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EXHIBIT 10.46
* CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
AGREEMENT
AGREEMENT by and between Infoseek Corporation, a corporation duly organized
under the laws of California, with its principal place of business at 2620
Augustine Drive, #250, Santa Clara, California 95054, hereinafter referred to as
"Infoseek", and Verity, Inc., a corporation organized under the laws of the
State of Delaware with its principal place of business at 1550 Plymouth Street,
Mountain View, California 94043, hereinafter referred to as "Verity".
WHEREAS, Verity and Infoseek desire to provide users of the Verity "Topic Search
for Exchange" product (such product, and the other Verity products as may be
added from time to time pursuant to Section 1 below, hereinafter referred to as
the "Products") access to the Infoseek Guide service (such service, and the
service(s) designated by Infoseek as successor and/or alternative services
thereto, hereinafter referred to as the "Service") in conjunction with use of
the Product.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, Infoseek and Verity hereby agree as follows:
1. Infoseek grants to Verity a worldwide, nonexclusive license to use,
reproduce, publicly display and distribute the Infoseek Guide icon for
the purpose of including the icon as a branded button ("Infoseek
Button") in a mutually agreeable location on the client interface of
the Products. The Infoseek Button will, when "clicked" by the user,
launch a browser which will automatically display the Infoseek Guide
Home Page. Verity agrees to place the Infoseek Button on Version 1 and
all intermediate versions of the Topic Search for Exchange product
leading up to and including Version 2.0. Infoseek and Verity will
mutually agree to any additional Verity products to be considered
"Products" under this Agreement, if at all. The process for adding
other Verity products will be as follows: (i) Infoseek and Verity
contacts will discuss the appropriate product and the location of the
Infoseek Button and the graphic/look-and-feel of the Infoseek Button;
(ii) upon such agreement, a mutually agreed upon amendment to Appendix
A shall be executed by the parties and the new agreed upon Verity
product will be added as a "Product" under this Agreement. Nothing in
this Agreement shall limit Verity's right to include other branded or
unbranded icons on Products so that users of Verity products may have
access to services similar to the Service.
2. On or before April 15, 1996, Infoseek shall provide to Verity a graphic
for the Infoseek Button on the Product and a URL address used to
account for traffic from the "Topic Search for Exchange" product.
Infoseek may make changes from time to time that may affect the
content, features, performance, and appearance of the Service;
provided, that Verity may, upon (30) days prior written notice to
Infoseek, cease distributing the Product with the Infoseek Button if
any such changes, in Verity's reasonable opinion, renders the Product
inappropriate for or less desirable to Verity's customers.
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3. NEITHER PARTY MAKES ANY, AND EACH PARTY ACKNOWLEDGES THAT THE OTHER
PARTY HAS NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ANY,
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
4. a. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES OF ANY NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT AS SET
FORTH IN SECTION 4(b) BELOW. FURTHER IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR ANY THIRD PARTY
CLAIMS BASED ON ALLEGED OR ACTUAL INACCURACIES,
MISREPRESENTATIONS OR MISSTATEMENTS CONTAINED IN OR IMPLIED
BY THE SERVICE, NOR WILL EITHER PARTY HAVE ANY LIABILITY TO
THE OTHER PARTY BASED ON ANY THIRD PARTY CLAIMS OF LIBEL,
SLANDER, OBSCENITY, INVASION OF PRIVACY, RIGHT OF PUBLICITY OR
ANY OTHER DEFAMATION WHICH MAY ARISE OR BE RELATED TO THE
CONTENTS CONTAINED IN OR INFORMATION PROVIDED BY THE
SERVICE, EXCEPT AS SET FORTH IN SECTION 4(b) BELOW.
b. Infoseek agrees to defend, indemnify and hold Verity, and its
officers, directors, employees and agents, harmless from all costs and
damages (including attorneys' fees and costs) finally awarded to a
third party arising out of any legal action to the extent based on a
claim that (i) the Infoseek Button infringes a trademark or service
mark of a third party; (ii) the portion of the Service controlled by
Infoseek or any information contained in or distributed by Infoseek
through the Service contains alleged or actual inaccuracies,
*misrepresentations or misstatements; or (iii) [ ]
(a) Verity shall promptly notify Infoseek in writing when Verity first
becomes aware of a claim or the possibility thereof, (b) Infoseek is
provided all reasonable information available to Verity and, at
Infoseek's expense, Verity's assistance in settling or defending the
action, and (c) Infoseek will have sole control of the settlement,
compromise, negotiation, and defense of any such action. Verity may
participate in such action at Verity's own expense.
6. Infoseek will pay to Verity royalties as specified in Appendix A within
forty-five (45) days following the end of each calendar quarter in
which such royalties accrue. Each royalty payment will be accompanied
by a royalty report in Infoseek's then-current standard form which
details the royalties due for the preceding calendar quarter, as more
particularly set forth in Appendix A. Past due payments will accrue
interest at the rate of 1% per month or the maximum allowed by law,
whichever is greater, until paid.
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* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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7. Each party shall hold in confidence all materials or information disclosed
to it in confidence hereunder ("Confidential Information") which are marked
as confidential or proprietary, or if disclosed verbally, reduced to
writing and marked confidential within thirty (30) days after the date of
disclosure. Confidential Information shall also include any new product
information or the results of any bench mark or similar tests on the
Products conducted by Verity. Each party agrees to take precautions to
prevent any unauthorized disclosure or use of Confidential Information
consistent with precautions used to protect such party's own confidential
information, but in no event less than reasonable care. The obligations of
the parties hereunder shall not apply to any materials or information that
is or becomes a part of the public domain through no act or omission of the
receiving party or which is independently developed by the receiving party
without the use of Confidential Information. In the event of a breach of
this section, the parties agree that the non-breaching party will suffer
irreparable harm and injury for which money damages would be an inadequate
remedy. Accordingly, the non-breaching party may seek injunctive relief, in
addition to any and all other remedies at law, for any threatened or actual
breach of this section.
8. Verity shall have the right to retain a U.S. nationally prominent or other
mutually agreeable independent auditor to whom Infoseek shall allow
reasonable access to Infoseek's books of account and other relevant records
relating to the Service accessed through the Product for the purpose of
verifying the amounts due and payable to Verity under this Agreement. The
information disclosed by Infoseek to such auditors in the course of
performing such audit will be kept confidential by the auditor. Verity may
request such audits no more frequently than once in a consecutive six (6)
month period and may not review records more than twelve (12) months old.
Access to Infoseek's documentation shall be during Infoseek's regular
business hours upon at least fifteen (15) days prior written notice and may
be conditioned upon the auditor executing a confidentiality agreement in a
form reasonably acceptable to Infoseek relating to the auditor's
performance of an audit hereunder. In the event that an audit discloses an
underpayment for any six (6) consecutive month period of more than five
percent (5%) of the aggregate amount due to Verity, Infoseek shall pay the
reasonable costs of such audit and the amount of such underpayment (with
accrued interest) within thirty (30) days after completion of such audit.
9. This Agreement shall be effective on the last date executed by Infoseek and
Verity ("Effective Date") and, unless earlier terminated in accordance
herewith, shall continue in force for an initial term ending three (3)
years from the Effective Date; provided, however, that either party may
terminate this Agreement as of the date of the second and third
anniversaries of this Agreement by providing written notice of its election
to terminate the Agreement at least thirty (30) days prior to such second
anniversary and third anniversary, respectively. Thereafter, this Agreement
will renew only upon the mutual written agreement of the parties.
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Either party will have the right to terminate this Agreement upon thirty
(30) days notice if the other party is in default of any material
obligation herein, which default is not cured within thirty (30) days after
receipt of written notice of such default from the non-defaulting party, or
within such additional cure period as the non-defaulting party may
authorize in writing.
Upon the termination or expiration of this Agreement, (i) each party shall
promptly return all Confidential Information, and other information,
documents, manuals, equipment and other materials belonging to the other
party; (ii) Verity and its third party distributors and resellers may
distribute all Products in inventory as of the effective termination or
expiration date which contain the Infoseek Button (but no more than the
number of Product which represents Verity's average monthly inventory of
Product for the twelve (12) months preceding the date of such termination);
and (iii) all third party users shall have the continued right to use the
Products with the Infoseek Button.
With the exception of Sections 1 and 2, all sections of this Agreement will
survive termination or expiration. No royalty shall be due and payable
hereunder by Infoseek for any period after the term of this Agreement
except as set forth in Appendix A and above in this Section 9.
10. The parties to this Agreement are independent contractors. There is no
relationship of agency, partnership, joint venture, employment or franchise
between the parties in any way. Neither party nor its employees has the
authority to bind or commit the other party in any way, or to incur any
obligation on its behalf.
11. Neither party shall assign, sublicense or otherwise transfer (voluntarily,
by operation of law or otherwise) this Agreement or any right, interest or
benefit under this Agreement, without the prior written consent of the
other party. Notwithstanding the foregoing, Verity may assign the right to
receive royalties and either party may assign this Agreement without the
prior written consent of the other party in connection with a sale of fifty
percent (50%) or more of the assignor's stock, a sale of all or
substantially all of the assignor's assets, a reorganization, consolidation
or merger. Any attempted assignment, sublicense or transfer in derogation
hereof shall be null and void. Subject to the foregoing, this Agreement
shall be fully binding upon, inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns.
12. If any part of this Agreement is found invalid or unenforceable, that part
will be amended to achieve as nearly as possible the same economic effect
as the original provision and the remainder of the Agreement will remain in
full force and effect.
13. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing, will
reference this Agreement, and shall be deemed to have been delivered and
given (a) when delivered personally; (b) three (3) business days after
having been sent by registered or certified U.S. mail, return receipt
requested,
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postage and charges prepaid; or (c) one (1) business day after deposit with
a commercial overnight carrier, with written verification of receipt. All
communications will be sent to the addresses set forth below or to such
other address as may be designated by a party by giving written notice to
the other party pursuant to this Paragraph 13.
If to Verity: With a copy to:
Verity, Inc. Verity, Inc.
Attention: President Attention: General Counsel
1550 Plymouth Street 1550 Plymouth Street
Mountain View, California 94043 Mountain View, California 94043
If to Infoseek: With a copy to:
Steven T. Kirsch Infoseek Corporation
Infoseek Corporation Attn.: Legal Department
2620 Augustine Drive, Suite 250 2620 Augustine Drive, Suite 250
Santa Clara, CA 95054 Santa Clara, CA 95054
14. In the event of any dispute relating to or arising out of this Agreement,
the prevailing party in such dispute will be entitled to recover its
reasonable attorneys' fees and costs.
15. This Agreement shall be governed by and construed in accordance with the
law of the State of California without regard to its rules on conflicts of
laws. This Agreement sets forth the complete and exclusive agreement
between the parties with respect to the subject matter hereof, and
supersedes all prior oral and written understandings, communications or
agreements not specifically incorporated herein. This Agreement may not be
modified except in a writing duly signed by authorized representatives of
Verity and Infoseek.
ACCEPTED FOR INFOSEEK CORPORATION ACCEPTED FOR VERITY, INC.
By: By:
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Authorized Signature Authorized Signature
Print Name: Andrew E. Newton Print Name: TIMOTHY J. MOORE
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Title: Vice President & General Counsel Title: Vice President
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Date: March 31, 1996 Date: 3/31/96
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APPENDIX A
Except as otherwise specified in this Agreement, Infoseek shall pay to Verity a
*royalty equal to [ ] of Net Fees (as described below) for advertisement
impressions ("Impressions") appearing on Service Results Pages ("Qualified
Pages") accessed by users of the Service who "click" Infoseek Button on the
Product pursuant to this Agreement. Such amounts shall be payable with respect
to all Net Fees recognized, in the period commencing on the effective date of
this Agreement and ending on the date one year after the earlier of (i) the
date of the termination of this Agreement and (ii) the date Verity ceases
distributing Product with the Infoseek Button pursuant to Section 2, through
the use of the Infoseek Button on Product distributed during the term of the
Agreement and Product distributed thereafter pursuant to Section 9 of the
Agreement. Infoseek makes no guaranty or warranty (i) that all Qualified Pages
shall contain an Impression, (ii) that all Impressions shall be chargeable, or,
if chargeable, (iii) regarding the amount of any charges therefor. Infoseek
does agree that it will not direct disproportionately to Verity customers
advertisements on the Service for which Infoseek receives Barter Revenue (as
defined below) in lieu of other revenue.
"Net Fees" shall mean all amounts recognized as revenue by Infoseek, other than
advertisement for advertisement barter revenue ("Barter Revenue"), from
advertisers on the Service attributable to Impressions appearing on Qualified
Pages less, with respect to such amounts, (1) any amounts for refunds or other
credits, including, but not limited to, amounts credited for bad debt or fraud;
(2) any amounts payable by Infoseek applicable to internal and/or external
sales commissions, advertising agency fees, or fees or royalties payable or
creditable to third parties; and (3) any applicable sales, use, value-added or
withholding taxes, or export duties or similar charges required to be paid or
withheld by Infoseek.
*[ ] attributable to [ ] shall be [ ] in the [ ] advertisement
banner, impressions placed in the general rotation on the Service at Infoseek's
*then-current advertising rate card pricing and terms and conditions for [ ].
*Any such advertisement banner will be in form and content reasonably
satisfactory to [ ].
Each royalty report will specify the total applicable Net Fees recognized and
the computation of Net Fees and royalties.
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* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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Royalty payments to be mailed to:
Verity, Inc.
1550 Plymouth Street
Mountain View, California 94043
Phone: 408/567-2724
Fax: 408/986-1889
PRODUCTS
Topic Search for Exchange
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