License Agreement - Binary Compass Enterprises Inc. and Internet Access Financial Corp.
LICENSE AGREEMENT
This License Agreement (this Agreement) dated as of MAY 1st 1998 is by and
between Binary Compass Enterprises, Inc., a California corporation (BCE), having
an office at 9520 Jefferson Blvd., Culver City, CA 90232 and INTERNET ACCESS
FINANCIAL CORPORATION (Licensee) a California Corporation, having offices at 595
Manuel St., San Francisco, CA 94105
RECITALS
WHEREAS, Binary Compass Enterprises has developed a Web service that provides
merchant ratings and information, more fully described in Exhibit A, which is
accessible through the URL www.bizrate.com (the BizRate Service);
WHEREAS, Licensee is the operator of a certain Web service called NEXTCARD (THE
"LICENSEE'S SERVICE"), which is accessible through the URL WWW.NEXTCARD.COM as
described in Exhibit B;
WHEREAS, Licensee desires to provide a link from the NEXTCARD Service to the
BizRate Service so that users of the LICENSEE'S Service will have access to the
BizRate Service.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, Binary Compass Enterprises and INTERNET ACCESS FINANCIAL
CORPORATION, hereby agree as follows:
1. Certain Definitions.
As used herein, the following terms shall have the meaning herein
ascribed:
a) Web means the World Wide Web, a system for accessing and viewing
text, graphics, sound and other media via the collection of computer
networks known as the Internet.
b) Licensed Service means a Licensee-branded version of the BizRate
Service, fully described in Exhibit A.
a) Net Ad Revenues means Gross Ad Revenues received by Licensee, minus
advertising sales expenses payable to Licensee or Licensee's
designated sales agent. In no event will advertising sales expenses
exceed 35% of the Gross Ad Revenues.
2. License Grant by Binary Compass Enterprises; Link to the Licensed Service.
a) Binary Compass Enterprises will develop for Licensee the Licensed
Service utilizing the BizRate Service modified by the addition of
special icons, images, text, banners or other mutually agreed-upon
content incorporating the logo and branding of Licensee. The
Licensed Service will provide a "look and feel" acceptable to
Licensee similar to that provided by the pages of the Licensee
Service by utilizing a Licensee-provided template. The Binary
Compass Enterprises logo and copyright information will be included
at the bottom of each page.
b) Subject to the terms and conditions of this Agreement, Binary
Compass Enterprises hereby grants to Licensee the right to link to
the Licensed Service so as to provide users of Licensee's Service
access to the Licensed Service. To the extent such access is deemed
to be a reproduction, transmission or distribution, Licensee is
further granted a worldwide, royalty-free license to use,
reproduce, transmit, distribute and publicly display the Licensed
Service so as to make the Licensed Service available to users of the
Licensee Service via the Web. This license expires immediately upon
termination or expiration of this Agreement.
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c) Subject to the terms and conditions of this Agreement, Binary
Compass Enterprises hereby grants Licensee the right to reproduce
and display all logos, trademarks, trade names and similar
identifying material relating to the BizRate Service (the Binary
Compass Enterprises Marks) in connection with the promotion,
marketing and distribution of the Licensed Service.
d) Binary Compass Enterprises will be responsible for serving the
Licensed Service, system operation software, operating the system,
hardware costs, network costs. Licensee will be solely responsible
for serving the "frame" within which the BizRate Service will be
displayed.
e) With written consent of Binary Compass Enterprises on a case-by-case
basis, not to be unreasonably withheld, Licensee shall be permitted
to sub-license its rights under Sections 2(a) and 2(b) above to its
licensees, provided that the service provided by the licensee will
be branded by the licensee displaying the appropriate Binary Compass
Enterprises Marks and Binary Compass Enterprises copyrights. The
allocation between Binary Compass Enterprises and Licensee of
revenues derived by Licensee from advertisements within the Licensed
Service that are accessed from user's of the licensee's service will
be agreed upon by Licensee and Binary Compass Enterprises, and shall
be set forth in the written consent form for each sub-licensee.
f) Binary Compass Enterprises will use commercially reasonable efforts
to provide acceptable uptime and response times for the Licensed
Service. Binary Compass Enterprises will use commercially reasonable
efforts to ensure information available through the Licensed Service
is accurate.
g) With the exception of any copyrights, service names, service marks,
trademarks, trade names, or the like of Licensee incorporated into
the Licensed Service, Binary Compass Enterprises shall own all
right, title and interest in and to the Licensed Service and all
Intellectual Property Rights thereto. As used herein, the term
"Intellectual Property Rights" shall mean and include all intangible
intellectual, proprietary and industrial property rights, and all
tangible embodiments thereof wherever located, including but not
limited to the following: (i) all trademarks, trade names, service
marks, services names or logos, including all registrations and
applications therefor; (ii) all copyrights, moral rights, and other
rights in works or authorship, including all registrations and
applications therefor; (iii) all patents and patent applications,
patentable ideas, inventions and innovations; (iv) all know-how and
trade secrets; (v) all design and code documentation, methodologies,
processes, design information, formulae, engineering specifications,
technical data, testing procedures, drawings and techniques and
other proprietary information and material of any kind; (vi) all
software programs in source code, object code and executable format,
including testing software and software tools; (vii) all
documentation, records, databases (including current and historical
databases), designs, codes, algorithms, research records, test
information, market surveys, and marketing know-how; and (viii) any
and all translations of any of the foregoing.
3. Set-up Fees and Advertising Revenue Split
a) Binary Compass Enterprises will receive two thousand five-hundred
($2,500) for setting up the Licensed Service and two thousand
five-hundred ($2,500) per year maintenance fee for every year this
agreement is in place. The payments for the first year are due in
full before the commencement of service. For each subsequent year,
the maintenance fee is due in full prior to renewal of the contract.
b) Binary Compass Enterprises will split all Net Advertising Revenues
from Licensed Service pages 50% to Licensee and 50% to Binary
Compass Enterprises.
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c) Binary Compass Enterprises' designated sales agent shall be
responsible for coordinating the sale of available advertising space
within the Licensed Service. Binary Compass Enterprises or its
designated sales agent shall provide Licensee with the average
monthly CPM paid for advertising within the Licensed Service.
d) Licensee's share of the advertising revenue described in Section a)
shall be calculated by multiplying the average monthly CPM by the
number of impressions served on the Licensed Service, dividing by
1000 and multiplying by Licensee's share as described in Section b).
This amount will be reported in writing each month, and shall be
payable within thirty (30) days after the end of the month in which
the advertisements were served.
e) BCE shall permit Licensee to audit its records with respect to such
revenue (at Licensee's expense, upon at least ten business days
written notice, during normal business hours and no more than once
annually) upon Licensee's reasonable request in order to ensure BCE
compliance with Section 3. BCE will pay all costs of such audit in
the event that there is a discrepancy of 10% or more.
4. Marketing
a) If Licensee, in its discretion, elects to create and use marketing
materials which mention the Licensed Service and/or the Binary
Compass Enterprises Marks (other than any marketing materials in
which the Binary Compass Enterprises Marks appear in whole or in
part in a list of content providers in connection with a Licensee
Service), Licensee shall provide Binary Compass Enterprises with
such materials for Binary Compass Enterprises' review and approval
prior to their initial publication or distribution. Once such
materials have been approved by Binary Compass Enterprises for
review, Licensee shall have the right to create, publish and
distribute, without additional consultation, marketing materials
which mention Binary Compass Enterprises, the Licensed Service
land/or the Binary Compass Enterprises Marks in a substantially
similar manner. Materials shall be reviewed by Binary Compass
Enterprises within five (5) business days and if not rejected in
such period shall be deemed approved.
5. Delivery of Licensed Service; Technical Assistance and Support
a) Binary Compass Enterprises will make the Licensed Service available
to Licensee within a mutually agreed upon period of time after the
date of this agreement.
b) Binary Compass Enterprises will keep the Licensed Service content
and technology as current as the BizRate Service. However, at BCE's
sole discretion, certain future enhancements to the BizRate Services
may not be deemed appropriate for inclusion in the Licensed Service
and will not be included.
c) Throughout the term of this Agreement, Binary Compass Enterprises
will provide ongoing reasonable assistance to Licensee with regard
to technical and service-oriented issues relating to the utilization
and/or maintenance of the Licensed Service.
6. Term of Agreement
The term of this Agreement shall commence on the date the Licensed Service
is available to Licensee and will continue for one (1) year with
successive automatic one year renewals, unless terminated earlier as
provided in Section 11 herein. Either party may cancel this agreement
with written notice 60 days prior to the start of any new term.
7. Representations and Warranties of Binary Compass Enterprises
<PAGE> 4
In order to induce Licensee to enter into this Agreement, Binary Compass
Enterprises hereby warrants and represents as follows:
a) Status. Binary Compass Enterprises is a corporation in good standing
under the laws of the state of California, and has the full right,
power and authority to enter into this Agreement and to grant the
rights herein granted.
b) No Conflicting Obligations. The performance by Binary Compass
Enterprises pursuant to this Agreement and/or the rights herein
granted to Licensee will not conflict with or result in a breach or
violation of any of the terms or provisions, or constitute a default
under any organizational instruments of Binary Compass Enterprises
or any agreement to which Binary Compass Enterprises is a party or
to which it is bound.
c) Right to License. Binary Compass Enterprises possesses the full
right and authority to license the Binary Compass Enterprises
Service and the Binary Compass Enterprises Marks. Binary Compass
Enterprises is the sole owner and/or has the right to license, and
shall continue to own and/or have the right to license, throughout
the term of the Agreement, all right, title and interest, including
without limitation all rights under copyright in and to the BizRate
Service and all materials created by employees of Binary Compass
Enterprises and /or third parties, for or in connection with, the
BizRate Service and each element thereof.
d) Compliance with Laws and Regulations. Binary Compass Enterprises
shall comply with all applicable laws, statutes, ordinances, rules
and regulations of each country, state, city or other political
entity.
e) Clearances. Binary Compass Enterprises shall clear all rights in the
Licensed Service and all elements thereof for use as provided
herein. All fees of any nature, including, without limitation,
residuals, royalties, reuse, health and welfare payments, and
similar or dissimilar fees due to third parties for rights necessary
to exploit the BizRate Service, as provided herein, shall be the
sole responsibility of Binary Compass Enterprises.
f) No Infringement. Binary Compass Enterprises has the right to enter
into this Agreement and to grant to Licensee the license provided
herein and neither the BizRate Service nor the Binary Compass
Enterprises Marks nor any other materials or any elements or parts
thereof or other material delivered or to be delivered to Licensee
hereunder, nor the use of the BizRate Service pursuant to the
provisions hereof by Licensee of any of its rights hereunder, shall
violate or infringe upon the copyright, literary, privacy,
publicity, trademark, service mark or any other personal, moral or
property right of any person, nor shall same constitute a libel or
defamation of any person whatsoever.
g) General. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND WARRANTIES,
BINARY COMPASS ENTERPRISES MAKES NO REPRESENTATIONS OR WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY OR OTHERWISE WHICH WOULD EXTEND BEYOND THE
REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN. IN ADDITION, BINARY
COMPASS ENTERPRISES MAKES NO WARRANTIES WITH RESPECT TO ANY
INFORMATION, DATA, OR CONTENT PROVIDED THROUGH THE LICENSED SERVICE.
UNDER NO CIRCUMSTANCES WILL BINARY COMPASS ENTERPRISES BE LIABLE FOR
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES, LOSS OF PROFITS, LOSS OF GOODWILL, DEFAMATION OR LOSS OF
DATA TO LICENSEE OR ANY THIRD
<PAGE> 5
PARTY ARISING FROM THE USE OF THE LICENSED SERVICE, AND LICENSEE
HEREBY WAIVES ALL RIGHTS AND CLAIMS TO SUCH DAMAGES. THIS LIMITATION
SHALL APPLY EVEN IF BINARY COMPASS ENTERPRISES IS APPRISED OF SUCH
DAMAGES. BINARY COMPASS ENTERPRISES DOES NOT ENDORSE AND IS NOT
RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE
OR STATEMENT MADE BY ANY PERSON WHO USES THE LICENSED SERVICE, AND
EXPRESSLY MAKES NO WARRANTY THAT THE LICENSED SERVICE WILL BE
UNINTERRUPTED OR WITHOUT ERRORS.
8. Representations and Warranties of the Licensee
In order to induce Binary Compass Enterprises to enter into this
Agreement, Licensee represents and warrants that:
a) Corporate Status. Licensee is a corporation in good standing under
the laws of the State of California, and has the full right, power
and authority to enter into this Agreement and to grant the rights
herein granted.
b) No Conflicting Obligations. The performance by Licensee pursuant to
this Agreement and/or the rights herein granted to Binary Compass
Enterprises will not result In a breach or violation of any of the
terms or provisions, or constitute a default under any
organizational instruments of Licensee or any agreement to which
Licensee is a party or to which it is bound.
c) Compliance with Laws and Regulations. Licensee shall comply with all
applicable laws, statutes, ordinances, rules and regulations of each
country, state, city or other political entity.
d) Clearances. Licensee shall clear all rights in the Licensee Service
and all elements thereof for use as provided herein. All fees of any
nature, including, without limitation, residuals, royalties, reuse,
health and welfare payments, and similar or dissimilar fees due to
third parties for rights necessary to exploit the Licensee Service,
as provided herein, shall be the sole responsibility of Licensee.
e) No Infringement. Licensee has the right to enter into this
Agreement. Neither the Licensee Service nor any other materials or
any elements or parts thereof shall violate or infringe upon the
copyright, literary, privacy, publicity, trademark, service mark or
any other personal, moral or property right of any person, nor shall
same constitute a libel or defamation of any person whatsoever.
General. EXCEPT FOR THE FOREGOING REPRESENTATIONS AND WARRANTIES, LICENSEE
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR
OTHERWISE WHICH WOULD EXTEND BEYOND THE REPRESENTATIONS AND WARRANTIES
CONTAINED HEREIN. IN ADDITION, LICENSEE MAKES NO WARRANTIES WITH RESPECT
TO ANY INFORMATION, DATA, OR CONTENT PROVIDED THROUGH THE LICENSEE
SERVICE. UNDER NO CIRCUMSTANCES WILL LICENSEE BE LIABLE FOR DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS, LOSS OF GOODWILL, DEFAMATION OR LOSS OF DATA TO BINARY COMPASS
ENTERPRISES OR ANY THIRD PARTY ARISING FROM THE USE OF THE LICENSEE
SERVICE, AND BINARY COMPASS ENTERPRISES HEREBY WAIVES ALL RIGHTS AND
CLAIMS TO SUCH DAMAGES. THIS LIMITATION SHALL APPLY EVEN IF LICENSEE IS
APPRISED OF SUCH DAMAGES. LICENSEE DOES NOT ENDORSE AND IS NOT RESPONSIBLE
FOR THE ACCURACY OR RELIABILITY
<PAGE> 6
OF ANY OPINION, ADVICE OR STATEMENT MADE BY ANY PERSON WHO USES THE
LICENSEE SERVICE, AND EXPRESSLY MAKES NO WARRANTY THAT THE LICENSEE
SERVICE WILL BE UNINTERRUPTED OR WITHOUT ERRORS.
9. Indemnification; Insurance
a) Binary Compass Enterprises Indemnity. Binary Compass Enterprises
will at all times indemnify and hold harmless Licensee and its
officers, directors, shareholders, successors and assigns from and
against any and all third party claims, damages, liabilities, costs
and expenses, including reasonable legal fees and expenses, arising
out of or relating to any breach of any warranty, representation,
covenant or agreement made by Binary Compass Enterprises in this
Agreement or any violation or infringement of any copyright,
literary, privacy, publicity, trademark, service mark or any other
personal or property right of any person. Licensee shall give Binary
Compass Enterprises prompt written notice of any claim, action or
demand for which indemnity is claimed. Binary Compass Enterprises
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.
Licensee shall have the right to participate in any defense of a
claim by Binary Compass Enterprises with counsel of Licensee choice
at its own expense. The foregoing indemnity is conditioned upon:
prompt written notice by Licensee to Binary Compass Enterprises of
any claim, action or demand for which indemnity is claimed; complete
control of the defense and settlement thereof by Binary Compass
Enterprises; and such reasonable cooperation by Licensee in the
defense as Binary Compass Enterprises may request.
b) Licensee Indemnity. Licensee will at all times defend, indemnify and
hold harmless Binary Compass Enterprises and its officers,
directors, shareholders, successors and assigns from and against any
and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out
of or relating to any breach of any warranty, representation,
covenant or agreement made by Licensee in this Agreement or any
violation or infringement of any copyright, literary, privacy,
publicity, trademark, service mark or any other personal or property
right of any person. Binary Compass Enterprises shall give Licensee
prompt written notice of any claim, action or demand for which
indemnity is claimed. Licensee 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. Binary Compass Enterprises shall have
the right to participate in any defense of a claim by Licensee with
counsel of Binary Compass Enterprises' choice at its own expense.
The foregoing indemnity is conditioned upon: prompt written notice
by Binary Compass Enterprises to Licensee of any claim, action or
demand for which indemnity is claimed; complete control of the
defense and settlement thereof by Licensee; and such reasonable
cooperation by Binary Compass Enterprises in the defense as Licensee
may request.
10. Confidentiality; Press Releases
a) Non-Disclosure Agreement. The parties agree and acknowledge that, as
a result of negotiating, entering into and performing this
Agreement, each party has and will have access to certain of the
other party's Confidential Information (as defined below). Each
party also understands and agrees that misuse and/or disclosure of
that information could adversely affect the other party's business.
Accordingly, the parties agree that, during the term of this
Agreement and thereafter, each party shall use and reproduce the
other party's Confidential Information only for purposes of this
Agreement and only to the extent necessary for such purpose and
shall restrict disclosure of the other party's Confidential
Information to its employees, consultants or independent contractors
with a need to know and shall not disclose the other party's
Confidential information to any third party without the prior
written approval of the other party. Notwithstanding the foregoing,
it shall not be a breach of this
<PAGE> 7
Agreement for either party to disclose Confidential Information of
the other party if required to do so under law or in a judicial or
other governmental investigation or proceeding, provided the other
party has been given prior notice and the disclosing party has
sought all available safeguards against widespread dissemination
prior to such disclosure.
b) Confidential Information Defined. As used in this Agreement, the
term Confidential Information refers to information identified as
confidential at the time of disclosure, including: (i) the terms
and conditions of this Agreement; (ii) each party's trade secrets,
business plans, strategies, methods and/or practices; and (iii)
other information relating to either party that is not generally
known to the public, including information about either party's
personnel, products, customers, marketing strategies, services or
future business plans. Notwithstanding the foregoing, the term
Confidential Information specifically excludes (1) 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
receiving party; (ii) information that is known to the receiving
party without restriction, prior to receipt from the disclosing
party under this Agreement, from its own independent sources as
evidenced by the receiving party's written records, and which was
not acquired, directly or indirectly, from the disclosing party;
(iii) information that the receiving party receives from any third
party having a legal right to transmit such information, and not
under any obligation to keep such information confidential; and (iv)
information independently developed by the receiving party's
employees or agents provided that the receiving party can show that
those same employees or agents had no access to the Confidential
Information received hereunder.
c) Press Releases. Licensee and Binary Compass Enterprises shall
jointly prepare press releases concerning the existence of this
Agreement and the terms hereof. Otherwise, no public statements
concerning the existence or terms of this Agreement shall be made or
released to any medium except with the prior approval of Licensee
and Binary Compass Enterprises or as required by law.
11. Termination
a) This Agreement may be terminated as follows immediately by either
party if the other party shall (i) admit in writing an inability to
pay its debts as they come due or fail to pay its debts as they
become due, or (ii) commence a case under any chapter of Title 11
of the United States Code (Bankruptcy Code); or (iii) have
commenced against it an involuntary case under the Bankruptcy Code,
which case is not dismissed within thirty (30) days from the date of
commencement; or (iv) consent to or suffer the appointment of a
custodian, receiver, or trustee for all or a major part of its
property; or (v) make an assignment for the benefit of its creditors
or consent to the entry of a court order under any law ordering the
winding up or liquidation of its affairs, or suffer the entry of
such an order (such termination shall not relieve the party in
proceedings from liability for the performance of its obligations
arising prior to such termination and shall be in addition to all
other rights and remedies the terminating party may have available
to it under this Agreement or at law or in equity);
b) by either party upon five (5) days written notice in the event of
material breach of this Agreement by the other party unless such
breach shall have been cured within such five (5) days; or
c) by either party, for any reason or no reason, upon thirty (30) days
written notice.
d) If this contract is terminated for any reason, then Licensee shall
be entitled to a pro rata refund of any payment made pursuant to
Section 3(a). In the event of any
<PAGE> 8
termination prior to the first anniversary of this agreement,
Licensee shall be entitled to a pro rata refund of both the set-up
fee and the annual maintenance fee.
12. Relationship of Parties
Binary Compass Enterprises and Licensee are independent contractors
under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture or agency relationship between
Binary Compass Enterprises and Licensee. Neither party has authority
to enter into agreements of any kind on behalf of the other.
13. Assignment, Binding Effect
Neither Licensee nor Binary Compass Enterprises 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;
provided that Licensee shall have the right to assign its rights and
obligations hereunder to any subsidiary or affiliate or to any
entity acquiring Licensee business other than to an Binary Compass
Enterprises competitor upon notice to Binary Compass Enterprises.
Any purported assignment or delegation without such required consent
shall be null and void.
14. Choice of Law
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 State
of California applicable to contracts entered into and wholly to be
performed within said state.
15. Counterparts
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.
16. Section Headings
Section headings are for convenience only and are not a part of this
Agreement.
17. Entire Agreement
This Agreement contains the entire understanding of the parties
hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements between Licensee and
Binary Compass Enterprises 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.
18. 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 THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT
(INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF
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THE AMOUNT RECEIVED BY THAT PARTY UNDER THIS AGREEMENT, PROVIDED
THAT THIS SECTION DOES NOT LIMIT EITHER PARTY'S LIABILITY TO THE
OTHER FOR (A) WILLFUL AND MALICIOUS MISCONDUCT; (B) DIRECT DAMAGES
TO REAL OR TANGIBLE PERSONAL PROPERTY; (C) BODILY INJURY OR DEATH
CAUSED BY NEGLIGENCE; OR (D) INDEMNIFICATION OBLIGATIONS HEREUNDER.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
BINARY COMPASS ENTERPRISES, INC. INTERNET ACCESS FINANCIAL CORP.
By: /s/ [SIG] By: /s/ DANIEL SPRINGER
--------------------------- ---------------------------------
Name: ????? Name: Daniel Springer
Title: President & CEO Title: Chief Marketing Officer
Date: 8/3/98 Date: 7/30/98
<PAGE> 10
EXHIBIT A
Binary Compass Enterprises has developed a Web-based interface to help on-line
shoppers find independent ratings and information about Web-based retailers,
based on a proprietary point-of-purchase surveying technology. The Service also
includes "BizRate rated" sites, which are independently rated by Binary Compass
Enterprises. Called the BizRate Guide, this service is accessible through the
URL www.bizrate.com. If the BizRate Guide is extended to include non-web-based
retailers or services, the Licensed Service will be extended to incorporate
those entries as well. Access to this service is provided free of charge to
users.
<PAGE> 11
EXHIBIT B
Licensee is the owner or licensee of certain Web services, including, without
limitation, a catalog on the Internet listing shopping sites. The Licensee
Service is accessible through the URL www.NextCard.com.