
supplied by the Company to ▇▇▇▇▇▇.▇▇▇.
6.2 ▇▇▇▇▇▇.▇▇▇ LICENSE. ▇▇▇▇▇▇.▇▇▇ hereby grants to Company, during the
Term, a non-exclusive, non-transferable license to use the trade names,
trademarks, service names and other proprietary marks supplied by ▇▇▇▇▇▇.▇▇▇ as
is reasonably necessary to perform its obligations under this Agreement;
provided, however, that any advertising and/or other materials containing any of
▇▇▇▇▇▇.▇▇▇'s marks will be subject to ▇▇▇▇▇▇.▇▇▇'s prior written approval. All
goodwill arising out of any use of any of ▇▇▇▇▇▇.▇▇▇'s marks by, through or
under Company will inure solely to the benefit of ▇▇▇▇▇▇.▇▇▇.
6.3 COMPANY LICENSE. Company hereby grants to ▇▇▇▇▇▇.▇▇▇ during the
Term, a non-exclusive, non-transferable license to use the trade names,
trademarks, service names and other proprietary marks and/or copyrightable
materials supplied by Company as is reasonably necessary to perform its
obligations under this Agreement; provided, however, that any advertising and/or
other materials containing any of Company's marks will be subject to Company's
prior written approval. All goodwill arising out of any use of any of Company's
marks by, through or under ▇▇▇▇▇▇.▇▇▇ will inure solely to the benefit of
Company.
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6.4 NON-DISPARAGEMENT. Neither Company nor ▇▇▇▇▇▇.▇▇▇ will use the other
Party's proprietary marks in a manner that disparages the other Party or its
products or services, and/or portrays the other Party or its products or
services in a false, competitively adverse or poor light. Each of Company and
▇▇▇▇▇▇.▇▇▇ will comply with the other Party's requests as to the use of the
other Party's proprietary marks and will avoid knowingly taking any action that
diminishes the value of such marks. Either Party's use of the other Party's
proprietary marks except as expressly permitted by this Agreement is strictly
prohibited.
6.5 NONEXCLUSIVELY. Each Party expressly acknowledges and agrees that
the rights granted to the other Party in this Agreement are non-exclusive, and
that, without limiting the generality of the foregoing, nothing in this
Agreement shall be deemed to prohibit either Party from soliciting third party
content, links, banner ads or other material, serving content, links, banner ads
or other materials to third parties' Web Sites, or hosting or permitting third
parties to place links, content, banner ads or other material on such Party's
Web Site, whether or not, in each such case, such content, links, banner ads or
other materials are competitive with the products, services, content or banner
ads of the other Party.
SECTION 7. INDEMNITY
7.1 ▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇.▇▇▇ will defend and indemnify Company and its
Affiliates against any claim or action brought by a third party, to the extent
it is based on (a) the operation of the ▇▇▇▇▇▇.▇▇▇ Site or (b) infringement of
such third-party's Intellectual Property Rights by any materials provided by
▇▇▇▇▇▇.▇▇▇ for display on the Company Site. Subject to Section 7.3, ▇▇▇▇▇▇.▇▇▇
will pay any award against Company and its Affiliates, or their respective
employees, directors or representatives and any costs and attorneys' fees
reasonably incurred by them resulting from any such claim or action.
7.2 COMPANY. Company will defend and indemnify ▇▇▇▇▇▇.▇▇▇ and its
Affiliates (and their respective employees, directors and representatives)
against any claim or action brought by a third party, to the extent it is based
on (a) the operation of the Company Site or (b) infringement of such
third-party's Intellectual Property Rights by any materials provided by Company
for display on any the ▇▇▇▇▇▇.▇▇▇ Site. Subject to Section 7.3, Company will pay
any award against ▇▇▇▇▇▇.▇▇▇ or its Affiliates (or their respective employees,
directors or representatives) and any costs and attorneys' fees reasonably
incurred by ▇▇▇▇▇▇.▇▇▇ and its Affiliates resulting from any such claim or
action.
7.3 PROCEDURE. In connection with any claim or action described in this
Section 7, the Party seeking indemnification will (a) give the indemnifying
Party prompt written notice of the claim, (b) cooperate with the indemnifying
Party (at the indemnifying Party's expense) in connection with the defense and
settlement of the claim, and (c) permit the indemnifying Party to control the
defense and settlement of the claim, provided that the indemnifying Party may
not settle the claim without the indemnified Party's prior written consent
(which will not be unreasonably withheld). Further, the indemnified Party (at
its cost) may participate in the defense and settlement of the claim.
SECTION 8. DISCLAIMERS, LIMITATIONS AND RESERVATIONS
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8.1 COMPANY. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES REGARDING THE COMPANY SITE OR ANY PORTION THEREOF,
INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE
AMOUNT OF SALES REVENUE THAT ▇▇▇▇▇▇.▇▇▇ MAY RECEIVE DURING THE TERM, AND (B) ANY
ECONOMIC OR OTHER BENEFIT THAT ▇▇▇▇▇▇.▇▇▇ MIGHT OBTAIN THROUGH ITS PARTICIPATION
IN THIS AGREEMENT.
8.2 ▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇.▇▇▇ DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES REGARDING THE ▇▇▇▇▇▇.▇▇▇ SITE OR ANY PORTION
THEREOF, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, ▇▇▇▇▇▇.▇▇▇ SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY
REGARDING (A) THE AMOUNT OF SALES REVENUES THAT MAY OCCUR DURING THE TERM, AND
(B) ANY ECONOMIC OR OTHER BENEFIT THAT COMPANY MIGHT OBTAIN THROUGH ITS
PARTICIPATION IN THIS AGREEMENT.
8.3 NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT.
EACH PARTY'S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT (EXCEPT FOR LIABILITIES ARISING UNDER SECTION 6, RESULTING FROM THE
PARTY'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR CONCERNING LIABILITY FOR
DEATH OR PERSONAL INJURY), WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE),
WILL NOT EXCEED THE AMOUNTS TO BE PAID TO ▇▇▇▇▇▇.▇▇▇ UNDER SECTION 5, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
8.4 RESPONSIBILITY FOR WEB SITES. ▇▇▇▇▇▇.▇▇▇ will remain solely
responsible for the operation of the ▇▇▇▇▇▇.▇▇▇ Site, and Company will remain
solely responsible for the operation of the Company Site. Each Party (a)
acknowledges that the ▇▇▇▇▇▇.▇▇▇ Site and the Company Site may be subject to
temporary shutdowns due to causes beyond the operating Party's reasonable
control, and (b) subject to the specific terms of this Agreement, retains sole
right and control over the programming, content and conduct of transactions over
its respective site or service.
SECTION 9. TERM AND TERMINATION
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9.1 TERM. The Term of this Agreement will begin as of the date of this
Agreement and, unless earlier terminated as provided elsewhere in this
Agreement, will end automatically upon the eighteen (18) month anniversary of
the date of this Agreement; provided that, not less than thirty (30) days prior
to the end of the Term, the Parties will negotiate in good faith in an attempt
to agree on the terms and conditions of an extension of the Term (including,
without limitation, the compensation payable to ▇▇▇▇▇▇.▇▇▇ for Advertising
Placements provided during such extension period). If, after using reasonable
efforts, the Parties are unable to agree upon such terms and conditions, neither
Party will have any obligation to continue its participation in the
negotiations.
9.2 TERMINATION FOR BREACH. Without limiting any other rights or
remedies (including, without limitation, any right to seek damages and other
monetary relief) that either Party may have in law or otherwise, either Party
may terminate this Agreement if the other Party materially breaches its
obligations hereunder, provided that (a) the non-breaching Party sends written
notice to the breaching Party describing the breach, and (b) the breaching Party
does not cure the breach within thirty (30) days following its receipt of such
notice.
9.3 OTHER TERMINATION RIGHTS. Either Party may terminate this Agreement
if the other Party (a) has a receiver or administrative receiver appointed for
it or over its undertakings or assets, (b) passes a resolution for winding up or
a court of competent jurisdiction makes an order to that effect and such order
is not discharged within ninety (90) days, (c) enters into any voluntary
arrangement with its creditors for the benefit of its creditors, (d) becomes
subject to an administration order, or (e) ceases to carry on business.
9.4 EFFECT OF TERMINATION. On termination of this Agreement: (a) each
Party in receipt, possession or control of the other Party's intellectual or
proprietary property, information and materials pursuant to this Agreement must
return to the other Party (or at the other Party's written request, destroy)
such property, information and materials, (b) each Party must, subject to
receiving written consent to the contrary from the other Party, immediately
remove all links to the other Party's Web Site from its own Web Site, and (c)
each Party must cease use of, and remove from its Web Site, all of the
trademarks, trade dress, logos, insignia and copyrightable materials supplied by
the other Party hereunder. Sections 5, 6, 7, 8, 9 and 10 (together with all
other provisions that reasonably may be interpreted as surviving termination or
expiration of this Agreement) will survive the termination or expiration of this
Agreement.
SECTION 10. MISCELLANEOUS
10.1 INDEPENDENT CONTRACTORS. The Parties are entering this Agreement as
independent contractors, and this Agreement will not be construed to create a
partnership, joint venture or employment relationship between them. Neither
Party will represent itself to be an employee or agent of the other or enter
into any agreement or legally binding commitment or statement on the other's
behalf of or in the other's name.
10.2 NONDISCLOSURE. Each Party will protect the Confidential Information
of the other Party from misappropriation and unauthorized use or disclosure, and
at a minimum, will take precautions at least as great as those taken to protect
its own confidential information of a
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similar nature. Without limiting the foregoing, the Receiving Party will: (a)
use such Confidential Information solely for the purposes for which it has been
disclosed; and (b) disclose such Confidential Information only to those of its
employees, agents, consultants, and others who have a need to know the same for
the purpose of performing this Agreement and who are informed of and agree to a
duty of nondisclosure. The Receiving Party may also disclose Confidential
Information of the Disclosing Party to the extent necessary to comply with
applicable law or legal process, provided that the Receiving Party uses
reasonable efforts to give the Disclosing Party prompt advance notice thereof.
Upon request of the other Party, or in any event upon any termination or
expiration of the Term, each Party shall return to the other all-materials, in
any medium, which contain, embody, reflect or reference all or any part of any
Confidential Information of the other Party.
10.3 COMPLIANCE WITH LAWS. In its performance of this Agreement, each
Party will comply with all applicable laws, regulations, orders and other
requirements, now or hereafter in effect, of governmental authorities having
jurisdiction. Without limiting the generality of the foregoing, each Party will
pay, collect, remit and otherwise be responsible such taxes as may be imposed
upon such Party in the first instance with respect to any compensation,
royalties or transactions under this Agreement. Except as expressly provided
herein, each Party will be responsible for all costs and expenses incurred by it
in connection with the negotiation, execution and performance of this Agreement.
10.4 NOTICES. Any notice or other communication under this Agreement
given by either Party to the other Party will be in writing and will be deemed
properly given when sent to the intended recipient by registered letter,
receipted commercial courier, or electronically receipted facsimile transmission
(acknowledged in like manner by the intended recipient) at its address specified
below its signature at the end of this Agreement, and in the case of ▇▇▇▇▇▇.▇▇▇.
with a copy to ▇▇▇▇▇▇.▇▇▇. Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇,
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, Attn: General Counsel; provided, that no notice of
termination of this Agreement shall be deemed properly given unless sent by
registered mail to such address(es) and to the attention of such officer(s).
Either Party may from time to time change such address or individual by giving
the other Party notice of such change in accordance with this Section 10.4.
10.5 ASSIGNMENT. Neither ▇▇▇▇▇▇.▇▇▇ nor Company may assign this
Agreement, in whole or in part, without the other Party's prior written consent
(which will not be withheld unreasonably), except to (a) any corporation
resulting from any merger, consolidation, or other reorganization involving the
assigning Party, (b) any of its Affiliates, or (c) any person or entity to which
the assigning Party may transfer substantially all of its assets; provided that
the assignee agrees in writing to be bound by all the terms and conditions of
this Agreement. Subject to the foregoing, this Agreement will be binding on and
enforceable by the Parties and their respective successors and permitted
assigns.
10.6 NONWAIVER. The failure of either Party to enforce any provision of
this Agreement will not constitute a waiver of the Party's rights to
subsequently enforce the
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provision. The remedies specified in this Agreement are in addition to any other
remedies that may be available in law.
10.7 ENTIRE AGREEMENT. This Agreement (a) represents the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes any previous or contemporaneous oral or written agreements regarding
such subject matter, (b) may be amended or modified only by a written instrument
signed by a duly authorized agent of each Party, and (c) will be interpreted,
construed and enforced in all respects in accordance with the laws of the laws
of the State of Washington, without reference to its choice of law rules. If any
provision of this Agreement is held to be invalid, such invalidity will not
effect the remaining provisions. No breach of this Agreement by either Party
shall affect the rights or obligations of either Party under any other Agreement
between the Parties; rather, the same will remain in full force and effect.
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amended or modified only by a written instrument signed by a duly authorized
agent of each Party, and (c) will be interpreted, construed and enforced in all
respects in accordance with the laws of the laws of the State of Washington,
without reference to its choice of law rules. If any provision of this Agreement
is held to be invalid, such invalidity will not effect the remaining provisions.
No breach of this Agreement by either Party shall affect the rights or
obligations of either Party under any other Agreement between the Parties;
rather, the same will remain in full force and effect.
Amazon: Company:
▇▇▇▇▇▇.▇▇▇, INC. ▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Title: V.P. Business Development Title: CEO
----------------------------- -----------------------------
Date: April 20, 1999 Date: 4/22/99
---------------------------- ------------------------------
Notice Address: Notice Address:
▇▇▇▇▇▇.▇▇▇ Incorporated ▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., Floor 2 ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 206.834.7010 Facsimile: 626.794.8500
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