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EXHIBIT 10.15
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
CONTENT LICENSE AND CHANNEL SPONSORSHIP TERM SHEET
This agreement ("Agreement") is entered into as of the [*] ("Effective Date"),
by and between Excite, Inc., a California corporation, located at 555 Broadway,
Redwood City, California 94063 ("Excite"), and Auto-By-Tel, a California
corporation, located at 18872 MacArthur Blvd., #200, Irvine, California,
92612-1400 ("Auto-By-Tel").
RECITALS
A. Excite maintains a site on the Internet at http://www.excite.com and owns
and/or manages related Web sites worldwide (collectively, the "Excite
Network") which, among other things, allow its users to search for and
access content and other sites on the Internet.
B. Within the Excite Network, Excite currently organizes certain content into
topical channels, including the Excite Automotive Channel.
C. Excite also maintains and/or manages certain Web pages which may be
delivered to users via email, desktop "channels" or Internet "push"
technologies (collectively, "Broadcast Pages") which may incorporate
content supplied to Excite by third parties for the purpose of providing
value to Excite users and providing access to the content, products and/or
services of such third parties.
D. Auto-By-Tel owns or has the right to distribute certain content relating to
online automobile buying and maintains a related site on the Internet at
http://www.autobytel.com (the "Auto-By-Tel Site") for which it wishes to
generate increased traffic.
E. Auto-By-Tel wishes to promote use of the Auto-By-Tel Site to Excite's users
by sponsoring the Excite Automotive Channel and purchasing banner
advertising on the Excite Network.
Therefore, the parties agree as follows:
1. SPONSORSHIP OF EXCITE AUTOMOTIVE CHANNEL
a) Auto-By-Tel will be the exclusive online automobile buying service
sponsor of the Excite Automotive Channel, located at
http://www.excite.com.
b) During the term of the Agreement, Excite will not display any banner
advertising or promotional placements for any of Auto-By-Tel's direct
competitors (listed in Exhibit C) in the Excite Automotive Channel.
Not more than once per quarter, Auto-By-Tel may update this list of
competitors.
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c) In the event that Excite intends to enter into an agreement with a
third party with respect to sponsorship of the Excite Automotive
Channel before the expiration of the term of the Agreement, Excite
will deliver to Auto-By-Tel a written notice describing the relevant
opportunity. Although Excite will not be required to disclose any
information in violation of any nondisclosure agreement between Excite
and any third party, the notice will include information sufficient to
permit Auto-By-Tel to evaluate the requirements for meeting the
competing offer for sponsorship of the Excite Automotive Channel and
to formulate a meaningful response. Auto-By-Tel will have ten (10)
days after receipt of such written notice to provide notice to Excite
that it is prepared to enter into an agreement with Excite on the same
terms and conditions as Excite proposes to accept from such third
party. Excite and Auto-By-Tel will then promptly commence good faith
negotiations to conclude the agreement. If Auto-By-Tel rejects said
offer or fails to notify Excite of its acceptance within the ten (10)
day period, Excite shall have the right to enter into the agreement
with such third party, provided the terms and conditions of the
agreement are not less favorable to Excite than previously offered by
Auto-By-Tel.
2. MARKETING AND PROMOTION
a) Excite will feature Auto-By-Tel in the Auto Buying Services department
of the Excite Automotive Channel for the term of the Agreement.
b) Excite will conduct three (3) two-week car give away promotions on the
Excite home page promoting Auto-By-Tel during the first year of the
Agreement, with one promotion coinciding with the launch of
Auto-By-Tel's sponsorship and the other two to be mutually scheduled.
Excite will conduct similar promotions in years two and three of the
Agreement. Auto-By-Tel will provide the cars to be given away through
these promotions.
c) Auto-By-Tel will purchase banner advertising on the Excite Network in
Year One of the Agreement in the amounts described in Exhibit A.
Auto-By-Tel will purchase banner advertising on the Excite Network in
Year Two and Year Three in amounts substantially comparable to the
amounts agreed upon in Exhibit B.
d) Excite will deliver a minimum of [*] impressions of Auto-By-Tel
promotional placements during the term of the Agreement, including the
placement in the Auto Buying Services department of the Excite
Automotive Channel, the car give-away promotions and the banner
advertisements described above, the display of Auto-By-Tel's content
described below and other promotional placements that may be
determined by the parties.
e) Neither party will make any public statement, press release or other
announcement relating to the terms of or existence of this Agreement
without
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the prior written approval of the other. Notwithstanding the
foregoing, Auto-By-Tel hereby grants to Excite the right to issue an
initial press release, the timing and wording of which will be subject
to Auto-By-Tel's reasonable approval, regarding the relationship
between Excite and Auto-By-Tel.
3. CONTENT PROVIDED TO EXCITE
a) Auto-By-Tel will provide to Excite mutually agreed upon content
relating to online automobile buying such as AutoSite and The Bank
Rate Monitor (the "Content") which is described in Exhibit D. Excite
may display the Content in the Excite Automotive Channel and in other
locations in the Excite Network. Excite will determine the "look and
feel" of the Excite Automotive Channel and the Excite Network.
b) Auto-By-Tel will not provide the Content to any of Excite's
competitors during the term of the Agreement, including, but not
limited to, AltaVista, HotBot, Infoseek, Lycos, Search.com and Yahoo,
or any other Web site promoting itself as a provider of Internet
search and navigation services. Not more than once per quarter, Excite
may update this list of competitors.
c) Auto-By-Tel and Excite will determine mutually agreeable methods for
the transmission and incorporation of updates to the Content. Other
than updates to the Content or revisions as needed to reflect changes
to Auto-By-Tel's name and/or brand, Auto-By-Tel will not alter the
Content without Excite's prior consent.
d) Auto-By-Tel will ensure that the Content will at all times feature the
full array of content and functionality as made generally available by
Auto-By-Tel at the Auto-By-Tel Site, through any other means of
distribution of Auto-By-Tel's own branded service or through any other
third-party relationship.
e) Auto-By-Tel will have sole responsibility for providing, at its
expense, the Content to Excite.
f) Reasonable excerpts or portions of the Content may be incorporated
into "Broadcast Pages" delivered by Excite via email, desktop
"channels" or Internet "push" technologies. Excite will determine the
"look and feel" of the Broadcast Pages.
4. SPONSORSHIP AND ADVERTISING FEES AND REVENUE SHARING
a) A "set-up fee" of [*] will be due to Excite upon execution of the
Agreement as compensation for exclusivity, costs of initiating access
to the Excite Network, programming costs associated with the
incorporation of the Content into the Excite Network, set-up costs and
other expenses associated
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with Excite's initiation of the links, placements, advertisements and
promotions contemplated by this Agreement.
b) Separate and apart from the set-up fee, sponsorship and advertising
fees will be due to Excite as follows:
Year 1 Year 2 Year 3
---------- ---------- ----------
Sponsorship [*] [*] [*]
Banners - US [*] [*] [*]
Banners - WebTV/ [*] [*] [*]
International
Total [*] [*] [*]
In the event that Excite is unable to deliver the agreed-upon amount
of banner advertising in the WebTV and/or International rotations,
Excite will provide the undelivered amounts in rotation on its primary
Web site.
c) Auto-By-Tel will pay Excite a bounty per unique purchase request
submitted by users referred to the Auto-By-Tel Site from the Excite
Network of [*] for the first [*] unique purchase requests in
each year of the Agreement, [*] for the second [*] unique
purchase requests in each year of the Agreement and [*] for each
unique purchase request in excess of [*] in each year of the
Agreement. [*].
d) If the number of unique purchase requests submitted by users referred
directly to the Auto-By-Tel Site from the Excite Network in any year
of the Agreement exceeds [*], the bounty increases to [*] for
the first [*] unique purchase requests in the following year of
the Agreement, [*] for the second [*] unique purchase requests
In the following year of the Agreement and [*] for each unique
purchase request in excess of [*] in the following year of the
Agreement.
e) The set-up, sponsorship and advertising fees are gross amounts and do
not reflect any agency commissions to be paid by Auto-By-Tel. The
bounty payment amounts are net of any agency commissions to be paid by
Auto-By-Tel.
f) Sponsorship and advertising fees will be paid in twelve equal monthly
installments commencing on the execution of the Agreement. Bounty
payments will be made quarterly. The parties will conduct annual
reviews to ensure accurate payments and accounting.
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g) Auto-By-Tel will maintain accurate records with respect to the
calculation of all payments due under this Agreement. Excite may, upon
no less than thirty (30) days prior written notice to Auto-By-Tel,
cause an independent Certified Public Accountant to inspect the
records of Auto-By-Tel reasonably related to the calculation of such
payments during Auto-By-Tel's normal business hours. The fees charged
by such Certified Public Accountant in connection with the inspection
will be paid by Excite unless the payments made to Excite are
determined to have been less than ninety-five percent (95%) of the
payment owed to Excite, in which case Auto-By-Tel will be responsible
for the payment of the reasonable fees for such inspection.
5. CUSTOMER INFORMATION
a) Auto-By-Tel will retain all rights to customers acquired pursuant to
the Agreement.
b) Once per quarter, in connection with Auto-By-Tel's bounty payments,
Auto-By-Tel will provide Excite with all of the customer information
it acquires through the purchase requests submitted by users referred
directly to Auto-By-Tel's Web site from the Excite Network. This
customer information will be deemed to be the joint property of the
parties. Under no circumstances will Excite sell, provide or transfer
this customer information to any third party.
6. OPERATIONAL SUPPORT
a) Excite will provide, at its sole expense, Account Management support
of the Auto Buying Services department of the Excite Automotive
Channel sufficient to support for the level of sales and marketing
contemplated by the Agreement.
b) The parties will hold formal reviews on a monthly basis to maintain
anticipated results according to the sponsorship objectives.
Advertising and sponsorship placements will be adjusted monthly by
mutual agreement.
7. TERM AND TERMINATION
a) The Agreement will have an initial term [*].
b) Auto-By-Tel will have the option to cancel the Agreement if, at the
end of the first year of the Agreement, users referred to the
Auto-By-Tel Site from the Excite Network do not submit [*] unique
purchase requests.
c) Either party may terminate this Agreement it the other party
materially breaches its obligations hereunder and such breach remains
uncured for thirty (30) days following the notice to the breaching
party of the breach, with the following exceptions:
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(i) In the event of three or more errors, failures or outages of the
Content in any thirty (30) day period, Excite may elect to
immediately terminate this Agreement upon written notice to
Auto-By-Tel and enter into an other arrangements for the
acquisition of similar content; or
(ii) Auto-By-Tel will ensure that the Content will at all times be at
least comparable to any other source of similar topical content
available on the Internet in terms of the following factors,
taken as a whole: (i) breadth and depth of coverage, (ii)
timeliness of content updates and (iii) reputation and ranking
based on a cross-section of third party reviewers in terms of
features, functionality, quality and other qualitative factors.
In the event that Auto-By-Tel fails to meet these quality
criteria, Excite may terminate this agreement on thirty (30) days
written notice and enter into an other arrangements for the
acquisition of similar content.
d) All payments that have accrued prior to the termination or expiration
of this Agreement will be payable in full within thirty (30) days
thereof.
e) The provisions of Section 10 (Confidentiality), Section 11 (Warranty
and Indemnity), Section 12 (Limitation of Liability) and Section 13
(Dispute Resolution) will survive any termination or expiration of
this Agreement.
8. CONTENT OWNERSHIP AND LICENSE
a) Auto-By-Tel will retain all right, title and interest in and to the
Content worldwide (including, but not limited to, ownership of all
copyrights and other intellectual property rights therein). Subject to
the terms and conditions of this Agreement, Auto-By-Tel hereby grants
to Excite a royalty-free, nonexclusive, worldwide license to use,
reproduce, distribute, transmit and publicly display the Content in
accordance with this Agreement and to sublicense the Content to
Excite's wholly-owned subsidiaries or to joint ventures in which
Excite participates for the sole purpose of using, reproducing,
distributing, transmitting and publicly displaying the Content in
accordance with this Agreement.
b) Excite will retain all right, title, and interest in and to the Excite
Network and the Broadcast Pages worldwide (including, but not limited
to, ownership of all copyrights, look and feel and other intellectual
property rights therein).
9. TRADEMARK OWNERSHIP AND LICENSE
a) Auto-By-Tel will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Excite hereunder.
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b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Auto-By-Tel hereunder.
c) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding advertising
and trademark usage as established from time to time.
d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
10. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
or activities that is proprietary and confidential, which shall
include all business, financial, technical and other information of a
party marked or designated by such party as "confidential" or
"proprietary"; or information which, by the nature of the
circumstances surrounding the disclosure, ought in good faith to be
treated as confidential.
b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all
Confidential Information of the other party in its possession or
control, which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a
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"need-to-know" basis under an obligation of confidentiality to its
legal counsel, accountants, banks and other financing sources and
their advisors.
e) The information contained in the Usage Reports provided by each party
hereunder will be deemed to be the Confidential Information of the
disclosing party.
f) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
11. WARRANTY AND INDEMNITY
a) Auto-By-Tel warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, any and
all content provided to Excite or made available to third parties in
connection with this Agreement.
b) Auto-By-Tel warrants that the Content will comply with the description
and technical specifications contained in Exhibit D.
c) Auto-By-Tel will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
i) The breach of any warranty, representation or covenant in this
Agreement;
ii) Any claim that the Content infringes or violates any third
party's copyright, patent, trade secret, trademark, right of
publicity or right of privacy or contains any defamatory content;
or
iii) Any claim arising from content displayed on the Auto-By-Tel Site.
Excite will promptly notify Auto-By-Tel of any and all such claims and
will reasonably cooperate with Auto-By-Tel with the defense and/or
settlement thereof; provided that, it any settlement requires an
affirmative obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Excite in any way and such
obligation, liability, prejudice or impact, can reasonably be expected
to be material, then such settlement shall require Excite's written
consent (not to be unreasonably withheld or delayed) and Excite may
have its own counsel in attendance at all proceedings and substantive
negotiations relating to such claim,
d) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND
HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF
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MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH
SUBJECT MATTER.
12. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 11(c), 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,
WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THE LIABILITY OF EXCITE FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND
WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY AUTO-BY-TEL TO EXCITE
HEREUNDER.
13. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is
no adequate remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding trademarks,
service marks or trade names or confidentiality, the aggrieved party
will be entitled to seek equitable relief in addition to its other
available legal remedies in a court of competent jurisdiction. For the
purposes of this section only, the parties consent to venue in either
the state courts of the county in which Excite has its principal place
of business or the United States District Court for the Northern
District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, the parties will first attempt to
resolve the dispute(s) through good faith negotiation. In the event
that the dispute(s) cannot be resolved through good faith negotiation,
the parties will refer the dispute(s) to a mutually acceptable
mediator for hearing in the county in which Excite has its principal
place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation and mediation, the parties will refer the dispute(s)
to the American Arbitration Association for resolution through binding
arbitration by a single arbitrator pursuant to the American
Arbitration Association's rules applicable to
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commercial disputes. The arbitration will be held in the county in
which Excite has its principal place of business.
14. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required
in connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets. Any attempt to assign this
Agreement other than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of
Auto-By-Tel.
c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed given upon personal delivery, one (1)
day after deposit with express courier, upon confirmation of receipt
of facsimile or email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set forth below or such
other address as that party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint venture.
e) Force Majeure. Any delay in or failure of performance by either party
under this Agreement will not be considered a breach of this Agreement
and will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts
of God, power outages and governmental restrictions.
f) Severability. In the event that any of the provisions of this
Agreement are held by to be unenforceable by a court or arbitrator,
the remaining portions of the Agreement will remain in full force and
effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a written document
executed by both parties.
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Auto-By-Tel Excite, Inc.
By: /s/ Mark W. Lorimir By: /s/ Robert C. Hood
-------------------------------- ------------------------------
Name: Mark W. Lorimir Name: Robert C. Hood
------------------------------ ----------------------------
Title: EVP & COO Title: EVP & CFO
------------------------------ ----------------------------
Date: ______________________________ Date: ____________________________
[ADDRESS] 555 Broadway
Redwood City, California 94063
415.568.6000 (voice)
415.568.6030 (fax)
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EXHIBIT C
AUTO-BY-TEL LIST OF COMPETITORS
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EXHIBIT D
CONTENT DESCRIPTION AND TECHNICAL SPECIFICATIONS
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CONTENT LICENSE AND CHANNEL SPONSORSHIP TERM SHEET
This term sheet describes the basic points regarding a proposed transaction
between Excite, Inc. ("Excite") and Auto-By-Tel. The parties will enter into a
definitive agreement ("Agreement") incorporating the terms and conditions
contained in this term sheet as soon as reasonably possible. Until the execution
of the Agreement, the parties will be bound by the terms and conditions
contained in this term sheet.
1. SPONSORSHIP OF EXCITE AUTOMOTIVE CHANNEL
a) Auto-By-Tel will be the exclusive online automobile buying service
sponsor of the Excite Automotive Channel, located at
http://www.excite.com. If, based upon customer feedback, Excite
reasonably establishes that the user traffic level on this channel is
not being optimized due to a lack of diversity in the user experience,
the parties will work together in good faith to test enhancements for
the user experience and to generate optimum traffic.
b) During the term of the Agreement, Excite will not display any banner
advertising or promotional placements for any of Auto-By-Tel's direct
competitors in the Excite Automotive Channel.
c) Auto-By-Tel will have a right of first refusal to renew its
sponsorship of the Excite Automotive Channel upon the expiration of
the Agreement.
2. MARKETING AND PROMOTION
a) Excite will feature Auto-By-Tel in the Auto Buying Services department
of the Excite Automotive Channel for the term of the Agreement.
b) Excite will conduct three (3) two-week car give away promotions on the
Excite home page promoting Auto-By-Tel during the [*] of the
Agreement, with one promotion coinciding with the launch of
Auto-By-Tel's sponsorship and the other two to be mutually scheduled.
Excite will conduct similar promotions three (3) times per year in
years [*] of the Agreement. Auto-By-Tel will provide the cars to be
given away through these promotions.
c) Auto-By-Tel will purchase banner advertising on the Excite Network in
the amounts described below,
d) Excite will deliver an annual minimum of [*] impressions of
Auto-By-Tel promotional placements during the term of the Agreement,
including the placement in the Auto Buying Services department of the
Excite Automotive Channel, the car give-away promotions and the banner
advertisements described above, the display of Auto-By-Tel's Content
(described below) and
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other promotional placements that may be agreed upon by the parties.
Attached Exhibits A and B are examples of a Year One Promotional Plan
and a [*] Promotional Plan, respectively.
e) The parties will issue an initial, mutually agreed upon press release.
3. CONTENT PROVIDED TO EXCITE
a) Auto-By-Tel will provide to Excite mutually agreed upon content
relating to online automobile buying such as AutoSite and The Bank
Rate Monitor (the "Content"). Excite may display the Content in the
Excite Automotive Channel and in other locations in the Excite
Network. Excite will determine the "look and feel" of the Excite
Automotive Channel and the Excite Network.
b) Auto-By-Tel and Excite will determine mutually agreeable methods for
the transmission and incorporation of updates to the Content.
c) Reasonable excerpts or portions of the Content may be incorporated
into "Broadcast Pages" delivered by Excite via email, desktop
"channels" or Internet "Push" technologies. Excite will determine the
"look and feel" of the Broadcast Pages.
4. SPONSORSHIP AND ADVERTISING FEES AND REVENUE SHARING
a) A set-up fee of [*] will be due to Excite upon execution of the
Agreement as compensation for exclusivity, costs of initiating access
to the Excite Network, programming costs associated with the
incorporation of the Content into the Excite Network, set-up costs and
other expenses associated with Excite's initiation of the links,
placements, advertisements and promotions contemplated by this
Agreement.
b) Sponsorship and advertising fees will be due to Excite as follows:
Year 1 Year 2 Year 3
---------- ---------- ----------
Sponsorship [*] [*] [*]
Banners - US [*] [*] [*]
Banners - WebTV/ [*] [*] [*]
International
Total [*] [*] [*]
In the event that Excite is unable to deliver the agreed-upon amount
of banner advertising in the WebTV and/or international rotations,
Excite will provide the undelivered amounts in rotation on its primary
Web site.
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c) Auto-By-Tel will pay Excite a bounty per unique auto purchase request
(the "Bounty") submitted by users referred to Auto-By-Tel's Web site
from the Excite Network. The Bounty will be payments of [*] for the
first [*] unique auto purchase requests in each year of the
Agreement, [*] for the second [*] unique auto purchase requests
in each year of the Agreement and [*] for each unique auto purchase
request in excess of [*] in each year of the Agreement. For the
purposes of the Agreement, a "unique auto purchase request" is
one new-automobile purchase or lease request submitted by any
particular user in a sixty (60) day period, as measured by
Auto-By-Tel.
d) If the number of unique auto purchase requests submitted by users
referred to Auto-By-Tel's Web site from the Excite Network in any year
of the Agreement exceeds [*], the Bounty increases to [*] for
the first [*] unique auto purchase requests In the subsequent
year(s) of the Agreement, [*] for the second [*] unique auto
purchase requests in the subsequent year(s) of the Agreement and
[*] for each unique auto purchase request in excess of [*] in
the subsequent year(s) of the Agreement.
e) The set-up, sponsorship and advertising fees are gross amounts and do
not reflect any agency commissions to be paid by Auto-By-Tel. The
Bounty payment amounts are net of any agency commissions to be paid by
Auto-By-Tel.
f) Sponsorship and advertising fees will be paid in twelve equal monthly
installments commencing on the execution of the Agreement. Bounty
payments will be made quarterly. The parties will conduct annual
reviews to ensure accurate payments and accounting.
5. CUSTOMER INFORMATION
a) Auto-By-Tel will retain all rights to customers acquired pursuant to
the Agreement.
b) Once per quarter, in connection with Auto-By-Tel's Bounty payments,
Auto-By-Tel will provide Excite with all of the customer information
it acquires through the purchase requests submitted by users referred
directly to Auto-By-Tel's Web site from the Excite Network. This
customer information will be deemed to be the joint property of the
parties. Under no circumstances will Excite sell, provide or transfer
this customer information to any third party.
6. OPERATIONAL SUPPORT
a) Excite will provide. at its sole expense, Account Management support
of the Auto Buying Services department of the Excite Automotive
Channel sufficient
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to support for the level of sales and marketing contemplated by the
Agreement.
b) The parties will hold formal reviews on a monthly basis to maintain
anticipated results according to the sponsorship objectives.
Advertising and sponsorship placements will be adjusted monthly by
mutual agreement,
7. TERM AND TERMINATION
a) The Agreement will have an initial term [*].
b) Auto-By-Tel will have the option to cancel the Agreement it, at the
end of the first year under the term of the Agreement, users referred
to Auto-By-Tel's Web site from the Excite Network do not submit
[*] unique AUTO purchase requests.
c) Excite will have the option to cancel the Agreement if. at the end of
the [*] under the term of the Agreement, Excite has not received an
aggregate of [*] million in Bounty.
d) Either party may terminate if the other party breaches the Agreement
and the breach remains uncured for thirty (30) days.
8. CONTENT OWNERSHIP AND LICENSE
Auto-By-Tel will retain all right, title and interest in and to the
Content worldwide, subject to a limited license necessary to perform
the Agreement. Excite will retain all right, title, and interest in
and to the Excite Network, the Excite Automotive Channel and the
Broadcast Pages worldwide.
9. TRADEMARK OWNERSHIP AND LICENSE
Auto-By-Tel and Excite will retain all right, title and Interest in
and to their trademarks, service marks and trade names worldwide,
subject to limited cross-licenses necessary to perform the Agreement.
10. CONFIDENTIALITY
The terms and conditions of the Agreement will be confidential.
11. WARRANTY AND INDEMNITY
Auto-By-Tel will indemnify Excite from third party claims that the
Content infringes or violates any third party's copyright, patent,
trade secret, trademark. right of publicity or right of privacy or
contains any defamatory content,
12. LIMITATION OF LIABILITY
4
18
Except for liability for indemnity, neither Party will have liability
for any damages other than direct damages. Excite's liability will be
limited to the amounts actually paid by Auto-By-Tel.
13. DISPUTE RESOLUTION
Disputes about trademarks, service marks, trade names and
confidentiality can be resolved in court. All other disputes must be
resolved through mediation and then binding arbitration. All
proceedings will be held in the county in which Excite has its
principal place of business.
14. GENERAL
The Agreement will be governed by California law.
Excite, Inc. Auto-By-Tel
By: [SIG] By: /s/ MARK W. LORIMER
-------------------------- --------------------------
Name: [ILLEGIBLE] Name. Mark W. Lorimer
------------------------ ------------------------
Title: Pres. and CEO Title: EVP & COO
----------------------- -----------------------
Date: 9/10/97 Date: 9/12/97
------------------------ ------------------------
5
19
[*] Confidential Treatment Requested
AUTO-BY-TEL AND EXCITE
[*] PROMOTIONAL PLAN
EXHIBIT A
[COLUMN HEADS ILLEGIBLE]
- ----------------------------------------------------------------------------------------------------------------------
BASE PAYMENT 10/1 Base payment excluding Purchase Y [*]
requests
EXCITE AUTOMOTIVE CHANNEL
Sole buying service 10/1 Link under "Buying Services" to Y [*] [*] [*]
sponsorship with link off custom area
home page to Custom area Link under "Used Cars": Search ABT's Y
Used Car Cyberstore
Link under "News": Weekly Automotive Y
Report
Link under "Insurance & Finance": Y
Generic
Text/graphic on all pages Y
KEYWORDS*
Excite (Auto brand, keyword) 10/1 Minimum 12.5% "Gen'l Auto"* per month Y** [*] [*] [*]
Integrated Search [*]
------
[*]
Webcrawler (Auto brand, 10/1 Minimum 15% "Gen'l Auto"* per month N [*] [*] [*]
keyword)
LIFESTYLE DIRECTORIES/GEN'L
Various & Specific 10/1 Business & Investing N [*] [*] [*]
preferences Shopping
Computers & Internet
General Rotation 10/1 Various keyword results N [*] [*] [*]
AUTOMOTIVE SHOPPING*** 10/1 Graphic link N [*] [*]
[*] imp's/year
EXCITE HOME PAGE SPONSOR***
2 Weeks on Home Page (3X/yr.) 10/1 Car giveaway [*] Y [*] [*]
[*] imp's/wk. subsequent years)
ABT to provide cars [*] retail
value per car)
WEB TV, EUROPE, CANADA
Programs TBD 10/1 25% Auto keywords on Web TV/possible Y [*] [*] [*]
in Auto area
Auto Keywords (Europe/Canada) TBD
TOTAL [*] [*] [*]
PURCHASE REQUEST PROGRAM
[*] Unique requests annual 10/1 Net: [*] up to [*], [*] up to [*], N/A [*]
guarantee [*] after [*].
[*] [*], [*], [*]
GRAND TOTAL [*] [*] [*]
* Keywords: Car(s), Auto(s), Automobile(s), Automotive, Dealer, Incentive,
Buyer(s)
** Category Exclusivity on the [*] Keywords listed above only, not Auto brand
words
*** impressions included within Autochannel
20
[*] Confidential Treatment Requested
AUTO-BY-TEL AND EXCITE
[*] PROMOTIONAL PLAN
EXHIBIT B
Date of Impression Negotiate
Content Area Description
BASE PAYMENT Base payment excluding Purchase requests Y [*] [*]
EXCITE AUTOMOTIVE CHANNEL
Sole buying service sponsorship Link under "Buying Services" to Custom area Y [*] [*] [*] [*]
with link off home page to "Used Cars": Search ABT's Used Car Cyberstore Y
custom area Link under "News": Weekly Automotive Report Y
Link under "Insurance & Finance". Generic Y
Text/graphic on all pages Y
KEYWORDS*
Excite (Auto brand, keyword) Minimum 12.5% "Gen'l Auto"* Y [*] [*] [*] [*]
Integrated Search
Webcrawler (Auto brand,
keyword) Minimum 15% "Gen'l Auto"* per month N [*] [*] [*] [*]
LIFESTYLE DIRECTORIES/GEN'L
Various Specific Preferences Business Investing N [*] [*] [*]
Shopping
Computers & Internet
General Position Various keyword results N [*] [*] [*] [*]
AUTOMOTIVE SHOPPING*** Graphic link N [*] [*] [*]
[*] imp's/year
EXCITE HOME PAGE SPONSOR***
2 weeks on Home Page [*] Car giveaway [*] in 1997 [*] subsequent years Y [*] [*] [*]
[*] imp's/wk. ABT to provide cars ([*] retail value per
car)
WEB TV, EUROPE, CANADA
Programs TBD 25% Auto keywords on Web TV/possible in Auto area Y [*] [*] [*] [*]
Auto Keywords (Europe/Canada) 100
TOTAL [*] [*] [*] [*]
PURCHASE REQUEST PROGRAM
[*] Unique requests Net [*] illegible to [*], $?? after [*] N/A [*] [*]
annual guarantee Years ??? illegible
GRAND TOTAL [*] [*] [*] [*]
BASE PAYMENT Base payment excluding Purchase (requests) Y
[*] [*]
EXCITE AUTOMOTIVE CHANNEL
Sole buying service sponsorship Link under "Buying Services" to Custom area Y [*] [*] [*] [*]
with link off home page to "Used Cars": Search ABT's Used Car Cyberstore Y
custom area Link under "News": Weekly Automotive Report Y
Link under "Insurance & Finance" Generic Y
Text/graphic on all pages Y
KEYWORDS*
Excite (Auto brand, keyword) Minimum 12.5% "Gen'l Auto"* Y [*] [*] [*] [*]
Integrated Search
Webcrawler (Auto brand, [*] [*] [*] [*]
keyword) Minimum 15% "Gen'l Auto"* per month N
LIFESTYLE DIRECTORIES/GEN'L [*] [*] [*] [*]
Various Specific Preferences Business Investing N
Shopping
Computers & Internet
[*] [*] [*] [*]
General Position Various keyword results N
[*] [*] [*] [*]
AUTOMOTIVE SHOPPING*** Graphic link N
[*] imp's/year
EXCITE HOME PAGE SPONSOR*** [*] [*] [*] [*]
2 weeks on Home Page (3x/yr.) Car giveaway (1X in 1997 [*] subsequent years Y
[*] imp's/wk. ABT to provide cars ([*] retail value per
car)
WEB TV, EUROPE, CANADA [*] [*] [*] [*]
Programs TBD 25% Auto keywords on Web TV/possible in Auto area Y
Auto Keywords (Europe/Canada) 100
[*] [*] [*] [*]
TOTAL
PURCHASE REQUEST PROGRAM
[*] Unique requests Net [*] up to [*], [*] up to [*], [*] after ? [*] [*]
annual guarantee [*]. Years 2 & 3: [*], [*], [*]
GRAND TOTAL [*] [*] [*] [*]
*Keywords: Car(1), Auto(2), Automobile(3), AutoCenter, Dealer Incentive,
Buyer(s).
**Category Exclusivity on the [*] keywords rated above only, not auto brand
words.
***impressions included within Autochannel number.
21
[*] Confidential Treatment Requested
Auto-By-Tel and Excite
[*] Promotional Plan
EXHIBIT A
- ------------------------------------------------------------------------------------------------------------------------------------
Material Start Date of Impression Negotiate
Content Area Closing Date Date Description ??????? ???????? ?????? GBM
- ------------------------------------------------------------------------------------------------------------------------------------
BASE PAYMENT 10/1 Base payment excluding Purchase requests Y [*]
EXCITE AUTOMOTIVE CHANNEL
Sole buying service sponsorship 10/1 Link under "Buying Services" to custom area Y [*] [*] [*]
with link off home page to Custom area Link under "Used Cars": Search ABT's Used
Car Cyberstore Y
Link under "News": Weekly Automotive Report Y
Link under "Insurance & Finance": Generic Y
Text/graphic on all pages Y
KEYWORDS*
Excite (Auto brand, keyword) 10/1 Minimum 12.5% "Gen'l Auto"* per month Y** [*] [*] [*]
Integrated Search [*]
--------
[*]
Webcrawler (Auto brand, keyword) 10/1 Minimum 15% "Gen'l Auto"* per month N [*] [*] [*]
LIFESTYLE DIRECTORIES/GEN'L
Various & Specific preferences 10/1 Business & Investing N [*] [*] [*]
Shopping
Computers & Internet
General Rotation 10/1 Various keyword results N [*] [*] [*]
AUTOMOTIVE SHOPPING*** 10/1 Graphic link N [*] [*]
[*] imp's/year
EXCITE HOME PAGE SPONSOR***
2 Weeks on Home Page (3X/yr.) 10/1 Car giveaway (1X in 1997 3X/yr
subsequent years) Y [*] [*]
[*] imp's/wk. ABT to provide cars ([*] retail
value per car)
WEB TV, EUROPE, CANADA
Programs TBD 10/1 25% Auto keywords on Web TV/ possible Y [*] [*] [*]
in Auto area
Auto Keywords (Europe/Canada) TBD
TOTAL [*] [*] [*]
PURCHASE REQUEST PROGRAM
[*] Unique requests annual guarantee 10/1 Net: [*] up to [*], [*] up to [*], [*]
after [*]. N/A [*]
[*] [*], [*], [*]
GRAND TOTAL [*] [*] [*]
*Keywords: Car(s), Auto(s), Automobile(s), Automotive, Dealer, Inventive,
Buyer(s).
**Category Exclusively on the [*] Keywords listed above only not Auto
brand words.
***impressions included within Autochannel number.
22
[*] Confidential Treatment Requested
AUTO-BY-TEL AND EXCITE
[*] PROMOTIONAL PLAN
EXHIBIT B
BASE PAYMENT Base payment excluding Purchase requests Y [*] [*]
EXCITE AUTOMOTIVE CHANNEL
Sole buying service sponsorship Link under "Buying Services" to custom area Y [*] [*] [*] [*]
with link off home page to Link under "Used Cars": Search ABT's Used Y
Custom area Car Cyberstore Y
Link under "News": Weekly Automotive Report Y
Link under "Insurance & Finance": Generic Y
Text/graphic on all pages
KEYWORDS*
Excite (Auto brand, keyword) Minimum 12.5% "Gen'l Auto"* per month Y** [*] [*] [*] [*]
Integrated Search
Webcrawler (Auto brand, keyword) Minimum 15% "Gen'l Auto"* per month N [*] [*] [*] [*]
LIFESTYLE DIRECTORIES/GEN'L
Various & Specific preferences Business & Investing N [*] [*] [*] [*]
Shopping
Computers & Internet
General Rotation Various keyword results N [*] [*] [*] [*]
AUTOMOTIVE SHOPPING*** Graphic link N [*] [*] [*]
[*] imp's/year
EXCITE HOME PAGE SPONSOR***
2 Weeks on Home Page [*] Car giveaway(1x in 1997, 3X/yr subsequent Y [*] [*] [*]
[*] imp's/wk years) ABT to provide cars ([*] retail
value per car)
WEB TV, EUROPE, CANADA
Programs TBD 25% Auto keywords on Web TV/possible in Y [*] [*] [*] [*]
Auto area TBD
TOTAL Auto Keyword (Europe Canada) [*] [*] [*] [*]
PURCHASE REQUEST PROGRAM
[*] Unique requests annual Net: [*] up to [*], [*], up to [*] N/A [*] [*]
guarantee [*].
[*] [*], [*], [*]
GRAND TOTAL [*] [*] [*] [*]
BASE PAYMENT Base payment excluding Purchase requests [*] [*]
EXCITE AUTOMOTIVE CHANNEL
Sole buying service sponsorship Link under "Buying Services" to custom area [*] [*] [*] [*]
with link off home page to Link under "Used Cars": Search ABT's Used
Custom area Car Cyberstore
Link under "News": Weekly Automotive Report
Link under "Insurance & Finance": Generic
Text/graphic on all pages
KEYWORDS*
Excite (Auto brand, keyword) Minimum 12.5% "Gen'l Auto"* per month [*] [*] [*] [*]
Integrated Search
Webcrawler (Auto brand, keyword) Minimum 15% "Gen'l Auto"* per month [*] [*] [*] [*]
LIFESTYLE DIRECTORIES/GEN'L
Various & Specific preferences Business & Investing [*] [*] [*] [*]
Shopping
Computers & Internet
General Rotation Various keyword results [*] [*] [*] [*]
AUTOMOTIVE SHOPPING*** Graphic link [*] [*] [*]
[*] imp's/year
EXCITE HOME PAGE SPONSOR***
2 Weeks on Home Page (3X/yr.) Car giveaway [*] in 1997, [*] subsequent [*] [*] [*]
[*] imp's/wk years) ABT to provide cars ([*] retail
value per car)
WEB TV, EUROPE, CANADA
Programs TBD 25% Auto keywords on Web TV/possible in [*] [*] [*] [*]
Auto area
TOTAL Auto Keyword (Europe Canada) [*] [*] [*] [*]
PURCHASE REQUEST PROGRAM
[*] Unique requests annual Net: [*] [*], [*], [*] [*]
guarantee [*]
Years 2 & 3: [*], [*], [*]
GRAND TOTAL [*] [*] [*] [*]
* Keywords: Car(s), Auto(s), Automobile(s), Automotive, Dealer, Incentive,
Buyer(s).
** Category Exclusivity on the [*] Keywords listed above only, not Auto brand
words.
*** impressions included within Autochannel number.