Interactive Services Agreement - Lycos Inc. and BarnesandNoble.com Inc.
INTERACTIVE SERVICES AGREEMENT
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This Interactive Services Agreement (this "Agreement") dated as of July 31,
1997, is by and between Lycos, Inc., a Delaware corporation ("Lycos"), having an
office at 500 Old Connecticut Path, Framingham, Massachusetts 01701-4576 and
BarnesandNoble.com, Inc. a Delaware corporation ("B&N"), having an office at 122
Fifth Avenue, New York, New York 10011.
RECITALS
WHEREAS, B&N is a retailer of books and offers books and other items for
sale through its Web service which is accessible through the URL
www.barnesandnoble.com (the "B&N Site");
WHEREAS, Lycos is the owner or licensee of certain Web services, including,
without limitation, the Lycos Catalog of the Internet, Pictures and Sounds, Top
5% Reviews and other search and content areas (collectively, the "Lycos
Services"), which are accessible through the URL www.lycos.com (the "Lycos
Site");
WHEREAS, B&N desires that Lycos integrate links from the Lycos Services and
certain other areas on the Lycos Site to the B&N Site and that Lycos performs
various search services on behalf of B&N so that users of the Lycos Services
will have access to the B&N Site through the Lycos Services;
WHEREAS, B&N and Lycos desire to enter other arrangements as more
particularly described herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, B&N and Lycos hereby agree as follows:
1. Certain Definitions.
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As used herein, the following terms shall have the meaning herein
ascribed:
"Lycos PowerSearch API" means the application programming interface
created and maintained by Lycos that allows B&N to create pre-defined searches
of the Lycos Catalog for the viewers of the B&N Site and insert the searches as
hypertext links into the HTML pages of the B&N Site, such that when a viewer
clicks on such link, the query is sent to Lycos and the results are sent back to
the B&N Site which displays the data in its HTML page.
"Lycos Search API" means the application programming interface created
and maintained by Lycos that allows a viewer of the B&N Site to search the Lycos
Catalog from search boxes in the HTML pages of the B&N Site, such that when a
viewer of the B&N Site enters a search query, the query is sent to Lycos, and
the results are sent back to B&N to place into the B&N Site.
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"Web" means the World Wide Web, a system for accessing and viewing
text, graphics, sound and other media via the collection of computer networks
known as the Internet.
"Web Search Results" means the results of a query sent to the Lycos
search engine that are then displayed in HTML format by the user of the Lycos
Search API.
2. Link to B&N Site; Search Services.
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(a) Subject to the terms and conditions of this Agreement as promptly
as practicable after the date hereof and, in any event, no later than September
10, 1997 (the "Effective Date"), Lycos agrees continuously throughout the term
of this Agreement to (i) provide links to the B&N Site from selected Web pages
within the Lycos Site, including the Lycos Home Page, WebGuides and Lycos
Shopping (collectively, the "Lycos Pages"), so as to provide users of the Lycos
Site access to the B&N Site, (ii) provide links from relevant book content
related Web pages within Lycos WebGuides to relevant categories on the B&N Site;
and (iii) provide links to the B&N Site from selected Web pages within the Lycos
Search Results Pages. In addition, from time to time, during the term of this
Agreement, Lycos agrees to include links from selected Web pages within Lycos
WebGuides to pages within the Books of the Week and/or Book Review sections of
the B&N Site (all of such links referred to in the first sentence and this
sentence being referred to herein as the "B&N Links"). All B&N Links may be
modified and/or expanded from time to time throughout the term of this Agreement
pursuant to mutual agreement of the parties hereto, except that Lycos may modify
the placement of the B&N Links on the Lycos Home Page and Lycos Search Results
Pages in a manner determined by Lycos, subject to compliance with clause (b)
below. Except as described in clause (c) below, each Web page within the B&N
Site which is accessed by the B&N Links will display the look and feel of the
B&N Site area, which shall include, but not be limited to, page format,
navagational bars, colors, fonts, the B&N logo, all hyperlinks appearing on the
linked B&N Site area and, in general, the overall design of the B&N Site. To the
extent access to the B&N Site from the Lycos Site is deemed to be a
reproduction, transmission or distribution, Lycos is further granted a
worldwide, royalty-free license to use, reproduce, transmit, distribute and
publicly display the B&N Site so as to make the B&N Site available to users of
the Lycos Site via the Web; provided, however, that nothing in the preceding
clause shall be deemed to be in conflict with the Terms of Usage contained on
the B&N Site attached hereto as Exhibit A (as in effect on the date hereof), as
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amended from time to time, which may be applicable to users of the B&N Site, and
provided, further, that in no event shall the preceding clause grant a license
to Lycos in any of the content on the B&N Site.
(b) With respect to the link from the Lycos Home Page to the B&N Site
described in clause (a) above, Lycos agrees that [*]
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[*]
(c) Throughout the term of this Agreement, Lycos will integrate search
capabilities within selected Web pages in the Lycos Site in order to enable a
user of the Lycos Services to search the B&N Site for particular books. The
search will be conducted through the B&N Site with the search results being
presented on a page which is created in a Lycos template incorporating the look
and feel of the Lycos Pages, including page format, navigational bars, colors
and the Lycos logo (the "Branded Results Page"). Every Branded Results Page
will have a URL similar to www.bandn.lycos.com. In addition, every Branded
Results Page will provide the user with the ability to initiate another search
of the B&N Site through the display of a drop-down search-related box stating
"Search BarnesandNoble.com for books on [related subject]" or similar text to be
jointly determined by B&N and Lycos. B&N will serve and maintain the Branded
Results Page throughout the term of this Agreement.
(d) Lycos will spider the HTML contents of the B&N Site and
incorporate spidered information from the B&N Site into the Lycos Catalog of the
Internet.
(e) Subject to the terms and conditions of this Agreement, B&N hereby
grants Lycos the right to reproduce and display all logos, trademarks, trade
names and similar identifying material relating to B&N (the "B&N Marks") in
connection with the promotion, marketing and distribution of the Lycos Services,
provided, that Lycos shall not make any specific use of any B&N Mark which
refers to B&N exclusively without first submitting a sample of such to B&N and
obtaining B&N's prior consent, which consent shall not be unreasonably withheld.
(f) [*]
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(or another area within the B&N Site designated by B&N) and shall continuously
appear in the Shopping Pages throughout the term of this Agreement.
(g) [*].
3. Obligations of B&N.
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(a) B&N shall display the "Powered by Lycos" logo on all Web pages
solely where search boxes, Web Search Results, and PowerSearch links are
deployed through the use of Lycos search tools, as well as appropriate copyright
notices. [*]. During the term of this Agreement, the Lycos Services will be
the exclusive Web search and navigation service available through the B&N Site,
excluding the proprietary search tools developed by B&N for searching the B&N
Site.
(b) B&N agrees to include Lycos branded bookmarks with the shipment of
all books purchased online through the B&N Site.
(c) [*], B&N agrees to deploy the Lycos Search API tools on the B&N
Site in order to integrate searches of the Lycos Catalog and Lycos Pictures and
Sounds, in the manner determined by B&N, in its sole discretion, which
determination will be made and provided to Lycos within thirty days of the
execution of this Agreement.
(d) B&N will make its personnel available to Lycos to assist Lycos in
establishing the B&N Links between the Lycos Site and the B&N Site referred to
herein, including establishing links to the Book Lists, Book of the Week and
Book Reviews sections of the B&N Site. B&N personnel will also assist Lycos in
implementing the feature of passing queries from Lycos to the Lycos Search API
located on the B&N Site.
(e) B&N will also make its editorial staff available to Lycos in order
to utilize the Lycos PowerSearch API tool for the creation of searches of the
Web for positioning on the B&N Site.
(f) Concurrently with the execution of this Agreement, Barnes & Noble,
Inc. will execute and deliver to Lycos the Promotion Agreement in the form of
Exhibit B attached hereto.
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4. License Grant by Lycos.
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(a) Lycos will provide B&N the Lycos Search API tools, which B&N,
solely at its option, may deploy on the B&N Site in order to integrate search of
the Lycos Catalog of the Internet and Lycos Pictures and Sounds. B&N will be
responsible for implementing the API within the B&N Site so as to make Web
Search Results available to users of the B&N Site.
(b) Subject to the terms and conditions of this Agreement, Lycos
hereby grants to B&N the right to use the Lycos Search API so as to provide
users of the B&N Site access to Web Search Results. To the extent such access
is deemed to be a reproduction, transmission or distribution, B&N is further
granted a worldwide, royalty-free license to use, reproduce, transmit,
distribute and publicly display Web Search Results so as to make the Web Search
Results available to users of the B&N Site via the Web.
(c) Subject to the terms and conditions of this Agreement, Lycos
hereby grants B&N the right to reproduce and display all logos, trademarks,
trade names and similar identifying material relating to the Lycos Search and
Lycos PowerSearch APIs and the Lycos bookmarks (the "Lycos Marks") in connection
with the promotion, marketing and distribution of the Web searches being
available through the B&N Site and the shipment of the Lycos bookmarks. Upon
Lycos' request, B&N will make available samples of any uses of the Lycos Marks
for approval by Lycos, such approval to be in Lycos' sole and exclusive
discretion.
5. Royalties and Fees.
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(a) In consideration of Lycos' obligations under this Agreement, B&N
shall pay Lycos [*]
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(d) B&N shall calculate and report in writing to Lycos within thirty
days after each quarter the Net Revenues derived during such quarter on all
transactions initiated by viewers sent to the B&N Site from the Lycos Services,
and, if required under Section 5(b) above, make payment to Lycos of the
applicable royalty. B&N shall permit Lycos to audit B&N's books and records
with respect to Net Revenues, during normal business hours and no more than once
quarterly upon five (5) business days' notice, in order to ensure B&N's
compliance with this Section 5. B&N will pay all costs and expenses of such
audit in the event there is a discrepancy of 10% or more.
6. Term of Agreement.
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The term of this Agreement shall commence on the date hereof and will
continue until [*]
7. Representations and Warranties of the Parties.
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In order to induce Lycos to enter into this Agreement, B&N hereby
warrants and represents as follows:
(a) Status. B&N is a corporation in good standing under the laws of
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the state of its organization, and has the full right, power and authority to
enter into this Agreement and to grant the rights herein granted.
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(b) No Conflicting Obligations. The performance by B&N pursuant to
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this Agreement and/or the rights herein granted to Lycos will not conflict with
or result in a breach or violation of any of the terms or provisions, or
constitute a default under any organizational instruments of B&N or any
agreement to which B&N is a party or to which it is bound.
(c) Right to License. B&N possesses the full right and authority to
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provide access to the B&N Site and to license the B&N Marks. B&N is the sole
owner and/or has the right to license, and shall continue to own and/or have the
right to license, throughout the term of the Agreement, all right, title and
interest in and to the B&N Site, except for content written, prepared or
otherwise developed by users of the B&N Site ("User Content").
(d) Compliance with Laws and Regulations. B&N shall comply with all
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applicable laws, statutes, ordinances, rules and regulations of each country,
state, city or other political entity.
(e) Clearances. Throughout the term of this Agreement, B&N shall
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maintain the B&N Site and its INTERNIC registration. All fees of any nature,
including, without limitation, residuals, royalties, reuse, health and welfare
payments, and similar or dissimilar fees due to third parties (including
writers, composers and performers) for rights necessary to exploit the B&N Site,
as provided herein, shall be the sole responsibility of B&N.
(f) No Infringement. B&N has the right to enter into this Agreement
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and to grant to Lycos the license provided herein and neither the B&N Site
(other than User Content) nor the B&N Marks nor any other materials or any
elements or parts thereof, nor the provision of access to the B&N Site pursuant
to the provisions hereof by Lycos, shall violate or infringe upon the copyright,
literary, privacy, publicity, trademark, service mark or any other personal,
moral or property right of any person, nor shall same constitute a libel or
defamation of any person whatsoever.
(g) General. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND WARRANTIES,
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B&N MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE WHICH WOULD
EXTEND BEYOND THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN.
8. Representations and Warranties of Lycos. In order to induce B&N to
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enter into this Agreement, Lycos represents and warrants that:
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(a) Corporate Status. Lycos is a corporation in good standing under
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the laws of the State of Delaware, and has the full right, power and authority
to enter into this Agreement and to grant the rights herein granted.
(b) No Conflicting Obligations. The performance by Lycos pursuant to
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this Agreement and/or the rights herein granted to B&N will not result in a
breach or violation of any of the terms or provisions, or constitute a default
under any organizational instruments of Lycos or any agreement to which Lycos is
a party or to which it is bound.
(c) Right to License. Lycos possesses the full right and authority to
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license the Lycos Services and the Lycos Marks. Lycos is the sole owner and/or
has the right to license, and shall continue to own and/or have the right to
license, throughout the term of this Agreement, all right, title and interest,
including without limitation all rights under copyright in and to the Lycos
Services and all materials created by employees of Lycos and/or third parties,
for or in connection with the Lycos Services, and each element thereof.
(d) Compliance with Laws and Regulations. Lycos shall comply with all
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applicable laws, statutes, ordinances, rules and regulations of each country,
state, city or other political entity.
(e) Clearances. Lycos shall clear all rights in the Lycos Services
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and all elements thereof for use as provided herein. All fees of any nature,
including, without limitation, residuals, royalties, reuse, health and welfare
payments, and similar or dissimilar fees due to third parties (including
writers, composers and performers) for rights necessary to exploit the Lycos
Services, as provided herein, shall be the sole responsibility of Lycos.
(f) No Infringement. Lycos has the right to enter into this Agreement
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and to grant to B&N the license provided herein and neither the Lycos Services
nor any other materials or any elements or parts thereof or other material
delivered or to be delivered to B&N hereunder, shall violate or infringe upon
the copyright, literary, privacy, publicity, trademark, service mark or any
other personal, moral or property right of any person, nor shall same constitute
a libel or defamation of any person whatsoever.
(g) General. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND WARRANTIES,
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LYCOS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE WHICH WOULD
EXTEND BEYOND THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN.
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9. Indemnification.
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(a) B&N Indemnity. B&N will at all times indemnify and hold harmless
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Lycos and its officers, directors, shareholders, 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 any breach of any warranty, representation, covenant or agreement
made by B&N in this Agreement. Lycos shall give B&N prompt written notice of
any claim, action or demand for which indemnity is claimed. B&N shall have the
right, but not the obligation, to control the defense and/or settlement of any
claim in which it is named as a party. Lycos shall have the right to
participate in any defense of a claim by B&N with counsel of Lycos' choice at
its own expense. The foregoing indemnity is conditioned upon: prompt written
notice by Lycos to B&N of any claim, action or demand for which indemnity is
claimed; complete control of the defense and settlement thereof by B&N; and such
reasonable cooperation by Lycos in the defense as B&N may request.
(b) Lycos Indemnity. Lycos will at all times defend, indemnify and
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hold harmless B&N and its officers, directors, shareholders, 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 any breach of any warranty, representation, covenant or agreement
made by Lycos in this Agreement. B&N shall give Lycos prompt written notice of
any claim, action or demand for which indemnity is claimed. Lycos shall have the
right, but not the obligation, to control the defense and/or settlement of any
claim in which it is named as a party. B&N shall have the right to participate
in any defense of a claim by Lycos with counsel of B&S's choice at its own
expense. The foregoing indemnity is conditioned upon: prompt written notice by
B&N to Lycos of any claim, action or demand for which indemnity is claimed;
complete control of the defense and settlement thereof by Lycos; and such
reasonable cooperation by B&N in the defense as Lycos may request.
10. Confidentiality; Press Releases.
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(a) Non-Disclosure Agreement. The parties agree and acknowledge that,
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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 of this
Agreement 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 shall not disclose the other party's
Confidential Information to any third party without the prior written
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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 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
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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 (i) 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; (ii) 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; (iii) 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 (iv) 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. Lycos and B&N shall jointly prepare press
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releases concerning the existence of this Agreement and the terms hereof. B&N
shall sponsor a public relations event in which B&N and Lycos will jointly
announce the relationship contemplated hereby. 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 B&N or as required by
law.
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11. Termination. Either party may terminate this Agreement if (a) the
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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 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, or (d) a receiver is appointed for the other party or its
business. In addition, either party may terminate this Agreement upon the
occurrence of a material breach by the other party if such breach is not cured
within ninety (90) days after written notice is received by the breaching party
identifying the matter constituting the material breach. [*]
12. Relationship of Parties. B&N and Lycos are independent contractors
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under this Agreement, and nothing herein shall be construed to create a
partnership, joint venture or agency relationship between B&N and Lycos.
Neither party has authority to enter into agreements of any kind on behalf of
the other.
13. Assignment, Binding Effect. Neither Lycos nor B&N may assign this
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Agreement or any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the other.
14. Choice of Law. This Agreement, its interpretation, performance or any
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breach thereof, shall be construed in accordance with, and all questions with
respect thereto shall be determined by, the laws of the Commonwealth of
Massachusetts applicable to contracts entered into and wholly to be performed
within said state.
15. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
16. Section Headings. Section headings are for convenience only and are
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not a part of this Agreement.
17. Entire Agreement. This Agreement contains the entire understanding of
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the parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements between Lycos and B&N 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,
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employee or attorney for the other party in executing this Agreement except as
expressly stated herein.
18. Limitations of Liability.
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UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM
ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD
PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS
OF THE AMOUNT RECEIVED BY LYCOS UNDER THIS AGREEMENT, PROVIDED THAT THIS SECTION
DOES 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; OR (D) INDEMNIFICATION
OBLIGATIONS HEREUNDER.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date set forth above.
BARNESANDNOBLE.COM, INC. LYCOS, INC.
By:______________________________ By:______________________________
Name:____________________________ Name:____________________________
Title:___________________________ Title:___________________________
Date:____________________________ Date:____________________________
In consideration of, and as a material inducement for, Lycos, Inc. entering
into this Agreement, the undersigned, Barnes & Noble, Inc. (the "Guarantor")
hereby unconditionally guarantees the full and prompt payment of the obligations
of BarnesandNoble.com, Inc. ("B&N") under the Agreement and hereby covenants to
and agrees with Lycos that if default shall at any time be made by B&N in the
payment of its obligations, Guarantor shall and will promptly make such payments
to Lycos. Subject to the last sentence hereof, this guaranty is an irrevocable,
absolute and unconditional guaranty of payment and of performance. This
guaranty shall be a continuing guaranty, and the liability of Guarantor
hereunder shall in no way be affected, modified, impaired or diminished by
reason of any assignment, renewal, modification or extension of the Agreement or
by reason of any bankruptcy, insolvency, reorganization, assignment for the
benefit of creditors, receivership or similar action affecting B&N.
[*]
BARNES & NOBLE, INC.
By:_________________________________________
Name:
Title:
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