Website Advertising and Promotion Agreement - LookSmart Ltd. and LowestFare.com
WEBSITE ADVERTISING AND PROMOTION AGREEMENT
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This Agreement dated as of September 25, 1998 ("Effective Date"), is
entered into by and between LookSmart, Ltd., a Delaware corporation
("LookSmart") with offices at 487 Bryant Street, San Francisco, CA 94107, and
Lowestfare.com, a division of the Global Discount Travel Services, LLC
("Lowestfare"), located at 980 Kelly Johnson Drive, Las Vegas, Nevada 89119.
1. BACKGROUND
1.1 LookSmart operates a search, information and directory service on the
internet accessible through several web pages located at www.looksmart.com
("LookSmart Site"). Lowestfare operates a website located at www.Lowestfare.com
that provides airline and travel related services to internet users ("Lowestfare
Site").
1.2 Lowestfare desires, among other things, to promote Lowestfare Site on
the LookSmart Site and to establish links from the LookSmart Site to the
Lowestfare Site on the terms and conditions set forth in this Agreement.
2. DEFINITIONS
2.1 "Advertising Allocation Ratio" means the percentage of Impressions
Lowestfare will receive through Targeted Impressions and through Non-Targeted
Impressions, which percentages shall be fixed during the Initial Term of this
Agreement at [CONFIDENTIAL TREATMENT REQUESTED] and [CONFIDENTIAL TREATMENT
REQUESTED] respectively.
2.2 "Lowestfare Content" means any graphics, logos, text or other material
(i) provided by Lowestfare to LookSmart in HTML and/or GIF files, or in another
format as may be designated from time to time by LookSmart, or (ii) created by
LookSmart on behalf of Lowestfare, for placement in certain advertising spaces,
including but not limited to banners, buttons, badges, Quick-Click Boxes, Crown
Boxes or links, on web pages within the LookSmart Site.
2.3 "Co-Branded Site" means the website developed by LookSmart for
Lowestfare pursuant to Section 6 below.
2.4 "Crown Box" means the advertising space on the top left portion of
certain web pages within the LookSmart Site as described in Exhibit C.
2.5 "Impression" means every instance that either (i) a webpage that
contains any Lowest Fare Content that is served to a user, or (ii) the
Lowestfare Site or the Co-Branded Site is served to a user as a result of such
user clicking through a link on the LookSmart Site.
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2.6 "Inventory" means banner advertising space, badges, Crown Boxes,
Quick-Click Boxes, buttons, links and any other space on a webpage in the
LookSmart Site that LookSmart has allocated to advertising.
2.7 "LookSmart Directory" means the directory created and maintained by
LookSmart and accessible through www.looksmart.com that classifies certain
internet web sites through thirteen primary categories, including but not
limited to Travel and Vacations, Automotive, Sports and Recreation, and
thousands of subcategories.
2.8 "LookSmart Postcard" means as described on Exhibit E.
2.9 "LookSmart Search Engine" means the functionality incorporated into
the LookSmart Site that allows users to conduct key word searches of the
internet or the LookSmart Site.
2.10 "Non-Targeted Impressions" means all of the Impressions generated by
the advertising and marketing services provided by LookSmart pursuant to Section
4 and Section 5 (as applicable) below.
2.11 "Quick-Click Box" means the advertising space on the right side of
certain web pages within the LookSmart Site as set forth in Exhibit B.
2.12 "Targeted Impressions" means all of the Impressions generated by the
advertising and marketing services provided by LookSmart pursuant to Section 3
and Section 5 (as applicable) below.
3. TARGETED ADVERTISING
3.1 Travel Related Advertising.
(a) Quick-Click Sponsor: Lowestfare shall be the exclusive
internet based airline ticket booking agency that advertises via the Quick-Click
Box on web pages within the Travel and Vacations category in the LookSmart
Directory. Lowestfare Content will appear in a Quick-Click Box on every page
served within such Travel and Vacations category. For the purposes of this
Agreement, "exclusive" means that (i) LookSmart shall not sell any Quick-Click
Box advertising space in the Travel and Vacations category to any other internet
based company whose primary business is to allow internet users to compare and
purchase online air travel from several carriers; and (ii) LookSmart shall not
accept advertising for the following sites: Expedia.com, Travelocity,
TheTrip.com, Biztravel, Preview Travel, Internet Travel Network (ITN), Best
Fares, and Las Vegas Reservations Service (LVRS).
(b) Keyword Advertising: LookSmart shall place Lowestfare
Content in banner advertising spaces on certain web pages in the LookSmart Site
that are served as a result of a search using the LookSmart Search Engine where
the search terms entered by the user include certain travel related keywords as
set forth in Exhibit A ("Travel Keywords"). The location of such banner ads on
web pages, the frequency and timing of the delivery of such banner ads, and the
particular pages on which such Lowestfare Content will be served shall be
determined in accordance with the schedule set forth at Exhibit E.
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3.2 Context Based Advertising.
(a) Targeted User Advertising. LookSmart shall place Lowestfare
Content in banner advertising spaces on certain web pages in the LookSmart Site
that are accessed by internet users with the criteria set forth in Exhibit A
(the "User Criteria"). The location of such banner ads on web pages, the
frequency and timing of the delivery of such banner ads, and the particular
pages on which such Lowestfare Content will be served shall be determined in
accordance with the schedule set forth at Exhibit E.
(b) Designated Category Advertising. LookSmart shall place
Lowestfare Content in banner advertising spaces on certain web pages displayed
by the LookSmart Site when such webpages are accessed through the "Shopping and
Services", "Business and Finance", and "Sports and Recreation" categories in the
LookSmart Directory (the "Designated Categories"). The location of such banner
ads on web pages, the frequency and timing of the delivery of such banner ads,
and the particular pages on which such Lowestfare Content will be served shall
be determined by LookSmart at its sole discretion.
(c) Lowestfare Review. Three months following the Effective Date,
Lowestfare shall have the right to review the performance of the Context Based
Advertising described in Section 3.2(a) and (b) above. In the event that such
Context Based Advertising generated less than [CONFIDENTIAL TREATMENT REQUESTED]
Impressions during such three month period, then LookSmart and Lowestfare shall
negotiate in good faith to modify the User Criteria and the Designated
Categories to increase the number of Impressions generated by such Context Based
Advertising (the "Revised Plan"), and shall implement such Revised Plan for an
additional three month period. In the event that the Revised Plan does not
increase the number of Impressions delivered via the Context Based Advertising
within such three month period, then Lowest Fare shall have the right to
immediately cancel such Context Based Advertising.
4. NON-TARGETED ADVERTISING.
4.1 HomePage Button. LookSmart shall place Lowestfare Content in a button
linked to the Lowestfare Site on the home page of the LookSmart Site that is
currently located at www.looksmart.com. The size and location of such button
shall be determined in accordance with the schedule set forth at Exhibit E.
4.2 Links. LookSmart shall create a hypertext link from the LookSmart
Postcard to the Co-Branded Site.
4.3 Crown Box. LookSmart shall place Lowestfare Content in a Crown Box on
certain pages within the LookSmart Site. The (i) size, design, appearance and
other specifications of such Crown Box, the (ii) the frequency of delivery of
such Crown Box ads, and (iii) the particular pages on which Lowestfare Content
will be served in Crown Box ads shall be determined in accordance with the
schedule set forth at Exhibit E.
5. FUTURE ADVERTISING OPPORTUNITIES
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5.1 Travel Inventory. In the event that Inventory becomes available on any
webpages in the LookSmart Site that are dedicated to travel, including but not
limited to Inventory in the Travel and Vacations category of the LookSmart
Directory, LookSmart shall offer such Inventory to Lowestfare at its then
current terms and rates. If Lowestfare elects to purchase such Inventory, then
Lowestfare shall also purchase additional Non-Targeted Impressions in order to
maintain the Advertising Allocation Ratio.
5.2 E-Mail. In the event that LookSmart introduces any new e-mail based
service or product, LookSmart shall use reasonable efforts to promote the
Lowestfare Site at least once per month on such service or product.
5.3 Bargain Fares Link. LookSmart's editorial board agrees to review the
Lowestfare Site, and at its sole discretion, can include a review of the
Lowestfare Site within the Travel and Vacations category which will be linked to
the Lowestfare Site.
6. CO-BRANDED SITE
LookSmart will develop a web page that will have the same design, layout,
appearance and "look and feel" of the LookSmart Site, but will incorporate
Lowestfare Content and additional material as determined by the parties (the
"Co-Branded Site"). The Co-Branded Site will be linked directly to the
Lowestfare Site. LookSmart shall be responsible for maintaining the Co-Branded
Site and for selling the advertising space on such Co-Branded Site.
7. LICENSE
Lowestfare hereby grants to LookSmart during the term of this Agreement a
nonexclusive, royalty-free, worldwide license to use, reproduce, distribute,
perform and display, in whole or in part, the Lowestfare Content to fulfill the
intention of this Agreement. Notwithstanding the above, Lowestfare shall retain
all right, title and interest in and to the Lowestfare Content it provides to
LookSmart hereunder.
8. IMPRESSION GUARANTEES
8.1 General. LookSmart guarantees that Lowestfare shall receive a certain
number of minimum Impressions a year during each year of this Agreement as set
forth below. During the Initial Term, the Impressions will be delivered pursuant
to the Advertising Allocation Ratio.
8.2 Year 1 Impressions. LookSmart guarantees that during the first twelve
months following the Effective Date (the "First Year"), Lowestfare shall receive
at least an aggregate [CONFIDENTIAL TREATMENT REQUESTED] Impressions.
(a) Targeted Impressions. LookSmart guarantees that during the First
Year, Lowestfare shall receive at least [CONFIDENTIAL TREATMENT REQUESTED]
Targeted Impressions ("Minimum Targeted Impressions"). Such Minimum Targeted
Impressions will be delivered according to the following allocation:
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(i) LookSmart guarantees that Lowestfare shall receive at
least [CONFIDENTIAL TREATMENT REQUESTED] Impressions through the Click-Box
sponsorship advertisements described in Section 3.1 (a) above.
(ii) LookSmart guarantees that Lowestfare shall receive
[CONFIDENTIAL TREATMENT REQUESTED] Impressions through banner advertisements on
the result pages of Travel Keyword searches as described in Section 3.1 (b)
above.
(iii) LookSmart guarantees that Lowestfare shall receive
[CONFIDENTIAL TREATMENT REQUESTED] impressions through the Targeted User
Advertising described in Section 3.2 (a) above.
(iv) LookSmart guarantees that Lowestfare shall receive
[CONFIDENTIAL TREATMENT REQUESTED] impressions through the Designated Categories
Advertising described in Section 3.2 (b) above.
(b) Non-Targeted Impressions. LookSmart guarantees that during the
First Year, Lowestfare shall receive at least an aggregate [CONFIDENTIAL
TREATMENT REQUESTED] Non-Targeted Impressions.
8.3 Year 2 Impressions. LookSmart guarantees Lowestfare shall receive a
total of [CONFIDENTIAL TREATMENT REQUESTED] Targeted Impressions and
Non-Targeted Impressions during the second twelve month period of this
Agreement. The distribution of such Impressions between Targeted Impressions
Non-Targeted Impressions will be consistent with the Advertising Allocation
Ratio.
8.4 Year 3 Impressions. LookSmart guarantees Lowestfare shall receive a
total of [CONFIDENTIAL TREATMENT REQUESTED] Targeted Impressions and
Non-Targeted Impressions during the third twelve month period of this Agreement.
The distribution of such impressions between Targeted Impressions and
Non-Targeted Impressions will be consistent with the Advertising Allocation
Ratio.
8.5 Renewal Term. Lowestfare will have the option of modifying the
Advertising Allocation Ratio during any year during the Renewal Term; provided,
however, that in order for Lowestfare to retain its exclusive airline booking
advertiser status as set forth in Section 3.1(a), Lowestfare must purchase all
of the travel related inventory, as determined in good faith by LookSmart,
including but not limited to the Targeted Impressions described herein, at a
rate of [CONFIDENTIAL TREATMENT REQUESTED] CPM.
9. PAYMENT
9.1 General. Lowestfare shall pay LookSmart an annual fee according to the
terms and schedule set forth herein. Except as set forth below, Lowestfare shall
pay the annual fee for each year through four equal payments at the end of every
three month period during a given year ("Payment Period"). Payments shall be
made within thirty (30) days after the end of each such Payment Period.
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9.2 Year 1 Annual Fee: In consideration for the services provided
hereunder, Lowestfare shall pay LookSmart [CONFIDENTIAL TREATMENT REQUESTED]
during the First Year. Lowestfare will pay LookSmart [CONFIDENTIAL TREATMENT
REQUESTED] upon the signing of the Agreement ("Initial Payment"). This Initial
Payment will be applied against the payment for the final Payment Period of the
First Year.
9.3 Year 2 Annual Fee: In consideration for the services provided
hereunder, Lowestfare shall pay LookSmart [CONFIDENTIAL TREATMENT REQUESTED]
during the second twelve month period of this Agreement.
9.4 Year 3 Annual Fee: In consideration for the services provided
hereunder, Lowestfare shall pay LookSmart [CONFIDENTIAL TREATMENT REQUESTED]
during the third twelve month period of this Agreement.
9.5 Payment Reductions. If at the end of any year during the Initial Term,
Lowestfare has not received the Targeted Impressions guaranteed by LookSmart
pursuant to Section 8.2(a) ("Guaranteed Impressions"), then (i) Lowestfare shall
only be responsible for paying LookSmart for the actual number of Targeted
Impressions it received during such Payment Period based on a CPM of
[CONFIDENTIAL TREATMENT REQUESTED], and (ii) Lowestfare will be able to deduct
from the Non-Targeted Impression Payment for such Payment Period (defined below)
a percentage equal to the percentage shortfall of the Targeted Impressions for
such Payment Period. The Non-Targeted Impression Payment for a Payment Period is
an amount equal to the product of (i) the estimated Non-Targeted Impressions for
such Payment Period, and (ii) a CPM of [CONFIDENTIAL TREATMENT REQUESTED]. For
example, if at the end of a Payment Period Lowestfare receives five percent (5%)
fewer Targeted Impressions than set forth in the Guaranteed Impressions for such
Payment Period, then Lowestfare will only have to pay LookSmart for the actual
number of Targeted Impressions received (based on a CPM of [CONFIDENTIAL
TREATMENT REQUESTED]), and regardless of the actual number of Non-Targeted
Impressions delivered, Lowestfare will also be able to deduct 5% from its
Non-Targeted Impression Payment for such Payment Period. The shortfall of
Guaranteed Impressions and the subsequent payment reductions shall in no way
relieve LookSmart's obligation to deliver the Non-Targeted Impressions
guaranteed in Section 4 above
10. ADDITIONAL OBLIGATIONS
Lowestfare shall be solely responsible for supplying and managing the Lowestfare
Site at its own expense and LookSmart shall not have any obligations whatsoever
with respect to the Lowestfare Site other than to create the hyperlinks thereto
as described herein. LookSmart shall not be required to provide any personal
information regarding specific users, including, without limitation, their names
and addresses or any other information the provision of which could violate any
privacy or other rights of users or third-parties. Lowestfare shall notify
LookSmart in advance of any changes in its URL(s). LookSmart retains the right,
in its sole discretion and upon notification to Lowestfare, to immediately cease
linking to the Lowestfare Site if in LookSmart's opinion, the Lowestfare Site
violates any applicable law or regulation, infringes upon any proprietary right
of any third-party, or is defamatory, obscene, offensive or excessively
controversial.
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11. TERM/TERMINATION.
11.1 The initial term of this Agreement shall begin on the Effective Date
and shall continue for a period of three (3) years ("Initial Term") unless
otherwise terminated as set forth below.
11.2 Lowestfare shall have the right to terminate this Agreement after the
end of the second full year of the Initial Term by notifying LookSmart in
writing sixty (60) days prior to the end of the second year.
11.3 This Agreement shall automatically be extended for an additional
three year period ("Renewal Term"), except in the event of one of the following:
(a) the Agreement is otherwise terminated pursuant to this Section 11 or (b)
Carl Icahn has declined to purchase a minimum of [CONFIDENTIAL TREATMENT
REQUESTED] of LookSmart common stock offered to him (i) pursuant to a private
placement offering in the minimum aggregate amount of [CONFIDENTIAL TREATMENT
REQUESTED] of which Mr. Icahn shall have the right to purchase up to an
aggregate of [CONFIDENTIAL TREATMENT REQUESTED] of such LookSmart common stock
and (ii) on terms and conditions similar to the terms and conditions LookSmart
is selling such common stock to other potential investors at such time. In the
event that a private placement offering is not made during the Initial Term
which satisfies the aforementioned terms and conditions, the Agreement shall
automatically be extended for the Renewal Term.
11.4 Either Party may terminate this Agreement at any time in the event of
a material breach by any of the other Parties which remains uncured after thirty
(30) days' written notice thereof.
12. CONFIDENTIALITY.
12.1 Confidential Information. "Confidential Information" means (i) the
terms and conditions of this Agreement, and (ii) any and all other information
disclosed by one party to the other which is marked "confidential" or
"proprietary". Confidential Information does not include any information that
the non-disclosing party can demonstrate by written records was (a) already
known by, or in the possession of the non-disclosing party, (b) is required to
be disclosed by law, regulation, or court order (including compliance with
applicable securities laws and regulations), (c) thereafter rightly obtained by
the non-disclosing party from a source other than the disclosing party, or (d)
is or becomes publicly known through no wrongful act of the non-disclosing
party.
12.2 Obligations. Each party agrees that it shall take reasonable steps,
at least substantially equivalent to the steps as it takes to protect its own
Confidential Information, during the term of this Agreement, and for a period of
one (1) year following expiration or termination of this Agreement, to prevent
the duplication or disclosure of any such Confidential Information, other than
by or to its employees or agents who must have access to such information to
perform such party's obligations hereunder, who shall each treat such
information as provided herein, and as may be required by either of the parties
for public or private financing. Upon the termination or expiration of this
Agreement, (i) each party shall promptly return or certify as to the destruction
of all Confidential Information and other information, documents, manuals,
equipment and other materials belonging to the other party; and (ii) each party
shall immediately cease using all materials of the other party in any form. In
the event
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of a partial termination, all terms and conditions of this Agreement shall
remain in full force and effect with respect to rights and obligations not
affected by the partial termination.
13. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
13.1 Lowestfare's Representations and Warranties. Lowestfare represents
and warrants that (i) Lowestfare has the right to grant the rights and licenses
granted herein; (ii) Lowestfare is the sole owner or licensee of the Lowestfare
Content; (iii) the Lowestfare Content does not infringe, violate or
misappropriate any trademark, patent, copyright, trade secret or any other
intellectual property right of any third party; (iv) the Lowestfare Content does
not contain any libelous material; (v) it has the right and authority to enter
into and perform all obligations under this Agreement; and (vi) it shall comply
with all applicable laws, statutes, ordinances, rules and regulations with
respect to the Lowestfare Site.
13.2 LookSmart's Representations and Warranties. LookSmart represents and
warrants that (i) it has the right and authority to enter into and perform all
obligations under this Agreement; and (ii) it shall comply with all applicable
laws, statutes, ordinances, rules and regulations with respect to the LookSmart
Site.
13.3 Indemnity. Each party will defend, indemnify, save and hold harmless
the other party, and their officers, directors, agents, and employees from any
and all third-party claims, demands, liabilities, courts costs and damages,
including reasonable attorney's fees ("Liabilities"), resulting from the
indemnifying party's breach of any of the representations and warranties set
forth in Section 13.1 or 13.2 above; provided, however, the non-indemnifying
party shall (i) promptly notify the indemnifying party in writing of an
indemnifiable claim, (ii) give the indemnifying party the opportunity to defend
or negotiate a settlement of any such claim at the indemnifying party's expense,
and (iii) fully cooperate with the indemnifying party, at the indemnifying
party's expense, in defending or settling such claim. The indemnifying party may
not settle any such claim without obtaining the prior consent of the
non-indemnifying party, unless any such settlement provides for full exculpation
of the non-indemnifying party. Each party reserves the right, to participate, at
its own expense, in the defense of any matter otherwise subject to
indemnification by the other party. Notwithstanding the above, neither party
shall be obligated to indemnify, defend, save and hold harmless the
non-indemnifying party to the extent Liabilities result from the gross
negligence or knowing and willful misconduct of the non-indemnifying party.
13.4 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION
13.1 AND 13.2 ABOVE, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY
MATTER SUBJECT TO THIS AGREEMENT, INCLUDING ANY STATUTORY WARRANTY AGAINST
INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
14. LIMITATION OF LIABILITY.
EXCEPT FOR OBLIGATIONS PURSUANT TO SECTION 13 ABOVE, NEITHER PARTY SHALL
BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL,
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CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR ANY DAMAGES FOR LOST DATA,
BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS ARISING FROM
THIS AGREEMENT (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES).
15. GENERAL PROVISIONS.
15.1 Amendment. No change, amendment or modification of any provisions of
this Agreement shall be valid unless agreed to in writing by both parties. This
Agreement sets forth the entire agreement and supersedes any and all prior
agreements, written or oral, of the parties with respect to the transactions set
forth herein.
15.2 Assignment. Lowestfare will not assign, delegate or otherwise
transfer this Agreement or any right hereunder, either in whole or part (whether
by express transfer, operation of law or otherwise) without the prior written
consent of LookSmart, except Lowestfare may transfer or assign this Agreement
without prior consent to any of its subsidiary or affiliate companies or
successor either now existing or hereafter organized. Any attempted or purported
assignment or other transfer not complying with the foregoing shall be null and
void. Subject to the foregoing, this Agreement will inure to the benefit of and
bind the successors and assigns of the parties hereto.
15.3 Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid by a court with jurisdiction over the parties to
this Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect.
15.4 Independent Contractors. The parties to this Agreement are
independent contractors. Neither party is an agent, representative, or partner
of the other party. No party shall have any right, power or authority to enter
into any agreement for, or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other party. This Agreement shall not be
interpreted or construed to create an association, agency, joint venture or
partnership between the parties or to impose any liability attributable to such
a relationship upon either party.
15.5 No Waiver. The failure of either party to insist upon or enforce
strict performance by the other party, of any provision of this Agreement, or to
exercise any right under this Agreement, shall not be construed as a waiver or
relinquishment of such party's right to enforce any such provision or right in
any other instance.
15.6 Notice. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes (i) on the delivery
date if delivered by electronic mail; (ii) on the delivery date if delivered
personally to the party to whom the same is directed; (iii) one (1) business day
after deposit with a commercial overnight carrier with written verification of
receipt; or (iv) five (5) business days after the mailing date whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available to the Contact at the address of the party to whom the same is
directed.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
LookSmart, Ltd. Lowestfare
Signatory: Signatory:
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Title: Title:
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Date: Date:
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