Special Delivery/Special Offer Agreement - Lycos Inc. and Bolt.com
LYCOS, INC.
SPECIAL DELIVERY/SPECIAL OFFER AGREEMENT
THIS SPECIAL DELIVERY / SPECIAL OFFER AGREEMENT (this "Agreement") is
entered into as of August 15, 1999 between Lycos, Inc., a Delaware corporation
and Bolt.com, a New York corporation.
SECTION 1. DEFINITIONS.
1.1 "MailCity" means Lycos' World Wide Web-based electronic mail
service, currently commercially referred to as MailCity(TM), as the same may be
updated or modified from time to time in Lycos' sole discretion.
1.2 "Private-Labeled E-Mail Systems" means any World Wide Web-based
electronic mail services powered by Lycos.
1.3 "Subscribe or a Subscription" means when a MailCity User (as
defined in Section 2.1) or a Private-Label User (as defined in Section 2.1)
checks the appropriate box on the user interface designed by Lycos to receive
one of Content Provider's Newsletter Products.
SECTION 2. SERVICES OFFERED BY CONTENT PROVIDER.
2.1 E-Mail News Products. Content Provider shall produce the e-mail
newsletter or promotional products described in Exhibit A to this Agreement
(which may be amended from time to time upon the mutual consent of the parties)
(the "Newsletter Products") for distribution during the Term of this Agreement,
by Lycos to the users of MailCity (each, a "MailCity User") who Subscribe to
such Newsletter Products, and solely at the election of Lycos, any of the users
of any of the Private-Labeled E-Mail Systems (each, a "Private-Label User") who
Subscribe to such Newsletter Products, as provided in Section 3. Content
Provider shall produce such Newsletter Products no less frequently than once per
month and no more frequently than four times per month.
2.2 Content. Content Provider's Newsletter Products shall not infringe
or violate any third party's copyright, patent, trademark, trade secret, music,
image, or other proprietary right, or constitute false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity, violate any
anti-discrimination law or regulation, or any, other right of any other person
or entity. Additionally, Content Provider's Newsletter Products shall not
include content that contains, or contains links to, nudity, sex, pornography,
foul language or hate propaganda. Content Provider shall not send unsolicited
special offers or marketing materials (e.g., "SPAM") to MailCity Users or
Private-Label Users.
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SECTION 3. SERVICES OFFERED BY LYCOS.
3.1 Subscriptions by Users. Lycos shall enable new and existing
MailCity Users to Subscribe for Content Provider's Newsletter Products
3.2 Distribution of Newsletters. During the Term of this Agreement,
Content Provider shall deliver to Lycos an electronic (to an address specified
by Lycos) and hard copy of the standard form of each edition of the Newsletter
Products to be distributed by Lycos to those users that subscribe for such
Newsletter Products; provided that Lycos shall not be obligated to deliver more
than [ * ] of each Newsletter Product each month and Lycos may decide which
Lycos Site on which the Newsletter Products will be offered, in the event
Content Provider exceed the limit of [ * ] Newsletter Products per month, then
Content Provider shall pay (in accordance with Section 4.2) a special assessment
of an additional [ * ]% of the fees that would otherwise be payable in such
month. Lycos will not be required to customize the form of Newsletter Product
distributed to its users.
3.2 Private-Label E-Mail Systems. Lycos may, at its option, enable new
and existing Private-Label Users to Subscribe for Content Provider's Newsletter
Products.
SECTION 4. COMPENSATION.
4.1 Impression Fees. Content Provider shall pay to Lycos, on a
quarterly basis within one month after the end of each quarter, $[*] net for
each [ * ] copies of a Content Provider Newsletter Product emailed by Lycos to
subscribers to the Newsletter Products (the "CPA Fees"); provided that in no
event shall Content Provider pay Lycos on an annual basis in the aggregate less
than $[ * ], pursuant in such cost-per-[ * ] calculation regardless of the
number of actual emails sent to subscribers. If Content Provider fails to
generate and pay Lycos at least $[ * ] within such year period, then Content
Provider shall pay Lycos, within one month after the end of such year period,
the difference between the amounts actually paid to Lycos in such year period
and $[ * ].
4.2 Billing. Lycos shall bill Content Provider on a quarterly basis for
time aggregate fees due for the prior quarter. Each invoice shall be due and
payable thirty (30) days after the date of the invoice. All invoices not paid
within thirty (30) days of the date of invoice shall incur a finance charge in
the amount of one and one half percent (1.5%) of the invoice amount per month
until paid.
SECTION 5. CONTENT OWNERSHIP AND LICENSE. Content Provider will retain
all rights, title and interest in and to its content, subject to a limited
license necessary to perform this Agreement.
SECTION 6. TERMS. The term ("Term") of this Agreement shall commence on
the Effective Date and continue for one year unless terminated earlier as
provided in Section 12 below. This Agreement shall renew automatically for
successive one-year period unless either party gives written notice of
non-renewal to the other party at least thirty (30) days print to any such
renewal date.
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SECTION 7. MARKS. To the extent distribution of Content Provider's
Newsletter Products is deemed a use, public display, transmission, distribution
or reproduction of the Newsletter Products or the intellectual property of
Content Provider, Content Provider hereby grants Lycos a non-transferable
(except as provided herein), royalty-free, worldwide license to use, publicly
display, transmit, distribute and reproduce the Newsletter Products and the
intellectual property of Content Provider during the Term solely for the
purposes described herein. In addition, Lycos hereby grants to Content Provider
a non-exclusive, non-transferable license to reproduce and display Lycos'
trademarks, service marks, logos and the like solely for the purposes specified
in this Agreement. Content Provider hereby grants Lycos a non-exclusive,
non-transferable license to reproduce and display Content Provider's trademarks,
service marks, logos and the like solely for the purposes specified in this
Agreement. Except as expressly stated herein, neither party shall make any other
use of the other party's marks. Upon request of either party, the other party
shall provide appropriate attribution of the use of the requesting party's
marks. (e.g., "Go Get It(R) is a registered service mark of Lycos, Inc. All
Rights Reserved."). Such licenses shall terminate automatically upon the
effective date of expiration or termination of this Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Each party hereby represents
and warrants as follows:
8.1 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.
8.2. Due Authorization. Such party is duly authorized to execute and
deliver this Agreement and to perform its obligations hereunder.
8.3. 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 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.
8.4. Intellectual Property Rights.
a. Content Provider has the full and exclusive right to grant
or otherwise permit Lycos to copy, distribute, display and use Content
Provider's intellectual property associated with Content Provider's
Newsletter Products, and Consent Provider is aware of no claims by any
third parties adverse to any of such intellectual property rights.
b. Lycos has the full and exclusive right to grant or
otherwise permit Content Provider to scud its Newsletter Products to
users of MailCity or Private-Labeled E-Mail Systems, and Lycos is aware
of no claims by any third parties adverse to any of such intellectual
property rights.
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c. 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 8 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.
SECTION 9. LIMITATION OF WARRANTY.
EXCEPT AS EXPRESSLY WARRANTED IN SECTION 8 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LYCOS
MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
LYCOS SITE, AND LYCOS SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS RELATED THERETO. LYCOS SPECIFICALLY DISCLAIMS ALL
LIABILITY FOR THE CONTENT PROVIDER SITE, THE CONTENT PROVIDER NEWSLETTER
PRODUCTS AND THE CONTENT THEREIN, AND CONTENT PROVIDER SPECIFICALLY DISCLAIMS
ALL LIABILITY FOR THE LYCOS SITE AND THE CONTENT THEREIN (NOT PROVIDED BY
CONTENT PROVIDER).
SECTION 10. INDEMNIFICATION.
10.1. Content Provider Indemnity. Content Provider 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
related to any breach of any warranty, representation, covenant or agreement
made by Content Provider in this Agreement. Lycos shall give Content Provider
prompt written notice of any claim, action or demand for which indemnity is
claimed. Content Provider 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 and which arises as a result of Content Provider's breach of any warranty,
representation, covenant or agreement under this Agreement. Lycos shall have the
right to participate in any defense of a claim, by Content Provider with counsel
of Lycos' choice at Lycos' own expense. The foregoing indemnity is conditioned
upon: prompt written notice by Lycos to Content Provider of any claim, action or
demand for which indemnity is claimed; complete control of the defense and
settlement thereof by content Provider; and such reasonable cooperation by Lycos
in the defense as Content Provider may request.
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10.2 Lycos Indemnity. Lycos will at all times defend, indemnify and
hold harmless Content Provider 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
related to any breach of any warranty, representation, covenant or agreement
made by Lycos in this Agreement. Content Provider 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. Content Provider
shall have the right to participate in any defense of a claim by Lycos with
counsel of Content Provider's choice at Content Provider's own expense. The
foregoing indemnity is conditioned upon prompt written notice by Content
Provider 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 Content Provider in the defense as Lycos may request.
10.3 Settlement. Neither party shall, without the prior written consent
of the other party, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim unless the settlement,
compromise or consent provides for and includes an express, unconditional
release of all claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, against the indemnified party.
SECTION 11. CONFIDENTIALITY, PRESS RELEASES
11.1 Non-Disclosure Agreement. 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 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 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.
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11.2. 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 time 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.
11.3. Press Releases. Lycos and Content Provider may 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 Content Provider or as required by law.
SECTION 12. TERMINATION. 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 time matter
constituting the material breach; (f) upon thirty (30) days written notice if
the other party's service, viewed as a whole, ceases to the competitive with
substantially similar services then being offered by third parties; (g) by
mutual consent of the parties; or (h) with 60 days written notice by the Content
Provider. In addition, Lycos may terminate this Agreement upon thirty (30) days
written notice to Content Provider in the event that Content Provider is subject
to a Change in Control (as defined below) by an entity whose primary business is
a provider of search, directory, navigation or community services on the
Internet, or an affiliate of such an entity. "Change in Control" means the
direct or indirect acquisition of 50% or more of the outstanding voting shares
of an entity, or the acquisition of the ability, by contract or otherwise, to
direct or control the management of that entity. Upon at least ninety (90) days
prior written notice to the other party, either party may terminate this
Agreement if any change occurs in the legal or regulatory requirements
applicable to the topic of this Agreement that would render performance of a
material obligation of the terminating party hereunder illegal or otherwise
subject to legal challenge, unless performance of such material obligation is
waived by the non-terminating party.
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SECTION 13. 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.
SECTION 14. RELATIONSHIP OF PARTIES. Content Provider and Lycos are
independent contractors under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture or agency relationship between
Content Provider and Lycos. Neither party has authority to enter into agreements
of any kind out behalf of the other.
SECTION 15. ASSIGNMENT, BINDING EFFECT. Neither Lycos nor Content Provider
may assign this Agreement or any of its rights or delegate my of its duties
under this Agreement without the prior written consent of the other.
Notwithstanding the foregoing, Lycos may assign this Agreement to any successor
of Lycos.
SECTION 16. 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 be determined by, the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and wholly to
be performed within said state. Content Provider 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
Content Provider has or may have in the future with respect to any of the
foregoing.
SECTION 17. 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.
SECTION 18. 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.
SECTION 19. COUNTERPARTS AND FACSIMILE SIGNATURES. 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. Facsimile signatures will be considered original signatures.
SECTION 20. 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.
SECTION 21. 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.
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SECTION 22. 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.
SECTION 23. 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.
400-2 Totten Pond Road
Waltham, MA 02154
Fax No.: (781) 370-2600
Attention: General Counsel
If to Content Provider: Bolt Media, Inc.
304 Hudson Street, 7th, floor
New York, NY 10013
Fax No.: (212) 620.4315
Tel No.: (212) 620-3800
Attention: General Counsel
SECTION 24. 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
Content Provider concerning time 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.
SECTION 25. 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 FORESEEABLE 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. IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR DAMAGES IN EXCESS OF THE AMOUNT RECEIVED BY SUCH PARTY UNDER THIS
AGREEMENT. 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; OR (D)
INDEMNIFICATION OBLIGATIONS HEREUNDER.
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SECTION 26. SURVIVAL. All terms of this Agreement which by their nature
extend beyond its termination remain in effect until fulfilled, and apply to
respective successors and assigns.
This Special Delivery/Special Offer Agreement has been executed by the parties
effective as of the Effective Date.
LYCOS, INC. "CONTENT PROVIDER"
Name of Entity: Bolt Media, Inc.
By: Amy Weinberg
Name: /s/ Amy Weinberg By:/s/ Frank M. Harrison
Title: Account Manager Name: Frank M. Harrision
Title: CFO
Address: Address:
Lycos, Inc. Attn:
Attn: General Counsel Address:
400-2 Totten Pond Road
Waltham, MA 02154 Tel:
Tel: (650)983-4400 Fax:
Fax: (781) 370-2600
Effective Date: August 15, 1999
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