INTERNET SERVICES SUITE AGREEMENT THIS INTERNET SERVICES SUITE AGREEMENT (this "Agreement") is entered into ---------as of May 5,1999 (the "Effective Date") between WIRED DIGITAL, INC., a Delaware --------------corporation ("Wired"), LYCOS, INC., a Delaware corporation ("Lycos"), and ----- -----NETTAXI ONLINE COMMUNITIES, INC., a Delaware corporation. ("Nettaxi"). ------- Recitals -------- A. Wired is the owner or licensee of certain Web-based services(collectively, the"Wired Services"), which are accessible through the URLwww.hotbot.com (the "HotBot Site"); B. Lycos is the owner or licensee of certain Web-based personalizedstart page services(the "Lycos Start Pages"), which are accessible through the URL www.lycos.com(the"Lycos Site"); C. Nettaxi maintains a site on the Internet at http://www.nettaxi.com(the "Nettaxi Site"), and desires to make the Wired Services and co-brandedversions of the Lycos Start Pages available to users of the Nettaxi Site; D. Wired and Lycos are willing to co-brand and/or operate certain oftheir respectiveServices on behalf of Nettaxi, pursuant to the terms hereof; NOW, THEREFORE, for good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Wired, Lycos and Nettaxi herebyagree as follows: Terms -----SECTION 1. DEFINITIONS. 1.1 "Advertising Rights" means all advertising or promotional rights, -------------------includingwithout limitation banner advertisements, "pop-up" windows, surveys andsponsorships. 1.2 "HotBot Personal Search Tool" means Wired's Web-based customizable ----------------------------search panelincorporating the HotBot Search functionality, as the same may be updated ormodified from time to time in Wired's sole discretion. 1.3 "HotBot Search" means Wired's Web-based search engine service, --------------currently commercially referred to as HotBot, as the same may be updated ormodified from time to time in Wired's sole discretion. 1.4 "Lycos Brand Features" means Lycos' name, logo and other ----------------------trademarks, trade names and service names that Lycos uses from time to time withrespect to Lycos' services offered on Web Sites owned or operated by Lycos. 1.5 "Lycos Start Pages" means Lycos' Web-based personalized start page ------------------that incorporates certain of the Lycos Services, as the same may be updated ormodified from time to time in Lycos' sole discretion. 1.6 "Nettaxi Brand Features" means Nettaxi's name and logo and such ------------------------other trademarks, trade names, service names and trade dress that Nettaxi usesfrom time to time with respect to the Nettaxi Site. 1.7 "Referral" takes place when a user clicks on a hyperlink or uses an --------HTML tool to connect to the following Wired Services: Wired Content and HotBotSearch, at the redirect URLs designated by Wired and as measured by Wired'sserver logs. 1.8 "Wired Brand Features" means Wired's name, logo and other ----------------------trademarks, trade names and service names that Wired uses from time to time withrespect to Wired's services offered on Web Sites owned or operated by Wired. 1.9 "Wired Content" means Wired's Web-based news, information and --------------entertainment services, as well as the e-mail newsletter versions of theseservices, including Wired News (http://www.wired.com), Webmonkey(http://www.webmonkey.com), and Suck (http://www.suck.com), as maybe update or modified from time to time in Wired's sole discretion.SECTION 2. NETTAXI START PAGES DEVELOPMENT AND MAINTENANCE. 2.1 Development of Nettaxi Start Pages. Lycos shall use reasonable -----------------------------------commercial efforts to develop, within thirty (30) days after the Effective Date,the following service for use exclusively by users of the Nettaxi Site andaccessible from the Nettaxi Site: a co-branded version of Lycos Start Pages("Nettaxi Start Pages") which shall contain a Nettaxi-branded links box, HotBotSearch or Lycos Search functionality, and other standard features of Lycos StartPages. Nettaxi's sole remedy for Lycos' breach of the first sentence of thisSection 2.1 shall be termination of this Agreement in accordance with Section11.2(a), and Nettaxi shall not be entitled to any other legal or equitablerelief of any kind in connection therewith. 2.2 Branding and User Interface. ------------------------------ (a) Branding. The Nettaxi Start Pages shall be branded in a --------manner substantially similar to the example(s) set forth in Exhibit B hereto.All Nettaxi Start Pages shall display appropriate intellectual property legends,including but not limited to copyright notice and trademark references. Subjectto the foregoing provisions of this Section 2.2(a), the parties shall agree uponthe prominence and location of all displays of the Nettaxi Brand Features,theLycos Brand Features on the Nettaxi Start Pages; provided that the Lycos nameshall be above the fold and prominently displayed on all co-branded pages. Lycosshall not be obligated to co-brand those pages containing content which Lycoshas branded with a third party, which Lycos is prohibited from co-brandingpursuant to another Lycos agreement, which Lycos is technically unable toco-brand, and that are commercially unreasonable for Lycos to co-brand. (b) User Interface. The user interface for Nettaxi Start Pages --------------shall be substantially similar to the user interfaces of the Lycos Start Pages,which Lycos may modify from time to time in its sole discretion. 2.3 Hosting/Traffic. Nettaxi Start Pages shall be hosted by Lycos. ---------------The Nettaxi Start Pages shall be served from Lycos sub-domains (e.g.,www.lycos.com/partners/nettaxi). As between the parties, only Lycos shallreceive credit for all unique visitor traffic and page views generated by theNettaxi Start Pages. As such, the parties agree to assist each other in takingany steps that may be required to obtain or perfect the rights of Lycos toreceive credit from Relevant Knowledge/Media Metrix (or any other organizationreasonably designated by Lycos that is reasonably deemed to be, recognized inthe Internet industry as a reliable authority for tracking unique visitors orpage views) for all unique visitor traffic and pages views generated by theNettaxi Start Pages. 2.4 Sale of Advertising Rights. Lycos shall have the sole right to ---------------------------sell Advertising Rights on the Nettaxi Start Pages. 2.5 Customer Service. Lycos shall include an email link on one or -----------------more of the Nettaxi Start Pages to Lycos' customer service staff. Lycos shalluse reasonable commercial efforts to respond to all customer service inquiriespromptly after receipt.SECTION 3. MARKETING AND PROMOTIONS. 3.1 Marketing Activities. Throughout the Term of this Agreement, ---------------------Nettaxi shall use reasonable commercial efforts to market HotBot Search andWired Content in order to maximize the nunber of Nettaxi Site users visitingthese sites, including without limitation, direct email campaigns, advertisingand promotions on the Nettaxi Site and targeted activities by Nettaxi.Immediately upon Lycos' launch of the Nettaxi Start Pages, Nettaxi shall usereasonable commercial efforts to market Nettaxi Start Pages in order to maximizethe number of users of the Nettaxi Start Pages, including without limitation,direct email campaigns, advertising and promotions on the Nettaxi Site andtargeted activities by Nettaxi. The parties shall review Nettaxi's marketingactivities on a quarterly basis in order to assess performance and agree uponadditional activities, if necessary, in order to increase usage of Nettaxi StartPages. 3.2 Promotional Placements. During the Term of this Agreement, -----------------------Nettaxi shall provide promotional placements for Wired and Lycos as set forth inthis Section 3.2. Wired and Lycos shall provide Nettaxi with electronic copiesof the artwork for the appropriate Wired and Lycos icons, logos, search boxesand links to be displayed on the Nettaxi Site in connection with the promotionalplacements described below. Nettaxi shall be responsible for programming andintegrating the search box, icons, logos and links into the Nettaxi Site: (a) Nettaxi shall integrate links to Wired Content and to theNettaxi Start Pages,in a substantially similar manner to the specifications and "look and feel" ofthe examples set forth on Exhibit B. The links to the Nettaxi Start Pages shallbe displayed on every page of the Nettaxi Site produced by Nettaxi. (b) Nettaxi shall prominently offer the HotBot Personal Search Tooland theNettaxi Start Pages to every visitor and to every new registered member on theNettaxi Site. Nettaxi shall integrate the HotBot Personal Search Tool in "TheNettaxi Citizen Page Builder" process. For those users of the Nettaxi Sitebuilding pages using Nettaxi FTP services, Nettaxi shall promote the HotBotPersonal Search Tool in the "Other Nettaxi Help" and "Resources"pages of theNettaxi Site. The HotBot Personal Search Tool shall be the only search enginetool made available to Nettaxi home-page builders. Nettaxi shall redirect allusers of the Nettaxi Site who conduct searches through the HotBot PersonalSearch Tool or who select the Wired and Lycos links to the URL of theappropriate service. (c) Nettaxi shall integrate the following links to Wired Content:(i) Webmonkeyin the "Homepage Utils/HTML Resources" section of the Nettaxi Site, currentlylocated at http://www.nettaxi.com/help/resources.html; (ii) Wired News and Suckin all relevant topic sections of the Nettaxi Site, at Nettaxi's discretion;(iii) Wired Content newsletter subscriptions in all relevant sections of theNettaxi Site, at Nettaxi's discretion. 3.3 Referral Guarantee. During the Term of this Agreement, Nettaxi -------------------guarantees that Nettaxi's promotional placements for the HotBot Personal SearchTool and Wired Content shall result in not less than I 00,000 Referrals permonth. For purposes of determining whether Nettaxi has performed on its Referralguarantee, the Referral tally shall begin at zero at the beginning of eachcontract quarter. (a) If Nettaxi fails to achieve the guaranteed level of 300,000Referrals in aparticular quarter, Wired's obligation to make such quarter's Referral Payment(as described below in Section 5.3) shall be deferred until the due date of thenext quarterly payment. (b) If Nettaxi fails to achieve the guaranteed level of 300,000Referrals for two consecutive contract quarters, the payment per thousandReferrals quoted in Section 5.1(a) shall be decreased to $5 CPM. 3.4 Additional Marketing Provisions. The additional marketing ---------------------------------provisions set forth in Exhibit A are incorporated herein.SECTION 4. OWNERSHIP AND LICENSE. 4.1 Ownership. Nettaxi acknowledges and agrees that, as between the ---------parties, Lycos owns all title to, and all ownership rights in the Nettaxi StartPages, including without limitation the underlying software but excluding theNettaxi-brand element of the Lycos.com domain name for Nettaxi Start Pages andthe Nettaxi Brand Features, which are the sole property of Nettaxi.Under no circumstances shall any part of Nettaxi Start Pages be physicallytransferred to Nettaxi or shall Nettaxi be entitled to a license to theunderlying software. 4.2 Nettaxi License Grant. Nettaxi hereby grants Lycos, during the ----------------------Term (as defined below) of this Agreement, a worldwide, royalty-free,nonexclusive license (with no right to sublicense) to use, reproduce anddistribute the Nettaxi Brand Features on the Nettaxi Start Pages in accordancewith this Agreement and Nettaxi's guidelines for use of the Nettaxi BrandFeatures, which guidelines Nettaxi may change from time to time upon at leastthirty (30) days' prior written notice to Lycos. 4.3 Lycos License Grant. Lycos hereby grants Nettaxi a worldwide, ---------------------royalty-free, nonexclusive license (with no right to sublicense) to use theLycos Brand Features in connection with the marketing and promotion of Lycos andthe Nettaxi Start Pages in accordance with this Agreement and Lycos' guidelinesfor use of the Lycos Brand Features, which guidelines Lycos may change from timeto time, upon at least thirty (30) days' prior written notice to Nettaxi. 4.4 Wired License Grant. Wired hereby grants Nettaxi a worldwide, ---------------------royalty-free, nonexclusive license (with no right to sublicense) to use theWired Brand Features in connection with the marketing and promotion of Wired,the HotBot Search and the Wired Content in accordance with this Agreement andWired's guidelines for use of the Wired Brand Features, which guidelines Wiredmay change from time to time upon at least thirty (30) days' prior writtennotice to Nettaxi. 4.5 No Other Rights. Except as expressly provided above, theparties retain all title to, and all rights in, their respective Brand Features.SECTION 5. PAYMENT TERMS. 5.1 Wired Services Referral Payments. Nettaxi shall be entitled to ----------------------------------payment for Referrals throughout the Term, as follows a. For every Referral between 1 and 300,000 Referrals per contractquarter during the Term, Wired shall pay Nettaxi $0.010 per Referral ($10CPM), unless Nettaxi fails to achieve the guaranteed level of300,000 Referrals for two consecutive contract quarters, in whichcase the payment per thousand Referrals shall be decreased to $5CPM, as described in Section 3.3(b) above. b. For every Referral between 300,001 and 1,500,000 Referrals percontract quarter during the Term, Wired shall pay Nettaxi $0.015 perReferral ($15 CPM). c. For every Referral over 1,500,000 per contract quarter duringthe Term,Wired shall pay Nettaxi $0.02 per Referral ($20CPM). 5.2 Nettaxi Start Pages Advertising Revenue Share. Lycos shall pay ----------------------------------------------Nettaxi the amounts set forth in Exhibit A with respect to Net AdvertisingRevenue for the Nettaxi Start Pages received by Lycos during the relevantperiod. For the purposes of this Agreement, "Net Advertising Revenue" means theactual amounts received for the sale of Advertising Rights targeted to NettaxiStart Pages, less applicable sales or use taxes, direct costs of collection andthird party and internal sales commissions paid, which commissions shall bedeemed to be 20% of actual amounts received. 5.3 Payment Timing; Reporting. Except as provided in Section 3.3(a) -------------------------above, within thirty (30) days following the conclusion of each contract quarterduring the Term (the "Payment Schedule"), Wired shall calculate and pay toNettaxi the amounts described in Section 5.1 and 5.2 for the preceding contractquarter. Referral volumes shall be tracked by Wired and reported to Nettaxi witheach payment. 5.4 No Artificial Inflating of Referral Numbers. Nettaxi shall not, -------------------------------------------nor shall it permit or encourage others to, engage in behavior that would causeReferrals other than by bona fide users who are not employees or contractors ofNettaxi. Without limiting the foregoing, Nettaxi shall not: (i) use, or permitto be used, robots that would cause Referrals, or (ii) compensate employees orcontractors for manually causing Referrals. 5.5 Other Revenue Opportunities. Lycos and Nettaxi shall work -----------------------------together to develop additional revenue opportunities related to NettaxiServices. Allocation of any such revenues shall be agreed on a case-by-casebasis. 5.6 Taxes. All fees and payments stated herein exclude, and Nettaxi -----shall pay, any sales, use, property, license, value added, withholding, exciseor similar tax, federal, state or local, related to the Parties' performance oftheir obligations or exercise of their rights under this Agreement and anyrelated duties, tariffs, imposts and similar charges, exclusive of taxes basedon Wired's net income. 5.7 Inspection Rights. Each party shall maintain accurate records ------------------with respect to the calculation of all payments due under this Agreement. Eachparty shall have the right, at its expense (except as provided below) to auditthe other party's books and records for the purpose of verifying such payments.Such audits shall be made not more than twice per year, on not less than ten(10) days written notice, during regular business hours, by auditors reasonablyacceptable to the party being audited. If the auditor's figures reflect recordshigher than those-reported by the party being audited, then the party beingaudited shall pay the difference. If the auditor's figures vary more than 10%from the figures provided by the party being audited, then the party beingaudited shall also pay the reasonable cost of the audit.SECTION 6. EXCLUSIVITY. During the Term, Wired and Lycos will be the exclusive providers ofInternet search, navigation, directory services, personal start pages, personalhome pages and email services onthe Nettaxi Site (including any successor sites); provided that Wired and Lyrcosare not obligatedto provide any such additional services not provided for in this Agreementunless it expressly agrees to do so in writing. Nettaxi shall not display anyreference to any competitor of Wired or Lycos on the Nettaxi Site. The term"competitor" is defined as: Yahoo, Northern Lights, Excite/AtHome, InfoSeek,Snap, Cnet, Planet Direct, AltaVista, GeoCities, LookSmart, MetaCrawler, MiningCompany, GoTo and Go Network, or other competitor as Wired may designate onceper contract quarter.SECTION 7. DISCLAIMER OF WARRANTIES. HOTBOT SEARCH, WIRED CONTENT AND NETTAXI START PAGES, ALL UNDERLYINGSOFTWARE AND ALL DATA CONTAINED THEREIN ARE PROVIDED"AS IS."' WIRED AND LYCOSDISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,WITH RESPECT TO SUCH SERVICES,INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY OR RELIABILITY OF DATA,NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR ARISING FROMTHE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE.SECTION 8. CONFIDENTIAL INFORMATION. 8.1 Definition. "Confidential Information" means confidential and ---------- -------------------------proprietary information which relates to the parties' business, products andservices, including but not limited to data, trade secrets, discoveries, ideas,concepts, know-how, techniques, software, business activities and operations,reports, studies and other technical and business information and, under thecircumstances of disclosure, would be deemed confidential or proprietary by areasonable business person. Notwithstanding the foregoing, ConfidentialInformation shall not include any information which is (a) information which hasbecome publicly available without breach hereunder by the receiving party oranother person, (b) information which was rightfully received by the receivingparty from a source not under obligation of confidentiality to the disclosingparty, (c) information in the possession of the receiving party, in written orother recorded form, prior to disclosure by the disclosing party, (d)information which is developed by the receiving party independent of anyinformation disclosed hereunder, and (e) information which the disclosing partyhas approved in writing for release by the receiving party without restriction. 8.2 No Disclosure. Each party agrees that it will keep in --------------confidence all Confidential Information of the other party and that it will notdirectly or indirectly disclose to any third party or use for its own benefit,or use for any purpose other than the performance of its obligations under thisAgreement, any Confidential Information it receives from the other party. Eachparty agrees to use reasonable care to protect the other party's ConfidentialInformation, and in no event less than the same degree of care to protect theother party's Confidential Information as it would employ with respect to itsown information of like importance which it does not desire to have published ordisseminated. Notwithstanding the foregoing, either party hereto may discloseany Confidential Information hereunder to such party's attorneys and otherrepresentatives, if required to do so under law or in a judicial or othergovernmental investigation or proceeding, provided the other party has beengiven prior notice and the disclosing party has sought all available safeguardsagainst widespread dissemination prior to such disclosure, or any court or othertribunal of competent jurisdiction as reasonably required to resolve any disputebetween the parties hereto. 8.3 Remedies. The parties each agree that any breach of this --------Section 8 would cause irreparable harm or injury to the other partysignificantly in excess of the value received by such other party pursuant tothis Agreement, and that such other party shall be entitled to declaratory,injunctive or other equitable relief, in addition to any other legal orequitable remedies it may have, for any such breach. 8.4 Return of Confidential Information. Each party shall return or ------------------------------------destroy all Confidential Information promptly upon the request of the otherparty or upon termination of this Agreement.SECTION 9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARYAND EXCEPT WITHRESPECT TO OBLIGATIONS TO PAY MONEY UNDER SECTION 5 AND THE INDEMNITYOBLIGATIONS UNDER SECTION 10, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BELIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENTUNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLETHEORY FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OREXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL ORANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES; OR (B) THE COST OF PROCUREMENT OF SUBSTITUTESERVICES,TECHNOLOGY, DATA OR CONTENT.SECTION 10. INDEMNIFICATION. 10.1 By Wired. Wired, at its own expense, shall indemnify, defend ---------and hold harmless Nettaxi, and its officers, directors, employees,representatives and agents, and each of them, against any third party claim,demand, suit, action, or other proceeding brought against such person, and alldamages, awards, settlements, liabilities, losses, costs and expenses relatedthereto (including without limitation attorneys' fees) to the extent that suchclaim, suit, action or other proceeding is based an or arises from any claimthat (a) the underlying source code or object code for the HotBot PersonalSearch Tool infringes any copyright or U.S. patent or (b) any of the Wired BrandFeatures infringes any valid copyright or trademark. 10.2 By Lycos Lycos, at its own expense, shall indemnify, defend ---------and hold harmless Nettaxi, and its officers, directors, employees,representatives and agents, and each of them, against any third party claim,demand, suit, action, or other proceeding brought against such person, and alldamages, awards, settlements, liabilities, losses, costs and expenses relatedthereto (including without limitation attorneys' fees) to the extent that suchclaim, suit, action or other proceeding is based on or arises from any claimthat (a) the underlying, source code or object code for Nettaxi Start Pagesinfringes any copyright or U.S. patent (b) any of the Lycos Brand Featuresinfringes any valid copyright or trademark. 10.3 By Nettaxi. Nettaxi, at its own expense, shall indemnify, -----------defend and hold harmless Lycos and Wired, and their respective officers,directors, employees, representatives and agents, and each of them, against anythird party claim, suit, action, or other proceeding brought against suchperson, and all damages, awards, settlements, liabilities, losses, costs andexpenses related thereto (including without limitation attorneys' fees) to theextent that such claim, suit, action or other proceeding is based on or arisesfrom (a) any claim that any of the Nettaxi Brand Features infringe any validcopyright or trademark or (b) operation of the Nettaxi Site. 10.4 Procedure. All indemnification obligations under this Section ---------10 shall be subject to the following requirements: (a) the indemnified partyshall provide the indemnifying party with prompt written notice of any claim;(b) the indemnified party shall permit the indemnifying party to assume andcontrol the defense of any action (unless, in the opinion of counsel of theindemnified party, such assumption would result in a material conflict ofinterest); and (c) the indemnified party shall not enter into any settlement orcompromise of any claim without the indemnifying party's prior written consent.In addition, the indemnified party may, at its own expense, participate in itsdefense of any claim.SECTION 11. TERMINATION. 11.1 Term. This Agreement shall have an initial term of two (2) ----years from the Effective Date and shall automatically renew for successiveone-year terms unless (a) either party provides the other party written noticeof non-renewal at least thirty (30) days prior to the expiration of the thencurrent term or (b) terminated earlier in accordance with Section 11.2. Theinitial term and all renewal terms are collectively referred to in thisAgreement as the "Term." 11.2 Early Termination. ------------------ (a) Termination Conditions. This Agreement may be terminated (i) by -----------------------any Partyimmediately upon written notice if the other party (A) becomes insolvent; (B)files a petition in bankruptcy; or (C) makes an assignment for the benefit ofits creditors; (ii) by any Party at such time as Wired or Lycos ceases offeringany of the above-described services to third parties; or (iii) by any Party forany reason or no reason upon ninety (90) days prior written notice, (b) Non-Exclusive Remedy. Except as explicitly set forth elsewhere in --------------------thisAgreement, the foregoing rights of termination shall be in addition to any otherlegal or equitable remedies that the terminating party may have. 11.3 Survival of Certain Provisions. The provisions of Sections I ---------------------------------(Definitions), 4.1 (Ownership), 4.3 (No Other Rights), 7 (Disclaimer ofWarranties), 8 (Confidential Information),9 (Limitation of Liability), 10 (Indemnification), 12 (General Provisions) andthis Section 11.3, as well as any accrued payment obligations under Section 5,shall survive any termination of this Agreement.SECTION 12. GENERAL PROVISIONS. 12.1 Entire Agreement. This Agreement, including the Exhibit hereto, ----------------represents the entire agreement between the parties with respect to the subjectmatter hereof and thereof and shall supersede all prior agreements andcommunications of the parties, oral or written. 12.2 Amendment and Waiver. No amendment to any provision of this ----------------------Agreement shall be effective unless in writing and signed by all parties. Thewaiver by either party of a breach or a default of any provision of thisAgreement by the other party shall not be construed as a waiver of anysucceeding breach of the same or any other provision, nor shall any delay oromssion on the part of either party to exercise or avail itself of any right,power or privilege that it has, or may have, hereunder, operate as a waiver ofany right, power or privilege by such party. 12.3 Choice of Law and Forum. This Agreement, its interpretation, --------------------------performance or any breach thereof, shall be construed in accordance with, andall questions with respect thereto shall be determined by, the laws of the Stateof California applicable to contracts entered into and wholly to be performedwithin said state. The parties hereby consent to the personal jurisdiction ofCalifornia, acknowledge that venue is proper in any state or Federal court inthe California, agrees that any action related to this Agreement must be broughtin a state or Federal court in the California, and waive any objection suchparty has or may have in the future with respect to any of the foregoing. 12.4 Legal Fees. The prevailing party in any legal action brought by ----------one party against the other and arising out of this Agreement shall be entitled,in addition to any other rights and remedies it may have, to reimbursement forits expenses, including court and arbitration costs, as well as reasonableattorneys' fees. 12.5 Successors and Assigns. Neither party shall assign its rights ------------------------or obligations under this Agreement without the prior written consent of theother party, provided that Wired and Lycos shall be permitted to assign itsrights and obligations to an acquiring or successor entity in connection with amerger, a sale of Wired's or Lycos' business or a sale of all or substantiallyall of Wired's or Lycos' assets. All terms and provisions of this Agreementshall be binding upon and inure to the benefit of the parties hereto and theirrespective permitted transferees, successors and assigns. 12.6 Notices. All notices, requests, consents and other -------communications which are required or permitted hereunder shall be in writing,and shall be delivered by registered U.S. mail, postage prepaid (effective three(3) days after mailing) or sent by facsimile or electronic mail, with aconfirmation copy simultaneously sent by U.S. mail, postage prepaid (effectiveupon transmission), at the addresses set forth on the signature page hereto.Notice of change of address shall be given in the same manner as othercommunications. 12.7 Severability. If any provision of this Agreement is held to be ------------invalid, illegal or unenforceable for any reason, such invalidity, illegality orunenforceability shall not affect any other provisions of this Agreement, andthis Agreement shall be construed as if such invalid, illegal or unenforceableprovision had never been contained herein. 12.8 Good Faith. The parties agree to act in good faith with respect -----------to each provision of this Agreement and any dispute that may arise relatedhereto. 12.9 Headings. The section headings contained in this Agreement are --------included for convenience only, and shall not limit or otherwise affect the termsof this Agreement. 12.10 Counterparts. This Agreement may be executed in two ------------counterparts, both of which taken together shall constitute a single instrument.Execution and delivery of this Agreement may be evidenced by facsimiletransmission. This Internet Services Suite Agreement has been executed by the partieseffective as of the Effective Date.WIRED DIGITAL, INC. LYCOS, TNC.By: /s/ Elizabeth Vandendike By: /s/ Thomas E. GuilfordName: Elizabeth Vandendike Name: Thomas E.GuilfordTitle: President Title: VP Finance/Admin.Address: Address:Wired Digital, Inc. Lycos, Inc.Attn.: General Counsel 400-2 Totten Pond Road660 Third Street, 4h Floor Waltham, MA 02154San Francisco, CA 94107 Tel.: (781) 370-2700Tel.: (415) 276-8400 Fax: (781) 370-2800Fax: (415) 276-8499 Attn.: General Counsel Reviewed By WIRED DIGITAL LEGAL Initial /s/ CPNETTAXIBy: /s/ Dean RositanoName: Dean RositanoTitle: PresidentAddress:2165 S. Bascom Ave. Campbell, CA 95008Attn.:Tel.: (408) 879-9880Fax: (408) 879-9907Email: DEAN@NETTAXI.COM EXHIBIT A ---------1. ADDITIONAL MARKETING PROVISIONS A. HOTBOT BANNER ADVERTISEMENTS: i. Throughout the Term, Nettaxi shall serve 1,000,000 "468 x 60" banner impressions per month promoting Nettaxi Start Pages on a "run-of-site" basis across the Nettaxi Site, which creative materials will be furnished by Lycos and modified by Lycos from time to time at Lycos' sole discretion. ii. Throughout the Term, Nettaxi shall serve 1,000,000 "468 x 60" banner impressions per month promoting the HotBot Personal Search Tool on a "run-of-site" basis across the Nettaxi Site, which creative materials will be furnished by Wired and modified by Wired from time to time at Wired's sole discretion. B. 9-MAIL PROMOTIONS: At least once per contract quarter of the Term, Nettaxi shall deliver a direct e-mail to each of Nettaxi's registered users containing a marketing message written by Wired and/or Lycos regarding new features in the Wired and Lycos services. Such e-mails shall not contain any other promotional elements.2. NET ADVERTISING REVENUE Lycos shall pay Nettaxi according to the Payment Schedule an amount equal to forty percent (40%) of Net Advertising Revenue derived from Nettaxi Start Pages. If Nettaxi fails to deliver the guaranteed level of Referrals during two consecutive contract quarters during the Term, the percentage of Net Advertising Revenue used in the Formula for computation of Nettaxi quarterly payment shall decrease to thirty-five percent (35%), as described above in Section 3.3(b). /Business Operations/Services AgreementsLycos Inc.Nettaxi Inc.2009-10-18/operations/services//content/hippo/files/default.www/content/contract/contract/L/Lycos-Inc-/1445
447Encoding Quotation - Emusic.com Inc. and Encoding.com Inc.
Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this company's confidential treatment request.
[LOGO OF ENCODING.COM]
[*]
Emusic.com, Inc.
Encoding.com would like to validate our strong desire to have a strategic and
long-term relationship with Emusic.com by delivering what we believe to be a
very compelling proposal. The below proposal is intended to encompass all of
Emusic's encoding for a period of [*] and is designed with a full partnership in
mind. Please note that the pricing you are being offered here is confidential to
E-music and the terms herein should not be disclosed to any third party.
The terms of this agreement are good until the last day of June 1999.
You will notice in the pricing section that we have given you [*] prices for the
encoding of [*] CDs initially and all ongoing volumes for a period of [*].
Also pricing for Windows Media encoding has been added here as well at a very
reasonable rate.
Encoding Requirements
Please review this document carefully and let me know if there are sections that
are unclear or if we are missing some pressing details.
The following are your requirements, as we understand them.
. Support for the highest quality encoding from [*] format into [*] formats.
Encoding of [*] CDs into [*] formats, [*]. Possible support for [*].
. [*] files will be encoded using the [*].
. [*] samples will be encoded into [*].
. [*] samples will be captured [*] seconds into a song unless otherwise
requested. [*].
. Scanning of cover art into at least [*] formats. [*] at a frame size to be
determined.
. Receive media from labels and generate an electronic package slip for E-
music.com for rectification purposes.
. Tracking of all media that is shipped to encoding.com without a packing slip
by our internal tracking number, UOC and album title.
. Data entry for all [*] CDs to be used for meta data entry, naming, and cross
reference to web site.
. Deliveries of media back to E-music.com [*].
. Require dedicated capacity in the encoding.com lab in an ongoing capacity for
projects that can not yield the normal 2-4 week lead-time.
[*] Confidential Treatment Request
Quotation valid through June 1999
E-Music.com 6/30/99 Confidential Quotation
Digitization & Encoding Services; Data Work, and Scanning
Encoding
encoding.com is in a phase in our company culture where the partnerships we make
are as important as anything. By this we are prepared to jump into this
partnership with both feet and offer you the same strategic pricing for your
initial encoding project as all ongoing encoding work.
Please find below a brief description of the two opportunities available to you.
Pricing Short: Please also see contingencies below.
Straight customer/client relationship.
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Encoding- MP3 and RA Scanning Data
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Initial [*]CDs [*] [*] [*]
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1-year ongoing [*] [*] [*]
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Earn out opportunity: with the below opportunity you can save upwards of [*] off
the initial encoding project for a [*] royalty on all online sales of media we
encoded for a period of [*].
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Encoding- MP3 and RA Scanning Data
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Initial [*] CDs [*] [*] [*]
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1-year ongoing [*] [*] [*]
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We are not concerned with which option you choose, but we did want to give you a
way to defer your pricing even more if appropriate.
Initial [*]CDs (material):
The following are conditions of this very strategic pricing for your initial [*]
CDs.
. Work order is executed and a PO generated for the initial amount by June 30th
1999.
. Jointly Sponsored press release announcing project and partnership
. Minimum annual commitment of [*] CDs for a period of 1-year. This will be
dedicated capacity that will be priority access for E-Music.
. Link exchange where appropriate
. Possible other promotional or marketing events
. [*] downloads for all encoding.com employees for a period of 6-months.
Specifics:
Set-up per CD: [*]
Database integration: [*]
Material Warehousing
6 months from 1st shipment [*]
Encoding cost per track/song
[*] file: [*]
[*] [*]
Total for [*] Tracks: [*]
[*] tracks per CD on average
We will work with you over the next week to put in place a delivery schedule for
this deployment.
*If not executed by June 30th 1999 the price of [*] will apply for per track
encoding.
[*] Confidential Treatment Request
Quotation valid through June 1999
E-Music.com 6/30/99 Confidential Quotation
Data Entry
Encoding.com has put in place a very robust data entry process and management
software. Over the past year we have created custom databases for a number of
clients with similar needs as your own. The following is our understanding of
your data entry requirements and the pricing that we are able to offer to
implement these. [*] The following are based on our ability to enter data for
[*] CDs per hour per data entry employee.
Please also note that we have looked in the past at the use of the [*] as a tool
for propagating meta fields in our clients databases. [*].
Caveat: When encoding.com is given an electronic packing slip for the CDs we
are receiving the data entry costs associated with those CDs will be [*] per CD.
Fields to be captured:
[*]
Format for export: [*]
Cost per CD: [*]
Total Costs for [*] CDs: [*]*
* this number will be less if [*]
Scans
Encoding.com has the ability to scan cover art for E-Music.com as part of our
normal fulfillment process. For this project we will capture [*] formats as
follows:
[*]
Costs per scan: [*]
Costs for [*] scans: [*]
List price is [*] and [*] additional format..
[*] Confidential Treatment Request
Quotation valid through June 1999
E-Music.com 6/30/99 Confidential Quotation
We will deliver the image files to you on CDR or DLT depending on your
requirements. Sometimes we have found that it is easier to manage the audio
files on CDR depending on your usage. We will work with you on this.
Fulfillment and Delivery
Fulfillment and delivery is how we return your media to you or to your hosting
provider. The options here are via DAT, CDR, or FTP. We don't recommend FTP
because of timeliness for this amount of data.
DLT delivery media for [*] CDs worth of compressed media and cover art.
Approximately [*] of data to be delivered
[*] can fit on an individual DLT
[*] needed; @ [*] per DLT
Delivery Costs: [*]
CDR Delivery: [*]
We will work with your operations teams to put in place a structure for how we
deliver, store and retrieve media to and for E-music.
Summary:
We are very interested in working with you on this project. We believe that we
are the only choice in the industry that can handle these volumes of audio
encoding. Please let me know what other information you need from me and I will
work to provide it. These prices are valid through June 1999.
Initial [*] CD encoding project
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Item Count Your Costs Total
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Encoding [*] Songs into [*] [*] [*]
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[*] Encoding [*] [*]
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Data Entry [*] CDs ([*]fields) [*] [*]
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Scans [*] [*] [*]
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Delivery [*] DLT [*] [*]
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CDR ongoing [*]
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Total Project [*]
Costs
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1-year volume commitment: Additional Volume.
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Item Count Your Costs Total
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Encoding [*] songs into [*] [*] [*]
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[*] encoding [*] [*]
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Data Entry [*] CDs ([*]fields) [*] [*]
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Scans [*] [*] [*]
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Delivery [*] DLT [*] [*]
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CDR ongoing [*]
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Total Project [*]
Costs
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[*] Confidential Treatment Request
Quotation valid through June 1999
E-Music.com 6/30/99 Confidential Quotation
* Contingent on this work-order being signed by June 30th 1999. Otherwise the
ongoing pricing schedules will be applied.
Ongoing Work:
Contingent on the signing of this work agreement we will work with Emusic.com to
put in place a structure and a process for handling all mass ongoing encoding
work for Emusic.com as well as how we will reserve dedicated lab time. In
signing this document Emusic.com asserts its willingness to enter into an
agreement of this nature.
The following is the pricing that we are able to offer Emusic.com for this
ongoing work as stated earlier.
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Encoding- MP3, RA, Scanning Data
and Windows Media
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[*] ongoing [*] [*] [*] per CD
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Ongoing volumes are estimated at [*] tracks [*].
Terms and Conditions
The primary terms of our agreement require that you guarantee to have the rights
to the content and we agree not to use the content for other purposes without
your approval. We require a [*] deposit on all contracted work. The balance will
be invoiced monthly against the past months work.
1. CONTROLLING TERMS. Pricing is valid until June 31st 1999 and are valid for
a period of one year from the execution of this document. The terms and
conditions of sale contained herein shall apply to all provisions of encoding
services and related services by encoding.com, Inc. ("encoding.com") and to all
purchase orders or other offers accepted by encoding.com related thereto
(collectively, the "Service"). These terms and conditions may in some instances
conflict with or add to some of the terms and conditions affixed to the purchase
order or the procurement document issued by the Customer. In such case, the
terms and conditions contained herein shall govern exclusively and ACCEPTANCE OF
CUSTOMER'S ORDER IS EXPRESSLY CONDITIONED UPON CUSTOMER'S ACCEPTANCE OF THE
TERMS AND CONDITIONS CONTAINED HEREIN irrespective of whether the Customer
accepts these conditions by oral or written acknowledgment, by implication or by
acceptance of or payment for the provision of the Service ordered hereunder
based on the content, materials and/or elements (collectively, the "Content")
provided to encoding.com by Customer.
2. TERMS OF PAYMENT. Payment must be made in US dollars and may be made in
cash, cashier's check, money order, travelers checks, check drawn on local bank
or Visa / MasterCard. All COD orders must be paid for and picked up Monday
through Friday between the hours of 9:00 AM and 5:00 PM. Credit terms are net 15
days. Interest at the maximum rate allowed by law will be charged on all
accounts not paid within 30 days unless previous arrangements have been made
with the encoding.com. ANY CLAIMS FOR ADJUSTMENT IN CONNECTION WITH AN INVOICE
MUST BE PRESENTED IN WRITING WITHIN 10 DAYS OF THE DATE OF THE INVOICE IN
QUESTION.
3. PRICES; LIENS. Prices for the Service are those shown on the face of this
acknowledgment, provided, however, that if such prices are based on the purchase
of a minimum quantity of Service and Customer fails to purchase such minimum
quantity, encoding.com has the right to collect from Customer the difference
between the price paid by Customer for the Service purchased and encoding.com's
standard price for such Service in quantity actually purchased by Customer.
encoding.com shall have a lien and security interest on tapes, CDs, files and
other property delivered by Customer to encoding.com and/or made by encoding.com
therefrom for the balance of any account due us by the Customer, including
collection and attorney's fees. Customer hereby authorizes encoding.com to
execute and file, on Customer's behalf, a financing or other statement
evidencing this security interest. When necessary, Customer agrees to execute
necessary documentation for perfecting such security interest.
4. SHIPPING. If encoding.com provides shipping and handling services for
Customer's materials, surcharges will apply. Shipping and delivery dates are
approximate. In no event, for any reason whether or not beyond encoding.com's
control, shall encoding.com be liable to Customer or any other party for any
losses, damages or liability for delay in delivery of shipped materials; nor
shall any delay in delivery of shipped materials constitute grounds for
cancellation of Customer's work order.
5. DELIVERY. The delivery dates set forth on this acknowledgment are
approximate only, and encoding.com is not liable for any damages to Customer,
nor shall encoding.com be in breach of its obligations to the Customer, because
of any delivery made within a reasonable time after the stated delivery date.
encoding.com may by written notice to Customer change any delivery date, and
such date shall become the agreed upon delivery date unless Customer objects to
such date in writing delivered to encoding.com within ten (10) days of receipt
of encoding.com's notice. encoding.com shall not be liable for any late
delivery caused by the failure of the Customer to provide in a timely manner any
necessary information to affect such delivery.
6. FORCE MAJEURE. encoding.com is not liable for any failure to deliver, or
delay in the delivery of, any Service due to a cause beyond its control,
including but not limited to acts of God, fires, typhoons, earthquakes, labor
disputes, governmental actions or inability to obtain materials, components,
energy, encoding facilities, or transportation. In the event of any such delay,
the data of delivery or performance hereunder shall be extended by a period
equal to the time lost by reason of such delay. If encoding.com's production is
curtailed for any of the above reasons, encoding.com may allocate its production
among its various customers. Such allocation shall be in a commercially fair
and reasonable manner.
7. STORAGE. It is the Customer's responsibility to arrange for removal of
materials from encoding.com at the completion of each project. At the
Customer's request, encoding.com will store tapes and Content for a maximum of
60 days. encoding.com reserves the right to ship tapes and/or Content to the
Customer, freight collect, at the conclusion of the 60 day period or to charge a
storage fee or to otherwise dispose of the materials.
8. RIGHT TO REFUSE SERVICE. encoding.com reserves the right to refuse service
and/or process any Content which encoding.com, in its sole discretion, deems
unlawful, pornographic, degrading, likely to incite prejudice or passion or
otherwise inappropriate.
9. CUSTOMER WARRANTIES. Customer represents and warrants that (a) Customer has
sufficient rights in the Content to use it in the manner contemplated by this
acknowledgment, (b) the Content does not infringe upon or violate any patent,
copyright, trade secret, trademark or other intellectual property right of any
third party or any obscenity law or other applicable law, rule or regulation in
any jurisdiction in which the Content may be viewed or retrieved, (c)
encoding.com's
[*] Confidential Treatment Request
Quotation valid through June 1999
E-Music.com 6/30/99 Confidential Quotation
provision of the Service and/or hosting of the Content hereunder
will not infringe upon or violate any patent, copyright, trade secret, trademark
or other intellectual property right of any third party, including but not
limited to any and all performance license rights, mechanical license rights,
synchronization license rights and rights under the Digital Performance Right in
Sound Recordings Act of 1995, or any obscenity law or other applicable law, rule
or regulation in any jurisdiction in which the Content can be viewed or
retrieved, and (d) the Content and encoding.com's provision of the Service on
behalf of Customer is not for any illegal, obscene, offensive or immoral
purpose.
10. ENCODING.COM LIMITED WARRANTY; LIMITED LIABILITY; EXCLUSION OF
CONSEQUENTIAL DAMAGES. It is understood and agreed that the Customer's
materials are transported, received, processed, used and stored at Customer's
risk. ENCODING.COM SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR OTHER DAMAGES
CAUSED BY THE LOSS, DAMAGE OR DESTRUCTION OF MATERIALS BELONGING TO THE CUSTOMER
OR ANY OTHER PERSON WHILE IN TRANSIT OR POSSESSION OF ENCODING.COM UNLESS CAUSED
BY THE NEGLIGENCE OF ENCODING.COM IN WHICH EVENT, THE LIABILITY OF ENCODING.COM
SHALL BE LIMITED TO THE REPLACEMENT OF A SIMILAR QUANTITY OF BLANK TAPE OR
MAGNETIC OR OPTICAL MEDIA TO THE MATERIALS WHICH WERE LOST, DAMAGED OR
DESTROYED. EXCEPT FOR SUCH REPLACEMENT, ENCODING.COM SHALL HAVE NO FURTHER
LIABILITY REGARDING THE LOSS, DAMAGE OR DESTRUCTION OF SUCH MATERIALS.
ENCODING.COM SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY ACT OR
OMISSION OF ANY PERSON SELECTED BY ENCODING.COM TO PERFORM SERVICES OR FURNISH
MATERIALS TO CUSTOMER. IF MATERIALS FURNISHED BY ENCODING.COM ARE FOUND TO BE
DEFECTIVE IN MANUFACTURE, ENCODING.COM SHALL REPLACE SUCH MATERIALS WITH A
SIMILAR QUANTITY OF BLANK TAPE, OR MAGNETIC OR OPTICAL MEDIA, PROVIDED THE
CUSTOMER NOTIFIES ENCODING.COM IN WRITING WITHIN THIRTY DAYS AFTER SHIPMENT OF
SUCH DEFECT. EXCEPT FOR SUCH REPLACEMENT, ENCODING.COM SHALL HAVE NO FURTHER
LIABILITY IN CONNECTION WITH SUCH DEFECTIVE MATERIALS. ENCODING.COM MAKES NO
WARRANTY, EXPRESSED OR IMPLIED WITH RESPECT TO THE MATERIALS OR SERVICES
PROVIDED IT ASSUMES NO RESPONSIBILITY FOR THE CHARACTER OR QUALITY OF MATERIALS
OR SERVICES PROVIDED BY IT. ENCODING.COM EXPRESSLY DISCLAIMS ALL WARRANTIES
EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL WARRANTIES WITH RESPECT
TO THE SERVICE ARE STRICTLY LIMITED TO THOSE SET FORTH IN THIS ACKNOWLEDGMENT.
IN NO EVENT WILL ENCODING.COM BE LIABLE TO THE CUSTOMER FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES EVEN IF ENCODING.COM HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, ENCODING.COM
MAKES NO REPRESENTATION OR WARRANTIES OF ANY TYPE WHATSOEVER REGARDING THE
HOSTING OF ANY CONTENT ON ITS NETWORK OR ANY SUBCONTRACTOR'S OR OTHER PARTY'S
NETWORK OR THE PERFORMANCE OR RELIABILITY OF ANY SUCH NETWORK, OR ANY CONNECTION
TO, TRANSMISSION OVER, RESULTS OF OR USE OF ANY NETWORK CONNECTION OR FACILITIES
PROVIDED (OR FAILED TO BE PROVIDED) UNDER THIS ACKNOWLEDGMENT AND ENCODING.COM
MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS OR SERVICES NOT ACTUALLY PRODUCED OR
PROVIDED BY ENCODING.COM.
11. INDEMNIFICATION BY CUSTOMER. Customer agrees to defend, protect, indemnify
and hold encoding.com harmless from and against all claims of any kind, whether
based in contract, in tort (including negligence or strict liability), or
resulting from (a) services provided by encoding.com on behalf of Customer
hereunder, except for any damages arising exclusively out of any material breach
of this acknowledgment by encoding.com, (b) any use by encoding.com of any data
or files provided by Customer to encoding.com under this acknowledgment, (c) any
breach by Customer of this acknowledgment, including without limitation any
failure by Customer to observe or satisfy any terms or conditions of this
acknowledgment, (d) any violation of any applicable federal, state or local laws
with regard to the transmission and use of information and content, including
laws related to privacy, publicity, the Communications Decency Act of 1996,
arising out of the Customer Content, (e) any infringement of any United States
or other patent, trademark, copyright, trade secret or other intellectual
property right, including but not limited to any and all performance license
rights, mechanical license rights, synchronization license rights and rights
under the Digital Performance Right in Sound Recordings Act of 1995, relating to
the Content supplied by Customer to encoding.com or the Services provided
hereunder, or (f) otherwise for any losses, expenses, damages and liabilities,
direct, indirect, special or consequential which may arise out of Customer's
use, distribution or sale of goods or services covered hereby except those
caused solely by the sole gross negligence of encoding.com.
12. ACKNOWLEDGMENT. Customer acknowledges that encoding.com, in its sole
discretion, may subcontract all or part of the hosting services to be provided
hereunder. CUSTOMER FURTHER ACKNOWLEDGES THAT ENCODING.COM WILL HAVE NO
LIABILITY FOR THE FAILURE OF ANY NETWORK OR SERVER IN CONNECTION WITH THE
HOSTING OF ANY CONTENT.
13. ORDER CANCELLATION. If an order for the Service is canceled, Customer must
pay for orders scheduled for delivery or performance within ninety (90) days of
encoding.com's receipt of cancellation notice.
14. MISCELLANEOUS. Any waiver by encoding.com of any default by the Customer
hereunder shall not be deemed to be a continuing waiver of such default or a
waiver of any other default or of any of the terms and conditions of this
acknowledgment. The terms and conditions of this acknowledgment may not be
superseded, modified, or amended except in a writing stating that it is a
modification and signed by an authorized representative of each party hereto,
provided, however, that encoding.com may modify the specifications of the
Service provided hereunder if the modification does not change the form, fit or
function of the Service. This acknowledgment (not including any of the terms
and conditions of the Customer's purchase order or any similar document issued
by Customer), constitutes the entire agreement between the Customer and
encoding.com with regard to the Service listed on the face of this
acknowledgment, and expressly supersedes and replaces any prior or
contemporaneous agreements, written or oral, relating to such goods or services.
This acknowledgment is governed by, construed and enforced in accordance with
the laws of the State of Washington, without regard to conflict of laws
provisions. Both parties agree that any litigation or arbitration between the
parties shall take place in King County, Washington, and both parties waive any
objection to personal jurisdiction or venue in any forum located in that county.
In any suit or action brought to enforce any term, condition or covenant of this
acknowledgment or to recover damages arising from any breach of the
acknowledgment, the losing party shall pay the prevailing party's reasonable
attorneys' fees and all other costs and expenses which may be incurred by the
prevailing party in any suit, action or in any reviews or appeals therefrom.
ACKNOWLEDGED AND AGREED:
E-music.com
By: /s/ Joseph Howell
------------------------------------
Its: Chief Financial Officer
[*] Confidential Treatment Request
Quotation valid through June 1999
E-Music.com 6/30/99 Confidential Quotation
Rider to encoding.com Terms and Conditions
The following changes will be applied to the attached encoding.com Terms and
Conditions.
1. Payment terms:
Insert: EMusic agrees to pay encoding.com [*] of the total project costs in
advance as called out by the contract. encoding.com will invoice EMusic for [*]
of the total amount of this project in the amount of [*] immediately net 0 and
an additional [*] on the last billing cycle of September.
During the first [*] of the project, encoding.com will invoice EMusic normally
outside of this [*] down payment. EMusic will pay these invoices per the terms
of the agreement. During the second [*] of the project the down payment that was
made by EMusic will be applied to encoding.com invoices.
2. Data Entry Rider:
The attached form outlines in detail the fields that need to be captured by
encoding.com in the data entry portion of the encoding process. The fields that
are called out are also defined so each item is clear for all data entry people
across all CDs in the project.
Also-The data fields that are called out in the attached sheet are different
than the ones that were called out in the original proposal. Some of these are
different because of differences in how we defined a parameter and others
because new requirements became available. As such the new pricing will be as
follows but WILL NOT affect the total value of the contract;
Old Pricing per CD: [*] per CD for data entry.
New Pricing per CD: [*] per CD for data entry.
Pricing is based on an estimate of a [*] increase in the amount of time needed
to capture the meta information currently requested and a mark up of the old
price of [*].
Encoding.com and EMusic will review these prices and structure every [*] as
appropriate to ensure that significant costs are not being endured in either
direction.
/s/ Al David June 30, 1999
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Signature Al David--Sr. Director, Operations Date
(Minister of the Digital Bit)
Accepted by encoding.com
/s/ Todd Hinders June 30, 1999
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Todd Hinders--Minister of Entertainment Date:
[*] Confidential Treatment Request
Quotation valid through June 1999