{"id":42497,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/linking-agreement-excite-inc-and-cdnow-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"linking-agreement-excite-inc-and-cdnow-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/linking-agreement-excite-inc-and-cdnow-inc.html","title":{"rendered":"Linking Agreement &#8211; Excite Inc. and CDnow Inc."},"content":{"rendered":"<pre>\n                               LINKING AGREEMENT\n\n\nTHIS LINKING AGREEMENT made this 30th day of September, 1997, by and between\nEXCITE, INC., a corporation organized under the laws of California ('Excite')\nand CDNOW, INC., a corporation organized under the laws of Pennsylvania\n('CDnow').\n\n                                   RECITALS\n\nWHEREAS, CDnow is a retailer of compact discs and other entertainment related\nproducts for sale through its Web service which is accessible through the URL\nwww.cdnow.com (the 'CDnow Site'); and\n \nWHEREAS, Excite is the owner or licensee of certain Web services and other\nsearch and content areas (collectively, 'WebCrawler'), which are accessible at\nthe URL webcrawler.com; and\n\nWHEREAS, CDnow desires that Excite integrate links from WebCrawler and certain\nother areas on WebCrawler to a co-branded version of CDnow's Site so that users\nof WebCrawler will have access to CDnow's Site through WebCrawler.\n\nNOW, THEREFORE, the parties hereto for good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged, and intending to be\nlegally bound hereby agree as follows:\n\n1.  Definitions\n\n'Above-the-Fold' shall mean situated within the portion of a page that is\ndesigned to be visible on a standard computer screen with a resolution of 640\npixels by 480 pixels without requiring the user to scroll horizontally or\nvertically through the page.\n\n'Buyweb Link' shall mean a link, promoting CDnow's name\/and or brand which will\ntake WebCrawler users to designated pages on the Pages.  Excite and CDnow will\ncollaborate in good faith on the design, appearance and placement of all Buyweb\nLinks.  Excite shall have final approval over the 'look and feel' of the Buyweb\nLinks, which approval will not be unreasonably withheld or delayed.\n\n'Carry-through Bar' shall mean a bar containing one or more of the Proprietary\nFeatures of each of the parties which connects the Pages to WebCrawler.\n\n'Click-through' shall mean a user presence at the Pages which originated from\nWebCrawler, and which initiates a Session, which is defined as the delivery of\nany and all pages of the Pages to such user, where no two pages are delivered\nmore than two hours apart.\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n'Co-branded Pages' shall mean pages of CDnow's Site which a visitor from\nWebCrawler will link to and which shall display certain Proprietary Features of\nboth Excite and CDnow. The Co-branded Pages can only be viewed by a user who\nlinks to them directly from WebCrawler or through a stored URL (e.g. bookmark or\nsimilar technological storage mechanism). The Co-branded Pages will reside on\nCDnow's server(s).\n\n'Competitive Advertising' is any link (which does not transfer to the Pages or\nCDnow's Site) and\/or displayed message which promotes an entity which sells pre-\nrecorded music, promotes the sale of pre-recorded music, or, in the case of a\nlink, transfers to a page which promotes the sale of pre-recorded music or\nenables the user to purchase pre-recorded music, excepting simple listings in\nWebCrawler's standard search indices and 'Guide' directory of Web sites.\n\n'Guaranteed Impressions' shall have the meaning set forth in Paragraph 2(g).\n\n'Home Page' shall mean the primary entranceway to WebCrawler for users.\n\n'Impression' shall mean any Buyweb Link and\/or banner advertisement.\n\n'Intermediary Pages' shall mean any pages that WebCrawlers users are directed to\nprior to entering the Co-branded Pages and which shall display certain\nProprietary Features of both Excite and CDnow.  The Intermediary Pages will\nreside on CDnow's server(s).\n\n'Keywords' are those words\/phrases including, without limitation, music and\nmovie related terms and names set forth on the list attached hereto as Exhibit A\nand made a part hereof which shall not exceed [XXX] words\/phrases at any given\ntime. CDnow may request in writing that Excite update Exhibit A as required, at\nleast twice a month, or more often as reasonable, and Excite will not\nunreasonably withhold or delay approval and implementation of such request. Upon\nsuch approval, Exhibit A will be deemed by the parties to be so amended.\n\n'Launch Date' shall mean the date on which Excite shall deliver [XXX] correctly\nfunctioning Impressions per day on WebCrawler in accordance with Paragraph 2(a).\nCDnow and Excite shall use their best efforts to develop and deliver as\nnecessary to each other any and all URLs, URL formats (as applicable), content,\nand other materials necessary for Excite to make available the Impressions to\nWebCrawler users within three (3) weeks of the Effective Date. Subsequent to the\ndelivery of such materials to Excite, Excite shall use its best efforts to make\navailable the Impressions to WebCrawler users within three (3) weeks of such\ndelivery.\n \n'Pages' shall mean the Co-branded Pages and the Intermediary Pages.\n\n'Page View' shall mean a WebCrawler user's viewing of any Included Page.\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n'Promotion Schedule' shall mean a written term sheet signed by an authorized\nrepresentative of each party pertaining to a promotion or special marketing\nevent entered into by both parties and describing the obligations of each party\nwith regard to such promotion or special marketing event.\n\n'Proprietary Feature' shall mean any trademark, service mark, trade name, domain\nname, navigational element or design logo which is proprietary to Excite and\/or\nCDnow.\n\n'Term' shall have the meaning set forth in Paragraph 10.\n\n2.   Integrated Links\n\n          (a) Excite and CDnow will work in good faith to expand the number of\nopportunities generated by music and music related spaces for Impressions.\nExcite and CDnow will work together in good faith to identify and implement\nmutually agreeable Impressions throughout WebCrawler.\n\n          (b) CDnow banner, button and\/or link placement will include, but not\nbe limited to, the following locations in WebCrawler at the following targeted\ndelivery rates:\n\n               (i)    CDnow Buyweb Links as developed and mutually agreed upon\nwill be featured in [XXX] rotation in the 'Services' module of the WebCrawler\nHome Page (approximately [XXX] Impressions per month for the first year).\n\n               (ii)   Once every quarter, Excite will display CDnow Buyweb Links\nthrough [XXX] weeks of rotation in the 'Promotion' module of the WebCrawler home\npage (approximately [XXX] Impressions per [XXX] week promotion for the first\nyear). Excite and CDnow will mutually determine the timing and content of these\npromotional placements.\n\n               (iii)  Excite will implement the database of CDnow Keywords that\nwill trigger the display of 'Shortcuts' in WebCrawler Search results pages.\nThese Shortcuts will contain mutually agreed upon, branded Buyweb Links that\ntransfer WebCrawler users to the Pages (approximately [XXX] Impressions per\nmonth for the first year).\n\n               (iv)   CDnow will be the sole provider and sponsor of the Music\nSearch functions within the Music Search sections of the Entertainment Channel\n(approximately [XXX] Impressions per month for the first year). 'Music Search'\nwill allow users to enter search terms into a text search box and search CDnow's\ninventory of music-related transaction opportunities and content.\n\n               (v)    CDnow Buyweb Links as mutually agreed upon will be\nfeatured in the 'Services' module within the Entertainment Channel\n(approximately [XXX] Impressions per month for the first year).\n\n               (vi)   Excite will deliver targeted advertising banners on [XXX]\nof pages within the\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \nEntertainment Channel, the 'Music' sections of the WebCrawler 'Guide' directory\nof Web sites, the 'Movies' sections of the WebCrawler 'Guide' directory of Web\nsites, the News Channel's Entertainment pages and My Page's Entertainment area\n(approximately [XXX] Impressions per month for the first year).\n\n               (vii)  General rotation advertising banners will be implemented\non a first-available basis to maximize impression guarantees and clickthrough\ntargets (approximately [XXX] Impressions per months for the first year).\n\n          It is understood that the targeted delivery rates are estimates,\nsubject to programming opportunities mutually developed by the parties and\ngrowth of traffic over the course of each year of the Agreement.\n \n          (c) More than one Impression may appear on a page on WebCrawler;\nhowever, not more than [XXX] Impressions per page will count towards delivery of\nthe Guaranteed Impressions and, of these [XXX] Impressions, no more than [XXX]\nadvertising banner will count as [XXX] of the [XXX] Impressions that counts\ntowards delivery of the Guaranteed Impressions, and no more than [XXX] Buyweb\nLink will count as one of the [XXX] Impressions that counts towards delivery of\nthe Guaranteed Impressions. In all events, Excite will make a good faith effort\nto avoid duplicate Impressions on a single page.\n\n          d)  Subject to the provisions of this Agreement, Excite will solely be\nresponsible for the user interface and placement of the Buyweb Links and\/or\nadvertising banners on WebCrawler.\n\n          e)  Excite represents that it will place the Impressions on WebCrawler\nin a manner that is comparable to third party links that are of a similar nature\nand function to the Impressions on WebCrawler.\n\n          f)  Excite agrees that CDnow may vary the Impressions  at least [XXX]\nper month with reasonable prior notice.  The parties agree to cooperate with\nrespect to testing the performance of the Impressions during the Term. Prior to\nimplementing any modifications to the Impressions not requested by CDnow, Excite\nwill consult with CDnow in good faith regarding such changes.\n\n          g)  Excite represents that it will deliver to users of WebCrawler a\nminimum of  [XXX] Impressions during the first year of the Term and a minimum of\n[XXX] Impressions during the second year of the Term (the 'Guaranteed\nImpressions'). In the event that Excite fails to deliver such Guaranteed\nImpressions during any quarter, Excite will 'make good' the shortfall during the\nnext quarter by providing CDnow with an equal number of 'substitute'\nImpressions. Such 'substitute' Impressions will be in addition to any\nImpressions otherwise intended to be delivered for such subsequent quarter. Such\n'substitute' Impressions will be delivered as standard advertising banners on\npages of WebCrawler as reasonably available. In the event of a shortfall in\nGuaranteed Impressions as of the end of the first year of the Term, CDnow may\nexercise its options under\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \nParagraph 10(b). In the event of a shortfall in Guaranteed Impressions as of the\nend of the second year of Term, Excite's obligations under this Section 2(g)\nshall extend beyond the end of such second year of the Term until the Guaranteed\nImpressions have been delivered.\n\n          (h)  Excite will provide CDnow with a weekly report listing the number\nof Impressions and the number of Click-throughs for each Buyweb Link and\/or\nadvertising banner on each Included Page.\n\n3.  Linking Fees\n\n          (a)  Setup Fee   CDnow will pay Excite [XXX] upon the execution of\nthis Agreement as compensation for Excite's costs of initiating access to\nWebCrawler, programming costs, set-up costs and other expenses associated with\nExcite's initiation of the links, placements, advertisements and promotions\ncontemplated by this Agreement.\n\n          (b)  Exclusive Fee  CDnow will pay Excite [XXX] per each year of the\nTerm as compensation for being the exclusive music store sponsor of WebCrawler.\nThe [XXX] for the first year of the Term shall be due upon the Launch Date, and\nthe [XXX] for the second year of the Term shall be combined with the yearly fee\nfor the second year of the Term and due in accordance with the schedule set\nforth in 3(c)(ii) below.\n\n          (c)  Yearly Fees\n\n                 (i)  CDnow will pay Excite [XXX] on December 31, 1997 as\ncompensation for on-going programming, links, placements, advertisements and\npromotions contemplated by the Agreement for the first year of the Term.\n\n                 (ii) CDnow will pay Excite [XXX] as compensation for on-going\nprogramming, links, placements, advertisements and promotions contemplated by\nthe Agreement for the second year of the Term, in accordance with the following\nschedule:\n\n \n \n\n          Date                                                                          Payment\n          ----                                                                          -------\n\n                                                                                      \n          First day of the second year of the Term                                      [XXX]\n                                                                              \n          First day of the second quarter of the second year of the Term                [XXX]\n                                                                              \n          First day of the third quarter of the second year of the Term                 [XXX]\n\n          The later of the first day of the fourth quarter of the second year of the\n          Term or when all Guaranteed Impressions have been delivered                   [XXX]\n \n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n          (d)  Referral Fees\n\n                 (i)  In the first year of the Term, CDnow will pay Excite a\nreferral fee of [XXX] per Click-through in excess of [XXX] Click-throughs. This\npayment will be due on the first anniversary of the Launch Date, and will be\npaid to Excite within thirty (30) days thereafter. With the payment, CDnow will\nprovide to Excite documentation reasonably detailing the calculation of the\npayment.\n\n                 (ii) In the second year of the Term, CDnow will pay Excite a\nreferral fee of [XXX] per Click-through in excess of [XXX] Click-throughs. This\npayment will be due on the second anniversary of the Launch Date and will be\npaid to Excite within thirty (30) days thereafter. With the payment, CDnow will\nprovide to Excite documentation reasonably detailing the calculation of the\npayment.\n\n          (e)  Delivery Shortfalls in the First Year of the Term  In the event\nthat Excite fails to deliver the Guaranteed Impressions during the first year of\nthe Term, CDnow may withhold the [XXX] that would otherwise have been due on the\nfirst anniversary of the Launch Date until Excite shall make good the shortfall\nof the Guaranteed Impressions for the first year of the Term. If Excite fails to\nmake good the shortfall within [XXX] following the first year end, and CDnow\nchooses to exercise its right to terminate in accordance with Paragraph 10(b),\nno payment shall be due for the second year of the Term. If Excite fails to make\ngood the shortfall within [XXX] following the first year end, and CDnow chooses\nnot to exercise its right to terminate in accordance with Paragraph 10(b), CDnow\nshall pay the [XXX] that would otherwise have been due on the first anniversary\nof the Launch Date.\n\n          (f)  Audit Rights; Under\/Over Payments  Each party shall maintain\ncomplete and accurate records in accordance with US Generally Accepted\nAccounting Principles (GAAP) for all transactions which are the subject of this\nAgreement for not less than (3) years after the last payment is due under this\nAgreement.  A 'big six' independent accounting firm retained by a party (the\nauditing party) shall have access to such records of the other party (the\naudited party), upon reasonable notice, for the purposes of audit during normal\nbusiness hours, for so long as such records are required to be maintained. If\nsuch accounting firm determines that any additional payment is due the auditing\nparty by the audited party and such payment is not the subject of a good faith\ndispute between the parties, then the audited party shall promptly make payment\nof such amount to the auditing party.  If a party overpays the other party, the\nparty that has made such overpayment shall be entitled to a credit against the\nnext payment due to the other party in the amount of the overpayment, unless\nsuch overpayment is the subject of a good faith dispute between the parties or\nno further payments are due under this Agreement, in which case, the party that\nhas received the overpayment will promptly refund to the other party the amount\nof the overpayment.\n\n4.   Exclusivity  During the Term, Excite represents and warrants that (i) it\nshall not place any Competitive Advertising on WebCrawler; (ii) it will continue\nto expend at least the same amount\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \nof resources (e.g. budget, staff ) as it is currently committing as of the time\nof execution of this Agreement for both the pages in which the Impressions\nappear and WebCrawler generally; and (iii) it will not develop or promote any\nspace on and\/or linked from WebCrawler which functions in a similar manner to or\nprovides the user with a similar experience as the Music spaces on WebCrawler,\nand which would contain any Competitive Advertising.\n\n5.   The Pages CDnow shall place a Carry-through Bar on the Pages which will\nallow the user to return to WebCrawler. CDnow and Excite shall mutually agree\nupon the overall design of the Carry-through Bar within the specifications\nprovided by CDnow in the Carry-through Bar Specifications, attached hereto as\nExhibit B and made a part hereof. Excite shall produce the Buyweb Links and\nCarry-through Bar and CDnow will supply Excite with all information, artwork,\nlogos, trademarks and technology needed by Excite to produce such Buyweb Links\nand Carry-through Bar. In the event that CDnow shall be requested by Excite to\nproduce the Buyweb Links, Carry-through Bar or other elements of the Pages,\nExcite will supply CDnow with all information, artwork, logos, trademarks and\ntechnology necessary, in a format specified by CDnow. Excite will supply CDnow\nwith the URLs corresponding to the Carry-through Bar displayed on the Pages and\nCDnow will supply Excite with the URLs corresponding to the Buyweb Links\ndisplayed on WebCrawler.\n\n6.   Promotions\n\n          (a)  Excite and CDnow shall make reasonable commercial efforts to\ndevelop, expand and improve the user's experience of the music spaces on\nWebCrawler, including the addition of listening booths, charts and other music-\nrelated content to the extent that CDnow is able to provide such enhancements\nthat are 'best of breed.'\n\n          (b)  In addition, from time to time during the Term, the parties agree\nto discuss in good faith the possibility of promotional opportunities that may\ninclude the WebCrawler trademark and\/or trade name, including, but not limited\nto, e-mail promotions such as e-mail gift certificates or coupons and the\ndevelopment of a content module for My Page. In the event that CDnow and Excite\nshall enter into any such special marketing and promotional activities together,\nthe parties shall agree in advance in a Promotion Schedule as to the scope of\nsuch activities, use of either party's trademarks or other intellectual property\nand the amount of funds and\/or other resources to be contributed to such\nactivities by the parties. Any and all Promotion Schedules shall be appended to\nthis Agreement.\n\n7.   Fulfillment  CDnow shall have the sole right and responsibility for\nprocessing all orders through every aspect of the transaction, including\nreceiving, filling, shipping and handling, collecting payment, tracking and\ntransaction security. All orders for the products shall be placed by users\ndirectly with CDnow and shall be subject to acceptance by CDnow.  All orders\naccepted shall be subject to the terms and conditions of CDnow's then current\nterms and conditions of sale.  Such terms may be changed at any time, without\nnotice to Excite. CDnow shall have no obligation to ship any orders unless\npayment in full is received in advance.  Prices for the products shall be set\nsolely by CDnow. CDnow reserves the right to change its prices at any time,\nwithout notice to Excite.\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n8.   Staffing Each party agrees to provide staffing sufficient for such party to\nmeet its obligations under this Agreement in a timely manner. Further, each\nparty shall appoint a relationship manager who shall have responsibility for\nmanaging the day-to-day activities of the party under this Agreement.\n\n9.   Ownership\n\n          (a)  Each party owns and shall retain all right, title and interest in\nits names, logos, trademarks and service marks, copyrights and proprietary\ntechnology including without limitation, those names, logos, trademarks and\nservice marks, copyrights and proprietary technology currently used or any which\nmay be developed in the future. Neither party shall copy, distribute, reproduce\nor use the other party's names, logos, trademarks and service marks, copyrights\nand proprietary technology except as expressly permitted under this Agreement.\nUpon notice from CDnow, Excite shall immediately terminate the use of any\nadvertising materials using CDnow's name or logo.  Upon notice from Excite,\nCDnow shall immediately terminate the use of any advertising materials using\nExcite's or the WebCrawler name or logo.\n\n          (b)  Neither party shall contest or impair, directly or indirectly,\nthe other party's ownership of any of such other party's names, logos,\ntrademarks and service marks, copyrights, Proprietary Features and proprietary\ntechnology, anywhere, nor the fact that the use of such names, logos, trademarks\nand service marks, copyrights, and proprietary technology by it will inure to\nthe benefit of the other party. Neither party will assist others to contest or\nimpair the same and each party hereby expressly acknowledges the other party's\nsuperior rights therein.\n\n10.  Term and Termination The term of this Agreement shall commence upon the\nLaunch Date and shall continue for two (2) years thereafter ('Term'), unless\nterminated as set forth below:\n\n          (a)  This Agreement may be terminated at any time by either party: (i)\nimmediately upon written notice if the other party becomes insolvent, files a\npetition in bankruptcy or makes an assignment for the benefit of its creditors;\nor (ii) thirty (30) days after written notice to the other party of such other\nparty's breach of any of its obligations under this Agreement in any material\nrespect, which breach is not remedied within such 30-day period.\n\n          (b)  If Excite fails to deliver the Guaranteed Impressions during the\nfirst year of the Term, Excite will use commercially reasonable efforts to make\ngood the shortfall.  If Excite fails to make good the shortfall within [XXX]\nfollowing the first year end, CDnow may terminate this Agreement in accordance\nwith Paragraph 10(a)(ii) and Excite will refund the pro-rata amount of the first\nyear linking fee for any remaining undelivered Guaranteed Impressions.\n\n          (c)  If CDnow fails to deliver a minimum referral fee of [XXX] in the\nfirst year of the Term, Excite may terminate this Agreement in accordance with\nParagraph 10(a)(ii).\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n          (d)  Upon the termination or expiration of this Agreement, each party\nwill promptly (within ten (10) days) return all assets (digital, proprietary or\notherwise) belonging to the other.\n\n          (e)  Paragraphs 1, 2(g), 3(f), 9, 10(b), 10(d), 11, 12, 13 and 14\nshall survive termination of this Agreement.\n\n11.  Representations\n\n          (a)  Each party represents and warrants that it has, and will retain\nduring the term hereof, all right, title and authority to enter into this\nAgreement, to grant the other party the rights and licenses herein granted and\nto perform all of its obligations under this Agreement.\n\n          (b)  CDnow represents and warrants that to the best of its knowledge\nany content provided by CDnow and displayed on CDnow's Site, the Pages or\nWebCrawler does not constitute defamation or invasion of the right of privacy or\npublicity, or infringement of the copyright, trademark or other intellectual\nproperty right, of any third party. This representation and warranty shall\nspecifically not apply to content provided by third parties or visitors to the\nPages, WebCrawler or CDnow's Site such as visitors who use chat rooms, bulletin\nboards, or other forums on such Sites which allow visitors to display material\nthat is not within the control of CDnow.\n\n          (c)  Excite represents and warrants that to the best of its knowledge\nany content provided by Excite and displayed on the Pages, CDnow's Site or\nWebCrawler does not constitute defamation or invasion of the right of privacy or\npublicity, or infringement of the copyright, trademark or other intellectual\nproperty right, of any third party. This representation and warranty shall\nspecifically not apply to content provided by third parties or by visitors to\nthe Pages, WebCrawler or CDnow's Site such as visitors who use chat rooms,\nbulletin boards, or other forums on such Sites which allow visitors to display\nmaterial that is not within the control of Excite.\n \n12.  Indemnification\n\n          (a)  Each party shall indemnify, defend and hold harmless the other\nparty and its affiliates, and its respective directors, officers, employees and\nagents, from and against any and all liability, claim, loss, damage, injury or\nexpense (including reasonable attorneys' fees) brought by a third party, arising\nout of a breach, or alleged breach, of any of its representations, warranties or\nobligations herein.\n\n          (b)  CDnow shall indemnify, defend and hold harmless Excite and its\naffiliates, and their respective directors, officers, employees and agents,\nagainst any and all claims, actions, liabilities, losses, and expenses\n(including reasonable attorneys' fees) brought by a third party relating to or\narising out of any claim that any content provided by CDnow and displayed on the\nPages, CDnow's Site or WebCrawler constitutes a defamation or invasion of the\nright of privacy or publicity, or\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \ninfringement of the copyright, trademark or other intellectual property right,\nof any third party. This indemnity shall specifically not apply to content\nprovided by visitors to the Pages, CDnow's Site or WebCrawler such as visitors\nwho use CDnow's chat rooms, bulletin boards, or other forums which allow\nvisitors to display material that is not within the control of CDnow.\n\n          (c)  Excite shall indemnify, defend and hold harmless CDnow and its\naffiliates, and their respective directors, officers, employees and agents,\nagainst any and all claims, actions, liabilities, losses, and expenses\n(including reasonable attorneys' fees) brought by a third party relating to or\narising out of any claim that any content provided by Excite and displayed on\nthe Pages, CDnow's Site or WebCrawler constitutes a defamation or invasion of\nthe right of privacy or publicity, or infringement of the copyright, trademark\nor other intellectual property right, of any third party. This indemnity shall\nspecifically not apply to content provided by visitors to the Pages, WebCrawler\nor CDnow's Site such as visitors who use chat rooms, bulletin boards, or other\nforums on such Sites which allow visitors to display material that is not within\nthe control of Excite.\n\n          (d)  The indemnified party shall promptly provide the indemnifying\nparty with written notice of any claim which the indemnified party believes\nfalls within the scope of this Paragraph; provided, however, that, except to the\nextent the indemnifying party is actually prejudiced by the indemnified party's\nfailure to provide such prompt notice, such failure to provide prompt notice\nhereunder shall not limit the indemnified party's rights under this Paragraph.\nThe indemnified party may, at its own expense, assist in the defense of any such\nclaim if it so chooses, provided that the indemnifying party shall control such\ndefense and all negotiations relative to the settlement of any such claim.\n\n13.  Public Relations, Confidentiality\n\n          (a)  Neither party will make any announcements or statements to the\npublic or create any written materials concerning the relationship between them\nwithout the prior written consent of the other, which is not to be unreasonably\nwithheld or delayed. In no event shall either party or any content, products or\nservices present on either party's Site disparage the other party or any of the\nother party's affiliates.\n\n          (b)  Neither party shall disclose directly or indirectly to any third\nparty or any employee, agent or consultant of the party who does not have a need\nto know such information for the party to meet its obligations under this\nAgreement any of the confidential information of the other party without the\nprior, written consent of the other party, which consent the other party may\ndecline to provide at its sole discretion.  For purposes of this Agreement,\n'confidential information' will have the meaning it is given in the\nConfidentiality Agreement entered into between the parties, dated September 22,\n1997 (which this Paragraph supplements but does not replace), but shall also\nmean all such information obtained as a result of the party's performance of\nthis Agreement, including, without limitation, a party's business plans, product\nplans, performance data, usage data, financial information and customer lists.\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n14.  Miscellaneous\n\n          (a)  Indulgences, Etc.  Neither the failure nor any delay on the part\nof either party to exercise any right, remedy, power or privilege under this\nAgreement shall operate as a waiver thereof, nor shall any single or partial\nexercise of any right, remedy, power or privilege preclude any other or further\nexercise of the same or of any other right, remedy, power or privilege, nor\nshall any waiver of any right, remedy, power or privilege with respect to any\noccurrence be construed as a waiver of such right, remedy, power or privilege\nwith respect to any other occurrence or as a waiver of any other right, remedy,\npower or privilege.\n\n          (b)  Controlling Law  This Agreement and all questions relating to its\nvalidity, interpretation, performance and enforcement, shall be governed by and\nconstrued in accordance with the laws of the Commonwealth of Pennsylvania, other\nthan conflicting choice-of-law provisions.\n\n          (c)  Notices  All notices, requests, demands, and other communications\nrequired or permitted under this Agreement and the transactions contemplated\nherein shall be in writing and shall be deemed to have been duly given, made and\nreceived when delivered against receipt or when sent by overnight courier or\nUnited States registered mail, return receipt requested, postage prepaid,\naddressed as set forth below:\n\n          (i)  If to CDnow:                (ii)  If to Excite:\n \n               CDnow, Inc.                       Excite, Inc.\n               Jenkins Court, Suite 300          555 Broadway\n               610 Old York Road                 Redwood City, CA 94063\n               Jenkintown, PA  19046             Attn: President\/CEO\n               Attn: General Counsel\n\nIn addition, notice by mail shall be by air mail if posted outside of the\ncontinental United States. Any party may alter the address to which\ncommunications or copies are to be sent by giving notice of such change of\naddress in the manner set forth herein.\n\n          (d)  Provisions Separable  The provisions of this Agreement are\nindependent of and separable from each other, and no provision shall be affected\nor rendered invalid or unenforceable by virtue of the fact that for any reason\nany other or others of them may be invalid or unenforceable in whole or in part.\n\n          (e)  Entire Agreement The terms and conditions of this Agreement\nrepresent the entire understanding between the parties hereto with respect to\nthe subject matter hereof, and supersede all prior and contemporaneous\nagreements and understandings, inducements or conditions, express or implied,\noral or written, except as herein contained, other than the Confidentiality\nAgreement entered into by the parties and dated September 22, 1997 which shall\nremain in effect and the terms of which\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \nshall be and are hereby incorporated herein and attached hereto as Exhibit C.\nThe express terms hereof control and supersede any course of performance and\/or\nusage of trade inconsistent with any of the terms hereof.  This Agreement may\nnot be modified or amended other than by an agreement in writing signed by both\nparties.\n\n          (f)  Paragraph Headings  The paragraph headings in this Agreement are\nfor convenience only; they form no part of this Agreement and shall not affect\nits interpretation.\n\n          (g)  Telefaxes Constitute Valid Documents  This Agreement and\nsubsequent modifications may be transmitted by telecopy facsimile machine and\nsuch facsimile copy shall be deemed an original if all pages thereof are\ninitialed and the Agreement or modifications are signed by the duly authorized\nrepresentative of the parties.  Such facsimiles shall constitute valid, binding\ndocuments and shall be regarded as such upon receipt.  The original of the\ndocument sent by telefax shall be promptly sent within seventy-two (72) hours\novernight courier or first class mail to the receiving party so that accurate\nfiles may be maintained.  Failure to send timely any original document shall not\naffect the validity or binding nature of such document.\n\n          (h)  Force Majeure  Neither party shall be held to be in breach of\nthis Agreement by reason of any failure or delay in its performance hereunder if\nsuch failure is due to causes beyond its reasonable control, including but not\nlimited to, acts of the other party, acts of God, delays in transportation,\ninability beyond its reasonable control to obtain necessary labor or materials,\nor events such as fires, floods, earthquakes, storms, war, act of public enemy,\ncivil commotions and the like or by any law, rule, regulation, order or other\naction by any public authority.  To the extent failure to perform is caused by\nsuch an event, such party shall be excused from performance hereunder so long as\nsuch event continues to prevent such performance, and provided the non-\nperforming party takes all reasonable steps to resume full performance.\n\n          (i)  Independent Contractor  Each party shall act as an independent\ncontractor and shall have no authority to obligate or bind the other in any\nrespect.  Neither the employees of Excite nor the employees of CDnow shall\nrepresent themselves to be employees of the other.\n\n          (j)  Compliance With Laws  Each party shall comply with all federal,\nstate and local laws, licensing regulations and rulings of governmental bodies\nhaving jurisdiction over its business. Nothing in this Agreement shall be\nconstrued to require either party to perform any act in violation of any laws,\nregulations or rulings.\n\n          (k)  Disclaimer of Warranty  EXCEPT AS OTHERWISE PROVIDED FOR IN THIS\nAGREEMENT, CDNOW'S SITE AND WEBCRAWLER ARE EACH PROVIDED ON AN AS IS BASIS\nWITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT\nLIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR\nFITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED\nBY OR INCAPABLE OF EXCLUSION,\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \nRESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.\n\n          (l)  Limitation of Liability WITH THE EXCEPTION OF INDEMNITY OF THIRD\nPARTY CLAIMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,\nSPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER SUCH ALLEGED\nDAMAGES ARE ALLEGED IN TORT, CONTRACT OR INDEMNITY, ARISING OUT OF THE USE OR\nINABILITY TO USE CDNOW'S SITE OR THE PAGES OR WEBCRAWLER, THE FAILURE FOR ANY\nREASON TO RETURN USERS TO WebCrawler OR THE LOSS OF DATA, EVEN IF CDNOW OR\nEXCITE IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS SUCH DAMAGES ARE\nDUE TO CDNOW'S OR EXCITE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.\nNotwithstanding the FOREGOING, EACH PARTY expressly excludes liability for\nconsequential loss or damage TO THE OTHER including but not limited to loss of\nprofit, business, revenue, goodwill or anticipated savings.  IN NO EVENT (OTHER\nTHAN INDEMNITY OF THIRD PARTY CLAIMS or an unauthorized use or disclosure of the\nother party's confidential information) WILL EITHER PARTIES' LIABILITY TO THE\nOTHER UNDER ANY THEORY EXCEED THE AMOUNTS ACTUALLY PAID BY CDNOW.\n\n          (m)  Liability for Termination  In the event of proper termination as\nset forth herein, the terminating party shall not be liable for reimbursement of\ndamages on account of any loss of prospective profits or on account of\nexpenditures, investments, leases or other commitments relating to the other\nparty's business or good will.\n\n          (n)  Expenses  Except as otherwise provided for in this Agreement,\neach party shall be responsible for any and all expenses, charges and fees\nincurred by it in connection with its duties hereunder, and it shall not be\nreimbursed for the same by the other party.\n\n          (o)  Binding Nature of Agreement  This Agreement shall be binding upon\nthe parties hereto and their respective heirs, executors, successors and\nassigns. Neither party may, without the prior written consent of the other\nparty, assign or transfer this Agreement or any obligation incurred hereunder.\nAny attempt to do so in contravention of this Paragraph shall be void and of no\nforce and effect.\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \nIN WITNESS WHEREOF, the parties hereto intending to be legally bound do hereby\nset their hands as of the day and year first above written.\n\nCDNOW, INC.                               EXCITE, INC.\n\nBy:\/s\/ Jason Olim                         By: \/s\/ Robert C. Hood\n       Jason Olim, President              Robert C. Hood,\n                                          Executive Vice President,\n                                          Chief Administrative Officer\n\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n                                   EXHIBIT A\n\n                                   KEYWORDS\n\n                          [approximately 20,000 words\n                             intentionally omitted]\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n                                   EXHIBIT B\n\nCarry-through Bar Specifications as of 4\/15\/97\n\nSize\n\nTotal Carry-through Bar Size: 468(w) x 25(h) pixels as of April 1, 1997 all\nCarry-through Bar sizes must be 468(w) x 25(h) to comply with the Internet\nAdvertising Bureau's (IAB) banner standards.\n\nLive area for Partner Logo:  360(w) x 24(h) pixels\n\nColor\n\nBar is black at all times.\n\nOnly partner logos\/icons can be as many colors as desired with a black\nbackground Return to... copy is mandatory and must be set up as white Helvetica\nNeue Black 10pt type, centered and 5 pixels in from the left-hand side of the\nfirst black bar\n\nWe recommend all copy to be white\n\nTo pick up a template go to http:\/\/cdnow.com\/cobrand_template\n\nFormat\n\nMust be saved in a gif file format\n\nPlacement\n\nCarry-through bar is placed on the top and bottom of each CDnow page. Only those\npeople who visit CDnow from your site will see the Carry-through bar\n\nURL\/Address\n\nPartners have the option of 1 to 3 links on their Carry-through bar The URLs\nwill be provided by the partner\n\nIf more than one link is desired, the bar must consist of multiple gif images\nthat reference previous Carry-through bar specifications. When using multiple\ngif images keep two pixels between each bar. No image maps are permitted. Please\nsee the following page for more examples of possible banner solutions.\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n[graphic depicting carry-through bar sample]\n\nSource Code\n\nCDnow will provide the partner with a from equals (from=) tag. This tag allows\nus to identify customers coming from the Partners site to CDnow.\n\nTiming\n\nCDnow requires a minimum of five business days from when we receive the Carry-\nthrough bar to implement it on our site.\n\n\nCarry-through Bar Samples\n\n[Graphic depicting carry-through bar samples]\n\n\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n                                   EXHIBIT C\n\n                           CONFIDENTIALITY AGREEMENT\n\n\nTHIS CONFIDENTIALITY AGREEMENT is entered into this 22nd day of September, 1997\nby and between CDNOW, INC. and EXCITE NETWORK.\n\n1.   The purpose of this Agreement is to set forth the terms and conditions for\nthe disclosure of confidential information between the parties.\n\n2.   'Confidential Information' means any and all data, documentation and other\ninformation, in whatever form disclosed, relating co either of the parties\nhereto, including but not limited to, sales information, statistical\ncompilations, visitor information, financial statements, financial projections,\nbusiness plans, listings and contractual obligations and terms thereof,\ncomponents of intellectual property, unique designs, or other technology and\ntrade secrets disclosed by one party (for the purpose of this Section, the\n'Disclosing Party') or any affiliate of the Disclosing Party to the other party\n(for the purpose of this Section, the 'Receiving Party') or any affiliate or\nother person acting on behalf of the Receiving Party.  Notwithstanding the\nforegoing, Confidential Information shall not include any information:\n\na.   that is or becomes readily available in public records or documents, other\n     than is a result of a disclosure by the Receiving Party or any affiliate or\n     other person acting on behalf of the Receiving Party; or\n\nb.   which can be shown to have been known by Receiving Party prior to its\n     disclosure by Disclosing Party; or\n\nc.   which must be disclosed by Receiving Party under applicable laws or\n     regulations or judicial or administrative proceedings (such requirement to\n     be confirmed by a legal opinion); or\n\nd.   that is or becomes available to the Receiving Party on a nonconfidential\n     basis from a source (other than the Disclosing Party or its agents) which\n     is not prohibited from disclosing such information to the Receiving Party\n     by legal, contractual or fiduciary obligation to the Disclosing Party; or\n\ne.   is independently developed by the Receiving Party without use of any of the\n     Confidential Information.\n\n3.   Receiving Party shall and shall cause its affiliates and any other person\nacting on its behalf to, (i) hold the Confidential Information in strict\nconfidence, (ii) exercise the highest\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \ndegree of care in safeguarding the Confidential Information against any and all\nloss, theft or other inadvertent disclosure, and (iii) take such steps as are\nnecessary to ensure and maintain such confidentiality.\n\n4.   Receiving Party shall not, and shall cause its affiliates and any other\nperson acting on its behalf not to use the Confidential Information other than\nfor purposes intended by the parties hereto upon disclosure of the Confidential\nInformation, or disclose, transfer or in any way divulge, directly or\nindirectly, any of the Confidential Information, under any circumstances or by\nany means, to any third party without the prior written consent of Disclosing\nParty. Receiving Party shall not, and shall cause its affiliates and any other\nperson acting on its behalf not to, copy, transmit, reproduce, summarize, quote,\nor make any commercial use whatsoever of any of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n\n5.   The Confidential Information shall remain the exclusive property of\nDisclosing Party, and upon termination of this Agreement, or at any time\nrequested by Disclosing Party, Receiving Party promptly will return to\nDisclosing Party or destroy all of Disclosing Party's Confidential Information,\nin whatever form, including without limitation any copies, summaries or\ncompilations made.\n\n6.   Receiving Party shall reveal the Confidential Information only to agents,\nrepresentatives and employees who need to know the Confidential Information for\npurposes intended by the parties hereto upon execution of this Agreement.  The\nactions or negligence of the Receiving Party's affiliates, employees or agents\nshall be deemed to be the actions or negligence of Receiving Party with respect\nto the Confidential Information.\n\n7.   The Receiving Party understands that the Disclosing Party has endeavored to\ninclude in the Confidential Information those materials which the Disclosing\nParty believes to be relevant for the purposes intended by the parties hereto\nupon execution of this Agreement, but the Receiving Party acknowledges that\nneither the Disclosing Party nor any of its agents, representatives or employees\nmakes any representation or warranty either express or implied as to the\naccuracy or completeness of the Confidential Information.\n\n8.   In the event that the Receiving Party or anyone to whom the Receiving Party\ntransmits the Confidential Information pursuant to this Agreement becomes\nlegally compelled to disclose any of the Confidential Information, the Receiving\nParty will provide the Disclosing Party with prompt notice so that the\nDisclosing Party may seek a protective order or other appropriate remedy and\/or\nwaive compliance with the provisions with this Agreement.  In the event that\nsuch protective order or other remedy is not obtained, or that the Disclosing\nParty waives compliance with the provisions of this Agreement, the Receiving\nParty will furnish only that portion of the Confidential Information which the\nReceiving Party is advised by opinion of counsel is legally required and will\nexercise Receiving Party's best efforts to obtain reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\n\n[Confidential Treatment requested for redacted portions of document.]\n\n \n9.   Should Receiving Party breach any of its obligations contained in this\nSection, Disclosing Party will be irreparably harmed and entitled to specific\nperformance, including immediate issuance of a temporary restraining order or\npreliminary injunction enforcing the terms of this Section, and to judgment for\ndamages caused by breach, and to any other remedies provided for by applicable\nlaw.\n\n10.  The Receiving Party agrees that this Agreement shall not be assigned\nwithout the prior written consent from the Disclosing Party, except by merger,\nreorganization, consolidation, or sale of all or substantially all of such\nparty's assets.  Any attempt to do so in contravention of this Paragraph shall\nbe void and of no force and effect.  No right or license is granted by the\nDisclosing Party to the Receiving Party except as expressly set forth in this\nAgreement.  This Agreement represents the entire understanding between the\nparties hereto with respect to the subject matter hereof, and supersedes all\nprior and contemporaneous agreements, express or implied, oral or written,\nexcept as herein contained.  This Agreement may not be modified or amended other\nthan by an agreement in writing signed by both parties.  This Agreement and all\nquestions relating to its validity, interpretation, performance and enforcement,\nshall be governed by and construed in accordance with the laws of the\nCommonwealth of Pennsylvania, other than conflicting choice-of-law provisions.\n\nIN WITNESS WHEREOF, the parties hereto intending to be legally bound to hereby\nset their hands and seals as of the day and year first above written.\n\nCDNOW, INC.                                   EXCITE NETWORK\n\n\n\nBy: \/s\/ Jason Olim                          By: \/s\/ Kenneth Wachtel \n    -----------------------------               -----------------------------\n    Jason Olim, President                       Kenneth Wachtel, Senior VP,\n                                                Advertising Sales\n \n\n[Confidential Treatment requested for redacted portions of document.]\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7037,7487],"corporate_contracts_industries":[9513,9497],"corporate_contracts_types":[9613,9619],"class_list":["post-42497","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cdnow-inc","corporate_contracts_companies-excite-inc","corporate_contracts_industries-technology__software","corporate_contracts_industries-retail__electronics","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42497","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42497"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42497"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42497"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42497"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}