Content Agreement - Lycos Inc. and JAG Company Voice LLC
CONTENT AGREEMENT
This Agreement, dated as of February 14, 2002 (the "Effective Date"),
is made by and between Lycos, Inc., a Virginia corporation with a principal
place of business at 400-2 Totten Pond Road, Waltham, MA 02451 ("Lycos"), and
JAG Company Voice LLC, a Delaware limited liability company with a principal
place of business located at 6865 S.W. 18th Street, Suite B13, Boca Raton, FL
33433 ("Company").
Recitals
WHEREAS Lycos and its wholly owned subsidiaries are the owners or licensees of
certain Web services (collectively, the "Lycos Services"), which are accessible
through numerous URLs, including www.lycos.com (the "Lycos Site") (all sites
owned or controlled by Lycos or its wholly owned subsidiaries during the Term
geared towards users in the United States are collectively referred to as the
"Lycos Network"); and
WHEREAS Company operates a service (the "Video Service") through which Company
produces, edits and distributes for its clients (which are primarily publicly
traded companies) videos about such companies and their products and services
(each a "Video");
WHEREAS Company intends to market to its clients a package of four (4) videos
for each client ("Video Package");
WHEREAS, all the Videos and Video Packages provided by Company to Lycos pursuant
to this Agreement shall be referred to herein as the "Content"; and
WHEREAS Lycos and Company want to offer the Lycos Network users the opportunity
to view the Content.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Lycos and Company hereby agree as follows:
Terms
1. Content.
1.1 Provision of Content. At least two weeks prior to the Launch Date
(as defined in Section 1.3), Company shall make accessible to Lycos through a
unique script link all the Videos produced by Company prior to the Launch Date.
In the event that Company produces additional Videos after the Launch Date,
Company shall promptly make accessible to Lycos such additional Videos via the
method described above. Company shall provide Lycos with a contact at Company
who shall be available twenty-four hours a day, seven days a week, to assist
Lycos with issues relating to the Content. Company agrees that the Content,
viewed as a whole, shall be competitive with substantially similar Content then
being offered by third parties. Company agrees that it provides to users the
Content in its own name and on its own behalf and that Company assumes any and
all liabilities that may arise from the Content. Without Lycos' prior approval,
Company shall not (i) sell or place advertisements or sponsorships in the
Content for any entity or person; (ii) sell any merchandise or other items
through the Content; or (iii) promote or conduct a contest, game or sweepstakes
through the Content.
1.2 Availability of Content on the Lycos Network. As further described
herein, Lycos shall be responsible for making the Content available on the Lycos
Network through its media player product (the "Media Player"). Lycos shall place
graphic links to the Content on the message boards located on
ragingbull.lycos.com ("Raging Bull") which is part of finance.lycos.com ("Lycos
Finance") for companies regarding which Company has provided Lycos with a Video.
The size and placement of such links shall be at Lycos' sole discretion and
initially shall be as shown in Exhibit 1.2. In addition, in Lycos' sole
discretion, Lycos shall promote and may place additional links to the Content
throughout Lycos Finance. In Lycos' sole discretion, Lycos may use portions of
the Content to create "teasers" to promote the Content or to be displayed
throughout the Lycos Network (to the extent Company's clients permit such use of
their Videos). Lycos shall retain all revenue generated by pages on the Lycos
Network on which teasers are displayed.
1.3 Launch Date. For purposes of this Agreement, the "Launch Date"
shall refer to the date on which Lycos begins to display the Content on the
Lycos Network (as defined in Section 2 below). The Launch Date shall be
determined by Lycos in its sole discretion.
2. Revenue and Fees.
2.1 Advertising. Lycos shall have the exclusive right to sell
advertising on the Media Player and Lycos shall have the right to retain all
revenue generated therefrom.
2.2 Placement Fee. For each Video Package provided by Company to Lycos,
Company shall pay Lycos the greater of (a) $3,000.00 or (b) ten percent (10%) of
the revenue received by Company for creating such Video Package. For each Video
Package, Company shall pay such fee to Lycos at such time as Company provides
the first Video in such Video Package to Lycos.
3. Lycos Video. At no additional cost to Lycos, Company shall create a Video for
Lycos. The parties shall mutually agree on the production schedule for such
Lycos Video.
4. Exclusivity. During the Term of this Agreement, Company shall not provide any
of the Content in any form or manner nor grant any license to the Content to
America Online, Inc., Yahoo! Inc., or Microsoft Corporation.
5. Licenses. Company hereby grants to Lycos a non-exclusive, non-transferable
(except as provided herein), royalty-free, worldwide license to use, publicly
display, publicly perform, transmit, distribute and reproduce the Content on the
Lycos Network and on Other Technology (to the extent Company's clients permit
such use of their Viedos) during the Term (as defined in Section 10 below)
solely for the purposes described herein so that Lycos may exercise its rights
and perform its obligations hereunder. With respect to any music contained in
the Content, prior to such use, Company shall secure, at its sole cost and
expense, and pay for, all performing, duplication and/or recording rights
licenses, if any, necessary for
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the use of such music in the method and manner herein contemplated, and shall
deliver to Lycos copies of all such licenses along with accurate music cue
sheets for all such music. Subject to the terms and conditions of this
Agreement, including Section 8.2 requiring prior written approval for any use,
Lycos hereby grants Company the right to reproduce and display the Lycos logo,
the Lycos Finance logo and the Raging Bull logo solely for the purposes
described herein and in accordance with Lycos' established trademark usage
policies and procedures. In addition, subject to the terms and conditions of
this Agreement, Company hereby grants Lycos, the right to reproduce and display
its logos, trademarks, trade names and other similar identifying material solely
for the purposes described herein and in accordance with its established
trademark usage policies and procedures. In connection with the licenses granted
hereunder, each party shall have the unilateral right to establish such quality
standards and additional terms and conditions concerning the use of its
trademarks as such party deems necessary to reasonably protect its trademarks.
Such licenses shall terminate automatically upon the effective date of
expiration or termination of this Agreement. For purposes of this Agreement,
"Other Technology" shall mean technology used in connection with the provision
of content to third parties by any technological means, whether currently
existing or developed in the future, including but not limited to internet
protocol and wireless application protocol, and to any electronic device capable
of receiving such information such as computers, cellular phones, beepers,
hand-held devices and web television, and on any subdirectories or subdomains of
such sites.
6. Representations and Warranties.
6.1 Corporate Power. Each party represents and warrants that 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.
6.2 Due Authorization. Each party represents and warrants that such
party is duly authorized to execute and deliver this Agreement and to perform
its obligations hereunder.
6.3 Binding Agreement. Each party represents and warrants that (i) this
Agreement is a legal and valid obligation binding upon it and enforceable with
its terms, and (ii) the execution, delivery and performance of this Agreement
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.
6.4 Intellectual Property Rights. Company represents and warrants that
(i) it has the full and exclusive right to grant Lycos the licenses granted
herein and to grant or otherwise permit Lycos to use Company's intellectual
property, including, without limitation, its trademarks, service marks and
logos, as necessary for Lycos to perform its obligations and exercise its rights
under this Agreement, and Company is aware of no claims by any third parties
adverse to any of such intellectual property rights; (ii) the Content does not,
and will not, violate or infringe upon the patent, copyright, literary, privacy,
publicity, trademark, service mark or any other personal or property right of
any person, nor will same violate any legal rights of any person or entity; and
(iii) it has obtained, and paid for if necessary, all licenses, consents and
approvals relating to all Content provided by a third party that are necessary
for Lycos to perform its obligations and exercise its rights under this
Agreement, and that it is responsible for obtaining, and paying, if necessary,
for any such licenses, consents and approvals during the Term. Each party will,
at its own expense, obtain and maintain any and all governmental authorizations,
licenses, registrations and filings that may be required under any applicable
laws to execute or perform 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.
6.5 DISCLAIMER. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND
WARRANTIES, NEITHER PARTY MAKES ANY 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, NON-
INFRINGEMENT, TITLE OR OTHERWISE WHICH WOULD EXTEND BEYOND THE REPRESENTATIONS
AND WARRANTIES CONTAINED HEREIN. LYCOS WILL BE FREE FROM ANY LIABILITY FOR
DAMAGES AND LOSSES OF ANY NATURE ARISING FROM OR RELATED TO THE LACK OF
AVAILABILITY OR CONTINUITY OF THE LINKS TO THE CONTENT.
7. Indemnification; Insurance.
7.1 Indemnification. Each party agrees to indemnify and hold harmless
the other party and the other party's officers, directors, shareholders,
employees, accountants, attorneys, agents, affiliates, subsidiaries, 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 the indemnifying party in this Agreement. In
addition, Company will defend, indemnify and hold harmless Lycos and its
officers, directors, shareholders, employees, accountants, attorneys, agents,
affiliates, subsidiaries, 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 (i) the
development, operation or maintenance of the Video Service and the Content; and
(ii) the use or misuse of, or reliance on, the Content by any user. The
foregoing indemnity is conditioned upon (i) prompt written notice by the
indemnified party to the indemnifying party of any claim, action or demand for
which indemnity is claimed; (ii) the opportunity for complete control of the
defense and settlement thereof by the indemnifying party; and (iii) such
reasonable cooperation by the indemnified party in the defense as the
indemnifying party may request.
7.2 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,
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including reasonable legal fees and expenses, against the indemnified party.
7.3 Insurance. For the length of the Term, Company shall cause Lycos to
be included as an "additional insured" on all of Company's relevant insurance
policies that provide coverage of any kind relating to or regarding the services
or content provided by or the goods and products sold by Company in accordance
with the terms of this Agreement. A copy of said policy and endorsement shall be
provided to Lycos on the Effective Date.
8. Press Releases and Offline Promotion.
8.1 Press Releases. No public statements concerning the existence or
terms of this Agreement will be made or released to any medium except with the
prior approval of both parties (which approval shall not be unreasonably
withheld or delayed) or as required by law.
8.2 Offline Promotion. In all of Company's promotion for the Video
Service (collectively, the "Advertising Materials") and subject to Lycos' prior
written approval, Company shall include a reference to the Lycos Site, Lycos
Finance and/or Raging Bull (the "Reference"). All References shall be at least
the same size and prominence of any similar statements or promotions for other
third parties mentioned or promoted in such Advertising Materials, and shall be
subject to Lycos prior approval. If Lycos objects to any Advertising Material
including the Reference, even if Lycos had the prior opportunity to review such
Advertising Material, Company shall use best efforts to remove the Reference
from such Advertising Material or modify the placement of the Reference to
Lycos' satisfaction.
9. Confidentiality. During the Term of this Agreement and thereafter, each party
will 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
will restrict disclosure of the other party's Confidential Information to its
employees, consultants or independent contractors with a need to know and will
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 will 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. 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)
any other information relating to either party or its business that is not
generally known to the public, including but not limited to information about
either party's personnel, products, customers, marketing strategies, services or
future business plans. Notwithstanding the foregoing, 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.
10. User Information. Any and all information to be provided by or gathered from
users of the Lycos Network shall be owned solely by Lycos. It is expressly
understood that to the extent that Lycos provides Company with access to its
user information database(s), all such access shall be solely so that Company
may perform its obligations under this Agreement and for no other purpose, and
all such access shall require Lycos' express approval.
11. Term. The term ("Term") of this Agreement shall commence on the Effective
Date and continue for two (2) years from the Launch Date unless terminated
earlier as provided below.
12. Termination. Either party may terminate this Agreement (a) if the other
party files a petition for bankruptcy, becomes insolvent, or makes an assignment
for the benefit of its creditors, or a receiver is appointed for the other party
or its business; (b) 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; or (c) by mutual consent of the parties. Lycos
may terminate this Agreement for any or no reason on thirty (30) days written
notice, and Company may terminate this Agreement for any or no reason on sixty
(60) days written notice. In the event that this Agreement is terminated
pursuant to the prior sentence, Company shall immediately pay to Lycos any
placement fees due and payable pursuant to Section 2.2 hereof which are unpaid
as of the effective date of such termination. Lycos may terminate this Agreement
or suspend its performance under this Agreement, which termination or suspension
shall take immediate effect, if the Content violates or fails to comply with any
applicable law or regulation, or violates the rights of any third party. In
addition, if Company fails to pay to Lycos any amount due Lycos under this
Agreement when such amount is due, Lycos may terminate this Agreement
immediately upon the sending of written notice in accordance with Section 18.
13. Relationship of Parties. Company and Lycos are independent contractors under
this Agreement, and nothing herein will be construed to create a partnership,
joint venture or agency relationship between them. Neither party has authority
to enter into agreements of any kind on behalf of the other.
14. Choice of Law and Forum. This Agreement, its interpretation, performance or
any breach thereof, will be construed in accordance with, governed by, and all
questions with respect thereto will be determined by, the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and wholly to
be performed within said state. Each party 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
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Massachusetts, agrees that any action arising out of or related to this
Agreement must be brought exclusively in a state or Federal court in the
Commonwealth of Massachusetts, and waives any objection it has or may have in
the future with respect to any of the foregoing.
15. Entire Agreement. This Agreement constitutes the entire understanding of the
parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements between the parties concerning the subject
matter, and cannot be amended except by a writing signed by authorized
representatives of 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.
16. 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.
17. Limitations of Liability. EXCEPT FOR BREACHES OF SECTION 9 OR 20 HEREOF, OR
AMOUNTS PAYABLE PURSUANT TO SECTION 7 HEREOF, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, 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 PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF 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. EXCEPT
FOR BREACHES OF SECTION 9 OR 20 HEREOF OR AMOUNTS PAYABLE PURSUANT TO SECTION 7
HEREOF, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR DAMAGES IN EXCESS OF THE VALUE RECEIVED OR TO BE RECEIVED BY
SUCH PARTY UNDER THIS AGREEMENT.
18. 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 prepaid, 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 02451
Attention: General Counsel
Fax No.: (781) 370-3433
If to Company: JAG Company Voice LLC
6865 S.W. 18th Street, Suite B13
Boca Raton, FL 33433
Attention: Executive Vice President
Fax No.: (561) 393-6018
All notices hereunder shall be deemed to be given or made when received (or upon
refusal of delivery).
19. 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.
20. Non-Solicitation and Other Restrictions. During the Term, and for a period
of twelve (12) months thereafter, Company shall not, directly or indirectly,
hire, solicit, seek to employ, engage, or retain as an officer, employee,
consultant, or otherwise, any Lycos officer, employee or consultant of Lycos (a
"Lycos Employee") or any such person who in the preceding twelve (12) months had
been a Lycos Employee.
21. 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.
22. Assignment, Binding Effect. Neither Lycos nor Company may assign this
Agreement or any of its rights or delegate any 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 or any
parent, affiliate, subsidiary, or other entity which is controlled by, controls
or is under common control with Lycos, and Company may assign this Agreement to
any successor of Company or any parent, affiliate, subsidiary, or other entity
which is controlled by, controls or is under common control with Company as long
as such entity is not a competitor of Lycos or any entity affiliated with Lycos.
Executed as an instrument under seal as of the date first written above:
JAG COMPANY VOICE LLC
By: /S/ Stephen J. Schoepfer
-----------------------------------------
Name: Stephen J. Schoepfer
Title: President & Chief Operating Officer
LYCOS, INC.
By: /S/ Brian D. Lucy
-----------------------------------------
Name: Brian D. Lucy
Title: CFO
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EXHIBIT 1.2
[Exhibit 1.2 of executed copy contains two (2) screen shots of initial Company
Voice placement on Lycos Finance]
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