Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Exhibit 10.34
AGREEMENT
This Agreement, dated as of March 26, 2000 (the "Effective Date"), is made
-- --------------
by and between Lycos, Inc., a Delaware corporation with a principal place of
business at 400-2 Totten Pond Road, Waltham, MA 02451 ("Lycos") and Autoweb.com,
-----
Inc., a Delaware corporation with a principal place of business at 3270 Jay
Street, Santa Clara, California 95054 ("Autoweb").
-------
Recitals
--------
WHEREAS Lycos is the owner or licensee of certain Web services
(collectively, the "Lycos Services"), which are accessible through the URLs
--------------
www.lycos.com (the "Lycos Site"), www.hotbot.com, www.tripod.com,
- ------------- ----------
www.angelfire.com, www.whowhere.com, www.mailcity.com, www.quote.com,
www.sonique.com, and www.gamesville.com (all Lycos-owned sites, including other
properties not listed above acquired by Lycos after the Effective Date shall be
referred to collectively as the "Lycos Network", provided, however, that, (i) to
-------------
the extent that following the Effective Date, Lycos acquires any properties
which, prior to such acquisition, have exclusive contractual relationships with
other suppliers of content, tools, services, or information substantially
similar to the Content (as defined below), such properties shall not be included
in the definition of the Lycos Network for purposes of this Agreement except as
thereafter mutually agreed, and (ii) to the extent that following the Effective
Date, Lycos acquires any properties which, prior to such acquisition, have non-
exclusive contractual relationships with other suppliers of content, tools,
services, or information substantially similar to the Content (as defined
below), such properties shall be included in the definition of the Lycos Network
on a non-exclusive basis (i.e., the provisions of Section 2.1 below shall not
extend or apply with respect to such properties, except as thereafter mutually
agreed); and
WHEREAS Autoweb is the operator of a Web site accessible through the URL
www.autoweb.com (the "Autoweb Site") on which Autoweb supplies certain
------------
automotive content for consumers (i.e. prospective car purchasers), car buying
services, and related tools, information, and technology (collectively, the
"Content"); and
-------
WHEREAS Lycos and Autoweb wish to continue and to enhance their existing
relationship through which a co-branded version of the Autoweb Site shall become
a destination for Internet users and the premier source of such Content for
users of the Lycos Network (the "Co-branded Site") in the United States; and
---------------
WHEREAS Lycos and Autoweb desire that, as part of their relationship, Lycos
will integrate links throughout the Lycos Network to the Co-branded Site; and
WHEREAS Lycos and Autoweb further desire to strengthen their relationship
to market and promote certain of the Content in co-branded form (the "Co-branded
Content"), the Co-branded Site, and the Lycos Network to third parties; and
WHEREAS, Lycos and Autoweb wish their previous Agreement to be superseded
by this Agreement;
WHEREAS Lycos and Autoweb further desire that, as part of their
relationship, Lycos shall have an ownership interest in Autoweb;
Lycos Confidential
1
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lycos and Autoweb hereby agree as
follows:
Terms
-----
1. Co-branded Site.
---------------
1.1 Serving and Hosting. Autoweb will operate and serve the Co-branded
-------------------
Site in a manner consistent with the then-current quality standards of Lycos and
which meets response performance standards for Lycos users at least as good as
those of the Lycos Site and in accordance with the specifications set forth in
Exhibit A to this Agreement. In addition, except as provided in this Agreement,
Autoweb will be responsible for system operation software costs, hardware costs,
and network costs, and shall integrate ad serving software designated by Lycos
at Lycos' request. Autoweb shall provide Lycos with a contact at Autoweb who
shall be available to assist Lycos twenty-four hours a day, seven days a week
regarding operation of the Co-branded Site. Autoweb will generate daily traffic
reports and provide Lycos with audited traffic reports on a monthly basis.
Except as specifically set forth in Section 1.4, Section 3, Section 6, and
Section 8, Autoweb shall not, without Lycos' prior approval; (i) sell or place
advertisements or sponsorships on any page of the Co-branded Site for any entity
or person; (ii) sell merchandise or other items on any page of the Co-branded
Site; (iii) place a link on the Co-branded Site to the Autoweb Site or any
other site; or (iv) host or conduct a game, promotion or sweepstakes on the Co-
branded Site. To the extent permitted by Autoweb's pre-existing contractual
relationships with third parties, Autoweb shall provide additional services,
functionality, and Content that are developed by or on behalf of Autoweb for the
Autoweb Site (or any successor to the Autoweb Site) at no additional cost so
that the Co-branded Site is maintained at a level substantially equal to the
Autoweb Site as it appears from time to time. The parties shall jointly review
the desirability of the addition of any such additional services, functionality
and/or Content on a quarterly basis, provided, however, that under no
circumstances shall Lycos be required to include on the Co-branded Site any
services, functionality, offerings, and/or Content (a) that feature, display,
or promote illegal, unlawful, pornographic, or obscene materials or activities,
tobacco, or alcohol, or (b) the advertising for or inclusion of which on the
Lycos Network, including the Co-branded Site, would contravene Lycos' pre-
existing contractual restrictions (collectively, "Prohibited Content"). Lycos
------------------
shall have the right to allow its subsidiaries, joint venture partners, and
licensees of the Lycos Services to link to the Co-branded Site.
1.2 Launch Date. Autoweb shall launch the Co-branded Site on or before
-----------
April 15, 2000 (the "Launch Date"). The parties shall work together to support
-----------
the Launch and shall provide each other with such reasonable assistance as
necessary to enable each to perform their respective obligations to achieve the
Launch.
1.3 Branding. The Co-branded Site will have the Lycos Network branding
--------
bar on each page and the Lycos Network "look and feel" surrounding the pages of
the Co-branded Site, which shall otherwise bear Autoweb's logo and branding in a
form and manner substantially as reflected on the Autoweb Site. The URL of the
Co-branded Site will be substantially similar to www.autoweb.lycos.com.
---------------------
1.4 Content.
-------
1.4.1 Content on the Co-branded Site. The Content on the Co-branded Site
------------------------------
shall include, at a minimum, (a) the Co-branded Content, which shall consist of
all of the Content on the Autoweb Site as it appears from time to time during
the Term, except for (i) any Prohibited Content, which shall not be
2
included on the Co-branded Site in any case, and (ii) such Content as Lycos
reasonably and specifically identifies as objectionable or which is otherwise
excluded pursuant to Section 6.1 hereof, (b) such Lycos tools and content as are
necessary to provide users with relevant search, chat, message board, and
instant messaging functionality to the extent mutually agreed upon by the
parties (collectively, "Lycos Community Content"), and (c) such other content as
-----------------------
the parties mutually agree upon from time to time. In the event that Lycos
reasonably identifies as objectionable Content which Autoweb has already
included on the Co-branded Site, the parties shall, as soon thereafter as
possible (and no later than three (3) business days thereafter), meet to address
Lycos' objections to such Content. In the event that, following such meeting,
Lycos elects to have such Content removed, Autoweb shall remove such Content as
soon as commercially reasonable, and in all events, within fifteen (15) days
following the meeting described in the preceding sentence. Lycos shall reimburse
Autoweb on a reasonable time and materials basis for the work required to be
performed under the preceding sentence.
1.4.2 Lycos Community Resources. In conjunction with Lycos' provision of
-------------------------
the Lycos Community Content, Lycos shall dedicate such resources as are
necessary to jointly prepare, offer, and support on the Co-branded Site the
Lycos Community Content. At Autoweb's election, and to the extent permitted by
Lycos' pre-existing contractual restrictions, Lycos shall also make the Lycos
Community Content available for use by users of the Autoweb Site on a royalty
free basis during the Term. All such offerings on the Autoweb Site shall bear
Lycos ingredient branding, and be subject to Lycos' rules, policies, and
conditions governing use of such offerings. Autoweb shall provide such
assistance as reasonably requested by Lycos in connection with such offerings.
1.4.3 Co-branded Network Content. During the Term, Autoweb shall provide
--------------------------
to Lycos such portions of the Co-branded Content as selected by Lycos which
Lycos may display throughout the Lycos Network (the "Co-branded Network
------------------
Content") and/or through wireless offerings ("Co-branded Wireless Content").
- -------
Autoweb shall deliver the Co-branded Network Content and the Co-branded Wireless
Content to Lycos in a format that is mutually acceptable to the parties. When
Lycos displays any such Co-branded Network Content on the Lycos Network, or the
Co-branded Wireless Content through wireless offerings, the placements shall be
subject to the parties' mutual agreement. During the first year of the Term,
the number of impressions displayed through wireless offerings shall not be
included for purposes of satisfying the Impressions Guarantee (set forth in
Section 2.2). Thereafter, the parties shall, in good faith, negotiate the
manner in which such impressions shall be counted towards the Impressions
Guarantee.
1.5 Premier Portal Partner. During the Term, Autoweb shall not enter
----------------------
into any agreement with any Lycos Competitor ("Lycos Competitor" shall refer to
----------------
those companies listed on Exhibit C) that provides for a co-branded offering of
substantially all of the Content offered on the Autoweb Site or otherwise
provides for a co-branded offering of all of the Co-branded Content to the
extent such content is supplied by Autoweb. This Section shall not be
interpreted so as to prohibit Autoweb from entering into substantially different
or other forms of commercial relationships with such companies.
2. Lycos Network Integration.
-------------------------
2.1 Exclusivity. Except as provided below, Autoweb shall be the
-----------
exclusive supplier of all automotive content for consumers (i.e., prospective
car purchasers), car buying services and related tools, information, and
technology (the "Exclusive Content") for the Lycos Auto Guide. The term "Lycos
Auto Guide" as used herein shall refer to the principal location anywhere on the
Lycos Network (except classifieds areas) featuring the aggregation of automotive
content for consumers (i.e., prospective car
3
purchasers), car buying services and related tools, information, and technology
in whatever form such location appears from time to time during the Term.
Autoweb shall, through links to and from the Co-branded Site, supply all of the
Exclusive Content displayed to users via the Lycos Auto Guide, and Lycos shall
not, by link or otherwise, integrate substantially similar Exclusive Content of
any other automobile-related supplier within the Lycos Auto Guide except through
the Co-branded Site, except following the procedures provided in Section 2.1.1
below. Further, following the Effective Date, Lycos will not, during the Term,
enter into agreements for the promotion or display of advertisements on the
Lycos Auto Guide, in the Lycos Autos Directory in connection with relevant Auto
search queries on the Lycos Network, or in other areas of the Lycos Network
(except classified areas) targeted to the sales of automobiles for the
following: (i) Any entity listed on Exhibit E attached hereto, which may be
updated quarterly in Autoweb's reasonable exercise of its discretion through the
addition and deletion of similarly situated entities so long as the overall
number of entities listed thereon remains constant, or (ii) any other person
whose primary business is to supply consumers with automotive content ( i.e.,
in connection with sales of autos) or automotive buying tools or related
technology.
2.1.1 Quarterly Content Reviews. On a quarterly basis, Lycos and Autoweb
-------------------------
shall meet to review the Co-branded Content offering of the Lycos Auto Guide,
and shall identify any additional Co-branded Content that the parties mutually
desire to add to the Lycos Auto Guide. To the extent that Lycos seeks to
display additional Content on the Lycos Auto Guide that is not included by
Autoweb in the Co-branded Content, the parties shall confer about the inclusion
of such content at the next quarterly Content review. In the event that,
following such review, Autoweb elects not to provide the additional Content
identified by Lycos, Lycos shall thereafter have the right to obtain such
additional Content for inclusion in the Lycos Auto Guide by link to a site
hosted by Lycos or a third party.
2.1.2 Program Managers. Each party shall assign a program manager to
----------------
serve as the principal contact to the other with respect to the parties'
relationship and shall be available twenty-four hours per day, seven days per
week, as reasonably requested (the "Program Managers"). The Program Managers
shall work closely together to try to make the relationship reflected in the
Agreement successful, and shall, without limitation, monitor and/or oversee all
aspects of the relationship, receive and respond to requests for assistance and
approvals, and, on an ongoing basis, seek to identify and implement commercially
reasonable enhancements to the relationship.
2.2 Impressions. Appropriate representatives of Lycos and Autoweb shall
-----------
meet within fifteen (15) days following the Effective Date to mutually agree
upon a plan and schedule for the delivery, placement, and form of impressions to
be displayed across the Lycos Network (the "Impressions Plan"). The goal of the
----------------
Impressions Plan shall be to drive and direct users to the Co-branded Site as a
destination for on-line content, tools, and services relating to the purchase of
automobiles. The parties shall memorialize the Impressions Plan in writing and
attach it to this Agreement as Exhibit B2. Impression plan to be memorialized in
Exhibit B2 shall include but not be limited to the following data: i)
screenshots showing example placement of all advertising products (such as
buttons and banners and showcase boxes); ii) pixel sizes for all advertising
products; iii) a list of key words and search terms; and iv) a make-good plan
for impressions for advertising products not delivered within each semi-annual
period, excluding the first such period following the Launch Date, such make
good period to last for ninety days. The parties' meeting referenced in the
first sentence of this section shall include consideration of quarterly
objectives. If the parties cannot agree on the Impressions Plan, then, at a
minimum, Lycos shall display no fewer than 500 million impressions across the
Lycos Network each year of the Term substantially in the form and manner set
forth in Exhibit B1 attached hereto (the "Impressions Guarantee"); provided,
---------------------
however, that in the event that Lycos fails to deliver during any year of the
Term a number of impressions equal to or greater than the Impressions Guarantee,
then Lycos shall have an additional 90 days thereafter
4
to meet the Impressions Guarantee for such year. Any impressions delivered by
Lycos during such make good period towards the satisfaction of the preceding
years' Impression Guarantee shall not be counted toward the following year's
Impressions Guarantee. In no event, during any year of the Term, including the
make good period, shall Lycos deliver fewer than the number of impressions set
forth in the Impressions Guarantee, unless agreed by both parties in writing.
The purpose of Lycos' delivery of the impressions to be supplied by Lycos
pursuant to Exhibit B1 or B2, as applicable, shall be to attempt to drive user
traffic to the Co-branded Site. All impressions shall bear links to the Co-
branded Site. Except as otherwise agreed by the parties, to the extent that
Lycos displays multiple impressions on any page, Lycos shall not count more than
two (2) such impressions per page, except that Lycos may count three (3)
impressions per page for up to fifteen percent (15%) maximum of the Impressions
Guarantee. In addition, each impression on a page counted towards the
Impressions Guarantee shall contain a different creative execution. As Lycos re-
designs pages and sites within the Lycos Network from time to time, Lycos may
make reasonable substitutions for such placement and types of impressions
delivered in connection with the Impressions Plan and/or the Impressions
Guarantee. Autoweb shall provide Lycos with any assistance requested by Lycos in
establishing the links between the Lycos Network and the Co-branded Site, and
with all artwork (subject to Lycos' approval) for all Impressions.
2.2.1 Incremental Positioning and Placement. The parties agree and
-------------------------------------
acknowledge that prominent and persistent promotion of the Co-branded Site by
Lycos is a material aspect of this Agreement. As such, Lycos shall promote the
Co-branded Site throughout the Lycos Network in a manner incremental to the
Impression Guarantee set forth in Section 2.2 above, and consistent with the
goal of maximizing the commercial benefits to both parties, including through
the placement of prominent and persistent auto links on all Lycos Network sites.
If the parties mutually determine that (i) user traffic to the Co-branded Site
is insufficient; or (ii) that revenue derived from the Co-branded Site is
insufficient; or (iii) the parties have not maximized the commercial benefits of
the relationship, then the parties will work together (subject to Section 2.1.1
of this Agreement) to increase such traffic and revenues.
2.3 Standard Terms and Conditions. The advertising products outlined in
-----------------------------
Exhibits B1 or B2 will be provided pursuant to the Terms and Conditions outlined
- -----------------
in attached Exhibit D, which Terms and Conditions are incorporated herein by
---------
reference. Throughout the Term, all advertising banners must meet the Lycos
specifications found at http://adreporting.lycos.com/specs.html, as they appear
---------------------------------------
from time to time.
3. Strategic Sales and Marketing.
-----------------------------
3.1 Advertising Products on Co-branded Site. Within fifteen (15) days
---------------------------------------
following the Effective Date and regularly thereafter under paragraph 3.3, the
parties shall meet to develop joint marketing materials for the sale of the
Advertising Products (as defined below) (the "Joint Marketing Materials"). The
parties may jointly and/or separately present the Joint Marketing Materials to
prospective customers. As between the parties, Lycos shall have final right to
accept or reject all advertising, sponsorships, and promotions offered on the
Co-branded Site ("Advertising Products"). All revenues derived from such sales
will be payable to Lycos for distribution pursuant to Section 4.
3.2 Introduction and Marketing of Lycos Network. Autoweb shall introduce
-------------------------------------------
the Co-branded Site and the Lycos Network in all (100%) of its sales efforts,
whether for sales of the Advertising Products or otherwise, during the Term.
5
3.2.1 Introduction of Autoweb to Lycos Joint Ventures. Lycos shall
-----------------------------------------------
introduce the Co-branded Site and Autoweb to each of Lycos' joint ventures
requested by Autoweb, including without limitation Lycos' Canadian joint
venture.
3.3 Strategic Plan Meetings. Within fifteen (15) days following the
-----------------------
Effective Date, and thereafter on at least a monthly basis, appropriate
representatives from Lycos and Autoweb shall meet (i) to formulate joint
marketing and development strategies designed to promote the Co-branded Site and
revenue generating opportunities in connection therewith, including but not
limited to in connection with sales of the Advertising Products and mutually
agreed upon quarterly inventory commitments therewith, (ii) to review all sales
and marketing efforts to date, (iii) to review Direct Referrals and Direct
Referral Revenue (as defined in Section 5), and (iv) to discuss such other
matters as the parties mutually agree upon, including without limitation as
contemplated by Section 3.1.
3.4 Development for Specific Strategic Partner. To the extent that,
------------------------------------------
specifically as part of their joint marketing and development strategies, Lycos
and Autoweb agree to develop, for the Co-branded Site, additional Co-branded
Content, Lycos shall reimburse Autoweb for direct expenses associated therewith
on a reasonable time and materials basis. Autoweb shall license to Lycos such
additional content, tools, and services during the Term on a royalty-free basis,
and Autoweb shall have the right to offer such additional content, tools, and
services on the Autoweb Site.
4. Advertising Product Revenue Sharing. The cumulative annual Net
-----------------------------------
Advertising Revenue from all sales during the Term of Advertising Products will
be split as follows:
(a) First [*] in Gross Revenue:
Lycos: [*] of Net Advertising Revenue
Autoweb: [*] of Net Advertising Revenue
(b) From [*] to [*] in Gross Revenue:
Lycos: [*] of Net Advertising Revenue
Autoweb: [*] of Net Advertising Revenue
(c) From [*] to [*] in Gross Revenue:
Lycos: [*] of Net Advertising Revenue
Autoweb: [*] of Net Advertising Revenue
(d) Gross Revenue in excess of [*]
Lycos: [*] of Net Advertising Revenue
Autoweb: [*] of Net Advertising Revenue
6
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
"Gross Revenue" shall refer to all revenues actually received by Lycos from
-------------
sales of the Advertising Products. "Net Advertising Revenue" means Gross
------------------------
Revenue less Lycos' costs of serving and processing (which shall be deemed to be
a flat [*] of Gross Revenue). Payment will be made to Autoweb within forty (45)
days following the calendar quarter in which Lycos actually receives the
revenue.
5. Direct Referrals. Autoweb shall have the right to refer customers
----------------
to Lycos for placement of sales of advertising products elsewhere on the Lycos
Network (i.e., other than through the Co-branded Site), provided that Lycos
shall have no obligation to accept or complete any such sales ("Direct
Referrals"). To the extent such Direct Referrals result in sales of advertising
products and/or promotions placed on the Lycos Network other than on the Co-
branded Site, and Lycos receives gross revenues from such sales in amounts
greater than [*] per year ("Qualifying Direct Referrals"), the Direct
---------------------------
Referral Revenue shall be split as follows:
Lycos: [*] Net Direct Referral Revenue
Autoweb: [*] Net Direct Referral Revenue
"Net Direct Referral Revenue" shall mean gross revenues actually received by
---------------------------
Lycos from all Qualifying Direct Referrals, less Lycos' costs (which shall be
deemed to be a flat [*]% of such gross revenues). Lycos shall pay Autoweb its
share of Net Direct Referral Revenue forty-five days after the close of the
calendar quarter in which it is received.
6. Transactions on Co-branded Site.
-------------------------------
6.1 Permitted Transactions. Lycos and Autoweb shall mutually agree
----------------------
upon the types of transactions permitted to be performed on or through the Co-
branded Site("Permitted Transactions"). The Permitted Transactions shall
include, at a minimum (a) all forms of transactions offered on the Autoweb Site
as of the Effective Date, (b) such transactions as are currently offered on the
Autoweb Site in alternative forms as they may change from time to time on the
Autoweb Site, and (c) any new automotive buying models. Subsections (b) and (c)
shall be specifically subject to the prohibitions of Section 1.1 regarding
Prohibited Content, and shall also be subject to the procedures and prohibitions
concerning objectionable content set forth in Section 1.4.1. Notwithstanding
anything to the contrary in this Section the Co-branded Site shall not, directly
or indirectly, include offerings for the provision of [*] or [*] except as
mutually agreed by the parties. In the event that Lycos and Autoweb hereafter
during the Term mutually determine to include offerings for the provision of [*]
or [*], through operation of Section 6.5 or otherwise, the additional provisions
of this Section 6 shall be equally applicable to such offerings.
6.1.1 Sales. Autoweb shall be responsible for all aspects of sales
-----
generated from the Co-branded Site, including, without limitation, taking
orders, processing payments, shipping orders, ordering and stocking inventory,
processing returns, refunds and credits, insuring shipments (if customary in
Autoweb's shipment of product sold other than via the Web), etc. Lycos shall
take no part in, and have no responsibility or liability for, the actual sales
transactions.
6.2 Revenue From Transactions on Co-branded Site. The revenue generated
--------------------------------------------
from transactions conducted on or through the Co-branded Site shall be shared as
follows:
7
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
6.2.1 Years 1-3. During the first, second, and third Year of the Term,
Autoweb shall retain all revenues generated from transactions on, through, or
from the Co-branded Site, including without limitation transactions resulting
directly or indirectly in sales of automobiles regardless of the selling
channel, (collectively, "Transaction Revenue") up to [*] per Year (the
-------------------
"Threshold"). Following the generation of Transaction Revenue in excess of the
Threshold, Autoweb shall pay Lycos [*] for every Qualifying Lead originating
---------------
from the Lycos Network (a "Qualifying Lead" shall mean each user that completes
an on-line registration form (each, a "Purchase Request") on the Co-branded Site
----------------
and submits a deposit with a valid credit card account in connection with the
potential purchase of a product or service on or through the Co-branded Site).
To the extent that, following generation of Transaction Revenue in excess of the
Threshold, Autoweb generates Transaction Revenue through sales methods other
than through the supply of Qualifying Leads, Autoweb and Lycos shall share such
Transaction Revenue in a manner to be mutually agreed upon.
6.2.2 Year 4. During the fourth Year of the Term, Autoweb shall retain
------
all Transaction Revenue up to [*] (the "Year 4 Threshold"). Following the
generation of Transaction Revenue in excess of the Year 4 Threshold, Autoweb
shall pay Lycos [*] for every Qualifying Lead originating from the Lycos
Network. To the extent that, following generation of Transaction Revenue in
excess of the Year 4 Threshold, Autoweb generates Transaction Revenue through
sales methods other than through the supply of Qualifying Leads, Autoweb and
Lycos shall share such Transaction Revenue in a manner to be mutually agreed
upon.
6.3 Payment. The payments to Lycos described in Section 6.2 shall be
-------
referred to, collectively, as "Transaction Revenue Payments." Autoweb shall pay
to Lycos any Transaction Revenue Payments within forty-five (45) days following
the close of the quarter in which the Transaction Revenues were generated.
6.4 Reporting. Autoweb shall provide Lycos with weekly reports on a
---------
monthly basis regarding: (i) click-throughs to the Co-branded Site, and (ii) the
number of Purchase Requests completed and the number of Qualifying Leads. Lycos
shall provide to Autoweb at a minimum Lycos'standard daily reports on a weekly
basis regarding: (i) page views and (ii) click-throughs.
6.5 Three-Month Anniversary. Upon the three-month anniversary of the
-----------------------
Launch Date, or, at Lycos' discretion upon any earlier date, Lycos shall make an
election whether or not to integrate on the Co-branded Site offerings
substantially in the form offered by Autoweb on the Autoweb Site or as otherwise
agreed by the parties, and Lycos shall so inform Autoweb.
7. Lycos Network Integration Fees. Subject to the provisions of Section
------------------------------
20, Autoweb shall make guaranteed payments for the placements, integration,
exclusivity, and other services described herein in the amount of [*] per Year
of the Term, for a total amount of [*] in guaranteed payments (the "Guaranteed
----------
Payments"). Autoweb shall pay the Guaranteed Payments according to the following
- --------
schedule:
7.1 Year 1.
------
Within seven (7) business days of
the Effective Date: [*]
90 days following Effective Date: [*]
8
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
180 days following Effective Date: [*]
270 days following Effective Date: [*]
7.2 Year 2.
------
1/st/ Anniversary of Effective Date: [*]
90 days following 1/st/ Anniversary: [*]
180 days following 1/st/ Anniversary: [*]
270 days following 1/st/ Anniversary: [*]
7.3 Year 3.
------
2nd Anniversary of Effective Date: [*]
90 days following 2nd Anniversary: [*]
180 days following 2/nd/ Anniversary: [*]
270 days following 2/nd/ Anniversary: [*]
7.4 Year 4.
------
3rd Anniversary of Effective Date: [*]
90 days following 3/rd/ Anniversary: [*]
180 days following 3/rd/ Anniversary: [*]
270 days following 3/rd/ Anniversary: [*]
7A. Autoweb Securities and Lycos Investment. Within ten (10) days
---------------------------------------
following execution of this Agreement, Autoweb will issue and sell to Lycos a
number of shares of common stock (the "Securities") representing ten percent
(10%) of the outstanding shares of capital stock of Autoweb, as calculated on a
fully diluted basis outstanding on the Effective Date, for an aggregate purchase
price equal to the average market closing price per share of common stock of
Autoweb for the last thirty trading days prior to the Effective Date, multiplied
by the number of shares to be issued and sold hereunder (the "Lycos
Investment"). These terms and conditions of the Lycos Investment shall be
reflected in a Stock Purchase Agreement to be executed by both parties, but
which will provide that the Securities will be unregistered and not be saleable
for one year from date of issuance. However, Autoweb must take all necessary
steps so that the Securities are fully registered and saleable under the
conditions of this Agreement on the one year anniversary of the conveyance the
Securities. .After the expiration of such one year period and subject to
Autoweb's trading windows, Lycos may sell no more than fifteen per cent
9
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
(15)% of the Lycos Investment in any given quarter, and two per cent (2)% on any
given day; provided, however, that if Autoweb becomes sixty (60) or more days in
arrears on amounts owing to Lycos under section 7 of this Agreement, then the
volume restrictions of this sentence shall not apply. Autoweb's failure to
execute a Stock Purchase Agreement consistent with the terms of this Agreement,
or Autoweb's failure to convey the Securities pursuant to the Stock Purchase
Agreement shall each constitute incurable material breaches of this Agreement
for which Lycos shall have the right to terminate this Agreement immediately.
8. Page Views. The parties will take all necessary steps and actions,
----------
other than changing the URL of the Co-branded Site, in order to request the
Media Metrix and Nielsen/NetRatings organizations, and any additional Internet
ratings organizations identified by either party, to credit each party, on a
monthly basis, with at least 50% of all page views of the Co-branded Site.
8.1. Automobile Services. In the event that Lycos elects not to
-------------------
exercise its election as described in Section 6.5 by the Three Month Anniversary
of the Launch Date, then Lycos agrees that, notwithstanding any other provisions
of this Section 8 or elsewhere in this Agreement, (i) the top level page of the
Co-branded Site shall include links from Co-branded Content concerning
automobile services to pages served by Autoweb from the Autoweb Site provided
that such pages (i.e., the "Services Pages") do not provide offerings or
advertising of or for Prohibited Content. Nothing in this Agreement shall
restrict Autoweb's placement of links on the Services Pages to any other page of
the Autoweb Site. Autoweb shall receive page view credit for all page views of
the Autoweb Site.
9. Audit Rights. Each party shall maintain complete and accurate
------------
records with respect to the calculation of all payments due under this
Agreement. Each party shall have the right, at its expense (except as provided
below) to audit the other party's books and records for the purpose of verifying
payment amounts. Such audits shall be made not more than once per year, on not
less than ten (10) days written notice, during regular business hours, by
auditors reasonably acceptable to the party being audited. If the auditor's
figures reflect payment due under this Agreement other than that reported by the
party being audited, then the party being audited shall pay the amount owed (if
such amount is higher than reported), or the party conducting the audit shall
reimburse the difference (if such amount is lower than reported), as the case
may be. If the auditor's figures vary by more than 10% from the figures provided
by the party being audited, then the party being audited shall also pay the
reasonable cost of the audit.
10. No Click-Through Guarantee. Neither Lycos nor Autoweb represents,
--------------------------
promises, or commits that the parties will obtain or achieve via the Impressions
or otherwise any specific level of click-through by users to the Co-branded Site
("Click-Through"). The parties agree and acknowledge that there are many factors
-------------
that contribute to achievement of any particular Click-Through rate, and that
many such factors are not subject to the control of either or both parties.
Accordingly, the parties agree and acknowledge that achievement of any specific
Click-Through rate is not a material provision of this Agreement, nor a
requirement of the Agreement. Furthermore, the parties agree and acknowledge
that failure to achieve any specific Click-Through rate shall not constitute a
breach of the Agreement, and shall not serve as a basis, justification, or
excuse for Autoweb's failure or refusal to pay any or part of the Guaranteed
Fees or any other fees hereunder.
11. User Information. Autoweb shall manage the user information database
----------------
on the Co-branded Site, which shall include, subject to each parties' privacy
policies as they appear from time to time but otherwise without limitation, any
and all personally identifiable information, and any and all additional
information maintained by Autoweb specific to individual users, provided by
users (the "User
----
10
Information") on the Co-branded Site. Lycos and Autoweb shall jointly and
- -----------
severally own all User Information obtained on the Co-branded Site, provided
that such ownership of all User Information gathered during the Term shall be
remain subject, both during and following the Term, to each parties' privacy
policies as they appeared at the time such information was obtained. In
addition, Autoweb shall take such steps as are reasonably necessary to integrate
user registration processes on the Co-branded Site with Lycos' universal
registration system, including so that Lycos shall itself host and serve all
registration pages for the Co-branded Site. Lycos shall supply such registration
information to Autoweb as is necessary to access the Co-branded Content.
Notwithstanding anything to the contrary elsewhere in this Section, neither
Lycos nor Autoweb may, either during the Term or after the Term, without the
users' permission, sell or otherwise transfer the User Information or
registration information to any third party (other than by merger, consolidation
or sale of all or substantially all of the assets of such party). In addition,
Lycos and Autoweb agree that all communications with users (excluding all
automobile transaction-related communications between users and Autoweb or its
fulfillment partners in connection with transactions initiated by users through
the Co-branded Site) shall be (i) in mutually agreed upon, co-branded form, (ii)
only with the user's prior consent, and (iii) consistent with both parties'
privacy policies as they appear from time to time. Both Autoweb and Lycos agree
that the sharing of any such User Information or registration information and
the use thereof, either during or after the Term, shall be consistent with the
parties' privacy policies disclosed to the users when the information is
collected. Autoweb further agrees that it will place a link to each parties'
privacy policy (the "Privacy Links") on all pages of the Co-branded Site where
-------------
users are prompted to provide, and users provide, User Information, and Lycos
agrees that it shall place the Privacy Links on registration pages for the Co-
branded Site. The placement of such Privacy Links shall be subject to the mutual
agreement of the parties. In addition, Autoweb agrees to perform any and all
acts necessary to ensure that the Co-branded Site, including, without
limitation, the collection of User Information thereon, is in full compliance
with The Children's Online Privacy Protection Act and all other applicable laws
and regulations. On a monthly basis, Autoweb shall provide Lycos with all User
Information obtained on the Co-branded Site within ten (10) days after the end
of each month in a form and manner reasonably requested by Lycos.
12. Licenses; Approvals. To the extent creation of or access to the Co-
-------------------
branded Site is deemed a use, public display, public performance, transmission,
distribution, reproduction, or creation of a derivative work of the Content, or
to the extent the Content is actually used, publicly displayed, publicly
performed, transmitted, distributed or reproduced on the Lycos Network, either
in original form or in the form of a derivative work, Autoweb hereby grants
Lycos a non-transferable (except as provided herein), royalty-free (except as
provided herein), worldwide license to create derivative works from the Content,
and to use, publicly display, publicly perform, transmit, distribute, and
reproduce the Content and Autoweb's advertisements, during the Term solely for
the purposes described herein so that each party may exercise their rights and
perform their obligations hereunder. To the extent creation of or access to the
Co-branded Site is deemed a use, public display, public performance,
transmission, distribution, reproduction, or creation of a derivative work of
the Lycos Community Content, Lycos hereby grants Autoweb, for the duration of
the Term, a non-transferable, royalty-free (except as provided herein),
worldwide license to use, publicly display, publicly perform, transmit,
distribute, and reproduce the Lycos Community Content on the Co-branded Site
only.
13. Term. The term ("Term") of this Agreement shall commence on the
----- ----
Effective Date and continue for four (4) years following the Effective Date
unless terminated earlier as provided in this Agreement.
14. Marks. Lycos hereby grants to Autoweb a non-exclusive, non-
-----
transferable license to reproduce and display Lycos' trademarks, service marks,
logos and the like solely for the purposes
11
specified in this Agreement and in accordance with Lycos' established trademark
usage policies and procedures. Autoweb hereby grants Lycos a non-exclusive, non-
transferable license to reproduce and display Autoweb's trademarks, service
marks, logos and the like solely for the purposes specified in this Agreement
and in accordance with Autoweb's established trademark usage policies and
procedures. Except as expressly stated herein, neither party shall make any
other use of the other party's marks. Upon request of either party, the other
party shall provide appropriate attribution of the use of the requesting party's
marks (e.g., "Go Get It(R) is a registered service mark of Lycos, Inc. All
Rights Reserved.") or immediately cease using such requesting party's marks. In
connection with the licenses granted hereunder, each party shall have the
unilateral right to establish such quality standards and additional terms and
conditions concerning the use of its trademarks as such party deems necessary to
reasonably protect its trademarks. Such licenses shall terminate automatically
upon the effective date of expiration or termination of this Agreement.
15. Representations and Warranties.
------------------------------
15.1 Of Both Parties. Each party hereby represents and warrants as
---------------
follows:
15.1.1 Corporate Power. Such party is duly organized and validly
---------------
existing under the laws of the state of its incorporation and has full corporate
power and authority to enter into this Agreement and to carry out the provisions
hereof.
15.1.2 Due Authorization. Such party is duly authorized to execute and
-----------------
deliver this Agreement and to perform its obligations hereunder.
15.1.3 Binding Agreement. This Agreement is a legal and valid obligation
-----------------
binding upon it and enforceable with its terms, and that the execution, delivery
and performance of this Agreement by such party does not conflict with any
agreement, instrument or understanding, oral or written, to which it is a party
or by which it may be bound, nor violate any law or regulation of any court,
governmental body or administrative or other agency having jurisdiction over it.
15.2 By Autoweb. Autoweb represents and warrants that:
----------
15.2.1 Intellectual Property Rights and Other Rights. (i) It has the
---------------------------------------------
full and exclusive right to grant or otherwise permit Lycos to access the
Autoweb Site and the Co-branded Site, and to use Autoweb's intellectual
property, including, without limitation, its trademarks, service marks and
logos, as necessary for Lycos to perform its obligations under this Agreement,
and Autoweb is aware of no claims by any third parties adverse to any of such
intellectual property rights; (ii) the Content will not violate or infringe upon
the patent, copyright, literary, privacy, publicity, trademark, service mark or
any other personal or property right of any person, nor will same constitute a
libel or defamation of any person or entity; (iii) it has obtained all necessary
licenses, consents and approvals relating to all Content provided by a third
party and that it is responsible for obtaining any such licenses, consents and
approvals during the Term; and (iv) it is the owner or is licensed to use the
entire contents and subject matter contained in its advertising and collateral
information, including, without limitation, (1) the names and/or pictures of
persons; (2) any copyrighted material, trademarks, service marks, logos, and/or
depictions of trademarked or service marked goods or services; and (3) any
testimonials or endorsements contained in any advertisement submitted to Lycos.
15.3 By Lycos. Lycos represents and warrants that:
--------
12
15.3.1 Intellectual Property and Other Rights. (i) It has the full and
--------------------------------------
exclusive right to grant or otherwise permit Autoweb to access the Lycos Network
and to use Lycos' intellectual property, including, without limitation, its
trademarks, service marks and logos, as necessary for Autoweb to perform its
obligations under this Agreement, and Lycos is aware of no claims by any third
parties adverse to any of such intellectual property rights; (ii) the content on
the Lycos Network (other than content placed on such site by a third party, of
which Lycos does not have actual knowledge) will not infringe upon the patent,
copyright, literary, privacy, publicity, trademark, service mark or any other
personal or property right of any person, nor will same constitute a libel or
defamation of any person or entity; (iii) Lycos has obtained all necessary
licenses, consents and approvals relating to all Lycos Services displayed on the
Co-branded Site provided by a third party and that it is responsible for
obtaining any such licenses, consents and approvals during the Term; and (iv) it
is the owner or is licensed to use the entire contents and subject matter
contained in its advertising and collateral information displayed on the Co-
branded Site, including, without limitation, (1) the names and/or pictures of
persons; (2) any copyrighted material, trademarks, service marks, logos, and/or
depictions of trademarked or service marked goods or services; and (3) any
testimonials or endorsements contained in any advertisement submitted to Lycos.
The representations and warranties and covenants in this Section 15 are
continuous in nature and shall be deemed to have been given by each party at
execution of this Agreement and at each stage of performance hereunder. These
representations, warranties and covenants shall survive termination or
expiration of this Agreement.
16. Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED ABOVE, EACH
----------------------
PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE LYCOS NETWORK AND THE AUTOWEB
SITE OR THE CO-BRANDED SITE, AND NEITHER PARTY SHALL BE LIABLE FOR THE
CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATED THERETO. LYCOS SPECIFICALLY
DISCLAIMS ALL LIABILITY FOR THE AUTOWEB SITE, THE CO-BRANDED SITE, AND THE
CONTENT THEREIN, AND AUTOWEB SPECIFICALLY DISCLAIMS ALL LIABILITY FOR THE LYCOS
NETWORK, (EXCLUDING THE CO-BRANDED SITE) AND THE CONTENT THEREIN EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO EXPRESS OR IMPLIED
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS OR SERVICES OFFERED
OR SOLD THROUGH THE LYCOS NETWORK, THE AUTOWEB SITE OR THE CO-BRANDED SITE
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-
INFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE,
DEALING OR TRADE USAGE).
17. Indemnification; Insurance.
--------------------------
17.1 Indemnification.
---------------
17.1.1 Autoweb Indemnity. Autoweb will at all times defend, indemnify and
-----------------
hold harmless Lycos and its officers, directors, shareholders, employees,
accountants, attorneys, agents, affiliates, subsidiaries, successors and assigns
from and against any and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to: (i) any breach of any
13
warranty, representation, covenant or agreement made by Autoweb in this
Agreement; (ii) the development, operation or maintenance of the Autoweb Site or
the Co-branded Site, including the Content thereon, except to the extent
supplied by Lycos; (iii) the sale of any products or services through the
Autoweb Site or the Co-branded Site, including without limitation the purchase,
acceptance, use or misuse of such products and service by any customer or user;
and (iv) all text, graphics, images or other content that constitute the
Impressions and the copying, printing, display, distributing, or publishing of
Autoweb's advertisements. Lycos shall give Autoweb prompt written notice of any
claim, action or demand for which indemnity is claimed. Autoweb shall have the
right, but not the obligation, to control the defense and/or settlement of any
claim in which it is named as a party and which arises as a result of Autoweb's
breach of any warranty, representation, covenant or agreement under this
Agreement. Lycos shall have the right to participate in any defense of a claim
by Autoweb with counsel of Lycos' choice at Lycos' own expense. The foregoing
indemnity is conditioned upon: prompt written notice by Lycos to Autoweb of any
claim, action or demand for which indemnity is claimed; complete control of the
defense and settlement thereof by Autoweb; and such reasonable cooperation by
Lycos in the defense as Autoweb may request.
17.1.2 Lycos Indemnity. Lycos will at all times defend, indemnify and
---------------
hold harmless Autoweb and its officers, directors, shareholders, employees,
accountants, attorneys, agents, affiliates, subsidiaries, successors and assigns
from and against any and all third party claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, arising out of or
related to any breach of any warranty, representation, covenant or agreement
made by Lycos in this Agreement or the development, operation or maintenance of
the Lycos Network (but specifically excluding the Co-branded Site and any
content posted there by Autoweb or third parties). Autoweb shall give Lycos
prompt written notice of any claim, action or demand for which indemnity is
claimed. Lycos shall have the right, but not the obligation, to control the
defense and/or settlement of any claim in which it is named as a party. Autoweb
shall have the right to participate in any defense of a claim by Lycos with
counsel of Autoweb's choice at Autoweb's own expense. The foregoing indemnity
is conditioned upon; prompt written notice by Autoweb to Lycos of any claim,
action or demand for which indemnity is claimed; complete control of the defense
and settlement thereof by Lycos; and such reasonable cooperation by Autoweb in
the defense as Lycos may request.
17.1.3 Settlement. Neither party shall, without the prior written consent
----------
of the other party, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim unless the settlement,
compromise or consent provides for and includes an express, unconditional
release of all claims, damages, liabilities, costs and expenses, including
reasonable legal fees and expenses, against the indemnified party.
17.2 Insurance. For the length of the Term, Autoweb shall cause Lycos
---------
to be included as an "additional insured" on all of Autoweb's relevant insurance
policies that provide coverage of any kind relating to or regarding the services
or content provided by or the goods and products sold by Autoweb in accordance
with the terms of this Agreement.
18. Confidentiality.
---------------
18.1 Non-Disclosure Agreement. The parties agree and acknowledge that,
------------------------
as a result of negotiating, entering into and performing this Agreement, each
party has and will have access to certain of the other party's Confidential
Information (as defined below). Each party also understands and agrees that
misuse and/or disclosure of that information could adversely affect the other
party's business. Accordingly, the parties agree that, during the Term of this
Agreement and thereafter, each party shall use
14
and reproduce the other party's Confidential Information only for purposes of
this Agreement and only to the extent necessary for such purpose and shall
restrict disclosure of the other party's Confidential Information to its
employees, consultants or independent contractors with a need to know and shall
not otherwise disclose the other party's Confidential Information to any third
party without the prior written approval of the other party. Notwithstanding the
foregoing, it shall not be a breach of this Agreement for either party to
disclose Confidential Information of the other party if required to do so under
law or in a judicial or other governmental investigation or proceeding, provided
the other party has been given prior notice and the disclosing party has sought
all available safeguards against widespread dissemination prior to such
disclosure.
18.2 Confidential Information Defined. As used in this Agreement, the
--------------------------------
term "Confidential Information" refers to: (i) the terms and conditions of this
------------------------
Agreement; (ii) each party's trade secrets, business plans, strategies, methods
and/or practices; and (iii) other information relating to either party that is
not generally known to the public, including information about either party's
personnel, products, customers, marketing strategies, services or future
business plans. Notwithstanding the foregoing, the term "Confidential
------------
Information" specifically excludes (A) information that is now in the public
- -----------
domain or subsequently enters the public domain by publication or otherwise
through no action or fault of the other party; (B) information that is known to
either party without restriction, prior to receipt from the other party under
this Agreement, from its own independent sources as evidenced by such party's
written records, and which was not acquired, directly or indirectly, from the
other party; (C) information that either party receives from any third party
reasonably known by such receiving party to have a legal right to transmit such
information, and not under any obligation to keep such information confidential;
and (D) information independently developed by either party's employees or
agents provided that either party can show that those same employees or agents
had no access to the Confidential Information received hereunder.
19. Press Releases; Off-line Promotion.
----------------------------------
19.1 Press Releases. No public statements concerning the existence or
--------------
terms of this Agreement shall be made or released to any medium except with the
prior approval of Lycos and Autoweb or as required by law.
19.2 Off-line Promotion. In a majority of Autoweb's offline promotion
------------------
(including, but not limited to, print, radio and television), marketing
materials, and the like (collectively, the "Advertising Materials") and subject
---------------------
to Lycos' prior written approval, Autoweb shall include the following statement:
"Autoweb at Lycos" or such other statement as the parties shall hereafter
mutually agree (the "Reference"). In a majority of Lycos' offline promotion
---------
relating to automobiles (including, but not limited to, print, radio and
television, marketing materials, and the like (collectively, the "Advertising
-----------
Materials") and subject to Autoweb's prior written approval, Lycos shall include
- ---------
the following statement: "Autoweb at Lycos" or such other statement as the
parties shall hereafter mutually agree (the "Reference"). All References shall
---------
be at least the same size and prominence of any similar statements or promotions
for other third parties mentioned or promoted in such Advertising Materials, and
the form of the Reference shall be subject to Lycos prior approval. Autoweb
hereby agrees, represents, and warrants that it shall not include the reference
in any materials or publication in a form or manner so as to denigrate or
disparage Lycos, its products, or otherwise. The obligations of this Section
shall not commence until September 2000.
20. Termination. Either party may terminate this Agreement if (a) the
-----------
other party files a petition for bankruptcy or is adjudicated bankrupt; (b) a
petition in bankruptcy is filed against the other
15
party and such petition is not dismissed within sixty (60) days of the filing
date; (c) the other party becomes insolvent or makes an assignment for the
benefit of its creditors pursuant to any bankruptcy law; (d) a receiver is
appointed for the other party or its business; (e) upon the occurrence of a
material breach of a material provision by the other party if such breach is not
cured within thirty (30) days after written notice is received by the breaching
party identifying the matter constituting the material breach; or (f) by mutual
consent of the parties. In addition, after the first anniversary of the
Effective Date, Lycos may terminate this Agreement in the event that Autoweb's
Content becomes substantially uncompetitive with other content, tools, services,
information, and technology as is otherwise available, if such condition is not
cured within (90) days written notice to Autoweb. In addition, Lycos may
terminate this Agreement in accordance with the applicable provisions of Section
20.1.
20.1 Change of Control. In the event that a company identified on
-----------------
Exhibit C acquires all or substantially all of the assets of Autoweb, acquires a
majority of the outstanding voting securities of Autoweb, merges with or into
Autoweb or causes a corporate affiliate to do so, or otherwise obtains effective
voting control of Autoweb's board of directors, either directly, in combination,
or through its designees, then Lycos shall have the right to (a) terminate the
Agreement effective immediately, in which case Lycos shall refund to Autoweb any
unused pro rata portion of the Guaranteed Fees as calculated on a calendar basis
(i.e., each installment set forth in Section 7 shall be, for purposes of this
Section only, construed as full payment for each 90 days of performance), (b),
at Lycos' option, for two years following notice, to the extent permitted by
Autoweb's contractual obligations with third parties, operate the Co-branded
Site on its own behalf utilizing the Co-branded Content under Lycos branding
alone, and Autoweb will assist Lycos in securing all needed permissions for
Lycos to do so, and Autoweb shall dedicate proper and sufficient resources to
facilitate an orderly transition, including sufficient training for Lycos
personnel as requested by Lycos (for which Lycos shall compensate Autoweb on a
reasonable time and materials basis), for a period of three months, in which
case Lycos shall pay to Autoweb an aggregate fee of $10 million per year, or (c)
continue performance under this Agreement without change.
21. Force Majeure. In the event that either party is prevented from
-------------
performing, or is unable to perform, any of its obligations under this Agreement
due to any cause beyond the reasonable control of the party invoking this
provision, the affected party's performance shall be excused and the time for
performance shall be extended for the period of delay or inability to perform
due to such occurrence.
22. Relationship of Parties. Autoweb and Lycos are independent
-----------------------
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture or agency relationship between Autoweb and
Lycos. Neither party has authority to enter into agreements of any kind on
behalf of the other.
23. Assignment, Binding Effect. Neither Lycos nor Autoweb may assign
--------------------------
this Agreement or any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the other. Notwithstanding the
foregoing, Lycos may assign this Agreement as a whole to any successor of Lycos,
and, subject to the provisions of Section 20.1, Autoweb may assign this
Agreement as a whole to any successor of Autoweb.
24. Choice of Law and Forum. This Agreement, its interpretation,
-----------------------
performance or any breach thereof, shall be construed in accordance with,
governed by, and all questions with respect thereto shall be determined by, the
laws of the Commonwealth of Massachusetts applicable to contracts entered into
and wholly to be performed within said state.
24.1 Dispute Resolution.
------------------
16
Level 1 Dispute Review. Upon the written request of either Party, each
-----------------------
Party shall appoint a designated representative whose task shall be to meet the
other party's designated representative (by conference telephone call or in
person at a mutually agreeable site) in an endeavor to resolve any Dispute
("Level 1 Dispute Review"). The designated representatives shall meet as often
as the parties reasonably deem necessary to discuss the Dispute and negotiate in
good faith in an effort to resolve the Dispute without the necessity of any
formal proceeding.
Level 2 Dispute Review. If resolution of the Dispute cannot be resolved
-----------------------
within the earlier of (a) fifteen (15) days of the first Level 1 Dispute Review
meeting and (b) such time as when either party gives the other notice of an
impasse ("Level 1 Dispute Termination Date"), a chief executive officer (or a
functional equivalent) of each Party shall meet (by conference telephone call or
in person at a mutually agreeable site) within 72 hours after the Level 1
Dispute Termination Date for the purpose of resolving such unresolved Dispute
("Level 2 Dispute Review").
Submission of Dispute to Mediation. If the Parties are unable to resolve
----------------------------------
the Dispute within five (5) days after commencement of the Level 2 Dispute
Review, either party may serve the other with notice of the existence of a
continuing impasse (the date on which both Parties are in receipt of such
notice, the "Level 2 Dispute Termination Date") and the parties shall thereafter
immediately submit the Dispute to mediation in accordance with the Commercial
Mediation Rules of the American Arbitration Association ("AAA") and shall bear
equally the costs of the mediation. The Parties will act in good faith to
jointly appoint a mutually acceptable mediator, seeking assistance in such
regard from the AAA within fifteen (15) days of the Level 2 Termination Date.
The Parties agree to participate in good faith in the mediation and negotiations
related thereto for a period of thirty (30) days commencing with the selection
of the mediator and any extension of such period as the Parties may mutually
agree.
Arbitration. (a) If the parties agree to a mediator within fifteen (15)
-----------
days of the Level 2 Dispute Termination Date or if the Dispute is not resolved
within thirty (30) days after the beginning of the mediation and any extension
of such periods as the Parties may mutually agree, the Dispute shall be
submitted to, and finally determined by, binding arbitration in accordance with
the following provisions of this Exhibit, regardless of the amount in
controversy or whether such Dispute would otherwise be considered justifiable or
ripe for resolution by a court or arbitration panel.
(b) Any such arbitration shall be conducted by the AAA in accordance with
its Commercial Arbitration Rules (the "AAA Rules"), except to the extent that
the AAA Rules conflict with the provisions of this Exhibit, in which event the
provisions of this Section shall control.
(c) The arbitration panel (the "Panel") shall consist of one neutral
arbitrator (the "Arbitrator"), who shall be an attorney having five or more
years experience in the primary area of law as to which the Dispute relates, and
shall be appointed in accordance with the AAA Rules (the "Basic
Qualifications").
(d) Should an Arbitrator refuse or be unable to proceed with arbitration
proceedings as called for by this Section, a substitute Arbitrator possessing
the Basic Qualifications shall be appointed by the AAA. If an Arbitrator is
replaced after the arbitration hearing has commenced, then a rehearing shall
take place in accordance with the provisions of this Exhibit and the AAA Rules.
(e) The arbitration shall be conducted in Boston Massachusetts; provided
--------
that the Panel may from time to time convene, carry on hearings, inspect
property or documents and take evidence at any location which the Panel deems
appropriate.
17
(f) The Panel may in its discretion order a pre-exchange of information
including production of documents, exchange of summaries of testimony or
exchange of statements of position and shall schedule promptly all discovery and
other procedural steps and otherwise assume case management initiative and
control to effect an efficient and expeditious resolution of the Dispute.
(g) At any oral hearing of evidence in connection with any arbitration
conducted pursuant to this Exhibit, each party and its legal counsel shall have
the right to examine its witnesses and to cross-examine the witnesses of the
other party. No testimony of any witness shall be presented in written form
unless the opposing parties shall have the opportunity to cross-examine such
witness, except as the parties otherwise agree in writing and except under
extraordinary circumstances where, in the opinion of the Panel, the interests of
justice require a different procedure.
(h) Within fifteen (15) days after the closing of the arbitration hearing,
the Panel shall prepare and distribute to the Parties a written award. The
Panel shall have the authority to award interest on any monetary award from the
date that the loss or expense was incurred by the prevailing party. In
addition, the Panel shall have the authority to decide issues relating to the
interpretation, meaning or performance of this Agreement, any agreement,
certificate or other document referred to herein or delivered in connection
herewith, or the relationships of the parties hereunder or thereunder, even if
such decision would constitute an advisory opinion in a court proceeding or if
the issues would otherwise not be ripe for resolution in a court proceeding, any
and any such decision shall bind the parties in their performance of this
Agreement and such other documents.
(i) Except as necessary in court proceedings to enforce this arbitration
provision or an award rendered hereunder, to obtain interim relief, or as
otherwise required by law, no Party nor any arbitrator shall disclose the
existence, content or results of any arbitration conducted hereunder without
the prior written consent of the other Party.
(j) To the extent that the relief or remedy granted in an award by the
Panel is relief or a remedy on which a court could enter judgment, a judgment
upon the award rendered by the Panel may be entered in any court having
jurisdiction thereof. Otherwise, the award shall be binding on the Parties in
connection with their obligations under this Agreement and in any subsequent
arbitrator or judicial proceedings among any of the parties.
(k) The Parties agree to share equally the cost of any arbitration,
including the administrative fee, the compensation of the arbitrator and the
costs of any neutral witnesses or proof produced at the direct request of the
Panel.
(l) Each Party hereto agrees that references to the Parties in this
Section 24.1 shall also include their respective Affiliates, who shall be
subject to the dispute resolution procedures of this Section 24.1 to the same
extent as the Parties.
24.2 Recourse to Courts and Other Remedies. Notwithstanding the dispute
--------------------------------------
resolution procedures set forth in Section 24.1, any Party may apply to any
court having jurisdiction (a) to enforce the provisions of Section 24.1, (b) to
seek injunctive relief or any other equitable remedy to enforce any provision of
this Agreement, or to maintain the status quo until the arbitration award is
rendered or the Dispute is otherwise resolved, (c) to avoid the expiration of
any applicable limitation period, (d) to preserve a superior position with
respect to other creditors, (e) to challenge or vacate any final judgment,
award or decision of the Panel, or (f) to enforce the indemnification
obligations set forth in the Agreement
18
or to recover damages based thereon. Each party hereby consents to the personal
jurisdiction of the Commonwealth of Massachusetts, acknowledges that venue is
proper in any state or Federal court in the Commonwealth of Massachusetts,
agrees that any action arising out of or related to this Agreement contemplated
by this Section 24.2 must be brought exclusively in a state or Federal court in
the Commonwealth of Massachusetts, and waives any objection it has or may have
in the future with respect to any of the foregoing.
24.3 Attorneys' Fees. If any action, suit, or proceeding is commenced to
---------------
establish, maintain, or enforce any right or remedy under this Agreement, the
Party not prevailing therein shall pay, in addition to any damages or other
award, all reasonable attorney's fees and litigation expenses incurred therein
by the prevailing Party.
25. Good Faith. The parties agree to act in good faith with respect to
----------
each provision of this Agreement and any dispute that may arise related hereto.
26. Counterparts and Facsimile Signatures. This Agreement may be
-------------------------------------
executed in multiple counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. Facsimile signatures will be considered original signatures.
27. No Waiver. The waiver by either party of a breach or a default of
---------
any provision of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party.
28. Successors and Assigns. Except as provided in Section 20.1, this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns.
29. Severability. Each provision of this Agreement shall be severable
------------
from every other provision of this Agreement for the purpose of determining the
legal enforceability of any specific provision.
30. Notices. All notice required to be given under this Agreement must
-------
be given in writing and delivered either in hand, by certified mail, return
receipt requested, postage pre-paid, or by Federal Express or other recognized
overnight delivery service, all delivery charges pre-paid, and addressed:
If to Lycos:
Lycos, Inc.
400-2 Totten Pond Road
Waltham, MA 02451
Fax No.: (781) 370-2600
Attention: General Counsel
19
If to Autoweb:
Autoweb, Inc.
3270 Jay Street
Santa Clara, CA 95054
Fax No: (408) 588-9776
Attention: President
Cc: General Counsel
31. Entire Agreement. This Agreement constitutes the entire
----------------
understanding of the parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between Lycos and
Autoweb concerning the subject matter, except that to the extent either party
owes the other any other obligation of performance or payment as of the
Effective Date such obligations shall be satisfied according to the terms of any
pre-existing agreement between them. This Agreement cannot be amended except by
a writing signed by authorized representatives of both parties. No party hereto
has relied on any statement, representation or promise of any other party or
with any other officer, agent, employee or attorney for the other party in
executing this Agreement except as expressly stated herein.
32. Limitations Of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
------------------------
BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF ANY
PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES),
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN
EXCESS OF THE VALUE RECEIVED BY SUCH PARTY UNDER THIS AGREEMENT.
NOTHWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
LIMITATIONS OF LIABILITY SET FORTH IN THE PRECEDING SENTENCE SHALL NOT APPLY IN
THE EVENT OF A BREACH OR BREACHES OF SECTIONS OF THIS AGREEMENT REGARDING
CONFIDENTIALITY, AMOUNTS PAYABLE, AND/OR INDEMNIFICATION.
33. Survival. All terms of this Agreement, which by their nature extend
--------
beyond its termination, remain in effect until fulfilled, and apply to
respective successors and assigns.
20
AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date set forth above.
AUTOWEB ______________
By: ______________________________
Name: ____________________________
Title: ___________________________
LYCOS, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Lycos Confidential
21
EXHIBIT A
Operations Requirements for Remote Service Providers
Introduction
The following introduction comes from the Lycos, Inc. "Operations Change
Management" document. As it relates to service-providers external to Lycos, Inc.
owned and operated data-centers, Operations and Operations personnel will refer
to the systems, network, and applications support personnel of the service-
provider in question. This document addresses Lycos, Inc.'s expectations as
consistent with industry practice related to availability and functionality, and
problem escalation and resolution procedures as they extend between Lycos
Operations and a remote service-provider.
Availability and Functionality
The Lycos, Inc. Operations group works to guarantee 99.999% availability and
functionality of all Lycos Services, and expects remote service-providers to
work towards the same. To this end, the following requirements have been
established for such service-providers:
. Provide physical- and application-layer redundancy such that hard loss of
any one application server or physical platform will not result in loss of
availability or functionality of the product or service. This redundancy
will apply to network services platforms (e.g., routers), production
servers, production support servers (e.g., monitoring application servers),
etc. In the case of the firewall and certain other supporting application
servers, where currently automatic fail-over is not available, within
thirty minutes an engineer will be working to correct the problem. Within
three months, a redundant firewall solution will be in place.
. Provide monitoring of all Lycos-related servers and applications such that
problems are detected before or within 15 minutes of occurrence. Further,
when possible, provide the ability to monitor these servers and
applications remotely.
. Guarantee appropriate capacity monitoring and growth such that systems run
below an average of 75% consumption of potential resources during peak
operating hours for any 15 minute interval.
. Guarantee appropriate application, system, and network capacity and
resources (within the service provider's systems only) such that the
average server response to any given user page request over any one (1)
hour period is not more than five seconds (within the framework of the
availability framework described above).
. Commit to pre- arranged, after-hours (defined as those periods during which
traffic is lowest) change and planned maintenance windows, and provide
ample (i.e., no less than five business days) notice before these windows
are utilized for Lycos-branded services. Exceptions to this practice may be
made as required for emergency situations and Lycos shall be notified of
such emergency situations as soon as possible.
Problem Escalation and Resolution for Critical Problems
For purposes of this section, a "Critical Problem" shall mean any problem that
results in either the Co-branded Site being unavailable or inaccessible to users
or the inability to serve advertisements on the Co-branded Site. The Lycos, Inc.
Operations Group maintains an internal problem escalation and resolution process
designed to provide a means to resolve service-related Critical Problems quickly
and efficiently, while maximizing communication of problem status. This process
is available to Lycos, Inc. personnel, and to the Operations personnel of remote
service-providers should the need arise.
To meet the expectations upon which the Problem Escalation and Resolution
process are based, Operations will provide the following:
A 24x7, single point of contact for Critical Problem escalation.
Initials: _____ Initials: ______
22
A guaranteed 30-minute response time to have personnel actively working on the
reported Critical Problems, with the understanding that to date no Critical
Problems have gone unattended more than 15 minutes, and that Operations will
exert best efforts to have personnel actively working on the problem in 15
minutes or less.
A guarantee of timely (hourly) updates during extended (defined as more than 1
hour) Lycos-specific Critical Problem incidents.
A guarantee of 15 minute notification upon Critical Problem resolution.
A guarantee of Critical Problem summary within 24 business hours of Critical
Problem resolution.
Other Items of Note:
While Lycos, Inc. Operations will assign a both a primary technical analyst and
a technical manager to handle issues related to the remote service, it is
expected that non-emergency communication between a remote service provider and
Lycos Operations will be negotiated by and through a Lycos, Inc. Product
Manager.
For critical or emergency issues the Lycos, Inc. Operations group can be reached
at the Lycos Operations Hotline: [*].
Initials: _____ Initials: ______
23
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT B1
[*]
24
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT B2IMPRESSIONS PLAN
EXHIBIT C
[*]
25
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
EXHIBIT D
1. Changes and Cancellations. All artwork must be received at least five days
-------------------------
in advance of publication date. Cancellations or copy changes will not be
accepted after the published closing date of the update to the Lycos site.
Lycos must receive changes to artwork at least five days in advance of requested
change date. Lycos' ad banner specifications are accessible through the URL
adreporting.lycos.com/specs.html; Lycos reserves the right to change any of its
ad banner specifications at any time. Any cancellations or change orders must
be made in writing and acknowledged by Lycos. Change orders cannot be submitted
any more frequently than once every fourteen days, with the exception of broken
links or faulty creative executions.
2. Licenses and Indemnification. Autoweb represents that it is the owner or is
----------------------------
licensed to use the entire contents and subject matter contained in its
advertising and collateral information, including, without limitation, (a) the
names and/or pictures of persons; (b) any copyrighted material, trademarks,
service marks, logos, and/or depictions of trademarked or service marked goods
or services; and (c) any testimonials or endorsements contained in any
advertisement submitted to Lycos. In consideration of Lycos' acceptance of such
advertisements and information for publication, Autoweb will jointly and
severally indemnify and hold Lycos harmless against all loss, liability, damage
and expense of any nature (including attorney's fees) arising out of Lycos'
copying, printing, distributing, or publishing of Autoweb's advertisements,
including, but not limited to, the Newsletter Products. If Autoweb possesses any
preexisting copyright interests in the advertisements, advertiser grants Lycos
the right to use, reproduce, and distribute the advertisements.
3. Key Words and Phrases. Each advertiser may be given a "first right" to its
---------------------
exact company name and trademarks for keyword/phrase advertising. Lycos may
pre-empt an existing key word/phrase advertiser by submitting a three-month
advertising contract. The existing contract-holder for the key word/phrase will
be provided with a two-week notification of preemption and will receive a
comparable number, form and content. of impressions for any unfulfilled number
of guaranteed impressions. If two or more advertisers have the same name or
trademark, the allocation will be on a first-come basis and the existing
contract will take precedence.
4. Rejections. Lycos reserves the right, without liability, to reject, omit or
----------
exclude any advertisement or to reject or terminate any links for any reason at
any time, with or without notice to Autoweb, , subject to exceptions below and
whether or not such advertisement or link was previously acknowledged, accepted,
or published. In cases where such rejection, omission or exclusion is not caused
by broken links, prohibited content, or, more generally, a material degradation
in the consumer experience, Lycos will provide commercially reasonable notice to
Autoweb of rejection and will allow Autoweb to remedy such exclusions within 10
days. Under all cases, Lycos shall replace any exclusions with mutually agreed
upon replacement impressions and links
5. Limitation of Liability. Lycos shall not be liable for any errors in
-----------------------
content or omissions. Should an error appear in an advertisement, Lycos'
liability will be limited to making good the number, form and content of the
lost impressions if the error is Lycos'.
Initials: _____ Initials: ______
26
Exhibit E
---------
[*]
27
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.