EXHIBIT 10.9
DATED: January 4, 1999
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LOOKSMART, LTD.
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-and-
INTERNET VENTURES INC.
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CO-BRANDING AND MARKETING AGREEMENT
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CO-BRANDING AND MARKETING AGREEMENT
This Co-Branding and Marketing Agreement (the "Agreement") is entered into
and effective as of January 4, 1999 (the "Effective Date") by and between
LookSmart, Ltd., a Delaware corporation located at 487 Bryant Street, San
Francisco, California 94107 ("LookSmart"), and Internet Ventures Inc. located in
Los Angeles, CA ("IVN").
RECITALS
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WHEREAS, LookSmart is the developer, owner and operator of an Internet
directory and search engine web site located at www.looksmart.com;
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WHEREAS, IVN controls a group of Internet service providers that provide
Internet access to subscribers in several rural markets,
WHEREAS, LookSmart and the IVN desire that (i) LookSmart design, develop
and maintain Co-Branded Sites that incorporate certain material provided by both
parties, and (ii) both parties promote such Co-Branded Site.
Now therefore, the parties agree as follows:
1. DEFINITIONS
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For the purposes of this Agreement, the following terms shall have the
indicated meanings:
1.1 "Advertising Impression" means every instance that an Internet user views a
Co-Branded Page, which contains a Banner Advertisement.
1.2 "Banner Advertisement" means a third party advertisement on a Page;
provided, that such advertisement (i) is placed by LookSmart, (ii) occupies all
or a substantial portion of the width of the Page or all or a substantial
portion of the length above the fold of the Page, and (iii) does not include any
sponsorship or promotional programs, third party content arrangements or any
smaller hypertext links to any third party site.
1.3 "Co-Branded Home Page" means the Page that first appears when an Internet
user accesses a Co-Branded Site, a static copy of which shall reside on the
ISP's server.
1.4 "Co-Branded Page" means each Page of the Co-Branded Site.
1.5 "Co-Branded Site" means the collection of Pages, including the Co-Branded
Home Page, designed, developed and maintained by LookSmart pursuant to Section 2
of this Agreement that
(i) provides similar products and services as the LookSmart Site, and (ii)
incorporates certain ISP Content.
1.6 "Content" means the ISP Content or the LookSmart Content, as the case may
be.
1.7 "Hypertext link," means a section of a Page that when selected provides
access to another Page (which may be part of the same document or site or part
of a different document or site).
1.8 "Intellectual Property Rights" means any and all now known or hereafter
existing rights associated with works of authorship or inventions throughout the
universe, including but not limited to copyrights, patents, trademarks, service
marks, know how, "look and feel" and all other intellectual and industrial
property and proprietary rights (of every kind and nature throughout the
universe and however designated) relating to intangible property.
1.9 "ISP Content" means any ISP logo, trademark, service mark, and all text,
data images, design structure, any audio and audiovisual material, photographs,
trademarks, and other materials developed by ISP that are (i) provided to
LookSmart hereunder for the purpose of promoting the Co-Branded Site, and/or
(ii) incorporated into the Co-Branded Site.
1.10 "ISP Home Page" means the Page that each individual ISP uses for its Home
Page. Internet Ventures Inc will provide a list of the Home Page URLs to
LockSmart.
1.11 "ISP Site" means the collection of Pages established by the each individual
ISP on the Internet under their domain and all portions thereof, including
without limitation, all HTML, Java and other computer languages used for in the
creation of those Pages and/or other formatted text files, all related graphics
files, animation files, data files, modules, routines and objects, and the
computer software and all other script or program files required to exploit such
materials and collectively control the display of and user interaction with that
site;
1.12 "LookSmart Content" means any LookSmart logo, trademark, service mark, and
all text, data images, design structure, any audio and audiovisual material,
photographs, trademarks, and other materials that LookSmart provides to ISP for
the purpose of promoting LookSmart or the Co-Branded Site.
1.13 "LookSmart Site" means the Internet directory and search engine available
on the World Wide Web currently known as "LookSmart" and available at
http://www.looksmart.com and all portions thereof, including without limitation,
all HTML, Java and other computer languages used in the creation of those Pages
and/or other formatted text files, all related graphics files, animation files,
data files, modules, routines and objects, and the computer software and all
other script or program files required to exploit such materials and
collectively control the display of and user interaction with the LookSmart
Site.
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1.14 "Page" means the information that appears on an Internet user's computer
screen when that user accesses any site on the Internet.
1.15 "Quarter" means each period of three months commencing on 1 January, 1
April, 1 July and 1 October in each year.
2. CREATION OF CO-BRANDED SITE
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2.1 Development of Co-Branded Site. LookSmart shall work with Internet Ventures
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to design and develop each Co-Branded Site. The Co-Branded Sites shall reside on
a LookSmart server, provided, however, that static copies of the Co-Branded Home
Pages shall reside on the ISP's server.
2.2 Co-Branded Home Page. The Co-Branded Home Pages shall be located at
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http://www._________.com, such that ISP subscribers will automatically access
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the Co-Branded Home Page every time that they dial-in to the ISP's server.
2.3 Advertising. Each and every Co-Branded Page shall include space designated
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for advertising, including at least one Banner Advertisement per page. Each
individual ISP will have the right to decide if an Advertising Banner will
reside on their Home Page. The parties agree and acknowledge that LookSmart
shall have the exclusive right, except as otherwise set forth in writing, to
sell and place all advertisements on the Co-Branded Site and each Co-Branded
Page, including the Co-Branded Home Page. LookSmart shall not place any
advertisements on the Co-Branded Site that (i) promote websites that display
pornographic material, or (ii) promote another company's Internet connection
services.
2.4 ISP Content. ISP shall provide LookSmart with ISP Content to incorporate
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into the Co-Branded Site. ISP shall deliver such ISP Content via the means of
delivery and in the format specified by LookSmart. LookSmart retains the right,
in its sole discretion to immediately remove any ISP Content from the Co-Branded
Site (excluding the ISP Home Page) if in LookSmart's opinion such ISP Content
violates any applicable law or regulation, infringes upon any proprietary right
of any third party, violates LookSmart's editorial guidelines or is defamatory,
obscene, or offensive.
2.5 Local Directories. If the average daily Advertising Impressions generated
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by the ISPs under Internet Ventures control is greater than 15,000 per day,
LookSmart will commit to build, at the request of Internet Ventures, at least
one local directory per month and will endeavor to fulfill other reasonable
requests based on available resources.
2.6 ISP acknowledges that LookSmart may modify the Co-Branded Site, from time
to time without ISP's consent if such modification does not materially impact
the rights conferred on the ISP pursuant to this Agreement.
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3. PAYMENT
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3.1 LookSmart shall pay ISP a fee at the end of each Quarter equal to $2.50 per
one thousand Advertising Impressions delivered via the Co-Branded Site during
such Quarter (the "Quarterly Payment"). The Quarterly Payment will be payable
within fifteen (15) business days after the end of each Quarter. LookSmart shall
be responsible for calculating the Advertising Impressions and the Quarterly
Payments.
3.2 LookSmart will pay to the ISP an up-front payment to be offset against
future revenue sharing. The amount of the up-front payment will be the
forecasted amount of revenue to be paid to the ISP for the first quarter that
the co-branded sites are live based on the CPM level noted in Clause 3.1.
4. CO-MARKETING
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4.1 ISP's Obligations. ISP will use its best efforts to maximize the use of
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the Co-Branded Site by its subscribers. Such efforts shall include, but not be
limited to, the following:
(a) ISP will provide each new subscriber with a pre-configured version of
Netscape Navigator, Internet Explorer, and/or any other Internet browser
software ISP distributes to its subscribers in which the default home page is
set to the Co-Branded Home Page and, where applicable, the default search engine
is set to the Co-Branded Home Page.
(b) Immediately following the commercial launch of the Co-Branded Site, ISP
shall insert banners, buttons and or hypertext links on the ISP Home Page that
are linked to the Co-Branded Site.
(c) ISP shall promote the Co-Branded Site in any and all material it
distributes to promote its services to current and potential subscribers.
4.2 LookSmart's Obligations. LookSmart shall promote the Co-Branded Site (a)
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within the Internet Service Providers Locator referral program on the LookSmart
Site, (b) in certain marketing materials distributed by LookSmart that describe
LookSmart's Internet service provider partnership program. In addition,
LookSmart shall include the ISP in the Internet service provider subcategory of
the LookSmart directory,
4.3 Joint Obligations. In additional to the above, each of LookSmart and the
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ISP will publicize the Co-Branded Site in as many forums as they consider
appropriate.
5. LICENSE
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5.1 ISP License. ISP hereby grants LookSmart a non-exclusive license to
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reproduce, publicly display, and otherwise use the ISP Content, and such other
images and materials for which ISP
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grants its prior written consent, during the term of this Agreement for the
purpose of creating, maintaining and promoting the Co-Branded Site as
contemplated herein.
5.2 LookSmart License. LookSmart hereby grants the ISP a limited non-exclusive;
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non-transferable license to use the LookSmart Content during the term of this
Agreement for the sole purpose of promoting the Co-Branded Site as set forth
herein.
5.3 Use of Logo. Each party's use of the other's Logo shall be limited to the
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style and format of such Logos as provided by that party. In exercising its
rights under any license granted pursuant to this Agreement a party shall not
combine any other trademark or service mark with the other party's Logo without
the prior written consent of the other party. Both Parties shall have the right
to review any advertising or promotional material of the other that refers to
them or incorporates their Logo and both parties shall have the right to require
the removal of any such advertising or promotional material if they determine,
in their absolute discretion, that such advertising or promotional material is
not consistent with their respective editorial policy or commonly accepted
standards of decency or tolerance or with any applicable laws relating thereto.
6. PROPRIETARY RIGHTS
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6.1 LookSmart Content. LookSmart will own all rights in and to the LookSmart
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Content, the LookSmart Site, the Co-Branded Site (other than the ISP Content)
and all Intellectual Property Rights therein and thereto, ISP acknowledges that
the LookSmart Content and the LookSmart Site and the goodwill associated
therewith are valuable properties belonging to LookSmart and that all rights
thereto are and shall remain the sole and exclusive property of LockSmart.
Except for the limited license set forth above, nothing in this Agreement grants
ISP any right, tide or interest in LookSmart's Content, the LookSmart Site or
any and all Intellectual Property Rights. ISP agrees that it will do nothing
inconsistent with LookSmart's ownership rights as set forth above and that all
uses of the LookSmart Content shall inure to the sole benefit of and be on
behalf of LookSmart.
6.2 ISP Content. ISP will own all rights in and to the ISP Content, the ISP
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Site and all Intellectual Property Rights therein and thereto. LookSmart
acknowledges that the ISP Content and the goodwill associated therewith are
valuable properties belonging to ISP and that all rights thereto are and shall
remain the sole and exclusive property of ISP. LookSmart agrees that it will do
nothing inconsistent with ISP's ownership of the ISP Content and that all uses
of the ISP Content shall inure to the sole benefit of and be on behalf of ISP.
7. CONFIDENTIAL INFORMATION
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7.1 Confidential Information. Each party acknowledges that by reason of its
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relationship to the other party under this Agreement it will have access to and
acquire knowledge from, material, data, systems and other information concerning
the operation, business, financial affairs, products, customers and Intellectual
Property Rights of the other party that may not be accessible or known to the
general public (referred to as "Confidential Information"). "Confidential
Information" shall
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include, but, not be limited to, (i) the terms of this Agreement, and (ii) any
and all information regarding any software utilized by LookSmart to create,
operate or maintain the LookSmart Site and the Co-Branded Site.
7.2 No Disclosure. Each party agrees to maintain all Confidential Information
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received from the other, both orally and in writing, in confidence and agrees
not to disclose or otherwise make available such Confidential Information to any
third party without the prior written consent of the disclosing party; provided,
however, that each party may disclose the financial terms of this Agreement to
its legal and business advisors and to potential investors is such third parties
agree to maintain the confidentiality of such Confidential Information. Each
party further agrees to use the Confidential Information only for the purpose of
performing this Agreement. In addition, neither party shall reverse engineer,
disassemble or decompile any prototypes, software or other tangible objects
which embody the other party's Confidential Information and which are provided
to the party hereunder. Whenever requested by a disclosing party, a receiving
party shall immediately return to the disclosing party all manifestations of the
Confidential Information or, at the disclosing party's option, shall destroy all
such Confidential Information as the disclosing party may designate. The
receiving party's obligation of confidentiality shall survive this Agreement for
a period of five (5) years from the date of its termination, and thereafter
shall terminate and be of no further force or effect.
7.3 Exclusion. The parties' obligations under Section 8(a) above shall not
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apply to Confidential Information which: (i) is or becomes a matter of public
knowledge though no fault of or action by the receiving party, (ii) was
rightfully in the receiving party's possession prior to disclosure by the
disclosing party; (iii) subsequent to disclosure, is rightfully obtained by the
receiving party from a third party who is lawfully in possession of such
Confidential Information without restriction; (iv) is independently developed by
the receiving party without resort to the disclosing party's Confidential
Information; or (v) is required by law or judicial order, provided that prior
written notice of such required disclosure is furnished to the disclosing party
as soon as practicable in order to afford the disclosing party an opportunity to
seek a protective order and that if such order cannot be obtained disclosure may
be made without liability.
8. REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATION
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8.1 ISP's Representations and Warranties. ISP represents and warrants that (i)
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it has the right, power and authority to enter into this Agreement and to fully
perform its obligations under this Agreement; (ii) entering into this Agreement
does not violate any agreement existing between it and any other person or
entity, (iii) it is the sole owner or is a valid licensee of the ISP Content,
the ISP Site and all content contained therein, and any other materials it
contributes to the Co-Branded Site and has secured all necessary licenses,
consents and authorizations with respect to use of such content and all elements
thereof to the full extent contemplated herein, (iv) the ISP Content and the
content on the ISP Site does not violate or infringe any right of privacy or
publicity or any other Intellectual Property Right or contain any libelous,
defamatory, obscene or unlawful material, or otherwise violate or infringe any
other right of any person or entity and (v)
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the ISP Content shall at all times comply with LookSmart's editorial policies
and commonly accepted standards of decency.
8.2 ISP's Indemnification. ISP agrees to, and shall, indemnify, defend and hold
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harmless LookSmart and its directors, shareholders, officers, agents, employees,
successors, affiliates and assigns from and against any and all claims, demands,
suits, actions, judgments, damages, costs, losses, expenses (including
attorneys' fees and expenses) and other liabilities arising from, in connection
with or related in any way to, directly or indirectly, (i) any breach or alleged
breach of any of the representations, warranties, undertakings or agreements
made by it under this Agreement, (ii) any claims related to the development,
operation, maintenance and/or content of the ISP Site, and (iii) any claims
related to the promotion, provision and maintenance of ISP's products and
services. LookSmart shall promptly notify ISP of any such claim, ISP shall bear
full responsibility for the defense (including any settlements); provided
however, that (i) ISP shall keep LookSmart informed of, and consult with
LookSmart in connection with the progress of such litigation or settlement; and
(ii) ISP shall not have any right, without LookSmart's written consent, to
settle any such claim if such settlement arises from or is part of any criminal
action, suit or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in contract, tort or
otherwise) on the part of LookSmart.
8.3 LookSmart's Representations and Warranties. LookSmart represents and
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warrants that (i) it has the right, power and authority to enter into this
Agreement and to fully perform its obligations under this Agreement; (ii)
entering into this Agreement does not violate any agreement existing between it
and any other person or entity; (iii) it is the sole owner or is a valid
licensee of the LookSmart Content and any other materials it contributes to the
Co-Branded Site and has secured all necessary licenses, consents and
authorizations with respect to use of such content and all elements thereof to
the full extent contemplated herein; (iv) the LookSmart Content does not violate
or infringe any right of privacy or publicity or any other Intellectual Property
Right or contain any libelous, defamatory, obscene or unlawful material or
otherwise violate or infringe any other right of any person or entity; and (v)
the LookSmart Content shall at all times comply with the LookSmart's editorial
policies and commonly accepted standards of decency.
8.4 LookSmart's Indemnification. LookSmart agrees to, and shall indemnify,
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defend and hold harmless ISP and its directors, shareholders, officers, agents,
employees, successors, affiliates and assigns from and against any and all third
party claims, demands, suits, actions, judgments, damages, costs, losses,
expenses (including attorneys' fees and expenses) and other liabilities arising
from, in connection with or related in any way to, directly or indirectly, (i)
any breach or alleged breach of any of the representations and warranties made
by it in Section 8.3 of this Agreement. ISP shall promptly notify LookSmart of
any such claim. LookSmart shall bear fill responsibility for the defense
(including any settlements), provided however, that (i) LookSmart shall keep ISP
informed of, and consult with ISP in connection with the progress of such
litigation or settlement; and (ii) LookSmart shall not have any right, without
ISP's written consent, to settle any such claim if such settlement arises from
or is part of any criminal action,
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suit or proceeding or contains a stipulation to or admission or acknowledgment
of, any liability or wrongdoing (whether in contract, tort or otherwise) on the
part of ISP.
8.5 EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8 AND IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTIES,
EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. EACH PARTY DISCLAIMS THE
IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY
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9.1 Under no circumstances shall either party be liable to the other for
any indirect, incidental, consequential, special or exemplary damages, arising
from any act or omission, including negligent acts or omissions, of that party,
even if the party has been advised of the possibility of such damages, arising
from any provision of this Agreement, such as, but not limited to loss of
revenue or anticipated profits, lost data, or lost business.
10. TERM AND TERMINATION
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10.1 This Agreement shall commence on Execution Date and shall continue until
terminated by either party at any time, with or without cause, by providing 60
days' written notice to the other party.
10.2 If this Agreement is terminated for any reason (i) each party shall
immediately remove the other party's content from their respective web sites,
(ii) LookSmart shall remove the Co-Branded Site, (iii) ISP shall remove any
LookSmart Content from the static copy of the Co-Branded Home Page an its
server, (iv) each party shall promptly deliver to the other party all originals
and copies of the other party's Content, together with any other material
provided by the other party (including all copies thereof), (v) each party shall
immediately cease to use the other party's Content, and (vi) ISP shall return to
LookSmart any and all prepayment in excess of any Quarterly Payment due to ISP.
Each party shall ensure that such materials have been erased from all computer
memories and storage devices within its possession or control.
10.3 In no event shall either party have any right to recover or obtain any
Intellectual Property Rights in or to the other party's site, nor shall either
party enjoin or otherwise interfere with the other party's development,
exploitation or promotion of its site (or any element thereof), or any
derivative work thereof except to the extent that a party is permitted to use
the other party's Content strictly in accordance with this Agreement.
10.4 In the event of termination or expiration of this Agreement for any reason,
Section 6, 7, 8 and 9 shall survive such termination or expiration.
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11. WAIVER REMEDIES CUMULATIVE
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11.1 The waiver by either party of a breach or default by the other party of any
of the provisions of this Agreement shall not be construed as a waiver of any
succeeding breach or default of the same or any other provisions of this
Agreement and shall not impair the exercise of any rights accruing to it under
this Agreement thereafter; nor shall any delay or omission on the part of either
party to exercise or avail itself of any rights accruing to it under this
Agreement operate as a waiver of any breach or default by the other party of any
of the said provisions
11.2 All rights and remedies provided in this Agreement are cumulative and are
not exclusive of any rights or remedies provided by law.
12. COSTS
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Each party shall bear its own legal, accounting and other costs, charges
and expenses of and incidental to this Agreement.
13. ENTIRE AGREEMENT AND AMENDMENT
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This Agreement constitutes the entire understanding and agreement between
LookSmart and ISP with respect to the transactions contemplated herein, and
supersedes any and all prior or contemporaneous oral or written understanding,
agreement or communication between LookSmart and ISP. No term or provision of
this Agreement may be amended or modified unless such amendment or modification
is approved in writing and signed by the parties.
14. INDEPENDENT CONTRACTORS
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The parties are independent contractors and no agency, partnership,
franchise or other relationship is created hereby. Neither party shall have any
power to obligate or bind the other party, except as specifically provided
herein, and neither party may make or purport to make any representations,
warranties or undertakings for the other party.
15. NOTICES
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15.1 All notices, requests, demands, consents, approvals, agreements or other
communications authorized or required to be made to or by a party under or in
connection with this Agreement shall be in writing and may be given by telecopy
or hand to or upon the recipient at the address set out in this Agreement or to
such other address or telecopy number as it may have notified the sender.
16. FORCE MAJEURE
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16.1 Where a party is unable, wholly or in part, by reason of force majeure, to
carry out any obligations under this Agreement that obligation is suspended so
far as it is affected by force majeure during the continuance thereof. In this
Agreement, "force majeure" means an act of God, strike, lockout or other
interference with work, war declared or undeclared, blockade, disturbance,
lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-
governmental restraint expropriation prohibition intervention direction or
embargo, unavailability or delay in availability of equipment or transport,
inability or delay in obtaining governmental or quasi-governmental approvals
consents permits licenses authorities or allocations, and any other cause
whether of the kind specified above or otherwise which is not reasonably within
the control of the party affected.
17. ASSIGNMENT
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The obligations and liabilities imposed and the rights and benefits
conferred on the parties shall be binding upon and inure to the parties and each
of their respective successors in title, transferees and permitted assigns.
18. PUBLIC ANNOUNCEMENT
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No public announcement of any transaction undertaken pursuant to this
Agreement shall be made by either party otherwise than as a joint announcement
in a form approved by both parties.
19. FURTHER ASSURANCES
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Each party shall exercise all such powers as are available to it, do all
such acts, matters and things and sign, execute and deliver all such documents
and instruments as may be necessary or reasonably required to give full force
and effect to the provisions of this Agreement.
20. GOVERNING LAW
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This Agreement shall be governed by and construed in accordance with
California Law without reference to conflicts of law provisions.
21. COUNTERPARTS
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This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same agreement.
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The parties have caused this Agreement to be executed by their duly
authorized representatives as of the date written above.
LOOKSMART, LTD.
By: /s/ Ryan (illegible)
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Title: Sales Manager
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Date: 2/17/99
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INTERNET VENTURES INC.
By: /s/ Donald A. Janke
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Title:______________________________
Date:_______________________________
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