CNET CO-BRANDED SITE AGREEMENT
CNET, Inc. ("CNET") operates Internet sites through which users will be able
to access technology job information and related tools provided by
Techies.com ("Content Provider"). Content Provider operates a technology job
web site at http://www.techies.com (the "Content Provider Site"). Content
Provider desires to be listed on the CNET Sites, including the CNET Tech Jobs
site at http://jobs.cnet.com and any other site launched by CNET that is
primarily devoted to information technology (collectively, the "CNET Sites"),
on the terms and subject to the conditions set forth in this Agreement.
Accordingly, CNET and Content Provider hereby agree as follows:
1. CO-BRANDED SITE.
1.1 DEVELOPMENT. Within a reasonable time after the execution of this
Agreement, the parties will use commercially reasonable efforts to
create and develop a co-branded version of the Content Provider
Site (the "Co-Branded Site") with the intention of making such
site available to CNET's general user base on January 1, 2000 (the
"Launch Date"). The parties will cooperate in good faith to
determine a mutually agreed upon beta and testing period that will
occur prior to the Launch Date. The Co-Branded Site will include
a career development center with the following functions and
features: job listings search, career management resource content
authored by the Content Provider, registration to the Content
Provider's services through the Co-Branded Site, and ability to
browse profiles of Content Provider's clients. The Co-Branded Site
will also include a "Post your Jobs" feature, a "Company of the
Day or Week" function, and a "Job of the Day or Week" function,
the latter two features which shall be reasonably determined by
Content Provider and selected from Content Provider's client base.
Without limiting the foregoing, unless otherwise determined by
CNET, the Co-Branded Site will provide all of the information,
content, features and functionality, and will perform in a manner
substantially similar to the Content Provider Site, as the Content
Provider Site may be updated and enhanced from time to time.
Unless otherwise agreed by the parties, CNET will not include any
reasonably deemed competitive job or career-related functionality
within the Co-Branded Site. Each party will designate a contact
to whom questions about the production of the Co-Branded Site
shall be directed.
1.2 HOSTING. Unless otherwise mutually agreed by the parties, the
Content Provider will host the Co-Branded Site on its servers (or
on servers within its control) and will provide all computer
hardware, software and personnel necessary to operate and maintain
such Co-Branded Site as functional pages accessible to users of
the World Wide Web. Notwithstanding that the Co-Branded Site is
hosted by the Content Provider, the Content Provider agrees to use
commercially reasonable efforts to ensure that that each page on
the Co-Branded Site will be IP masked so that the URL displayed in
a Co-Branded User's browser ends in CNET.com. The parties agree
that CNET will receive credit for all page views for Media Metrix
and other reporting purposes. In the event that CNET reasonably
determines that Content Provider is technologically unable to
include a CNET.com URL on the registration page, CNET agrees that
such registration page only may appear under the Techies.com URL,
provided that (a) the look and feel of such registration page is
substantially similar to the look and feel of the Co-Branded Site,
and (b) no advertising or other promotions appear on the
registration page. The parties will work together in good faith
to determine the most efficient and effective method to provide
the Co-Branded Site to users, and may move some Co-Branded pages
to CNET's servers as mutually agreed upon.
1.3 DESIGN; LOOK AND FEEL. CNET will design the user interface and
all aspects of the look and feel of the Co-Branded Site in
consultation with the Content Provider. The design, text and
graphics of the Co-Branded Site created by CNET will be provided
to Content Provider at least 30 days prior to the Launch Date.
Each page on the Co-Branded Site will include primary branding for
CNET and may include hyperlinks to CNET or to third parties, as
determined at CNET's discretion subject to the terms of Section
2.7 below. Content Provider will receive branding on the
Co-Branded Site in the form of (a) a logo of equal size to the
CNET logo which appears above the fold on the Co-Branded Site,
and (b) a text statement indicating that the Co-Branded Site is
"Powered by techies.com" directly adjacent to the CNET logo.
1.4 TECHNICAL STANDARDS. The Co-Branded Site will comply with the
functional, technical and editorial specifications and standards
set forth in EXHIBIT A.
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1.5 ADVERTISING. CNET or its third party designee will be solely
responsible for creating and pricing advertising units, as well
as selling and serving all advertising on the Co-Branded Site.
Content Provider will use commercially reasonable efforts to
ensure that the hardware and software associated with the
Co-Branded Site are compatible with the ad serving software of
CNET or its third-party ad server existing as of the Effective
Date of this Agreement.
1.6 DATA COLLECTION.
1.6.1 CO-BRANDED USERS. Members of the Content Provider's service
registering from the Co-Branded Site will be directed back
to the Co-Branded Site for services and information offered
by the Content Provider, including to browse company
profiles in response to a JobNote (as defined in Section
2.6).
1.6.2 DELIVERY BY CONTENT PROVIDER TO CNET. Content Provider
will own all user registration data generated through the
Co-branded Site. Content Provider will supply CNET with
the Co-Branded Site user registration data in both summary
and detailed form, for usage as defined in Section 1.6.3
below. This data will be shared in real time if
commercially and technologically feasible, so that, for
example, CNET could customize its site content and
advertising for that user. If real time data sharing is
not available, the data shall be provided to CNET no less
frequently than bi-weekly. Content Provider shall provide
CNET with all information it collects on the Co-Branded
Site including, without limitation, data regarding visits,
number of searches, page views and unique users.
1.6.3 PERMITTED USE. During the Term and after termination of
this Agreement, CNET will not use the registration data to
target advertising or promotions to registered users for a
service that is competitive with the products or services
provided by the Content Provider at the date of the
execution of this Agreement (e.g., career and recruiting
services). During the Term and after termination of this
Agreement, Content Provider may use the registration data
to deliver a reasonable amount of information regarding
Content Provider's services, provided that (a) such
information will not be specifically targeted at users that
registered through the Co-Branded Site, (b) such
information will not refer to CNET or any CNET property
without CNET's prior written consent, and (c) such
registration data may be provided to third parties only if
(i) the user has affirmatively "opted-in" to allow such
data to be disclosed, and (ii) such third party is not a
CNET competitor, defined as a company whose primary
business involves Internet-based news, information,
reviews, e-commerce solutions, auctions, price comparisons
or software downloads. All use of Content Provider's
proprietary data will be consistent with Content Provider's
and CNET's reasonable privacy policies. This clause will
survive the termination of the Agreement. Except for the
restrictions placed on use of the registration data
provided above, nothing herein shall restrict a party from
offering products or services in competition with the
other.
1.6.4 DELIVERY BY CNET TO CONTENT PROVIDER. CNET shall provide
Content Provider with any information it collects on the
Co-Branded Site, such as page views, unique users, and
clickthroughs to the registration tool. Such data may be
shared in the aggregate by Content Provider solely for
marketing purposes, provided that the accuracy and
representation of such data in marketing materials is
approved in advance by CNET and that such data is not
provided to any CNET competitor.
1.7 MESSAGES. All hyperlinks and URLs included within any messages
sent to users of the Co-Branded Site, including but not limited to
JobNotes, shall link to the appropriate page on the Co-Branded
Site; provided, however, that if pursuant to Section 1.1 CNET has
elected to not include certain content of the Content Provider
Site and such content is referenced in the message, then any
hyperlinks directly related to that content may link to the
appropriate page of the Content Provider Site.
2. PROMOTIONS ON THE CNET SITES.
2.1 PROMOTIONS. Content Provider agrees to purchase [****] on the
CNET Sites and CNET TV ("Promotions") totaling at least [****]
during the
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Term ("Minimum Media Buy Amount"). Unless otherwise mutually
agreed, Content Provider will pay for the Promotions at the rate
of [****]. Such Promotions will be designed to promote the CNET
Tech Jobs channel and will include the phrase "Powered by
Techies.com" wherever appropriate or mutually agreed.
2.2 DELIVERY AND DESIGN. The Promotions will be delivered
substantially in accordance with the Media Plan set forth on
EXHIBIT B, as may be changed from time to time by mutual agreement
of the parties. Notwithstanding the foregoing, within 30 days
following the execution of this Agreement, CNET and Content
Provider will work together in good faith to determine what
changes, if any, should be made to EXHIBIT B with respect to the
Promotions, and shall amend EXHIBIT B to reflect all mutually
agreed upon changes. For any changes to the EXHIBIT B, CNET and
Content Provider will work together in good faith to determine the
timing, type, content, number and placement of such changed
Promotions on the CNET Sites. CNET will design any graphics and
other materials required for the Promotions, in reasonable
consultation with the Content Provider. Unless otherwise agreed
by the parties, all Promotions will be linked to the Co-Branded
Site.
2.3 CNET PROMOTION REPORT. Within thirty (30) days following the end
of each month during the Term, CNET will provide a report to
Content Provider describing the number of Promotions delivered
during the previous month ("CNET Promotion Report") and in
addition will provide access to tracking and reporting information
in the manner generally available to other advertisers on the CNET
Sites.
2.4 LINKS AND SITE INTEGRATION. CNET will place links to the
Co-Branded Site in relevant areas within the CNET Sites, as
defined in Exhibit C. Additional links may be placed within the
CNET Sites at CNET's sole discretion. Without limiting the
foregoing, CNET will place a link to the Co-Branded Site off the
front door of CNET.com and in the navigation bar appearing at the
top of each page on the CNET Sites; provided that CNET may change
the look and feel, design, functionality and features of the CNET
Sites at CNET's sole discretion. If any change to the CNET Sites
requires that CNET remove links to the Co-Branded Site, CNET will
use good faith efforts to provide such links in a substitute
location; provided that CNET will use commercially reasonable
efforts to ensure that a link to the Co-Branded Site remain on
the front door of CNET.com, and will provide a link of
substantially similar prominence if such front door link is
removed.
2.5 DISPATCH AND CNET REGISTRATION. During the Term, CNET will use
commercially reasonable efforts to include an announcement
regarding the availability of the CNET Tech Jobs site in one CNET
Dispatch at no charge to Content Provider. CNET will draft such
announcement, subject to the reasonable approval of Content
Provider, which will not be unreasonably withheld or delayed. In
addition, CNET will include a link to the Co-Branded Site within
each career-oriented newsletter, if any, that may be created by
CNET after the Effective Date. Further, if CNET develops a
universal CNET registration page on which a user can register for
all services on the CNET Sites, CNET may include the Co-Branded
Site within such registration page, at CNET's option; provided
that CNET will use commercially reasonable efforts to include an
"opt-in" box on such registration page though which users may
request registration information related to the Co-Branded Site.
2.6 JOBNOTES. For the purposes of this Agreement, "JobNote" means an
email dispatch from Content Provider, known as a JobNote (or its
successor), that describes a job listed on the Content Provider
Site. At CNET's discretion, CNET may include a link to a JobNotes
sign-up page on the CNET Dispatch registration page. The JobNotes
sign-up page will initiate the registration process, and will
include reference to the Content Provider. In all JobNotes
delivered to members of the Co-Branded Site, Content Provider will
include mutually agreed-upon co-branding in the "Subject" field
and heading of the email, which will include, at a minimum, the
CNET name before the name of Content Provider. Further, such
JobNote will point the user to the Co-Branded Site to review the
profile of the respective Content Provider's client, and will not
contain advertising unless mutually agreed by the parties.
2.7 EXCLUSIVITY.
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2.7.1 During the Term, CNET will not include any third-party
content within the CNET Sites from any company that is in
the primary business of career placement or recruiting in
the information technology industry.
2.7.2 CNET will not include advertising or promotions on
the Co-Branded Site from any company listed on EXHIBIT D,
as may be changed not more than semi-annually by mutual
agreement of the parties. Notwithstanding the foregoing,
if any company with which CNET has an existing contractual
relationship is added to EXHIBIT D, then CNET may fulfill
its existing contract with such company, provided that such
contract may not be extended or renewed by CNET.
2.7.3 Content Provider acknowledges that CNET currently operates
co-branded sites that offer job listings, including the
co-branded CNET/iNiku site accessible from various
locations on the CNET Sites. Content Provider acknowledges
and agrees that CNET may continue to offer and promote
such co-branded sites and create new co-branded sites that
are not directly competitive with the Content Provider as
described in Section 2.7.1; provided, however, that CNET
will not endorse any third-party job area (including iNiku)
as the official provider of job and career information on
the CNET Sites.
2.7.4 Notwithstanding any other provision of this Agreement,
Content Provider acknowledges that CNET produces co-branded
editions of CNET Sites for various resellers, distributors
and other licensees (collectively the "Distributors"). In
some cases, such Distributors are entitled to replace
CNET's default content with other content within their own
co-branded editions of the CNET Site. Notwithstanding the
other provisions of this Agreement, if any such Distributor
has exercised its right to replace Content Provider's
content with other content, then CNET will not be required
to display Content Provider's content within such
Distributor's co-branded edition of the CNET Site, and the
exclusivity described herein shall not apply to such
Distributor's co-branded edition. CNET agrees that it will
not create any co-branded edition of a CNET Site for any
company that is in the primary business of career placement
or recruiting in the information technology industry,
provided that the foregoing will not restrict CNET from
licensing CNET content to such companies. Further, CNET
acknowledges that unless otherwise agreed by CNET and
Content Provider, Content Provider will not be under any
obligation to create a separate multi-branded site for CNET
and any Distributor.
2.7.5 CNET is creating several international editions of the CNET
Sites to reflect appropriate localized and local partner
content ("International Editions"). The parties
acknowledge that the terms of this Agreement do not extend
to such International Editions. If CNET desires to add
information technology career and recruiting content to
future International Editions created for CNET, CNET will
negotiate in good faith with Content Provider regarding the
terms and conditions on which Content Provider's content
may be included on such International Edition, provided
that the foregoing will not obligate either party to enter
into an agreement related to such International Editions.
3. PROMOTIONS ON THE CONTENT PROVIDER SITE.
3.1 CONTENT PROVIDER PROMOTIONS. CNET agrees to purchase [****] on
the Content Provider Site ("Content Provider Promotions") totaling
at least [****]. Content Provider agrees that CNET will receive a
promotional presence as mutually agreed by the parties.
3.2 DELIVERY AND DESIGN. The Content Provider Promotions will be
delivered as mutually agreed by the parties. Content Provider will
work in good faith to accommodate CNET's requests with respect to
the Content Provider Promotions, and Content Provider and CNET
will work together to determine the timing, type, content, number
and placement of all Content Provider Promotions on the Content
Provider Site. CNET will design any graphics and other materials
required for the Promotions. All Content Promotions will be
linked to a CNET Site as directed by CNET.
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3.3 CONTENT PROVIDER PROMOTION REPORT. Within thirty (30) days
following the end of each month during the Term, Content Provider
will provide a report to CNET describing the number of Content
Provider Promotions delivered during the previous month.
4. LICENSE.
4.1 LICENSE BY CNET. CNET hereby grants to Content Provider a
non-exclusive, worldwide, royalty-free license, effective
throughout the Term, to use, publish, publicly perform, publicly
display, and digitally perform the CNET trademarks, service
marks, logos and brands on the Co-Branded Site and within the
Content Provider Promotions, to the extent necessary to fulfill
its obligations hereunder.
4.2 LICENSE BY CONTENT PROVIDER. Content Provider hereby grants CNET a
non-exclusive, worldwide, royalty-free license, effective
throughout the Term, to use, publish, publicly perform, publicly
display, digitally perform the Content Provider's trademarks,
service marks, logos and brands needed solely for the Promotions
undertaken by CNET for Content Provider and for the Co-Branded
Site.
4.3 OWNERSHIP. Each party acknowledges and agrees that it does not
have any claim, right, title or interest in or to the other
party's content or trademarks, except as explicitly provided
herein. Further, each party acknowledges and agrees that it shall
use the other party's content and trademarks solely as expressly
permitted under this Agreement and in a manner consistent with the
terms and conditions of this Agreement. Nothing contained in this
Agreement will give either party any right, title or interest in
or to any trademarks, trade names, logos or other intellectual
property of the other party, except for the limited rights
expressly granted hereunder. Each party acknowledges and agrees
that the other party has complete authority to control the use of
its content and trademarks.
5. PAYMENTS.
5.1 [****]. Content Provider will pay to CNET [****] totaling [****].
Beginning on the Launch Date, such payments will be made in equal
quarterly installments, in advance, at the beginning of each
quarter during the respective year during the Term.
5.2 PROMOTIONAL FEE. Content Provider will pay CNET [****] for the
Promotions described in Section 2.1, with payment terms defined in
the "Terms and Conditions" attached hereto. The remaining [****]
in Promotions will be paid for in barter as provided in Section
5.4 below and the "Terms and Conditions."
5.3 ADVERTISING REVENUE SPLIT. CNET and Content Provider will share
all Net Advertising Revenue (as defined below) from the Co-Branded
Site at the rate of [****] each. For purposes of this Section,
"Net Advertising Revenue" means revenue derived from advertising
on the Co-Branded Site minus reasonable ad serving costs. For
purposes of determining amounts due to Content Provider, Net
Advertising Revenue shall not be less that [****] of revenue
derived from advertising within the Co-Branded Site.
5.4 CONTENT PROVIDER PROMOTIONS. The Content Provider Promotions
described in Section 3 will be delivered as payment for the [****]
of Promotions delivered on the CNET Sites for Content Provider, as
further described in the "Terms and Conditions."
6. TERM. The term of this Agreement (the "Term") will commence on the
signing of this Agreement and will continue for a period of two years after the
Launch Date, unless otherwise terminated as provided in the Terms and Conditions
attached hereto.
7. TERMINATION. The parties acknowledge that they are contemplating an
equity agreement in which CNET will invest in Content Provider. If such equity
agreement is not signed within five business days following the signing of this
Agreement, then either party may terminate this Agreement immediately upon
written notice to the other.
8. PUBLICITY. The parties agree to work together to issue a joint press
release concerning their relationship, the CNET Tech Jobs site, and other
mutually agreed-upon matters. Each party shall have an opportunity to review
and approve such press release prior to its publication. Neither party shall
issue any other press release
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concerning the business relationship set forth herein without the prior
written consent of the other party; provided, however, that the foregoing
will not restrict either party from making press releases about their
respective products and services which do not include a reference to the
other.
9. TERMS AND CONDITIONS. All other terms and conditions governing this
Agreement are attached hereto and are incorporated herein by this reference.
If there is any apparent conflict or inconsistency between this Co-Branded
Site Agreement and the attached Terms and Conditions, this Co-Branded Site
Agreement shall control unless the parties expressly agrees otherwise in
writing.
AGREED AND ACCEPTED the 9th day of November 1999.
CONTENT PROVIDER CNET
BY: /s/ Peter Brasket BY: /s/ Doug Woodrum
-------------------------------------- --------------------------
TITLE: Vice President, Business Develop. TITLE: CFO
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TERMS AND CONDITIONS
This document sets forth additional Terms and Conditions under which CNET
will provide Promotions and Content Provider Links to the Content Provider in
fulfillment of the attached Co-Branded Site Agreement (the "Content Provider
Agreement").
1. TERMS OF PAYMENT Unless otherwise mutually agreed, Content Provider shall
purchase Promotions at the rate of [****] Date; provided, however, that
the last quarter's payments of the first year shall be replaced by [****]
in Content Provider Promotions delivered during the first year, and
one-half of the last quarter's payments of the second year shall be
replaced by [****] in Content Provider Promotions delivered during the
second year. CNET shall invoice Content Provider on a monthly basis for
the Promotions provided in the previous month. All payments will be due
30 days after receipt of the invoice and CNET Promotion Report by Content
Provider. If Content Provider fails to make any payment due hereunder,
Content Provider will be responsible for all reasonable expenses
(including attorneys' fees) incurred by CNET in collecting such amounts.
Content Provider shall be responsible for all taxes associated with the
payments required hereunder (except for taxes based on CNET's net
income). Failure by the Content Provider to make the payments required
will be deemed a material breach of this Content Provider Agreement and
CNET shall have the option to remove the Content Provider from any or all
CNET Sites and may pursue other remedies at CNET's sole discretion. If
CNET does not deliver the Promotions because of Content Provider's action
or inaction and not because of any fault of CNET (e.g., Content Provider
fails to place acceptable orders, Content Provider fails to deliver
creative materials on schedule, etc.), Content Provider agrees that it
shall pay the Minimum Media Buy Amount, as applicable, described in
Section 2.1 of the Content Provider Agreement, provided it receives the
agreed-upon number of Promotions at the time of payment.
2. PROMOTION POSITIONING, STYLE AND RATES. Except as otherwise expressly
agreed by the parties, positioning of Promotions within the CNET Sites or
on any page is at the sole discretion of CNET. Notwithstanding the
forgoing, Promotions will be placed in a prominent location above the
fold on the page they appear. These promotions shall be at least the same
size as other Promotions for similar offerings. CNET may in its sole
discretion label any advertisement as a "Promotion" for clarification.
3. LIMITATION OF LIABILITY. EXCEPT FOR PAYMENTS REQUIRED UNDER SECTION 4,
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THESE
TERMS AND CONDITIONS, THE CONTENT PROVIDER AGREEMENT, OR ANY INSERTION
ORDER IN EFFECT BETWEEN CNET AND CONTENT PROVIDER FROM TIME TO TIME,
WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT
OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS
OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES ARISING
UNDER SECTION 4 OR 13, IN NO EVENT WILL EITHER PARTY'S LIABILITY FOR
MONETARY DAMAGES UNDER THIS CONTENT PROVIDER AGREEMENT EXCEED THE AMOUNT
PAID BY CONTENT PROVIDER TO CNET FOR THE PROGRAM WHICH IS THE BASIS OF
LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY INTERNET OR
TELECOMMUNICATIONS FAILURE, COMPUTER VIRUS, THIRD PARTY INTERFERENCE OR
OTHER THIRD PARTY SOFTWARE OR HARDWARE THAT MAY INTERRUPT OR DELAY ACCESS
TO ANY INTERNET SITE OR CAUSE OTHER PROBLEMS OR LOSSES (COLLECTIVELY, A
"NETWORK FAILURE"). NEITHER PARTY WILL BE LIABLE FOR ANY DELAY OR
FAILURE TO FULFILL ITS OBLIGATIONS HEREUNDER THAT RESULTS FROM AN ACT OF
GOD, WAR, CIVIL DISTURBANCE, COURT ORDER, LEGISLATIVE OR REGULATORY
ACTION, CATASTROPHIC WEATHER CONDITION, EARTHQUAKE, FAILURE OR
FLUCTUATION IN ELECTRICAL POWER OR OTHER UTILITY SERVICES, NETWORK
FAILURE OR OTHER CAUSE BEYOND ITS REASONABLE CONTROL.
4. WARRANTY; INDEMNITY. Each party to this Content Provider Agreement
represents and warrants to the other party that (i) such party has all
necessary right, power and authority to enter into this Content Provider
Agreement and to perform the acts required of it hereunder, and (ii) the
entry into this Content Provider Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not
and will not violate any agreement of such party or by which such party
is bound. Content Provider represents and warrants to CNET that the
content provided by Content Provider on the Co-Branded Site (i) does not
knowingly infringe any intellectual property, publicity or privacy rights
of any third party, (ii) to its knowledge is not defamatory, (iii) to its
knowledge is not lewd, pornographic or obscene, (iv) to its knowledge is
in compliance with all applicable laws, and (v) does not violate any laws
regarding unfair competition, antidiscrimination or false advertising and
(vi) does not to its knowledge contain any virus, worm, "trojan horse",
time bomb or similar contaminating or destructive feature. CNET may
review Content Provider's content and, in CNET's sole discretion, may
remove any content at any time that fails to comply with the above
requirements. Content Provider agrees to indemnify and hold harmless CNET
and its affiliates, and their respective officers, agents and employees,
from and against any and all loss, liability and expense (including
reasonable attorneys' fees) suffered or incurred by reason of any claims,
proceedings or suits based on or arising out of any claim that the
Content Provider's content, data, information or service (i) infringes
any intellectual property, publicity or privacy rights of a third party,
including without limitation claims for defamation, violation of rights
of publicity and/or privacy, copyright infringement, and trademark
infringement., (ii) is defamatory, (iii) is lewd, pornographic or
obscene, (iv) is not in compliance with all applicable laws, and
(v) violates any laws regarding unfair competition, antidiscrimination or
false advertising, (vi) contains any virus, worm, "trojan horse", time
bomb or similar contaminating or destructive feature, or (vii) otherwise
breaches or allegedly breaches the foregoing representations and
warranties. CNET agrees to indemnify and hold harmless Content Provider
and its affiliates, and their respective officers, agents and employees,
from and against any and all loss, liability and expense (including
reasonable attorneys' fees) suffered or incurred by reason of any third
party claims, proceedings or suits based on or arising out of any claim
that the content created by CNET and displayed on the Co-Branded Site, or
Promotions created by CNET, (i) infringes any intellectual property,
publicity or privacy rights of a third party, including without
limitation claims for defamation, violation of rights of publicity and/or
privacy, copyright infringement, and trademark infringement., (ii) is
defamatory, (iii) is lewd, pornographic or obscene, (iv) is not in
compliance with all applicable laws, and (v) violates any laws regarding
unfair competition, antidiscrimination or false advertising, (vi)
contains any virus, worm, "trojan horse", time bomb or similar
contaminating or destructive feature, or (vii) otherwise breaches or
allegedly breaches the foregoing representations and warranties. EXCEPT
AS EXPRESSLY SET FORTH HEREIN, EACH PARTY ACKNOWLEDGES AND AGREES THAT
THE OTHER HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF
ANY KIND, EXPRESS
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OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF CONTENT
PROVIDERABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. RESPONSIBILITY FOR PRODUCTS AND SERVICES. The parties acknowledge and
agree that, as between them, each party will be solely responsible for
any claims or other losses associated with or resulting from the content
or other products and/or services provided by such party, including
without limitation any warranty, return or support obligations related to
such products and/or services. Content Provider agrees to offer its
products and services to users of the Content Provider Site on the terms
described on the Content Provider Site. Content Provider acknowledges
and agrees that CNET does not intend to, and will not be required to,
edit or review any Content Provider content. CNET is not authorized to
make, and agrees not to make, any representations or warranties
concerning the Content Provider, except to the extent (if any) contained
within the information and Content Provider content posted on the
Co-Branded Site or delivered to CNET by Content Provider. The foregoing
restriction will not limit CNET's ability to make editorial statements
regarding Content Provider.
6. ADVERTISING GUIDELINES At CNET's reasonable request, Content Provider
will be responsible for delivering to CNET various materials for the
Promotions in accordance with CNET's policies and standard advertising
specifications ("Advertising Specifications"), as may be amended from
time to time. A copy of CNET's Advertising Specifications can be obtained
upon written request to CNET.
7. REPORTS AND STATISTICS FROM CNET. CNET will provide Content Provider
with various reports and statistics in a format reasonably determined by
CNET, including without limitation the CNET Promotion Report. Content
Provider shall treat all such reports and the terms of this Agreement as
Confidential Information hereunder and may not distribute or disclose
such reports, statistics or terms to any third party without CNET's prior
written consent. CNET makes no guarantees regarding the accuracy,
reliability or completeness of any reports or statistics provided to
Content Provider. Content Provider acknowledges that the statistics
provided on the CNET Promotion Report are the official, definitive
measurement of CNET's performance on any delivery obligations described
in the Content Provider Agreement. No other measurements or usage
statistics (including those of Content Provider or a third-party
advertisement server) shall be accepted by CNET or have bearing on this
Content Provider Agreement.
8. DELAY. In the event Content Provider is unable to launch a Promotion
through no fault or delay of CNET on such Promotion's designated start
date, the term of the Promotion will be shortened by each day of delay.
Content Provider will be allowed to extend the Promotion beyond the
original term by the number of days of delay, provided Content Provider
pays a fee of twenty-five percent (25%) of the daily media value of the
Promotion for each day in addition to the media value of the Promotion
for the additional days. After a Promotion is received from Content
Provider, CNET will use commercially reasonable efforts to launch the
Promotion on such Promotion's designated start date as required herein.
9. CONTENT PROVIDER SITE. Content Provider will be responsible for ensuring
that each URL used in a Promotion takes the User to the appropriate area
within the Co-Branded Site. Content Provider shall provide to Users
coming to the Co-Branded Site at least the same level of service as is
offered to Users coming directly to the Content Provider Site. If
Content Provider publishes pricing information for its services on the
Co-Branded Site, then Content Provider agrees to ensure that such
information remains accurate. Content Provider will also use
commercially reasonable efforts to maintain a professional image to
Users, as reasonably determined by CNET. If any of the standards set
forth above are not met by Content Provider, or if Content Provider fails
to maintain a reasonably professional image (as determined by CNET), then
CNET may immediately remove any or all links to the Content Provider
Site, at CNET's sole discretion, until Content Provider adequately
demonstrates to CNET that the Content Provider's business practices
and/or the Content Provider Site is in full compliance and can maintain a
professional image; provided, however, that Content Provider's failure to
remedy such problem within 30 days shall be deemed a material breach of
this Agreement. Further, if the Content Provider Site fails to operate
fully and functionally in any material respect for any period of four or
more consecutive hours, even if otherwise in compliance with the
performance standards, CNET may immediately remove any or all links to
the Content Provider Site at CNET's sole discretion until such time as
Content Provider notifies CNET that such Content Provider Site has
resumed acceptable operation. These remedies are for CNET's editorial
purposes and in no way limit CNET's ability to terminate this contract or
pursue any other remedies hereunder in the event the performance
standards set forth herein are not met.
10. ASSIGNMENT. Content Provider may not resell, assign or transfer any of
its rights hereunder without CNET's prior written consent, which will not
be unreasonably withheld. CNET may not resell, assign or transfer any of
its rights hereunder without Content Provider's prior written consent,
except to any affiliate or subsidiary of CNET that operates a CNET Site.
11. TERMINATION. If either party commits a material breach of its obligations
hereunder that is not cured within 30 days after notice thereof from the
non-breaching party, such non-breaching party may terminate this Content
Provider Agreement at any time by giving written notice of termination to
the breaching party and except for any confidentiality obligations and
the obligations contained in Paragraphs 4 and 13 of these Terms and
Conditions, both parties shall be relieved of all other obligations
hereunder.
12. INTELLECTUAL PROPERTY. During the Term Content Provider hereby grants
CNET access to the Content Provider content for the sole purposes of
linking to and distributing such Content Provider content on the
Co-Branded Sites as contemplated hereby. Further, during the Term
Content Provider hereby grants CNET the right to publicly display
Content Provider's intellectual property that may be delivered by
Content Provider to CNET expressly for use on the CNET Sites (the
"Content Provider Marks"), solely in connection with marketing and
operating the CNET Sites as contemplated hereby.
13. CONFIDENTIALITY. Each party (the "Receiving Party") undertakes to retain
in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is
either designated as proprietary and/or confidential or by the nature of
the circumstances surrounding disclosure, ought in good faith to be
treated as proprietary and/or confidential ("Confidential Information");
provided that each party may disclose the terms and conditions of this
Agreement to its immediate legal and financial consultants in the
ordinary course of its business. Each party agrees to use reasonable
best efforts to protect Confidential Information of the other party, and
in any event, to take precautions at least as great as those taken to
protect its own confidential information of a similar nature. The
foregoing restrictions shall not apply to any information that: (a) was
known by the Receiving Party prior to disclosure thereof by the other
party; (b) was in or entered the public domain through no fault of the
Receiving Party; (c) is disclosed to the Receiving Party by a third party
legally entitled to make such disclosure without violation of any
obligation of confidentiality; (d) is required to be disclosed by
applicable laws or regulations (but in such event, only to the extent
required to be disclosed); or (e) is independently developed by the
Receiving Party without reference to any Confidential Information of the
other party. Upon request of the other party, or in any event upon any
termination or expiration of the Term, each party shall return
Page 8
to the other all materials, in any medium, which contain, embody, reflect
or reference all or any part of any Confidential Information of the other
party. Each party acknowledges that breach of this provision by it would
result in irreparable harm to the other party, for which money damages
would be an insufficient remedy, and therefore that the other party shall
be entitled to seek injunctive relief to enforce the provisions of this
Section.
14. ENTIRE AGREEMENT. This Agreement (including the attached Content
Provider Agreement) constitutes and contains the entire agreement between
the parties with respect to the subject matter hereof and supersedes any
prior oral or written agreements. If there is any apparent conflict or
inconsistency between these Terms and Conditions and the Content Provider
Agreement, the Content Provider Agreement shall control unless the
parties expressly agree otherwise in writing. This Content Provider
Agreement and these Terms and Conditions may not be amended except in
writing signed by both parties. Nothing in the Content Provider
Agreement will be deemed to constitute either party as the other's
partner, joint venturer, representative, agent or employee for any
purpose.
15. APPLICABLE LAW. This Content Provider Agreement will be construed in
accordance with and governed by the laws of the State of California,
without regard to principles of conflicts of law.
Page 9
EXHIBIT A
TECHNICAL AND EDITORIAL SPECIFICATIONS
The Co-Branded Site and the Content Provider's related operations must comply
with the following performance standards throughout the Term:
1. The Co-Branded Site will be operational and fully functional in
all material respects (i.e. capable of displaying information and
conducting transactions as contemplated in the ordinary course of
business) at least 97% of the time during any 30 day period,
provided that Content Provider shall not be responsible for access
problem to the Co-Branded Site caused by Internet/ISP outages.
2. The average time required to start displaying the HTML on a page
of the Co-Branded Site after a link from a CNET Site shall not
exceed a daily average of five seconds, and the average time
required to deliver an entire page of the Co-Branded Site over the
open Internet shall not exceed a daily average of fifteen seconds.
For measurements required in this Section, the Content Provider
may assume a stable, standard T1 connection to the Internet.
3. Without limiting the effect of Sections 1 and 2 above, the Content
Provider shall provide to Users coming to the Co-Branded Site from
a CNET Site at least the same level of service as is offered to
users coming directly to the Co-Branded Site.
4. Each page of the Co-Branded Site will comply the same standards
with respect to language, nudity and excessive violence applicable
to similar types of content and sites operated by CNET or its
affiliates
5. The Content Provider will ensure that, with respect to content
provided for the Co-Branded Site, Content Provider will maintain
editorial neutrality and avoid conflicts of interest, and will
comply in all aspects with CNET's editorial guidelines as posted
on CNET's web site with respect to content provided for the
Co-Branded Site.
6. The Co-Branded Site shall not, to the best of the Content
Provider's knowledge: (a) contain defamatory or libelous material
or material which discloses private or personal matters concerning
any person, without such person's consent; (b) permit to appear or
be uploaded any messages, data, images or programs which are
illegal, contain nudity or sexually explicit content or are, by
law, obscene, profane or pornographic; or (c) permit to appear or
be uploaded any messages, data, images or programs that would
knowingly or intentionally (which includes imputed intent) violate
the property rights of others, including unauthorized copyrighted
text, images or programs, trade secrets or other confidential
proprietary information, or trademarks or service marks used in an
infringing fashion.
7. If any of the performance standards set forth above are not met by
the Content Provider, CNET shall notify the Content Provider, and
the Content Provider will use its best efforts to cure such
violation within four hours. If the Content Provider does not cure
such violation within four hours, CNET may immediately remove any
or all links to the Co-Branded Site, at CNET's reasonable
discretion. If the Co-Branded Site fails to operate fully and
functionally in any material respect for any period of five or
more consecutive hours, even if otherwise in compliance with the
performance standards, CNET may immediately remove any or all
links to the Co-Branded Site, at CNET's sole discretion, until
such time as the Content Provider notifies CNET that the
Co-Branded Site has resumed acceptable operation. These remedies
are for CNET's editorial purposes and in no way limit CNET's
ability to terminate this contract or pursue any other remedies
hereunder in the event the performance standards set forth herein
are not met.
EXHIBIT B
MEDIA PLAN
[****]
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
EXHIBIT C
SITE INTEGRATION PLAN
1. Link to Tech Jobs from the CNET Front door.
2. Link to Tech Jobs from the Top Navigation bar
3. Link to Tech Jobs from the Page footer
4. Career Newsletter jointly developed by Techies.com and CNET included with
registration for CNET newsletters.
5. Graphic promotions on the CNET front door. (Based on availability, 2-3
times per month)
6. Promotion in CNET dispatches
7. Company of the day promotion, (place and timing TBD)
8. Job of the day, (placement and timing TBD)
9. Creation of Career related Message Boards
EXHIBIT D
COMPANY COMPETITORS
CNET will not include advertising or promotions on the Co-Branded Site for any
of the following [****]. The following list may be changed
semi-annually by the parties, provided that the number of competitors shall not
be more than five at any time.
[****]
[****]Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 under the Securities Act of 1933,
as amended.
Co-Branded Site Agreement - CNET Inc. and Techies.com Inc.
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