E-Commerce Agreement - Lycos Inc. and LifeMinders.com Inc.
E-COMMERCE AGREEMENT
This Agreement, dated as of August 25, 1999 (the "Effective Date"), is made by
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and between Lycos, Inc., a Delaware corporation with a principal place of
business at 400-2 Totten Pond Road, Waltham, MA 02451 ("Lycos") and
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LifeMinders.com Inc., a Maryland corporation with a principal place of business
at 1110 Herndon Parkway, Herndon, VA 20170 ("LifeMinders").
Recitals
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A. Lycos is the owner or licensee of certain Web services (collectively, the
"Lycos Services"), which are accessible through the URLs www.lycos.com ,
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www.tripod.com, www.angelfire.com, www.mailcity.com, www.wired.com,
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www.hotbot.com, my.lycos.com, clubs.lycos.com, and www.whowhere.com (all sites
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are collectively referred to as the "Lycos Network").
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B. LifeMinders is the operator of a Web site accessible through the URL
www.lifeminders.com (the "LifeMinders Site") on which LifeMinders promotes a
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free e-mail reminder service (the "Email Service").
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C. Lycos and LifeMinders wish to establish a relationship through which
Lifeminders shall launch a co-branded version of the LifeMinders Site (the
"Co-branded Site"), including a co-branded version of the Email Service (the
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"Co-branded Email Service") which Lycos will link to throughout the Lycos
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Network. Collectively, the Co-branded Site and Co-branded Email Service are
referred to herein as the "Co-branded Services".
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D. All the content and information on the Co-branded Site and in any and all e-
mails sent by Lifeminders through the Co branded Email Service shall be referred
to herein as the "Content".
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lycos and LifeMinders hereby agree
as follows:
Terms
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1. Co-branded Services.
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1.1 Serving and Hosting. LifeMinders will operate and serve the Co-
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branded Site in a manner consistent with the present quality standards of the
LifeMinders Site. In addition, LifeMinders will be responsible for system
operation software costs, hardware costs, and network costs. LifeMinders shall
provide Lycos with a contact at LifeMinders who shall be available to assist
Lycos twenty-four hours a day, seven days a week. LifeMinders will provide
Lycos with daily traffic and Member (as defined in Section 6.2) registration
reports. Without Lycos' prior approval, which will not be unreasonably withheld,
LifeMinders shall not (i) sell or place advertisements or sponsorships on any
page of the Co-Branded Services for any Lycos Competitor listed on attached
Exhibit D; (ii) sell any merchandise or other items on any page of the Co-
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branded Site, excluding the "Opt-In Services" page of the registration pages and
except as otherwise contemplated herein; or (iii) place a link to any site,
other than the LifeMinders Site and the TRUSTe Site, on the Co-branded Site,
excluding the "Opt-In Services" page of the registration pages. In addition,
Lycos will not sell any merchandise or other items on any page of the Co-branded
Site, except as otherwise contemplated herein. LifeMinders shall provide
additional services and functionality that are developed by LifeMinders for the
LifeMinders Site (or any successor to the LifeMinders Site) at no additional
cost so that the Co-Branded Services are maintained at a level substantially
equal to the LifeMinders Site and the Email Service as they appear from time to
time. Lycos may elect not to include on the Co-branded Services any such
additional services and functionality if Lycos, in its sole discretion, deems
such additional services and functionality to be competitive to Lycos' products
and services. Lycos shall have the right to provide online access to the Co-
Branded Services to Lycos' subsidiaries, joint venture partners of Lycos, and
licensees of the Lycos Services.
1.2 Launch Date. LifeMinders shall launch the Co-branded Services thirty
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(30) days after the Effective Date (the "Launch Date").
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1.3 Branding.
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1.3.1 Co-branded Site. The Co-branded Site will have the Lycos
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Network branding bar on each page and the Lycos "look and feel," unless
otherwise agreed to by both parties. The URL of the Co-branded Site will be
substantially similar to:
Co-branded Site URL: www.lifeminders.lycos.com.
1.3.2 Co-branded E-mail Service. All emails sent through the Co-branded
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E-mail Service (both text and web based emails) to users who subscribe for the
Co-branded Email Service on the Co-branded Site will be co-branded with the
Lycos logo as mutually agreed to by the parties.
1.4 Content. Subject to Section 1.1 above and the terms of this Section
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1.4, the content on the Co-branded Services shall include all Content on the
LifeMinders Site and the E-mail Service, unless otherwise mutually agreed to by
the parties. Notwithstanding anything to the contrary contained herein, it is
expressly understood that: (a) any Content that conflicts with Lycos' exclusive
advertising obligations shall be omitted from the Co-branded Site at the request
of Lycos, (b) any advertising that conflicts with Lycos' exclusive e-commerce
obligations shall be omitted from the Co-branded Site at the request of Lycos;
and (c) the Co-branded Services shall not include any pornographic or adult
Content, Content conveying a racist, hate or discriminatory message, or Content
promoting or advertising firearms or any illegal products or services. In
addition, if Lycos or its users reasonably find any Content to be offensive and
Lycos notifies LifeMinders of the offensive Content, LifeMinders will discuss in
good faith with Lycos the removal of such Content. In the event that
LifeMinders receives Content from any Lycos Competitor listed in attached
Exhibit D, LifeMinders shall immediately notify Lycos in writing (email being
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considered written notice) of the type of Content being provided by such Lycos
Competitor, and give Lycos the opportunity to provide LifeMinders with
comparable Content within five (5) business days after receipt of such notice,
which shall be displayed on the Co-branded Services in lieu of the competitive
Content. In the event that Lycos fails to provide such comparable Content
within such five (5) business day period, LifeMinders may display the Lycos
Competitor's Content.
<PAGE>
1.5 Co-branded E-Mail Service LifeMinders shall be responsible for all
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aspects of the Co-branded Services, including, without limitation, sending out
all the e-mails requested by users. Lycos shall take no part in, and have no
responsibility or liability for, the Co-branded Services.
2. Lycos Network Integration.
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2.1 Links on the Lycos Network. During the Term, Lycos will display the
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impressions outlined in the attached Exhibit A in accordance with the time
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schedule specified therein. Based upon availability, Lycos may change the
impressions to be provided pursuant to Exhibit A if the parties mutually agree
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that substitute impressions may increase traffic to the Co-branded Site.
2.2 Additional Integration. In addition to the impressions outlined in
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Exhibit A, Lycos will place additional links to the Co-branded Site throughout
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the Lycos Network, which shall initially include, but not limited to, the links
described in Exhibit B. From time to time, Lycos may change the additional
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links to be provided pursuant to this Section 2.2 so long as such links are
comparable to the links described in Exhibit B. Lycos will begin integrating
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the links described in attached Exhibit B promptly following the Effective Date,
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and shall complete the integration on or before ninety (90) days after the
Effective Date.
2.3 LifeMinders Obligations. LifeMinders shall provide Lycos with any
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commercially reasonable assistance requested by Lycos in establishing the links
between the Lycos Network and the Co-branded Site, and with all artwork (subject
to Lycos' approval) for the advertising banners, buttons, boxes and links.
3. Redesigning of the Lycos Network Sites. LifeMinders acknowledges that,
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consistent with Lycos' need for editorial discretion, Lycos may redesign, delete
or replace any pages on any site in the Lycos Network, including those pages on
which the impressions described in Section 2 will be displayed. In addition,
Lycos may redesign or replace the type of links, buttons, boxes and banners
described in Section 2. Notwithstanding the foregoing, Lycos will use good
faith efforts to provide LifeMinders with comparable links, buttons, boxes and
banners on any re-designed or replacement pages. In addition, Lycos will use
good faith efforts to provide LifeMinders reasonable notice of any major
redesigns of the Lycos Network Sites that will significantly effect those pages
on which the impressions described in Section 2 will be displayed.
4. Standard Terms and Conditions. The advertising products outlined in
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Exhibits A and B will be provided pursuant to the Terms and Conditions outlined
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in attached Exhibit C, which Terms and Conditions are incorporated herein by
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reference. Throughout the Term, all advertising banners must meet the Lycos
specifications found at http://adreporting.lycos.com/specs.html, as they appear
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from time to time.
5. Impression Guarantees. Lycos guarantees that during the Term, Lycos shall
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provide LifeMinders with the number of Lycos Network impressions outlined in
Exhibit A. In the event that multiple impressions described in Exhibit A appear
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on a single page of a Lycos Network site (e.g. a site page includes a banner ad
and a showcase box), each impression will be counted toward the Lycos impression
guarantees set forth herein.
6. Royalties and Fees.
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6.1 Lycos Network Integration Fees. During the Term, LifeMinders shall pay
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Lycos integration fees, payable as follows:
Total Amount: $ *** of which:
Payable thirty (30) days after the Effective Date: $ *** ; and
Payable in two equal
payments due 90 and 180
days after the Effective Date: $ *** .
6.2 Lycos Bounty Royalties. During the Term, in addition to the
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integration fees outlined above, from and after the date the aggregate number of
users who have subscribed to the Co-branded E-mail Service by completing the
registration process on the Co-branded Site (each a "Member") equals *** ,
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LifeMinders shall pay Lycos the following bounties (the "Bounties"):
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Bounties payable to Lycos: $ *** per new Member after
*** Members
Payment will be made in the month following the month in which the Lycos user
becomes a Member.
6.3 Advertising.
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6.3.1 Sale. During the first ninety (90) day period following the Launch
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Date (the "Advertising Period"), Lycos will sell advertising on the Co-branded
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Services. At the end of the Advertising Period, LifeMinders and Lycos will
determine the fill rate of the Co-branded Services for the Advertising Period
(the "Fill Rate"). During the remainder of the term, Lycos will be entitled to
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sell an amount of advertising on the Co-branded Services equal to the Fill Rate,
and LifeMinders will be entitled to sell an amount of advertising on the
Co-branded Services equal to the unsold amount of advertising during the
Advertising Period. For example, if the Fill Rate during the Advertising Period
equals sixty percent (60%), during the remainder of the Term, Lycos will be
entitled to sell sixty percent (60%) of the advertising and LifeMinders will be
entitled to sell forty percent (40%) of the advertising.
6.3.2 CPM. Lycos will sell the advertising at a rate equal to no greater
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than *** percent (***%) above and not less than *** percent (***%) below
LifeMinders' then-current rate card, unless mutually agreed to by the parties.
6.3.3 Sharing of Revenue. The Net Revenue from all Lycos advertising sales
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will be split as follows:
Lycos: ***% of Net Revenue
LifeMinders: ***% of Net Revenue
"Net Revenue" means gross revenue from the sale of banner ads targeted to the
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Co-branded Services less Lycos' costs (which will be a flat *** percent (***%)
of gross advertising revenue). Payment will be made within 45 days following the
calendar quarter in which Lycos actually receives the revenues. Lycos will
attempt to collect any amounts due Lycos for advertising on the Co-branded
Services according to its standard collection practices. LifeMinders shall
retain all revenue generated from advertising sales completed by LifeMinders.
*** CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION
<PAGE>
6.4 Reporting. LifeMinders shall provide Lycos with weekly reports
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regarding: (i) clickthrus to the Co-branded Site from the impressions outlined
in Section 2; (ii) the number of Members; and (iii) the Bounties. Lycos shall
provide LifeMinders with weekly reports regarding: (i) the number of impressions
outlined in Section 2.1 displayed, and (ii) the clickthrus to the Co-branded
Site from the impressions outlined in Section 2.1.
6.5 Audit Rights. Each party shall maintain complete and accurate records
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with respect to the calculation of all payments due under this Agreement. Each
party shall have the right, at its expense (except as provided below), to audit
the other party's books and records for the purpose of verifying and tracking
payment amounts and Members. Any audits made pursuant to this Section 6.5 shall
be made not more than once per year, on not less then ten (10) days written
notice, during regular business hours, by auditors reasonably acceptable to the
party being audited (the "Audited Party"). If the auditor's figures reflect
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payment due under this Agreement other than that reported by the Audited Party,
then the Audited Party shall pay the amount owed (if such amount is higher than
reported), or the party conducting the audit shall reimburse the difference (if
such amount is lower than reported), as the case may be. In addition, for any
audit performed hereunder, if the auditor's figures vary by more than 10% from
the figures provided by the Audited Party, then the Audited Party shall also pay
the reasonable cost of the audit.
7. User Information. LifeMinders shall manage the user database of the
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Co-branded Services which shall include, without limitation, any and all
information provided by users on the Co-branded Site and the Co-branded E-mail
Service (the "User Information"), and LifeMinders shall own all User Information
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obtained in connection with the Co-branded Site and the Co-branded E-mail
Service. On a monthly basis, LifeMinders shall provide Lycos with aggregate
demographic, psychographic, and geographic User Information obtained in
connection with the Co-branded Services within ten (10) days after the end of
each month, in a manner to be mutually agreed to by the parties, for use by
Lycos in connection with performing its obligations hereunder. The User
Information provided to Lycos hereunder shall include substantially all of the
User Information provided by LifeMinders to its advertising sales force and to
third parties who sell advertising on behalf of LifeMinders. Without a user's
express permission, neither Lycos nor LifeMinders may sell or otherwise transfer
a user's User Information to any third party (other than by merger,
consolidation or sale of all or substantially all of the assets of such party).
Both LifeMinders and Lycos agree that the sharing of any such User Information
and the use thereof shall be consistent with the parties' privacy policies
disclosed to the users when the information is collected. During the Term,
LifeMinders shall not use any of the User Information to promote, advertise, or
solicit purchases of or interest in services, sites or products of the Lycos
Competitors listed in Exhibit D.
8. Licenses; Approvals. To the extent access to the Co-branded Services is
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deemed a use, public display, transmission, distribution or reproduction of the
Content, or to the extent the Content is actually used, publicly displayed,
transmitted, distributed or reproduced on the Lycos Network sites, LifeMinders
hereby grants Lycos a non-exclusive, non-transferable (except as provided
herein), royalty-free (except as provided herein), worldwide license to use,
publicly display, transmit, distribute and reproduce the Co-branded Services and
the Content during the Term solely for the purposes described herein.
LifeMinders represents and warrants that it has obtained all necessary licenses,
consents and approvals relating to all Content provided by a third party and
that it is responsible for obtaining any such licenses, consents and approvals
during the Term. Lycos acknowledges that the licenses granted hereunder do not
allow Lycos to use portions of the Content throughout the Lycos Network except
as permitted under this Agreement or with LifeMinders' prior approval. To the
extent Lycos provides LifeMinders with Content pursuant to Section 1.4, and such
Content is displayed on the Co-branded Services, Lycos hereby grants LifeMinders
a non-exclusive, non-transferable (except as provided herein), royalty-free
(except as provided herein), worldwide license to use, publicly display,
transmit, distribute and reproduce the Co-branded Services and the Content
during the Term solely for the purposes described herein.
9. Term. The term ("Term") of this Agreement shall commence on the Effective
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Date and continue for nine (9) months unless terminated earlier as provided in
Section 15 below or extended as provided herein. If, at the conclusion of the
original Term, *** Members have not subscribed
to the Co-branded E-mail Service, the Term will automatically extend for an
additional ninety (90) day period (the "Extended Term") during which Lycos will
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provide LifeMinders, at no additional cost to LifeMinders, with additional Lycos
Network impressions and integration to be displayed in Lycos' sole discretion
and based on availability. The number and placement of the impressions and
integration displayed during the Extended Term will be comparable to the
impressions and integration displayed during the previous ninety (90) day
period. At the end of the Term, the parties may mutually agree to renew this
Agreement for an additional nine (9) month period.
10. Marks. Lycos hereby grants to LifeMinders a non-exclusive, non-
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transferable license to reproduce and display Lycos' trademarks, service marks,
logos and the like solely for the purposes specified in this Agreement and in
accordance with Lycos' established trademark usage policies and procedures.
LifeMinders hereby grants Lycos a non-exclusive, non-transferable license to
reproduce and display LifeMinders' trademarks, service marks, logos and the like
solely for the purposes specified in this Agreement and in accordance with
LifeMinders' established trademark usage policies and procedures. 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.") or
immediately cease using such requesting party's marks. 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.
***CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
11. Representations and Warranties. Each party hereby represents and warrants
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as follows:
(a) Corporate Power. Such party is duly organized and validly existing
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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.
(b) Due Authorization. Such party is duly authorized to execute and
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deliver this Agreement and to perform its obligations hereunder.
(c) Binding Agreement. This Agreement is a legal and valid obligation
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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.
(d) Intellectual Property Rights.
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(i) LifeMinders has the full and exclusive right to grant or otherwise
permit Lycos to access the LifeMinders Site and the Co-branded Services, and to
use LifeMinders' intellectual property as necessary for Lycos to perform its
obligations under this Agreement, and LifeMinders is aware of no claims by any
third parties adverse to any of such intellectual property rights.
(ii) Lycos has the full and exclusive right to grant or otherwise permit
LifeMinders to access the Lycos Network and to use Lycos' intellectual property
as necessary for LifeMinders to perform its obligations under this Agreement,
and Lycos is aware of no claims by any third parties adverse to any of such
intellectual property rights.
(iii) If either party's (the "Infringing Party") intellectual property
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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 11 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.
12. Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN
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SECTION 11 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 NETWORK OR THE CO-
BRANDED SERVICES, AND LYCOS SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS RELATED THERETO. LYCOS SPECIFICALLY DISCLAIMS ALL
LIABILITY FOR THE LIFEMINDERS SITE, THE CO-BRANDED SERVICES, AND THE CONTENT
THEREIN, AND LIFEMINDERS SPECIFICALLY DISCLAIMS ALL LIABILITY FOR THE LYCOS
NETWORK AND THE CONTENT THEREIN. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, LYCOS MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH
RESPECT TO ANY PRODUCTS OFFERED OR SOLD THROUGH THE LYCOS NETWORK, THE
LIFEMINDERS SITE OR THE CO-BRANDED SERVICES (INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT OR ANY IMPLIED
WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE).
13. Indemnification; Insurance.
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13.1 Indemnification.
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13.1.1 LifeMinders Indemnity. LifeMinders will at all times defend,
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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) any breach of any warranty, representation,
covenant or agreement made by LifeMinders in this Agreement; (ii) the
development, operation or maintenance of the LifeMinders Site, the Co-Branded
Site, the Co-branded Email Service, and the Content thereon; and (iii) the sale
or offering of any subscription to the Co-branded Email Service, and any other
products or services through the LifeMinders Site or the Co-branded Services,
including without limitation the purchase, acceptance, use or misuse of, or
reliance on, such products and services by any customer or user, so long as such
claims, damages, liabilities, costs and expenses do not arise out of the gross
negligence or willful misconduct of Lycos and its officers, directors,
shareholders, employees, accountants, attorneys, agents, affiliates,
subsidiaries. Lycos shall give LifeMinders prompt written notice of any claim,
action or demand for which indemnity is claimed. LifeMinders 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 LifeMinders with counsel of Lycos'
choice at Lycos' own expense. The foregoing indemnity is conditioned upon:
prompt written notice by Lycos to LifeMinders of any claim, action or demand
for which indemnity is claimed; complete control of the defense and settlement
thereof by LifeMinders; and such reasonable cooperation by Lycos in the defense
as LifeMinders may request.
13.1.2 Lycos Indemnity. Lycos will at all times defend, indemnify
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and hold harmless LifeMinders 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 any breach of any warranty, representation,
covenant or agreement made by Lycos in this Agreement or the development,
operation or maintenance of the Lycos Network, including the content thereon
(but specifically excluding any content posted by users, including content
appearing in search results, chat or bulletin boards) so long as such claims,
damages, liabilities, costs and expenses do not arise out of the gross
negligence or willful misconduct of LifeMinders and its officers, directors,
shareholders, employees, accountants, attorneys, agents, affiliates,
subsidiaries. LifeMinders 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. LifeMinders shall have the right to participate in
any defense of a claim by Lycos with counsel of LifeMinders' choice at
LifeMinders' own expense. The foregoing indemnity is conditioned upon; prompt
written notice by LifeMinders 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 LifeMinders in the defense as Lycos
may request.
<PAGE>
13.1.3 Settlement. Neither party shall, without the prior written
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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.
13.2 Insurance. For the length of the Term, LifeMinders shall cause
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Lycos to be included as an "additional insured" on all of LifeMinders 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
LifeMinders in accordance with the terms of this Agreement.
14. Confidentiality, Press Releases.
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14.1 Non-Disclosure Agreement. The parties agree and acknowledge that, as
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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. Notwithstanding
anything to the contrary in this section, in the event that LifeMinders engages
in a public offering, this Agreement may be made available in a SEC filing,
subject to Lycos' prior approval, such approval not to be unreasonably withheld,
and subject to customary redaction.
14.2 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
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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
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Information" specifically excludes (A) information that is now in the public
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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.
14.3 Press Releases. Lycos and LifeMinders will jointly prepare a press
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release concerning the existence of this Agreement and the terms hereof which
shall be released on or before thirty (30) days after the Launch Date and which
shall include quotes from senior executives of both parties. 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
LifeMinders or as required by law.
15. Termination. Either party may terminate this Agreement if (a) the other
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party files a petition for bankruptcy or is adjudicated bankrupt; (b) a petition
in bankruptcy is filed against the other party and such petition is not
dismissed within sixty (60) days of the filing date; (c) the other party becomes
insolvent or makes an assignment for the benefit of its creditors pursuant to
any bankruptcy law; (d) a receiver is appointed for the other party or its
business; (e) upon the occurrence of a material breach of a material provision
by the other party if such breach is not cured within thirty (30) days after
written notice is received by the breaching party identifying the matter
constituting the material breach; or (f) by mutual consent of the parties.
16. 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.
17. Relationship of Parties. LifeMinders and Lycos are independent
-----------------------
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture or agency relationship between LifeMinders
and Lycos. Neither party has authority to enter into agreements of any kind on
behalf of the other.
<PAGE>
18. Assignment, Binding Effect. Neither Lycos nor LifeMinders 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 which consent shall not
be unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing, Lycos may assign this Agreement to any successor of Lycos.
19. 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. LifeMinders 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 LifeMinders has or
may have in the future with respect to any of the foregoing.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 02451
Fax No.: (781) 370-2600
Attention: General Counsel
If to LifeMinders:
LifeMinders.com
733 Elden Street
Herndon, VA 20170
Fax No: (703) 707-8269
Attention: CEO
26. Entire Agreement. This Agreement and all exhibits contain the entire
----------------
understanding of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between Lycos and
LifeMinders concerning the subject matter, and cannot be amended except by a
writing signed by both parties. No party hereto has relied on any statement,
representation or promise of any other party or with any other officer, agent,
employee or attorney for the other party in executing this Agreement except as
expressly stated herein.
27. Limitations of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
------------------------
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORSEEABLE OR THAT PARTY HAS BEEN
ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM SUCH PARTY'S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY
PROVISION OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY'S SITE (INCLUDING
SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR DAMAGES IN EXCESS OF THE VALUE 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 OR CONFIDENTIALITY OBLIGATIONS HEREUNDER.
28. 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.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
LIFEMINDERS.COM INC.
By: /s/ Stephen R. Chapin, Jr.
------------------------------
Name: Stephen R. Chapin, Jr.
----------------------------
Title: President and CEO
---------------------------
Date: 8/31/99
----------------------------
<PAGE>
LYCOS, INC.
By: /s/ illegible
------------------------------
Name: illegible
----------------------------
Title: VP Finance & Admin.
---------------------------
Date: August 25, 1999
----------------------------
<PAGE>
EXHIBIT A
---------
<TABLE>
<CAPTION>
Total
Targeting September October November December January February March April May Imps
---------------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Lycos Channels
----------------
Computers 4,000,000 4,000,000 4,000,000 4,000,000 3,000,000 3,000,000 2,000,000 1,500,000 1,500,000 27,000,000
Games 2,000,000 2,000,000 2,000,000 2,000,000 1,500,000 1,500,000 1,500,000 1,500,000 1,500,000 15,500,000
Entertainment 4,000,000 4,000,000 4,000,000 4,000,000 3,000,000 3,000,000 3,000,000 1,000,000 1,000,000 27,000,000
Weather 500,000 500,000 500,000 500,000 500,000 500,000 500,000 500,000 500,000 4,500,000
Regional 250,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 6,250,000
Science & 100,000 100,000 100,000 100,000 100,000 100,000 100,000 100,000 100,000 900,000
Technology
Real Estate 350,000 300,000 400,000 200,000 100,000 100,000 400,000 600,000 600,000 3,050,000
Travel 400,000 400,000 400,000 400,000 400,000 400,000 400,000 400,000 400,000 3,600,000
News & Politics 1,200,000 1,200,000 1,200,000 1,200,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 9,800,000
Pictures & 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 9,000,000
Sounds
Chat 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 9,000,000
MyTime 250,000 250,000 300,000 300,000 370,000 370,000 370,000 370,000 370,000 2,950,000
Lycos 6,000,000 6,000,000 6,000,000 6,000,000 6,000,000 6,000,000 6,000,000 6,000,000 6,000,000 54,000,000
Personaliztion
Tripod Zones
----------------
Entertainment 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 9,000,000
Teens 500,000 500,000 500,000 500,000 500,000 500,000 500,000 500,000 500,000 4,500,000
Fun & Games 600,000 150,000 600,000 600,000 600,000 600,000 600,000 600,000 600,000 4,950,000
Homepage Banners
----------------
Lycos 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 6,750,000
WhoWhere 750,000 750,000 750,000 750,000 750,000 3,750,000
Angelfire 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 6,750,000
MailCity 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 6,750,000
HotBot 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 750,000 6,750,000
ROS Banners
----------------
Lycos 7,000,000 7,000,000 7,000,000 7,000,000 7,000,000 7,000,000 7,000,000 7,000,000 7,000,000 63,000,000
WhoWhere 2,000,000 6,000,000 10,000,000 12,500,000 20,000,000 22,500,000 25,000,000 27,500,000 30,000,000 155,500,000
Angelfire 25,000,000 27,500,000 35,000,000 35,000,000 40,000,000 40,000,000 40,000,000 40,000,000 40,000,000 322,500,000
MailCity 20,000,000 25,000,000 30,000,000 35,000,000 45,000,000 45,000,000 45,000,000 45,000,000 45,000,000 335,000,000
HotBot 4,000,000 4,000,000 4,000,000 4,000,000 4,000,000 4,000,000 4,000,000 4,000,000 4,000,000 36,000,000
Angelfire 9,000,000 9,000,000 9,000,000 9,000,000 9,000,000 9,000,000 9,000,000 9,000,000 9,000,000 81,000,000
HomePage
(106x60)
Text Links
----------------
MyTime Text 90,000 90,000 90,000 90,000 90,000 90,000 90,000 90,000 90,000 810,000
Link
Halloween 700,000 700,000
Promotion
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Total
Targeting September October November December January February March April May Imps
---------------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Other Promotions 1,500,000
Millenium Guide 500,000 750,000 1,000,000 1,000,000 500,000 3,750,000
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
---------
Initially, Lycos shall place prominent links to the Co-branded Site as follows:
1. On the www.mailcity.com navigation bar, and on the www.mailcity.com
---------------- ----------------
registration pages, promoted as an opt in service for users;
2. On the New Services area and as a configurable component of my.lycos.com;
3. On the Activities Center of clubs.lycos.com;
4. In the following pages or areas of www.tripod.com: (a) Log-in Page, (b) text
--------------
link on the Front Page, (c) Tripod Builder Pages, and (d) Welcome Page; and
5. Tripod Insider Newsletter second page, promoted as an opt-in email service
for users.
<PAGE>
EXHIBIT C
---------
ADDITIONAL ADVERTISING TERMS
----------------------------
1. Changes and Cancellations. All artwork must be received at least five days
-------------------------
in advance of publication date. Cancellations or copy changes will not be
accepted after the published closing date of the update to the Lycos site.
Lycos must receive changes to artwork at least five days in advance of requested
change date. Lycos may not unreasonably limit the amount of artwork submitted by
LifeMinders. Lycos' ad banner specifications are accessible through the URL
adreporting.lycos.com/specs.html; Lycos reserves the right to change any of its
ad banner specifications at any time. Any cancellations or change orders must
be made in writing and acknowledged by Lycos.
2. Licenses and Indemnification. LifeMinders represents that it is the owner
----------------------------
or is licensed to use the entire contents and subject matter contained in its
advertising and collateral information, including, without limitation, (a) the
names and/or pictures of persons; (b) any copyrighted material, trademarks,
service marks, logos, and/or depictions of trademarked or service marked goods
or services; and (c) any testimonials or endorsements contained in any
advertisement submitted to Lycos. In consideration of Lycos' acceptance of such
advertisements and information for publication, LifeMinders will jointly and
severally indemnify and hold Lycos harmless against all loss, liability, damage
and expense of any nature (including reasonable attorney's fees) arising out of
the copying, printing, distributing, or publishing of LifeMinders'
advertisements. If LifeMinders possesses any preexisting copyright interests in
the advertisements, advertiser grants Lycos the right to use, reproduce, and
distribute the advertisements.
3. Key Words and Phrases. Each advertiser may be given a "first right" to its
---------------------
exact company name and trademarks for keyword/phrase advertising. Lycos may
pre-empt an existing key word/phrase advertiser by submitting a three-month
advertising contract. The existing contract-holder for the key word/phrase will
be provided with a two-week notification of preemption and will receive a pro-
rated refund for any unfulfilled number of guaranteed impressions. If two or
more advertisers have the same name or trademark, the allocation will be on a
first-come basis and the existing contract will take precedence.
4. Rejections. Lycos reserves the right, without liability, to reject, omit or
----------
exclude any advertisement or to reject or terminate any links for any reason at
any time, with or without notice to LifeMinders, and whether or not such
advertisement or link was previously acknowledged, accepted, or published.
5. Limitation of Liability. Lycos shall not be liable for any errors in
-----------------------
content or omissions. Should an error appear in an advertisement, Lycos'
liability will be limited to the cost of the advertisement (prorated for the
publishing completed).
<PAGE>
EXHIBIT D
---------
LYCOS COMPETITORS
-----------------
The term "Lycos Competitors" shall include the following entities:
Alta Vista
AOL
Excite/At Home
FortuneCity
Geocities
Go Network
Go.com
Go2Net
GoTo.com
Infoseek
Infospace
Looksmart
Microsoft
Netscape
Planet Direct
Snap
The Globe
Xoom
Yahoo
Within five business days after the Effective Date, and on a quarterly basis
thereafter, Lycos may update this Exhibit D with additional Competitors, subject
---------
to LifeMinders' approval, which approval shall not be unreasonably withheld or
delayed.