1
EXHIBIT 10.43
* CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
SOFTWARE LICENSE AGREEMENT
This Agreement is made and entered into by and between Infoseek Corporation
("Infoseek"), a corporation organized under the laws of the State of
California, with its principal place of business at 2620 Augustine Drive,
Santa Clara, CA 95054 and NYNEX Information Technologies Company ("Licensee"),
a corporation organized under the laws of the State of Delaware with its
principal place of business at 35 Village Road, Middleton, MA 01949 and is
effective the date it is executed by Infoseek ("Effective Date").
DEFINITIONS
*A. [
]
B. "Derivative Work(s)" means a work which has been created based upon
Licensed Software, or documentation related to the Licensed Software,
such as a portation, localization, enhancement, improvement,
revision, modification, translation, abridgment, condensation,
expansion, or any other form, including a new work in which the
Licensed Software or such documentation may be recast, transformed or
adapted, which, if prepared, used and/or distributed in the absence
of appropriate authorization, would constitute an infringement of the
owner's intellectual property rights.
C. "Documentation" means the documentation described in Exhibit A.
D. "Licensed Software" means the software in binary code form specified
in Exhibit A and any Revisions of the Licensed Software (as
hereinafter defined), received by Licensee from Infoseek pursuant to
this Agreement. Licensee understands and acknowledges that portions
of the Licensed Software may be licensed by Infoseek from third
parties ("Third Party Portions") and that Infoseek's performance
hereunder is subject thereto. Infoseek agrees to use reasonable best
efforts to enter into applicable third party licenses consistent with
this Agreement, and to obtain an indemnification by the applicable
Third Party of Licensee and Sublicensees against infringement by the
Third Party Portions substantially consistent with the
indemnification provision provided by Infoseek in Sections 7.1 (other
than the last sentence) and 7.2 hereof.
E. "Revisions of the Licensed Software" means modifications to or
revisions of the Licensed Software, in binary code form, that
incorporate changes, enhancements, and upgrades to the functions and
capabilities of the Licensed Software made by Infoseek, if any, as
may be provided to Licensee pursuant to this Agreement. Licensee
shall have the option to license from Infoseek Revisions of the
Licensed Software, subject to the terms specified in Exhibit B. All
Revisions of the Licensed Software provided to Licensee shall be
considered to be Licensed Software and shall be subject to all terms
and conditions of this Agreement.
In consideration of the mutual covenants contained in this Agreement, Infoseek
and Licensee agree as follows:
1. LICENSE GRANT TO LICENSEE
1.1 Subject to the provisions of this Agreement, including all
Exhibits, Infoseek grants to Licensee a personal, worldwide,
non-exclusive, non-transferable (except as specified in
Section 1.1 c below), non-assignable (except as specified in
Section 15 below) right to:
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* CONFIDENTIAL TREATMENT REQUESTED
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a. use and reproduce the Licensed Software solely for
the purpose specified in Paragraph 1.2 below, in any
medium. The license granted hereunder is solely for
Licensee's internal use; and
b. use the Documentation related to the Licensed
Software solely in conjunction with the
permitted use of the Licensed Software; and
c. Licensee may sublicense the Licensed Software, to any
Affiliate as defined in Section 15 below
("Sublicensee") provided that (i) Licensee gives
Infoseek at least thirty (30) days prior written
notice of such sublicense, (ii) the Sublicensee
agrees to be bound by, and Licensee shall ensure that
Sublicensee shall perform, all the provisions of this
Agreement applicable to Licensee, provided, however,
that such Sublicensees shall have no right to further
sublicense the Licensed Software, and Sublicensee
shall be subject to all restrictions and limitations
as apply to Licensee; and (iii) the Sublicensee
prominently displays the Guide Icon as a link to
* the Service on a significant page of [ ] Such link
will be no less prominent than any other link to a
general Internet or Intranet search service or any
service which is directly competitive to a
then-current significant component of the Service.
* 1.2 Licensee may use the Licensed Software [ ] including a [ ]
* in conjunction with an Internet-based [ ], including "Big
* Yellow". Big Yellow as used herein means the [ ] owned and
operated by Licensee or a Sublicensee pursuant to Section 1.1
c. above. Nothing in this Agreement shall be construed as
granting license rights to Licensee to the Licensed Software
* for [ ], including, without limitation, a [ ] or [ ],
without the prior written permission of Infoseek.
1.3 Licensee shall have the right to make as many copies of the
Licensed Software as are necessary or appropriate for purposes
of exercising its license rights under this Agreement, but
agrees that all such copies will contain the copyright notices
and any other reasonable and appropriate propriety markings or
confidential legends that appear in the Licensed Software.
1.4 Licensee agrees pursuant to this Agreement not to decompile,
reverse engineer, disassemble, or otherwise determine or
attempt to determine source code for the executable code of
the Licensed Software or to create any Derivative Works based
upon the Licensed Software or Documentation, except to the
extent as may occur as part of the joint development described
in Section 8.2 below, and agrees not to allow anyone else to
do so.
1.5 Licensee acknowledges that Infoseek and its suppliers have a
proprietary interest in the Licensed Software. Licensee agrees
to use the same efforts to prevent unauthorized licensing,
copying and/or use of the Licensed Software as Licensee uses
for its own most rigorously protected software. If Licensee
becomes aware of any unauthorized licensing, copying, or use
of the Licensed Software, Licensee shall promptly notify
Infoseek in writing.
2. TITLE
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* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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Title to and ownership of the Licensed Software and the Documentation,
all Derivative Works based upon the Licensed Software or Documentation
and all works jointly developed by Infoseek and Licensee (whether in
machine-readable or printed form, in whole or in part, and including
without limitation all related technical know-how and all rights
therein (including patents, copyrights, and trade secrets applicable
thereto) are and shall remain the exclusive property of Infoseek and
its suppliers. Licensee shall not jeopardize, limit or interfere with
the such rights in the Licensed Software and related Documentation.
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3. DELIVERY OF LICENSED SOFTWARE
3.1 Infoseek shall deliver to Licensee the deliverables for
Licensed Software as set forth in Exhibit A.
3.2 Revisions of the Licensed Software are included during the
Initial Term of this Agreement and any renewal terms under
Section 9.1.a. below; provided, however, Revisions of the
Licensed Software are not included, during the fully-paid up
license period described in Paragraph 9.1.b.
below.
4. PAYMENTS, TAXES
4.1 Payments by Licensee under this Agreement shall be made to
Infoseek in United States dollars to Infoseek's address first
specified above or to such other address as may be indicated
by Infoseek in writing from time to time. Fees and payment
schedules are specified in Exhibit B.
4.2 All fees and charges payable by Licensee under this Agreement
are exclusive of shipping, handling, and any federal, state,
municipal or other governmental taxes, duties, licenses, fees,
excises or tariffs now or hereinafter Imposed on the use of
the Licensed Software. Licensee shall pay all taxes, whether
currently or hereafter applicable, assessed or arising out of
this transaction, including, without limitation, excise,
withholding, sales or use taxes imposed upon the Licensee, or
Infoseek, but not including any taxes based upon Infoseek's
net income.
5. CONFIDENTIAL INFORMATION
5.1 Either Infoseek or Licensee may disclose to the other certain
information that the disclosing party deems to be confidential
and proprietary ("Proprietary Information"). Such Proprietary
Information will be clearly and conspicuously marked at the
time of its first disclosure to the receiving party. Such
Proprietary Information includes, but is not limited to, the
terms of this Agreement, and technical and other business
information of Infoseek and Licensee that is not generally
available to the public.
5.2 Except as provided therein, the party receiving Proprietary
Information shall use the confidential information disclosed
pursuant to this Section 5 only to carry out the purposes
specified in this Agreement, all other uses thereof being
prohibited. The receiving party, however, will not be required
to keep confidential such Proprietary Information that becomes
generally available without fault on its part; is already
rightfully in the receiving party's possession without
restriction prior to its receipt from the disclosing party; is
independently developed by the receiving party, is disclosed
by third parties without similar restrictions; is rightfully
obtained by the receiving party from third parties without
restriction; or is otherwise required by law or judicial
process.
6. MUTUAL REPRESENTATIONS AND WARRANTIES
6.1 Representations, Warranties, and Limitation of Liability
Limited Warranty: Infoseek represents and warrants to Licensee
that:
(i) Infoseek is the sole and exclusive owner of all
intellectual property rights in and to Infoseek's
proprietary portion of Licensed Software.
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(ii) Infoseek has all legal right and authority to grant
and convey to Licensee the rights and licenses
contained in this Agreement without violation or
conflict with any law.
(iii) There is no action, suit, claim, arbitration, or
other proceeding pending or threatened which
questions this Agreement or Infoseek's ownership of
the Licensed Software or any intellectual property
rights therein.
(iv) To the best of Infoseek's knowledge and belief, the
Licensed Software does not infringe upon any
proprietary right or intellectual property rights of
any third party.
(v) The Licensed Software will have, at least,
substantially the functionality and performance of
the software currently used by Infoseek for the
Infoseek Guide.
6.2 Each party represents and warrants to the other party only that
the performance of any of the terms and conditions of this
Agreement on its part to be performed does not and will not
constitute a breach or violation of any other agreement or
understanding, written or oral, to which it is party.
7. INDEMNIFICATION; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
7.1 Infoseek shall defend Licensee in any action brought against
Licensee to the extent such action is based on a claim that the
Licensed Software infringes any patent, copyright, trademark or
trade secret. Infoseek will pay resulting costs, damages, and
legal fees finally awarded against Licensee in such action and
any related settlement amount, which are attributable to such
claim, provided that Licensee (i) promptly (within twenty (20)
days) notifies Infoseek in writing of any such claim and
Infoseek has sole control of the defense and all related
settlement negotiations, and (ii) cooperates with Infoseek, at
Infoseek's expense, in defending or settling such claim.
"Licensed Software" as used in this Paragraph 7.1 and Paragraph
7.2 below shall not apply to any Third Party Portions.
7.2 Should the Licensed Software become, or be likely to become in
Infoseek's opinion, the subject of infringement of such
copyright, patent, trademark or trade secret, Infoseek may
procure for Licensee the right to continue using the same or
replace or modify it to make it non-infringing. Infoseek shall
have no liability for any claim to the extent based upon the
use, operation or combination of the Licensed Software with
non-Infoseek programs, data or equipment, if such infringement
would have been avoided but for such use, operation or
combination. If Infoseek elects to replace or modify the
infringing item(s), such replacement or modification shall
substantially meet the functional and performance
specifications of Licensed Software. The foregoing states the
entire liability of Infoseek with respect to infringement of
copyrights, patents, trademarks or trade secrets.
7.3 Licensee shall defend Infoseek in any action brought against
Licensee to the extent such action is based on a claim arising
out of (i) any injury to person or property caused by any
products or services sold or otherwise distributed in
connection with any Licensee Aggregate Shopping Service,
including Big Yellow or (ii) any material in the Aggregate
Shopping Service infringing or allegedly infringing any
copyright, patent, trade secret, trademark or other proprietary
right of any third party. Licensee will pay resulting costs,
damages, and legal fees finally awarded against Infoseek in
such action and any related settlement amount, which are
attributable to such claim, provided that Infoseek (i) promptly
(within twenty (20) days) Infoseek notifies Licensee in writing
of any such claim and Licensee has sole control of the defense
and all related settlement negotiations, and (ii) cooperates
with Licensee, at Licensee's expense, in defending or settling
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such claim.
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7.4 EXCEPT AS SPECIFIED IN SECTION 6 ABOVE, INFOSEEK SPECIFICALLY
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. INFOSEEK DOES NOT REPRESENT
OR WARRANT THAT ANY LICENSED SOFTWARE, OR DOCUMENTATION IS
ERROR FREE, OR THAT ITS USE WILL BE UNINTERRUPTED. EXCEPT AS
SPECIFIED IN SECTION 6 INFOSEEK DOES NOT WARRANT, GUARANTEE, OR
MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF
THE USE, OF THE LICENSED SOFTWARE, OR THE DOCUMENTATION OR
WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY,
RELIABILITY, CURRENTNESS, OR OTHERWISE. NO WARRANTIES ARE MADE
TO LICENSEE BY ANY SUPPLIERS WHICH MAY HAVE DIRECTLY OR
INDIRECTLY SUPPLIED ALL OR PART OF THE LICENSED SOFTWARE TO
INFOSEEK, EXCEPT AS THOSE WARRANTIES, IF ANY, WHICH BY CONTRACT
FLOW TO LICENSEE. THE ENTIRE RISK AS TO THE PERFORMANCE (EXCEPT
AS SPECIFIED IN SECTION 6 ABOVE) OR RESULTS OF THE LICENSED
SOFTWARE IS ASSUMED BY LICENSEE. INFOSEEK MAKES NO WARRANTY
THAT ALL ERRORS WILL BE CORRECTED.
7.5 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF THE PARTY SHALL
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR
ANY CLAIM AGAINST THE OTHER BY ANY THIRD PARTY.
8. SUPPORT SERVICES
8.1 Infoseek shall, on a fully-burdened labor materials and
expenses basis, (i) perform maintenance, support, and
implementation ("Support Services"); and (ii) upon request by
Licensee, and subject to the approval of Infoseek, which
approval shall not be unreasonably withheld, work with third
party developers who may be developing software to be used in
conjunction with the Licensed Software. "Maintenance" consists
of Infoseek's reasonable best efforts to make bug fixes and
error corrections with respect to replicable errors and
documented error and bug reports submitted by Licensee. Support
Services and the process for communicating error and bug
reports shall be as mutually agreed to by the parties and
reviewed on a quarterly basis. Infoseek agrees to use
reasonable best efforts to accomplish Support Services within
the agreed upon timeframes. The parties agree to utilize the
Software Support and Program Error Corrections process set
forth in Exhibit C-1 hereto. Support Services are provided by
Infoseek to Licensee only. Licensee shall provide Support
Services to Sublicensees.
8.2 Infoseek shall not, during the term of the separate
Infoseek/NYNEX Agreement between the parties of even date
("Infoseek/NYNEX Icon Agreement") license to third parties for
use in an Aggregate Shopping Service any works jointly
developed by Licensee and Infoseek provided that (i) Infoseek
and Licensee shall have specifically agreed in writing in
advance that such jointly developed works shall be subject to
this provision, (which approval by Infoseek shall not be
unreasonably withheld) and (ii) to the extent such jointly
developed works contain pre-existing or separately developed
works of Infoseek, or are not works jointly developed by
Licensee and Infoseek this provision shall not apply to such
portion.
9. TERM OF AGREEMENT; PAYMENTS DURING RENEWAL TERMS; AUDIT
9.1 a. The initial term ("Initial Term") of this Agreement
shall commence on the Effective Date
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and shall terminate two (2) years following the
termination date ("Infoseek/NYNEX Icon Agreement
Termination Date") of the Infoseek/NYNEX Icon
Agreement. After the Initial Term, unless Licensee
shall have then-previously elected its option under
Paragraph 9.1.b. below, this Agreement may be renewed
for consecutive annual renewal terms as follows:
Licensee shall have an option to renew for subsequent
annual renewal terms at a Licensed Software License
* Fee [ ] of the collected revenues attributable
to the Aggregate Shopping Services of Licensee and
Sublicensees utilizing the Licensed Software, subject
* to an annual minimum of [ ]. Payments during any
renewal terms shall be payable on a monthly basis,
within fifteen (15) days after the end of each month
during the applicable renewal term based on the
* percentage of [ ] as specified, and, if the
cumulative monthly payments for any renewal term fail
* to meet or exceed the minimum annual amount of [ ]
Licensee shall pay to Infoseek the difference between
* such cumulative payments and [ ] no later than
thirty (30) days after the end of such renewal term.
This Agreement will expire unless Licensee 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.
b. Licensee shall have the option by written notice to
Infoseek prior to the first anniversary date of the
Infoseek/NYNEX Icon Agreement Termination Date to
* acquire a [ ] to the Licensed Software for the
* period ending [ ] after the Infoseek/NYNEX
Agreement Termination Date. The price for such option
* shall be [ ] and payment therefor shall accompany
* such notice. For the duration of such [ ] period,
Infoseek agrees to provide maintenance of the
Licensed Software at a price payable on a quarterly
* basis equal to the greater of [ ] of Infoseek's
fully burdened labor, materials, costs and expenses;
provided, however, Licensee may terminate Infoseek's
maintenance obligations upon at least thirty (30)
days prior written notice. "Maintenance" consists of
Infoseek's reasonable best efforts to make bug fixes
and error corrections with respect to replicable
errors and documented error and bug reports submitted
by Licensee.
9.2 a. Infoseek shall have the right to retain a U.S.
nationally prominent or other mutually agreeable
independent auditor to whom Licensee shall allow
reasonable access to Licensee's books of account and
other records relating to the calculation of the
amounts payable as provided in this Section 9 for the
purpose of verifying the amounts due and payable to
Infoseek under this Agreement. The information
disclosed by Licensee to such auditors in the course
of performing such audit will be kept confidential by
the auditor. Access to Licensee's documentation shall
be during Licensee'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 Licensee relating to the auditors
performance of an audit hereunder.
b. Licensee 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
amounts payable as provided in this Section 9 and
Section 8.1 for the purpose of verifying the amounts
due and payable to Licensee under this Agreement. The
information disclosed by Infoseek to such auditors in
the course of performing such audit will be kept
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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.
10. DEFAULT; DISPUTES
10.1 Either party may terminate this Agreement by giving written
notice to the other party, specifying the reasons therefor:
a. if the other party fails to perform or comply with a
material provision of this Agreement, including
Licensee's failure to promptly pay any material
amount(s) due under the provisions of Exhibit B, and
such party fails to cure alleged default within sixty
(60) days following its receipt of a written notice
of such default, or
b. if the other party becomes insolvent, admits in
writing its inability to pay its debts as they
mature, makes an assignment for the benefit of
creditors, files or has filed against it by a third
party any petition under any Bankruptcy Act, or any
application for a receiver of the other party is made
by anyone and such petition or application is not
resolved favorably to the other party within sixty
(60) days.
10.2 Termination shall be effective sixty (60) days following one
party giving notice to the other party, if the occurrence
giving rise to the right of termination has not been cured.
The parties shall endeavor to effect a smooth transition in
the event of such a termination, and specifically shall use
their reasonable best efforts to avoid interruption of any
Aggregate Shopping Service utilizing the Licensed Software
upon such termination.
10.3 The right to terminate this Agreement under this Section 10
shall not preclude any other rights and remedies provided by
law or equity or this Agreement.
10.4 In the event of any disputes other than whether payments are
due under this Agreement, authorized representatives of
Infoseek and Licensee shall meet no later than ten (10)
working days after receipt of notice by either party of
request for dispute resolution and shall enter into good faith
negotiations aimed at resolving the dispute. If the
representatives are unable to reach mutually satisfactory
resolution of the dispute within the next five (5) working
days, each party shall, within five (5) working days,
designate a top management executive who will attempt, over
the next thirty (30) days, to resolve the dispute. No party
shall bring legal action for breach of this Agreement until
the thirty (30) days have elapsed. This Section 10.4 shall not
limit either party's ability to seek an injunction or other
equitable relief for breach of confidentiality as set forth in
Section 5 of this Agreement, breach of Sections 1.4 or 8.1 of
this Agreement, or as may be necessary to protect either
party's intellectual property, name or resources.
11. TERMINATION
11.1 Termination of this Agreement by either party shall not act as
a waiver of any breach of this Agreement and shall not release
or limit liability for breach of a party's obligations
hereunder at law or in equity. Upon termination or expiration
of this Agreement, Licensee's licenses, including licenses
granted for Licensed Software, and documentation therefor,
granted under this Agreement shall terminate.
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11.2 Immediately upon termination of this Agreement, Licensee shall
deliver to Infoseek all copies of the Licensed Software,
Documentation, and any other materials provided by Infoseek to
Licensee hereunder or in its possession or under its control,
and shall furnish to Infoseek a written acknowledgment that
such delivery has been fully effected. Within thirty (30) days
after termination of this Agreement, Licensee shall pay to
Infoseek all sums then due and owing.
11.3 The respective rights and obligations of Infoseek and Licensee
under the provisions of Paragraphs 1.4, 1.5, 2, 4, 5, 7, 9,
11, 12, 15 and all other provisions of this Agreement which
may be reasonably interpreted or construed as surviving the
termination or expiration of this Agreement, shall survive the
termination or expiration of this Agreement.
12. GOVERNING LAW
This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of California. The
parties agree that the United Nations Convention on Contracts for the
International Sale of Goods is specifically excluded from application
to this Agreement. Each party irrevocably consents to the exclusive
jurisdiction of any state or federal court for or within Santa Clara
County, California over any action or proceeding arising out of or
related to this Agreement, and waives any objection to venue or
inconvenience of the forum in any such court.
13. SOLE AGREEMENT
This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges all
prior and contemporaneous discussions, communications, writings or
agreements between them. This Agreement shall not be modified except by
a written agreement dated on or subsequent to the date of this
Agreement and signed on behalf of Licensee and Infoseek by their
respective duly authorized representatives.
14. SEVERABILITY
If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. Parties will seek in good faith to agree
on replacing an invalid, illegal, or unenforceable provision with a
valid, legal, and enforceable provision which, in effect, will form an
economic viewpoint, most nearly and fairly approach the effect of the
invalid, illegal, or unenforceable provision.
15. 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 and further provided that Licensee may not assign this Agreement
to any entity which provides a general Internet or Intranet search
service directly or indirectly competitive to Infoseek. "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 provide
Big Yellow or the Service. Any attempt to assign this Agreement in
derogation hereof shall be null and void.
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16. THE PARTIES AS INDEPENDENT CONTRACTORS
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, and only for so long as such
minimal ownership exists.
17. WAIVER
The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed
as a waiver of any subsequent breach of the same or any other provision
of the Agreement, nor shall any delay or omission on the part of either
party to exercise or avail itself of any right or remedy that it has or
may have hereunder operate as a waiver of agreement or remedy by such
party.
18. FURTHER ASSURANCES
Each party shall take such action (including, but not limited to, the
execution, acknowledgment and delivery of documents) as may reasonably
be requested by the other party for the implementation or continuing
performance of this Agreement.
19. FORCE MAJEURE
Except for Licensee's payment obligations to Infoseek under this
Agreement, neither party shall be liable to the other for any failure
or delay in complying with the provisions, terms and conditions of this
Agreement, nor shall any such failure or delay constitute an event of
default, if such failure or delay shall be due to causes beyond either
of the party's reasonable control. This provision shall not, however,
release a party from using its reasonable best efforts to avoid or
remove all such causes and both parties shall continue performance
hereunder with reasonable dispatch whenever such causes are removed. A
party claiming such non-liability shall give prompt notice thereof to
the other party.
20. NOTICES
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 when (a) delivered personally or upon receipt of confirmed
fax; (b) three (3) business days after having been sent by registered
or certified first class mail, return receipt requested, postage and
charges prepaid, whether or not actually received; 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
Section 20.
If to Licensee: With a copy to:
President General Counsel
NYNEX Information Technologies Company NYNEX Information Resources Company
35 Village Road 35 Village Road
Middleton, MA 01949 Middleton, MA 01949
Fax (508) 762-1066 FAX (508) 762-1071
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If to Infoseek: With a copy to:
President 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
FAX: (408) 986-1889 FAX: (408) 986-1889
21. PUBLICITY
Nothing contained in this Agreement shall be construed as
conferring any right to use in advertising, publicity or other
promotional activities any name, trade name, trademark or other
designation of either party (including any contraction, abbreviation
or simulation of the foregoing): and each party agrees not to use or
refer to this Agreement or any provision thereof in any promotional
activity without the express written approval of the other party,
however, either party may issue a press release regarding this
Agreement solely upon the prior approval of the other party. If a
party does not give notice of its 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. Unless required by law, and except for disclosure on a
"need to know basis" to its own employees, and its legal, investment,
financial and other professional advisers, each party agrees not to
disclose the terms of this Agreement or matters related thereto
without the prior written consent of the other party.
22. TERMS CONTROL
The terms of this Agreement shall control any conflicting or
inconsistent standard terms or conditions on any purchase order or
invoice of either party, notwithstanding any provision to the contrary
in any such purchase order or invoice.
23. HEADINGS
The headings used in this document are for convenience only and are
not to be construed to have legal significance.
24. ESCROW FOR SOURCE CODE
* 24.1 Within [ ] of the Effective Date, Infoseek shall
provide to Escrow Agent identified in Exhibit C the
available buildable Source Code of the Licensed Software for
deposit with Data Securities International. Infoseek shall
keep the Source Code in escrow current by providing to
Escrow Agent, a new deposit of the available Source Code for
* applicable updates not less than [ ] while this Agreement
is in effect. This Section 24 shall apply to Licensee only
and not to any Affiliate or Sublicensee, or to any Third
Party Portions.
24.2 Licensee shall have access to the Source Code upon the
occurrence of any of the events and subject to the
provisions set forth in Exhibit C.
24.3 During the term of this Agreement, the Source Code shall
remain in escrow and may not be
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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delivered to or used by Licensee except as provided in Exhibit
C.
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IN WITNESS WHEREOF, 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: ROBERT E.L. JOHNSON III Print Name: Matthew J. Stover
-------------------------- -------------------------
Title: CEO & PRESIDENT Title: Chairman of the Board
------------------------------ -------------------------------
Date: MARCH 29, 1996 Date: March 29, 1996
-------------------------------- ------------------------------
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EXHIBIT A
I. LICENSED SOFTWARE:
Infoseek software currently code-named: "Ultraseek"
(including search, retrieval, indexing and network spider technology)
II. LICENSED SOFTWARE DOCUMENTATION:
III. INFOSEEK DELIVERABLES:
Master of the Licensed Software in binary form:
Related documentation
IV. ANTICIPATED DELIVERY DATE:
TBD
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EXHIBIT B
FEE SCHEDULE
LICENSED SOFTWARE LICENSE FEES:
The following non-refundable fees shall apply for the Licensed Software:
* Licensed Software [ ]
*See Section 9 of the Agreement for Licensed Software License Fees
applicable to Renewal Terms
Except as provided in Section 9 of the Agreement, all applicable fees and
payments under this Agreement shall be due and payable Net thirty (30) days from
the date of Infoseek's applicable invoice(s). Licensee shall pay to Infoseek the
royalties payable by Infoseek applicable to the Third Party Portions licensed
hereunder.
ADDITIONAL CONSIDERATIONS:
Licensee agrees to conspicuously display on the appropriate page of Big Yellow a
mutually agreed upon notice indicating that the search and retrieval technology
utilized by the Big Yellow service is technology licensed from Infoseek
Corporation.
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
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EXHIBIT C
ESCROW AGREEMENT
EFFECTIVE this ____ day of _____________ ("Effective Date"), this Escrow
Agreement ("Escrow Agreement") is entered into by NYNEX INFORMATION TECHNOLOGIES
COMPANY, with its principal place of business at 35 Village Road, Middleton,
Massachusetts 01949 ("NYNEX") and Infoseek Corporation, with its principal place
of business at 2620 Augustine Drive, Suite 250, Santa Clara, CA 95054
("Infoseek"), and Data Securities International,
__________________________________ ("Escrow Agent").
RECITALS
WHEREAS, Infoseek will provide NYNEX with Infoseek Licensed Software ("Licensed
Software") in executable form, and Infoseek documentation (collectively
"Infoseek Products") pursuant to the certain Software License Agreement dated
_________________, 1996 between NYNEX and Infoseek ("Underlying Agreement").
Except as otherwise indicated, all capitalized terms in this Agreement have the
same meaning as defined in the Underlying Agreement.
WHEREAS, This Escrow Agreement provides to NYNEX only and not to any Sublicensee
or Affiliate, the availability to access Source Code for the Licensed Software
("Source Code") upon the occurrence of the events described in and subject to
Sections 4 and 5 of this Escrow Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth in this Escrow
Agreement, NYNEX, Infoseek and Escrow Agent agree as follows:
1. Deposit of Source Code.
(a) No later than one hundred twenty (120) days following the
Effective Date of this Escrow Agreement, Infoseek shall
deposit and Escrow Agent shall accept, for storage purposes
only, the buildable available Source Code of each Licensed
Software and any additional Licensed Software covered by the
Underlying Agreement as at any time amended. Deposit shall be
made at Data Securities International,
__________________________________.
(b) Source Code shall include for Licensed Software copies of all
current source code lines and any associated support
documentation, excluding those portions of the Source Code
which belong to third parties and are unavailable to Infoseek
or which Infoseek has licensed from third parties which
Infoseek does not have the right to sublicense or disclose to
NYNEX.
2. Title to Source Code.
Infoseek will retain ownership of all intellectual property contained in the
deposited Source Code including all copyright, trade secret, patent or other
intellectual property rights subsisting in such Source Code.
3. Release of Source Code to NYNEX.
The copy of the Source Code on deposit in escrow pursuant to those Agreement
shall be released to NYNEX only in accordance with the terms of this Agreement.
4. Release Event; Escrow as Supplementary.
(a) In the event Infoseek voluntarily commences a Chapter 7
proceeding under the Federal Bankruptcy Act and the proceeding
remains undismissed for a period of one hundred twenty (120)
days, then
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NYNEX shall so notify Escrow Agent in writing, providing
evidence of the filing and the duration of such proceedings
and make a formal demand that the Escrow Agent release the
Source Code to NYNEX. Following expiration of such one hundred
twenty (120) day period, the provisions of Section 5 shall not
be applicable and Escrow Agent shall promptly release the
Source Code to NYNEX.
(b) Infoseek and NYNEX acknowledge that this Escrow Agreement is
an "agreement supplementary to" the Underlying Agreement as
provided in Section 365 (n) of Title 11, United states Code
("the Bankruptcy Code"). Infoseek acknowledges that if
Infoseek as a debtor-in-possession or if a trustee in
bankruptcy in a case under the Bankruptcy Code rejects the
Underlying Agreement or this Escrow Agreement, NYNEX may elect
to retain its rights under the Underlying Agreement and this
Escrow Agreement as provided in Section 365 (n) of the
Bankruptcy Code. Upon written request of NYNEX to Infoseek or
the bankruptcy trustee, Infoseek or such bankruptcy trustee
will not interfere with the rights of NYNEX as provided in the
Underlying Agreement and this Escrow Agreement to obtain the
Source Code from the bankruptcy trustee or from the Escrow
Agent, and will, if requested, cause a copy of the Source Code
to be available to NYNEX.
5. Failure of Infoseek to Perform Support Services.
(a) (i) If Infoseek or Infoseek's successor in interest
is unable to provide Support Services as required by
the Underlying Agreement (and in breach of its
obligation under that Underlying Agreement) because
of the insolvency of Infoseek as defined in Article
1-201 (23) of the Uniform Commercial Code, NYNEX
shall so notify Infoseek in writing ("Deficiency
Notice"), specifying in reasonable detail the basis
for Infoseek's failure or inability to provide
Support Services. NYNEX shall serve a copy of the
Deficiency Notice simultaneously upon the Escrow
Agent.
(ii) If Infoseek or Infoseek's successor in interest is
unable to discharge any of its Support Services
obligations as required by Section 8 of the
Underlying Agreement (and in breach of its
obligations under that Underlying Agreement), NYNEX
shall so notify Infoseek in writing ("Deficiency
Notice"), specified in reasonable detail the basis
for such failure. NYNEX shall serve a copy of the
Deficiency Notice simultaneously upon the Escrow
Agent.
(b) For a period of sixty (60) days after service of the
Deficiency Notice ("Cure Period"), Infoseek shall have the
right to cure the alleged deficiencies and shall correspond
with and deal directly with NYNEX; provided, however, Infoseek
and NYNEX shall promptly effect the Software support and
Program error corrections process described In Exhibit C-1
hereto and NYNEX shall be entitled to seek the injunctive
relief described therein, without recourse to Section 6 below.
(c) If at the end of the Cure Period the alleged support
deficiencies have not been cured NYNEX shall notify Infoseek
and the Escrow Agent in writing, specifying in reasonable
detail the deficiency with respect to the Support Services and
make a Demand Notice.
(d) If Infoseek disagrees with the Demand Notice specified in
Paragraph 5 (c) above, Infoseek shall so notify the Escrow
Agent and NYNEX in writing (Objection Notice) within thirty
(30) calendar days after receipt of the Demand Notice and
Escrow Agent shall not release the Source Code unless
otherwise directed by Infoseek and NYNEX jointly. Failure of
Infoseek to give timely Objection Notice shall conclusively
establish its consent to the immediate release of the Source
Code to NYNEX under the terms of this Agreement.
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6. Dispute Resolution.
6.1 In the event of any dispute involving the release of the
Source Code under Section 5, authorized representatives of
Infoseek and NYNEX shall meet pursuant to Section 10.4 of the
Underlying Agreement ("Dispute Resolution") and the parties
shall attempt to expeditiously resolve such disputes in
accordance thereunder.
6.2 In the event of a Deficiency Notice given pursuant to
Paragraph 5 (a) (ii) above which leads to a dispute pursuant
to Paragraph 6.1 and the dispute fails to get resolved
pursuant to the timeframes specified in Section 10.4 of the
Underlying Agreement, then either party may seek binding
arbitration in accordance with the commercial rules of the
American Arbitration Association then in effect to resolve the
dispute. Such arbitration shall take place in Santa Clara,
California and shall be conducted by three (3) arbitrators,
one (1) which shall be selected by each party and the third
which shall be selected by the other two arbitrators within
the time limits established by the existing rules of the
American Arbitration Association. The chairman of such panel
of arbitrators shall be an attorney at law, and the other
arbitrators shall have a background or training in either
computer law, computer science or marketing or computer
industry products. Each arbitrator shall be knowledgeable in
business information and data processing systems. The
arbitrators shall have the authority to permit discovery, the
extent deemed appropriate by the arbitrators, upon request of
a party. The arbitrators shall have no power or authority to
add to or detract from the agreements of the parties, and the
cost of the arbitration shall be borne equally. The
arbitrators shall have the authority to grant injunctive
relief in a form substantially similar to that which would
otherwise be granted by a court of law. The arbitrators shall
have no authority to award punitive or consequential damages.
The resulting arbitration award may be enforced, or injunctive
relief may be sought, in any court of competent jurisdiction.
The parties stipulate that the Superior Court of the County of
Santa Clara, California or the United States District Court
for the Northern District of California are courts of
competent jurisdiction for this purpose.
7. License of Source Code.
7.1 If the Source Code is delivered out of escrow to NYNEX
pursuant to Section 4 (Bankruptcy/Insolvency) of this Escrow
Agreement, NYNEX shall be licensed by Infoseek subject to the
conditions of this Escrow Agreement and the Underlying
Agreement pursuant to a non-transferable, non-exclusive,
fully-paid, license to the Source Code for a term of the
lesser of the remaining duration of the term of the Underlying
Agreement or until Infoseek shall have or Infoseek's
successor-in-interest shall have a reasonably demonstrable
capability of meeting the Support Services obligations under
the Underlying Agreement. The license entitles NYNEX solely to
use, copy, modify, maintain and update the Source Code in all
such respects as may be necessary for NYNEX to maintain and
update Licensed Software. Infoseek also grants NYNEX the
rights specified in Section 8 below.
7.2 If the Source Code is delivered out of escrow to NYNEX
pursuant to Section 5 (Failure to Perform Support Services) of
this Escrow Agreement, NYNEX shall be licensed by Infoseek
subject to the conditions of this Escrow Agreement and the
Underlying Agreement, pursuant to a non-exclusive,
non-transferable license solely to use, copy, modify, maintain
and update the Source Code in all such respects as may be
necessary for NYNEX to maintain and update the existing
licenses received and sublicenses granted by or through NYNEX
under the Underlying Agreement for the Licensed Software.
NYNEX shall have no license to grant new sublicenses. Infoseek
also grants NYNEX the rights specified in Section 8 below.
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7.3 NYNEX shall indemnify Infoseek against any losses actually
incurred by Infoseek as a result of NYNEX wrongfully gaining
access to the Source Code and/or failing to observe the
restrictions and conditions as to its use as set forth herein.
8. Confidentiality and Use of Source Code.
(a) Upon release of the Source Code to NYNEX pursuant to this
Escrow Agreement, NYNEX shall preserve the Source Code in
confidence in accordance with the same degree of care
practiced by it, but not less than reasonable care, to
safeguard its proprietary source code against unauthorized use
and disclosure, and shall use the Source Code only as
authorized under this Escrow Agreement and the Underlying
Agreement.
(b) This Section 8 shall survive the termination of this Escrow
Agreement for a period of twenty-five (25) years.
9. Fees.
NYNEX shall pay to Escrow Agent, in advance, fees at the standard rate
prescribed from time to time by Escrow Agent for performance of
services under this Escrow Agreement.
10. No Duty to Inquire into Truth, Authenticity of Authority/Right to
Require Additional Documents,
Escrow Agent shall not be required to inquire into the truth of any
statements or representations contained in any notices, certificates or
other documents required or otherwise provided hereunder, and shall be
entitled to assume that the signatures on such documents are genuine,
that the persons signing on behalf of any party thereto are duly
authorized to execute the same, and that all actions necessary to
render any such documents binding on the party purportedly executing
the same have been duly undertaken. Without in any way limiting the
foregoing, Escrow Agent may in it's discretion require from Infoseek or
NYNEX additional documents which it deems to be necessary or desirable
in the course of performing its obligations hereunder.
11. No Liability.
Both Infoseek and NYNEX agree to and hereby do release Escrow Agent
from and against any and all liability to them for losses, damages, and
expenses (including attorneys' fees) that may be incurred by them on
account of Escrow Agent's compliance in good faith with the terms of
this Escrow Agreement.
12. Notices.
Notices, demands and other communications under this Agreement shall be
delivered by registered or certified mail, return receipt requested, to
the intended recipient at the address set forth below, or to such other
address as such recipient shall have designated by notice to the
sending party. Notices shall be deemed to have been given and received
when signed for on the return receipt.
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If to Infoseek: If to NYNEX:
Attn: General Counsel Attn: _______________________
Infoseek Corporation NYNEX Information Technologies Company
2620 Augustine Drive, Suite 250 35 Village Road
Santa Clara, CA 95054 Middleton, MA 01949
Telephone: (408) 567-2700 Telephone: (508) ________
FAX: (408) 986-1889 FAX: (508) 762-1066
If to Escrow Agent:
Attn: Escrow Officer
Data Securities International
- -----------------------------
- -----------------------------
Telephone
--------------------
Fax:
-------------------------
13. Termination.
This Escrow Agreement shall remain in full force and effect until the
expiation or termination of the Underlying Agreement, unless terminated
earlier in accordance with the provisions of this Escrow Agreement.
This Escrow Agreement may not be terminated or modified except in
writing signed by Escrow Agent, Infoseek and NYNEX. Upon termination of
this Escrow Agreement Escrow Agent shall return Source Code to
Infoseek.
14. Entire Agreement.
This Escrow Agreement and the Underlying Agreement set forth and the
entire agreement and understanding between the parties relating to the
subject matter hereof, superseding and merging all prior and
contemporaneous discussions, proposals, and agreements, oral or
written, and all other communications between the parties relating to
this Escrow Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement by their duly
authorized representatives as of the date or dates set forth below.
NYNEX INFORMATION TECHNOLOGIES INFOSEEK CORPORATION
COMPANY
By:
-----------------------------------
By:
----------------------------
Print Name ---------------------------
Print Name
---------------------
Title
---------------------------------
Title
-------------------------
Date
----------------------------------
Date
--------------------------
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DATA SECURITIES INTERNATIONAL
By:
--------------------------------------
Print Name
-------------------------------
Title
-----------------------------------
Date
-------------------------------------
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EXHIBIT C-1
SOFTWARE SUPPORT AND PROGRAM ERROR CORRECTIONS
Support to NYNEX for Program Error diagnosis and primary responsibility for
correcting Licensed Software Errors or Documentation errors will be in the
Infoseek organization.
NYNEX will attempt to diagnose all incoming problem reports; however, it may be
necessary to send problems and problem files to Infoseek for final diagnosis.
Infoseek shall have the capability to receive files electronically by modem from
NYNEX.
The severity of a Program Error will determine the response and correction time
requirements. A "critical" Program Error is one that makes the product
substantially non-functional, without an available workaround, and is a Severity
level 1 in the classification outlined below. A "non-critical" Program Error is
Severity levels 2, 3 or 4 in the classification.
Infoseek shall use its reasonable best efforts to report known bugs and their
workarounds to NYNEX in written or electronic form as soon as such workarounds
are made generally available to Infoseek's customers.
Infoseek shall use its reasonable best efforts to address all "critical" or
"non-critical" Program Errors or bugs as described below:
SEVERITY OF PROGRAM ERRORS RESPONSE REQUIREMENTS
- -------------------------- ---------------------
"Critical"
NYNEX Severity level 1 1. Acknowledge within four (4) working
hours.
2. Provide a workaround upon
acknowledgment, if available.
3. If the Program Error can be corrected
without a binary change, Infoseek
will provide a workaround or fix to
NYNEX within one (1) week of
Infoseek's acknowledgment, or NYNEX
will provide a reasonable explanation
why the Program Error requires a
longer interval to correct.
4. If the Program Error must be
corrected by a binary change,
Infoseek will provide a workaround or
fix, at the earliest, approximately
two (2) weeks after acknowledgment,
or Infoseek will provide a reasonable
explanation why the Program Error
requires a longer interval to
correct.
If Infoseek fails to perform its obligations under Items 3 or 4 above, NYNEX
shall be entitled to seek injunctive relief demanding specific performance, or,
if appropriate, access to the relevant available Source Code for the affected
portion of the Licensed Software. In the event NYNEX is granted access to such
Source Code such access shall be subject to the restrictions, limitations and
obligations applicable to NYNEX set forth in the Source Code Escrow Agreement
attached as Exhibit C to the Agreement, and shall be deemed as received pursuant
to Section 5(a)(i) of such Escrow Agreement, regardless of whether Section 4 (a)
of such Escrow Agreement would have been
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otherwise applicable or not; provided, however, NYNEX shall have access to the
Source Code solely for the purpose of effecting the applicable Program Error
Correction and solely for the period of time, not to exceed sixty (60) days,
necessary to effect the Program Error Correction; NYNEX shall promptly
thereafter return to the Escrow Agent the Source Code and all copies thereof,
and shall provide to Infoseek all modifications and additions made to the Source
Code to effect the Program Error Correction well as a copy of any revised binary
code created thereby. Access to Source Code for Third Party Portions under this
Exhibit C-1 and Exhibit C shall occur solely to the extent, if any, Infoseek
shall have been granted rights from the applicable Third Party consistent
therewith to provide such Source Code to Licensee.
"Non-critical" 1. Acknowledge within four (4) working
NYNEX Severity levels 2, 3 or 4 hours.
2. Workaround/fix provided if and when
available. Provide a workaround upon
acknowledgment, if available.
3. Provide NYNEX with a fix, if and when
available in a subsequently released
product.
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The severity level of a Program Error will be jointly determined by Infoseek and
NYNEX pursuant to the following definitions:
Program Error Severity Levels
1. Major impact* and no workaround** exists
2. Major impact, but a workaround exists
3. Significant deviation from Documentation
4. Minor deviation from Documentation, inconsistent or inconvenient to
use.
5. No bug, determined to be operator error or a third party error
6. Enhancement
- ----------------
* Major impact- directly attributable to Licensed Software and not
attributable to any hardware, server, operating system or window
manager and causes the workstation, network or software to crash under
normal operating conditions, severely impacts production or results in
corruption of datafile.
** Workaround- an alternative that can be used to obtain the same
functionality.
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