1
EXHIBIT 10.42
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
INFOSEEK/NYNEX AGREEMENT
NYNEX Information Technologies Company ("NYNEX") 35 Village Road, Middleton,
MA 01949
TERMS AND CONDITIONS
1. NYNEX is contracting with Infoseek Corporation ("Infoseek") for the display
of the NYNEX Big Yellow icon ("Icon") on the command bar of the Infoseek Guide
Service or successor service ("Service"), and for the display of an Infoseek
Guide icon ("Guide Icon") on the "Explore the Net" page of the NYNEX
Interactive Yellow Pages WWW site or successor service ("Big Yellow") for the
duration indicated below.
2. For the term of this Agreement Infoseek will:
Display the Icon on the command bar of the Infoseek search and results pages
of the Service with a link directly to the applicable HTML page located at the
applicable Universal Resource Locator ("URLs") for such page on NYNEX's site
containing the free Internet service known as Big Yellow. The Icon shall be
*displayed on the command bar of the Infoseek search and results pages [] [] on
the command bar of the Infoseek search and results pages;
Supply NYNEX with an HTML or GIF file of the Guide Icon meeting the
specifications set forth in Attachment I. Infoseek grants to NYNEX a worldwide
license to use, display, perform, reproduce and distribute the Guide Icon, and
such other licenses with respect to the Guide Icon necessary to fulfill the
intention of this Agreement for the duration of this Agreement. Infoseek shall
retain all right, title and interest in and to the Guide Icon;
Track the redirected traffic ("Traffic") to Big Yellow from the Service caused
by users "clicking" on the Icon;
Provide usage reports to NYNEX as then generally provided by Infoseek to other
entities having similar icon display arrangements with Infoseek;
Provide the Service to users who "click" on the Guide Icon; and
*Not provide any other [] on the Service. An [] means a [] that provides [],
*such as Big Yellow or an on-line version of the []. Infoseek may provide on
*its Service [] that are [] the same product or service or groups of products
*and services that have [], for example, without limitation, [], an on-line
*version of the current [] or [], a [] site, or a [] site.
*Not provide an [] or [] as defined above, on the command bar of its [] on the
Service.
In the event of any dispute or controversy over whether a service constituted
an Aggregate Shopping Service pursuant to the preceding two paragraphs only,
the parties shall first attempt to resolve such dispute by escalating the
matter to their respective Presidents. If the Presidents are unable to resolve
the dispute within fifteen (15) days of the notice of the dispute by either
party, then either party may submit the dispute to binding and final
arbitration in accordance with the then current rules of the American
Arbitration Association. The arbitral tribunal shall consist of one
arbitrator. The placement of arbitration shall be Chicago, Illinois.
NYNEX(03/27/96) 1 of 7
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
2
The parties acknowledge that the provision of information or content in or of
*itself shall not constitute an [] or a [].
3. For the term of this Agreement NYNEX will:
Display the Guide Icon on the Explore the Net page of Big Yellow with a link
directly to the applicable HTML page located at the applicable Universal
Resource Locator ("Infoseek URLS") for such page on Infoseek's site containing
the Service;
Supply Infoseek with an HTML or GIF file of the Icon meeting the specifications
set forth in Attachment I. NYNEX grants to Infoseek a worldwide license to use,
display, perform, reproduce and distribute the Icon, and such other licenses
with respect to the Icon necessary to fulfill the intention of this Agreement
for the duration of this Agreement. NYNEX shall retain all right, title and
Interest in and to the Icon;
Track the redirected traffic ("Guide Traffic") to the Service from Big Yellow
caused by users "clicking" on the Guide Icon;
Provide usage reports to Infoseek as then generally provided by NYNEX to other
entities having similar icon display arrangements with NYNEX;
Provide the Big Yellow service to users who "click" on the Icon; and
Not provide a link on the Explore the Net page of Big Yellow that is more
prominent than the Guide Icon to any service which provides a general search of
Web pages or is directly competitive to a then-current significant component of
the Service.
4. NYNEX and Infoseek will use reasonable commercial efforts to promptly remedy
any misplacement of the Guide Icon or the Icon, respectively, or any
malfunctioning of the Links or Guide Links under Its control, and the other
party shall fully cooperate with such party to remedy any such placement or
malfunctioning.
5. COMPENSATION
In consideration of the services provided under this Agreement, NYNEX agrees to
pay to Infoseek the following charges:
Q2/96 Charge - $600,000
Q3/96 Charge - $800,000
Q4/96 Charge - $1,600,000
Q1/97 Charge - $1,600,000
The payment of such charges will be made to Infoseek on a monthly basis in
accordance with the following schedule (payments are made 15 days following the
end of each month of the Service):
Payment #1 - May 15, 1996 $200,000.
Payment #2 - June 14, 1996 $200,000.
Payment #3 - July 15, 1996 $200,000.
Payment #4 - August 15, 1996 $266,666.
Payment #5 - September 16, 1996 $266,666.
Payment #6 - October 15, 1996 $266,666.
Payment #7 - November 15, 1996 $533,333.
Payment #8 - December 16, 1996 $533,333.
Payment #9 - January 15, 1997 $533,333.
Payment #10 - February 14, 1997 $533,333.
NYNEX(03/27/96) 2 of 7
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
3
Payment #11 - March 14, 1997 $533,333.
Payment #12 - April 15, 1997 $533,333.
Total of above payments for the period from May 1, 1996 though April
30, 1997 equal to $4,600,000.
If during any quarter of this Agreement, the traffic level of the Service falls
*below a total of [ ] information requests (i.e. search results
pages and browse pages delivered) resulting in the display of the Icon
("Information Requests"), then Infoseek will reimburse NYNEX a percentage of
the payments made by NYNEX to Infoseek for such quarter equivalent to the
*percentage decrease in the traffic level of the Service from [] Information
Requests during such quarter (to be measured within 30 days following the end
of each quarter). For example, if within 30 days following the end of calendar
Q2/96 the Information Requests are measured
*at [] for Q2/96 (i.e. a [] from the
*[] benchmark), then Infoseek will reimburse to NYNEX
*[] of the payments received from NYNEX attributable to Q2/96 [] reimbursement).
If during any quarter of this Agreement, the number of displays of the "Explore
the Net" page containing the Guide Icon on Big Yellow is equal to or greater
*than [] of the number of Information Requests ("Trigger Ratio"), then NYNEX
shall have a right to renegotiate the price terms for the duration of this
Agreement that the Trigger Ratio continues. If the parties cannot agree on
price terms within the thirty day period after the request to renegotiate,
NYNEX shall have the right to terminate this Agreement upon immediate written
notice. In the event of such termination NYNEX shall pay Infoseek for placement
of the Icon for the period through the termination date at the then-current
applicable rate under this Section 5.
6. TERM AND TERMINATION. This Agreement shall be effective on the date this
Agreement becomes fully executed by the parties ("Effective Date") and shall
continue in force for an initial term ending April 30, 1997. This Agreement may
be renewed for three (3) consecutive annual renewal terms as follows: at least
sixty (60) days prior to the end of the then-current term of this Agreement,
Infoseek will offer to NYNEX an option to renew for a subsequent annual renewal
*term at a mutually agreed upon, not-to-exceed price of [], respectively, off of
Infoseek's then-current retail price for
*[]. Thereafter, during the term of this Agreement, Infoseek shall offer NYNEX
an option to renew for contiguous annual renewal terms at an agreed upon,
not-to-exceed price of Infoseek's then current retail price for the same or
similar placement. Payments during any renewal terms shall continue to be
payable on a monthly basis. This Agreement will expire unless NYNEX gives
Infoseek written notice of its decision to renew at least thirty (30) days
prior to the end of the then-current term. Either party may terminate this
Agreement if the other party materially breaches its obligations hereunder and
such breach remains uncured for thirty (30) days following notice to the
breaching party.
7. RESPONSIBILITY FOR ICON AND GUIDE ICON
a. NYNEX is solely responsible for any legal liability arising out of or
relating to (i) the Icon, and/or (ii) the material served to end users
immediately following the end users' "clicking" on the Icon. NYNEX represents
and warrants that it holds the necessary rights to permit the use of the Icon,
the URLs and the Links by NYNEX for the purpose of this Agreement; and that the
permitted use, reproduction, distribution, or transmission of the Icon and the
material served to end users immediately following the end users' "clicking" on
the Icon or the Links will not violate any criminal or common law, any
statutory rights or any rights of any third parties, including, but not limited
to, such violations as infringement or misappropriation of any copyright,
patent, trademark, trade secret, music, image, or other proprietary or property
right, false advertising, unfair competition, defamation, invasion of privacy
or rights of celebrity, violation of any antidiscrimination law or regulation,
or any other right of any person or entity. NYNEX agrees to indemnify Infoseek
and to hold Infoseek harmless from and against any and all liability, loss,
damages, claims, or causes of action, including reasonable legal fees and
expenses that may be incurred by Infoseek, arising out of or related to NYNEX's
breach of any of the foregoing representations and warranties.
b. Infoseek is solely responsible for any legal liability arising out of or
relating to (i) the Guide Icon, and/or
NYNEX(03/27/96) 3 of 7
- --------
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
4
(ii) the material served to end users immediately following the end users'
"clicking" on the Guide Icon. Infoseek represents and warrants that it holds the
necessary rights to permit the use of the Guide Icon, the Infoseek URLs and the
Guide Links by Infoseek for the purpose of this Agreement; and that the
permitted use, reproduction, distribution, or transmission of the Guide Icon and
the material served to end users immediately following the end users' "clicking"
on the Guide Icon or the Guide Links will not violate any criminal or common
law, any statutory rights or any rights of any third parties, including, but not
limited to, such violations as infringement or misappropriation of any
copyright, patent, trademark, trade secret, music, image, or other proprietary
or property right, false advertising, unfair competition, defamation, invasion
of privacy or rights of celebrity, violation of any antidiscrimination law or
regulation, or any other right of any person or entity. Infoseek agrees to
indemnify NYNEX and to hold NYNEX harmless from and against any and all
liability, loss, damages, claims, or causes of action, including reasonable
legal fees and expenses that may be incurred by NYNEX, arising out of or related
to Infoseek's breach of any of the foregoing representations and warranties.
c. The commencement dates of the Icon and Guide Icon placements, the URL and
Infoseek URL addresses, billing information, and the Icon and Guide Icon
specifications are specified in Attachment I.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THAT
PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY
OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER (EXCEPT FOR ANY
COMPENSATION PAYABLE UNDER SECTION 5 AND DAMAGES OR ALLEGED DAMAGES UNDER
SECTION 7) WHETHER IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO
AND SHALL NOT EXCEED THE TOTAL AMOUNTS PAID UNDER SECTION 5 OF THIS AGREEMENT.
9. FORCE MAJEURE. Neither party will be liable for delay or default in the
performance of its obligations under this Agreement (other than for non-payment
of royalties) if such delay or default is caused by conditions beyond its
reasonable control, including, but not limited to, fire, flood, accident,
earthquakes, telecommunications line failures, storm, acts of war, riot,
government interference, strikes and/or walk-outs, except that the adjustment of
NYNEX's payment obligations as provided in the penultimate paragraph of Section
5 shall not be affected by such a force majeure event.
10. CONFIDENTIALITY. All disclosures of proprietary and/or confidential
information in connection with this Agreement shall be governed by the terms of
the Mutual Confidential Disclosure Agreement entered into by the parties
concurrently with this Agreement, a copy of which is attached hereto as Exhibit
II. The information contained in reports pursuant to Sections 1 and 5 above and
any documentation regarding the calculation of reimbursements shall be deemed
Proprietary Information of Infoseek.
11. NO AGENCY. The parties to this Agreement are independent contractors.
Neither party is an agent, representative or partner of the other party. Neither
party shall have any right, power or authority to enter into any agreement for
or on behalf of, or to incur any obligation or liability of, or to otherwise
bind, the other party. This Agreement shall not be interpreted or construed to
create an association, joint venture or partnership between the parties or to
impose any partnership obligation or liability upon either party.
12. GOVERNING LAW. This Agreement shall be interpreted, construed and enforced
in all respects in accordance with the laws of the State of California without
regard to its conflicts of law principles.
13. ASSIGNMENT. Neither party may assign this Agreement by operation of law or
otherwise, in whole or in part, other than pursuant to a merger or a transfer of
a majority of its assets, without the other party's written consent, which
consent shall not be unreasonably withheld or delayed; provided, however, either
party may assign this Agreement to an Affiliate or successor without the prior
written consent of the other party. "Affiliate" shall mean any entity of which a
party owns at least one-third of the equity, or any entity that owns at least
one-third of the equity of either party. "Successor" means any entity that has a
right to pro-
NYNEX(03/27/96) 4 of 7
5
vide Big Yellow or the Service. Any attempt to assign this Agreement in
derogation hereof shall be null and void.
14. NOTICES. Any notices required or permitted to be given pursuant to this
Agreement shall be in writing, sent via confirmed fax or certified mail,
returned receipt requested, or delivered by hand, addressed as hereinabove first
set forth or to such other address as may be amended or modified only in writing
to the other party, and shall be deemed to have been given when received.
15. AUDIT.
a. NYNEX 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 records relating to the
calculation of the number of Information Requests as provided in Section 5 for
the purpose of verifying the amounts due and payable to NYNEX 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. 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.
b. Infoseek shall have the right to retain a U.S. nationally prominent or other
mutually agreeable independent auditor to whom NYNEX shall allow reasonable
access to NYNEX's books of account and other records relating to the calculation
of the number of displays of the "Explore the Net" page containing the Guide
Icon on Big Yellow as provided in Section 5 for the purpose of verifying the
amounts due and payable to Infoseek under this Agreement. The information
disclosed by NYNEX to such auditors in the course of performing such audit will
be kept confidential by the auditor. Access to NYNEX's documentation shall be
during NYNEX'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 NYNEX relating to
the auditor's performance of an audit hereunder.
16. PUBLICITY. Neither party shall issue a press release regarding this
Agreement without the prior approval of the other party. If a party does not
give notice of the disapproval of the press release within three (3) business
days of its receipt of a proposed press release, such failure to respond shall
be deemed approval of said press release.
17. ENTIRE AGREEMENT. This Agreement and any and all exhibits and attachments
are the complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior agreements,
communications and understandings (both written and oral) regarding such subject
matter. This Agreement may be modified, or any rights under it waived, only by a
written document executed by both parties.
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
ACCEPTED FOR INFOSEEK CORPORATION ACCEPTED FOR NYNEX INFORMATION
TECHNOLOGIES COMPANY
By: By:
--------------------------- ----------------------------
Authorized Signature Authorized Signature
Print Name: Print Name:
--------------------- --------------------
Title: Title:
--------------------------- ----------------------------
Date: Date:
--------------------------- ----------------------------
NYNEX(03/27/96) 5 of 7
6
ATTACHMENT I
A. COMMENCEMENT DATES OF ICON AND GUIDE ICON PLACEMENT
Commencement Date of Icon Placement: May 1, 1996 unless otherwise agreed upon
Commencement Date of Guide Icon Placement: May 1, 1996 unless otherwise agreed
upon
B. URLS AND GUIDE URLS
HTTP/URL Address connected to the Icon (URLs):
- --------------------------------------------------------------------------------
HTTP/URL Address connected to the Guide Icon (Guide URLS):
http://guide.infoseek.com/NX
C. BILLING INFORMATION
NYNEX Accounts Payable Contact:
--------------------------------------------
NYNEX Accounts Payable Contact Telephone Number:
-------------------------
D. SPECIFICATIONS OF ICON AND GUIDE ICON
ICON SPECIFICATIONS
in gif format
on a white or transparent background
30-50 pixels wide
33 pixels high
use as few colors as possible (64 or fewer)
Icon Specifications may be changed by Infoseek upon reasonable notice from time
to time.
GUIDE ICON SPECIFICATIONS
<A HREF="http://guide.infoseek.com/"><imgsrc="http://images.infoseek.com/
images/guidesm.gif" border=2 width=105
height=62 alt
="[Infoseek Guide]"></A>
Guide Icon Specifications may be changed by Infoseek upon reasonable notice from
time to time.
NYNEX(03/27/96) 6 of 7
7
ATTACHMENT II
Mutual Confidential Disclosure Agreement
(See attached)
NYNEX(03/27/96) 7 of 7
8
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
This Mutual Confidential Disclosure Agreement ("Confidentiality Agreement")
governs the disclosure of information by and between NYNEX INFORMATION
TECHNOLOGIES COMPANY ("NYNEX") having a principal place of business at 35
VILLAGE ROAD, MIDDLETON, MASSACHUSETTS 01949 and INFOSEEK CORPORATION
("Infoseek") having a place of business at 2620 AUGUSTINE DRIVE, SANTA CLARA,
CALIFORNIA 95054.
1. NYNEX or Infoseek (the "Discloser") may disclose to the other party
(the "Recipient") from time to time, ideas, concepts, specifications,
research, business, financial, technical, engineering, manufacturing,
marketing, sales, customer and other information, either orally,
electronically or in physical form. All such above-described
information which is provided to the Recipient and is designated as
confidential shall be deemed for purposes of this Confidentiality
Agreement to be "Confidential Information", unless it:
(a) is or becomes publicly known, other than through violation by
the Recipient of this Confidentiality Agreement;
(b) is already known to the Recipient at the time of the
disclosure thereof free of any obligation to keep it
confidential;
(c) is independently developed by the Recipient;
(d) subsequent to disclosure to the Recipient is rightfully made
available without restriction to the Recipient by a third
party or other source having lawful right to do so; or
(e) is approved for release by the Discloser's written
authorization;
in any of which cases such ideas, concepts, specifications, research,
business, financial, technical, engineering, manufacturing, marketing,
sales, customer and other information shall not be considered, or shall
cease to be considered, Confidential Information, and shall not be, or
shall cease to be, subject to the restrictions on use or disclosure
contained in this Confidentiality Agreement. (The term NYNEX shall
include Affiliates of NYNEX where applicable. "Affiliate" in this
context means NYNEX Corporation and any corporation or other business
entity which from time to time directly or indirectly controls, is
controlled by or is under common control with NYNEX or NYNEX
Corporation. The term Infoseek shall include Affiliates of Infoseek
where applicable. "Affiliate" in this context means any corporation or
other business entity which from time to time directly or indirectly
controls, is controlled by or is under common control with Infoseek.)
2. Any Confidential Information shall remain the property of the
Discloser, and the Recipient hereby agrees: (i) to hold any
Confidential Information in confidence in accordance with the same
degree of care as the Recipient normally takes to preserve its own
confidential information of a similar nature; (ii) not to use any
Confidential Information for any purpose other than in furtherance of
the business relationship between NYNEX and Infoseek; and (iii) to
disclose Confidential Information to only those agents and employees of
the Recipient with a need to know such Confidential Information in
connection with the evaluations of such transactions.
3. Notwithstanding the foregoing, it shall not constitute a violation of
this Confidentiality Agreement if the Recipient discloses any
Confidential Information pursuant to the requirement of any statute,
rule, regulation, judgment, order, or other requirement of any
government, court administrative department, commission, or other
instrumentality (collectively referred to herein as "Governmental
Authorities"). The Recipient agrees to request confidential treatment
for any Confidential Information so disclosed to any Governmental
Authority and to notify the Discloser prior to any such disclosure.
4. Upon the Discloser's written request, the Recipient agrees to return to
the Discloser all documents containing Confidential Information
furnished by the Discloser, and to destroy all copies hereof in
written, graphic or other tangible form (or the portions of such copies
containing Confidential Information), except to the extent that
retention thereof is required by any Governmental Authority.
1 of 2
9
5. This Confidentiality Agreement does not represent a commitment by
either party to enter into or form any future business relationship,
nor does it preclude either party from engaging at any time in the same
or any business similar to the business in which the other is now
engaged, or to refrain from consulting with any third party concerning
the subject matter of the Confidentiality Agreement.
6. Neither NYNEX nor Infoseek shall use or disclose this Agreement and
will not issue or release for publication any articles or advertising
or publicity matter relating to the work performed under this
Confidentiality Agreement or mentioning or implying the name of the
other, without prior written consent from the other party in each
instance.
IN WITNESS WHEREOF, the parties have executed this Confidentiality Agreement in
duplicate as of the date set forth below.
NYNEX INFORMATION TECHNOLOGIES COMPANY INFOSEEK CORPORATION
By: By:
---------------------------- -------------------------
Authorized Signature Authorized Signature
Name: Matthew J. Stover Name: Robert E. L. Johnson
-------------------------- -------------------------
Print Print
Title: Chairman of the Board Title: CEO & President
-------------------------- -------------------------
Date: March 29, 1996 Date: March 29, 1996
-------------------------- -------------------------
2 of 2