Sales Agency Agreement

EXHIBIT 10.2


SALES AGENCY AGREEMENT


This Sales Agency Agreement (this "Agreement") is made and entered into as of October 2, 2000, by and between the following parties (each singly sometimes a "Party", and both sometimes collectively, the "Parties"): USSEARCH.com Inc. , a Delaware corporation ("USSEARCH"); and InfoSpace, Inc., a Delaware corporation ("InfoSpace").


RECITALS


A. InfoSpace is an international information infrastructure services company
that provides commerce, information and communication infrastructure
services to wireless devices, merchants and sites on the WorldWide Web (the
"Web").


B. USSEARCH, among other things, is a provider of individual reference
services via the Web.


3. The Parties wish to enter into an agreement whereby (among other things)
InfoSpace will provide various advertising services to USSEARCH in exchange
for a commission based upon USSEARCH sales derived from such advertising
services, all as more particularly provided herein.


D. Certain capitalized terms not otherwise defined herein are defined in
Schedule 1 attached hereto.


AGREEMENT


Now, Therefore, the Parties hereby agree as follows:


1. Term of Agreement. The term of this Agreement (the "Term") shall commence
-----------------
on the date hereof and shall expire, automatically and without further
notice from or to either Party, upon the close of business on September 30,
2003; provided, however, that either Party may cancel this Agreement
effective upon the close of business on September 30, 2002 by delivering
written notice of such cancellation to the other Party at any time on or
before the close of business on August 1, 2002. Any such notice of
cancellation once issued shall henceforth be irrevocable by the issuing
Party unless the other nonissuing Party consents to such revocation in
writing.


2. Commission to InfoSpace. For any and all services provided by InfoSpace
-----------------------
hereunder, USSEARCH shall pay to InfoSpace, as the total monetary
consideration due hereunder, commissions ("Commissions") equal to [***].


2.1 Net Revenue. As used herein, the term "Net Revenue" shall mean the
-----------
difference (if a positive number) between (i) the gross sales revenues
actually received by USSEARCH from the sale of USSEARCH services or
products of any kind to Qualified Customers, minus (ii) any and all
discounts, returns for credit, allowances, or shipping or other third-
party charges passed on to the Qualified Customer, in each case
attributable to the gross sales revenue in question.


2.2 Qualified Customers. As used herein, the term "Qualified Customers"
-------------------
shall mean (and be limited to) those purchasers of USSEARCH services
or products who both: (i) follow a link to the USSEARCH Web site
either from a Web page included in any item of Inventory shown on
Exhibit A hereto, or from a wireless device service advertisement for
USSEARCH's services and products if InfoSpace caused advertisement to
be delivered through the wireless device service, and (ii) in the same
session purchase a USSEARCH service or product from the USSEARCH Web
site through the USSEARCH Automated Ordering System. A purchase under
(ii) above shall be deemed to have occurred "in the same session" only
if such purchase occurs during the period of time beginning with the
purchaser's initial contact with the USSEARCH Web site and ending upon
such purchaser's departure from the USSEARCH Web site.


2.3 Minimum Quarterly Commission. [***].
----------------------------


2.4 Payment of Commissions. USSEARCH shall calculate and pay to InfoSpace
----------------------
such Commissions as may be owed to InfoSpace hereunder for each
Contract Quarter within [***] after the end of such Contract Quarter.
InfoSpace shall have the right, at InfoSpace's sole cost and expense
and upon reasonable advance notice (but in any event not less than
five days' advance notice), to inspect such books and records of
USSEARCH as may be reasonably necessary or desirable for InfoSpace to
verify USSEARCH's calculation of any Commissions owed.


*** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARTELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR AN ORDER
GRANTING CONFIDENTIAL TREATMENT OF SUCH INFORMATION.


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3. Covenants.
---------


3.1 Compliance With Law. Each Party shall comply with all Laws and the
--------------------
rights of all third parties in the performance of its duties
hereunder.


3.2 Performance Maximization. The Parties have a mutual interest in
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implementing techniques and strategies consistent with this Agreement
that will maximize Commissions to InfoSpace and Net Revenue to
USSEARCH. In that connection, the Parties shall cooperate with each
other and use all reasonable commercial efforts to maximize such
Commissions and such Net Revenue, including, without limitation,
creating effective advertising for present and future USSEARCH
services and products and integrating the same into the InfoSpace, AOL
and MSN Web sites and wireless services in a manner and to a degree
that the Parties' believe will maximize such Commissions and such Net
Revenue. Without limiting the generality of the foregoing, InfoSpace
shall, at a minimum, comply at all times with the Performance
Requirements set forth in Exhibit B attached hereto.


3.3 Books and Records. Each Party shall maintain such books and records
-----------------
as may be reasonably necessary or desirable for the other Party (at
such other Party's sole cost and expense) to verify the maintaining
Party's compliance with this Agreement. Each Party shall provide the
other Party, upon reasonable advance notice, but in any event not less
than five days' advance notice, access to such books and records for
the purpose of verifying such compliance.


4. Representations and Warranties:
------------------------------


Each Party (a "Representing Party") hereby represents, warrants and
covenants to the other Party that:


a. (i) The Representing Party is a corporation duly organized,
validly existing, and in good standing in the State of Delaware,
and is duly qualified to do business and in good standing in all
other states wherein the failure to so qualify or to be in good
standing would have a material adverse effect upon its business,
assets or financial condition; (ii) the Representing Party has
full legal right and authority to enter into this Agreement and
the other documents to be delivered by it hereunder, and to
consummate the transactions contemplated herein; and (iii) this
Agreement constitutes a valid and legally binding obligation of
the Representing Party enforceable in accordance with its terms,
subject to bankruptcy and similar Laws of general application
with respect to creditors.


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b. The execution, delivery, and performance by the Representing
Party of this Agreement have been duly authorized by all
necessary corporate action required of it and do not (i) require
any consent or approval of the Representing Party's stockholders;
(ii) contravene the Representing Party's articles of
incorporation, charter or bylaws; (iii) violate any provision of
any Law presently in effect having applicability to the
Representing Party; (iv) result in a breach of or constitute a
default under any Person's rights, or any indenture or loan or
credit agreement or any other material agreement, license, lease
or instrument to which the Representing Party is a party or by
which it or its properties may be bound or affected; (v) result
in, or require, the creation or imposition of any lien or
encumbrance, upon or with respect to any of the properties now
owned or hereafter acquired by it; or (vi) cause the Representing
Party to be in violation of, or default under, any such Law, any
such rights or any such material indenture, agreement, license,
lease or instrument.


c. EXCEPT FOR THE REPRESENTING PARTY'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN, THE REPRESENTING PARTY IS RELYING
SOLELY ON ITS OWN INSPECTION AND ANALYSIS OF THE OTHER PARTY, AND
THE OTHER PARTY'S BUSINESS, ASSETS, PRODUCTS AND SERVICES
(COLLECTIVELY, THE "OTHER PARTY'S OPERATIONS") IN ENTERING INTO
THIS AGREEMENT AND NOT ON ANY INFORMATION PROVIDED BY THE OTHER
PARTY, AND THE REPRESENTING PARTY IS PROCEEDING HEREUNDER ON AN
"AS IS" AND "WHERE IS" BASIS WITH ALL FAULTS CONCERNING THE OTHER
PARTY AND ITS PRODUCTS AND OPERATIONS NOW KNOWN OR HEREAFTER
DISCOVERED BY THE REPRESENTING PARTY.


d. EXCEPT FOR THE REPRESENTING PARTY'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN, THE REPRESENTING PARTY ACCEPTS ANY
AND ALL RISK THAT (i) THE REPRESENTING PARTY MAY NOT BE ABLE TO
USE, PROFIT OR BENEFIT FROM OR OTHERWISE DISPOSE OF ANY PRODUCT
OR SERVICE OF THE OTHER PARTY FOR ANY PURPOSE INTENDED OR DESIRED
BY THE REPRESENTING PARTY; AND (ii) SUCH PRODUCTS OR SERVICES MAY
NOT HAVE THE UTILITY, VALUE OR


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BENEFIT ASSUMED BY THE REPRESENTING PARTY IN ITS AGREEMENT
HEREUNDER.


e. THE REPRESENTING PARTY HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO
INSPECT AND ANALYZE THE OTHER PARTY'S OPERATIONS AND ALL ASPECTS
RELATING THERETO, EITHER INDEPENDENTLY OR THROUGH AFFILIATES OF
THE REPRESENTING PARTY'S OWN CHOOSING; (ii) THE REPRESENTING
PARTY HAS CONCLUDED WHATEVER STUDIES, TESTS, AND INVESTIGATIONS
THE REPRESENTING PARTY DESIRES RELATING THERETO; (iii) THE
REPRESENTING PARTY HAS REVIEWED AND READ (OR HAS ELECTED NOT TO
DO SO) AND HAS UNDERSTOOD ALL DOCUMENTS OR INSTRUMENTS OF PUBLIC
RECORD OR OTHERWISE AVAILABLE FROM ANY GOVERNMENTAL BODY OR
PROVIDED BY THE OTHER PARTY, THAT AFFECT OR PERTAIN TO THE OTHER
PARTY'S OPERATIONS AND THAT THE OTHER PARTY DEEMS RELEVANT.


f. Except as otherwise expressly provided herein, notwithstanding
the Representing Party's access to, or handling, possession
processing or other use of, the property or assets of the other
Party or any other activities that the Representing Party may
perform hereunder: (i) the Representing Party does not hold, and
the Representing Party is not now or hereafter, by virtue of this
Agreement or any transactions or activities undertaken hereunder
or contemplated hereby, receiving, obtaining or otherwise being
granted, assigned, licensed, conveyed, delegated or otherwise
conferred or vested with, any ownership, proprietary, use,
access, license or other rights, titles or interests of any kind
whatsoever in or to any property or assets of the other Party or
in any existing or future development, improvement or discovery
with respect thereto, regardless of whether made, commissioned,
obtained, discovered or occasioned by the Representing Party or
any other Person; and (ii) the Representing Party's rights with
respect to the property or assets of the other Party are strictly
limited to those necessary to fulfill the Representing Party's
obligations hereunder.


g. EXCEPT FOR THE REPRESENTING PARTY'S EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN, THE REPRESENTING PARTY HEREBY HAS


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DISCLAIMED, AND WAIVED AND RELEASED THE OTHER PARTY FROM, ANY
RIGHT OR CLAIM BASED UPON, ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WHETHER
ARISING BY LAW OR ALLEGEDLY MADE EXPRESSLY OR IMPLIEDLY
(INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) BY THE OTHER
PARTY OR ANY AFFILIATE OF THE OTHER PARTY, OF, AS TO, OR
CONCERNING THE OTHER PARTY'S OPERATIONS.


With respect to the foregoing release of claims, the Representing
Party acknowledges and waives the provisions of Section 1542 of
the California Civil Code, which provides as follows:


"general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."


The Representing Party has been fully advised of, and understands
the purpose and effect of, Section 1542, and acknowledges that
such release of known and unknown claims provided herein
constitutes a material aspect of the consideration being
exchanged. The Representing Party hereby waives any and all
rights which it may have under Section 1542 or any other state or
federal statute or common Law or principle of similar effect
which restricts the release of any such unknown claims.


5. Proprietary Rights and License.
------------------------------


5.1 Certain Definitions.
-------------------


The following terms shall have the following meanings for the purposes
of this Agreement:


a. "SEARCH Content" means any (if any) text, pictures, graphics,
sound, video, other data, functionality, computer software and
code that may be provided to InfoSpace by USSearch pursuant to
this Agreement.


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b. "SEARCH Marks" means any (if any) SEARCH logos and trademarks
that may be provided to InfoSpace by USSEARCH pursuant to this
Agreement.


c. "InfoSpace Marks" means any (if any) logos and trademarks that
may be provided to SEARCH by InfoSpace pursuant to this
Agreement.


5.2 License Grant. USSEARCH hereby grants to InfoSpace for the Term a
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non-exclusive, worldwide license to electronically reproduce,
electronically distribute, create derivative works of, publicly
perform, publicly display and digitally perform SEARCH Content but
only to the extent necessary for InfoSpace to perform its obligations
hereunder. InfoSpace hereby grants to USSEARCH for the Term, a non-
exclusive, nontransferable, royalty-free, worldwide license to use
InfoSpace's Marks for the purposes of marketing, promotion, and
content directories or indexes, and in electronic or printed
advertising, publicity, press releases, newsletters and mailings about
USSEARCH.


5.3 Ownership of SEARCH Content and SEARCH Marks. All right, title and
--------------------------------------------
interest in and to the SEARCH Content and SEARCH Marks as well as
intellectual property rights (including without limitation all rights
therein under copyright, trademark, trade secret and similar laws)
shall remain with SEARCH or its licensors and/or suppliers.
Notwithstanding the foregoing, USSEARCH hereby grants to InfoSpace a
non-exclusive, nontransferable, royalty-free, worldwide license to use
SEARCH Marks but only to the extent necessary for InfoSpace to perform
its obligations hereunder.


5.4 Ownership of InfoSpace Marks. All right, title and interest in and to
----------------------------
the InfoSpace Marks as well as intellectual property rights (including
without limitation all rights therein under trademark and similar
laws) shall remain with InfoSpace. InfoSpace hereby grants to USSEARCH
a non-exclusive, nontransferable, royalty-free, worldwide license to
use InfoSpace Marks for the purposes of marketing, promotion, and
content directories or indexes, and in electronic or printed
advertising, publicity, press releases, newsletters and mailings.


5.5 Quality Control and Use Restrictions by USSEARCH. USSEARCH shall use
------------------------------------------------
the InfoSpace Marks in accordance with any reasonable written
instructions provided by InfoSpace. USSEARCH acknowledges that
USSEARCH's use of the InfoSpace Marks will not create in it, nor will
it represent is has, any right, title or interest in or to the
InfoSpace Marks other than the license granted by InfoSpace above.
USSEARCH will not challenge the validity of or attempt to register any
of


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the InfoSpace Marks or its interest therein as a licensee. USSEARCH
acknowledges InfoSpace's and its Affiliates' ownership and exclusive
right to use the InfoSpace Marks and agrees that all goodwill arising
as a result of the use of the InfoSpace Marks shall inure to the
benefit of InfoSpace and its Affiliates.


5.6 Quality Control and Use Restrictions by InfoSpace. InfoSpace shall
-------------------------------------------------
use the SEARCH Marks in accordance with any reasonable written
instructions provided by USSEARCH. InfoSpace acknowledges that
InfoSpace's use of the SEARCH Marks will not create in it, nor will it
represent it has, any right, title or interest in or to the SEARCH
Marks other than the license granted by USSEARCH above. InfoSpace will
not challenge the validity of or attempt to register any of the SEARCH
Marks or its interest therein as a licensee. InfoSpace acknowledges
USSEARCH's and its Affiliates' ownership and exclusive right to use
the SEARCH Marks and agrees that all goodwill arising as a result of
the use of the SEARCH Marks shall inure to the benefit of USSEARCH and
its Affiliates.


5.7 SEARCH Non-E ...