EXHIBIT 10.9
DATED: January 4, 1999 --------------------------------------------------------------------------------
LOOKSMART, LTD.
---------------
-and-
INTERNET VENTURES INC.
----------------------
--------------------------------------------------------------------------------
CO-BRANDING AND MARKETING AGREEMENT --------------------------------------------------------------------------------
CO-BRANDING AND MARKETING AGREEMENT
This Co-Branding and Marketing Agreement (the "Agreement") is entered into and effective as of January 4, 1999 (the "Effective Date") by and between LookSmart, Ltd., a Delaware corporation located at 487 Bryant Street, San Francisco, California 94107 ("LookSmart"), and Internet Ventures Inc. located in Los Angeles, CA ("IVN").
RECITALS
--------
WHEREAS, LookSmart is the developer, owner and operator of an Internet directory and search engine web site located at www.looksmart.com;
-----------------
WHEREAS, IVN controls a group of Internet service providers that provide Internet access to subscribers in several rural markets,
WHEREAS, LookSmart and the IVN desire that (i) LookSmart design, develop and maintain Co-Branded Sites that incorporate certain material provided by both parties, and (ii) both parties promote such Co-Branded Site.
Now therefore, the parties agree as follows:
1. DEFINITIONS -- -----------
For the purposes of this Agreement, the following terms shall have the indicated meanings:
1.1 "Advertising Impression" means every instance that an Internet user views a Co-Branded Page, which contains a Banner Advertisement.
1.2 "Banner Advertisement" means a third party advertisement on a Page; provided, that such advertisement (i) is placed by LookSmart, (ii) occupies all or a substantial portion of the width of the Page or all or a substantial portion of the length above the fold of the Page, and (iii) does not include any sponsorship or promotional programs, third party content arrangements or any smaller hypertext links to any third party site.
1.3 "Co-Branded Home Page" means the Page that first appears when an Internet user accesses a Co-Branded Site, a static copy of which shall reside on the ISP's server.
1.4 "Co-Branded Page" means each Page of the Co-Branded Site.
1.5 "Co-Branded Site" means the collection of Pages, including the Co-Branded Home Page, designed, developed and maintained by LookSmart pursuant to Section 2 of this Agreement that
(i) provides similar products and services as the LookSmart Site, and (ii) incorporates certain ISP Content.
1.6 "Content" means the ISP Content or the LookSmart Content, as the case may be.
1.7 "Hypertext link," means a section of a Page that when selected provides access to another Page (which may be part of the same document or site or part of a different document or site).
1.8 "Intellectual Property Rights" means any and all now known or hereafter existing rights associated with works of authorship or inventions throughout the universe, including but not limited to copyrights, patents, trademarks, service marks, know how, "look and feel" and all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated) relating to intangible property.
1.9 "ISP Content" means any ISP logo, trademark, service mark, and all text, data images, design structure, any audio and audiovisual material, photographs, trademarks, and other materials developed by ISP that are (i) provided to LookSmart hereunder for the purpose of promoting the Co-Branded Site, and/or (ii) incorporated into the Co-Branded Site.
1.10 "ISP Home Page" means the Page that each individual ISP uses for its Home Page. Internet Ventures Inc will provide a list of the Home Page URLs to LockSmart.
1.11 "ISP Site" means the collection of Pages established by the each individual ISP on the Internet under their domain and all portions thereof, including without limitation, all HTML, Java and other computer languages used for in the creation of those Pages and/or other formatted text files, all related graphics files, animation files, data files, modules, routines and objects, and the computer software and all other script or program files required to exploit such materials and collectively control the display of and user interaction with that site;
1.12 "LookSmart Content" means any LookSmart logo, trademark, service mark, and all text, data images, design structure, any audio and audiovisual material, photographs, trademarks, and other materials that LookSmart provides to ISP for the purpose of promoting LookSmart or the Co-Branded Site.
1.13 "LookSmart Site" means the Internet directory and search engine available on the World Wide Web currently known as "LookSmart" and available at http://www.looksmart.com and all portions thereof, including without limitation, all HTML, Java and other computer languages used in the creation of those Pages and/or other formatted text files, all related graphics files, animation files, data files, modules, routines and objects, and the computer software and all other script or program files required to exploit such materials and collectively control the display of and user interaction with the LookSmart Site.
2
1.14 "Page" means the information that appears on an Internet user's computer screen when that user accesses any site on the Internet.
1.15 "Quarter" means each period of three months commencing on 1 January, 1 April, 1 July and 1 October in each year.
2. CREATION OF CO-BRANDED SITE -- ---------------------------
2.1 Development of Co-Branded Site. LookSmart shall work with Internet Ventures
------------------------------ to design and develop each Co-Branded Site. The Co-Branded Sites shall reside on a LookSmart server, provided, however, that static copies of the Co-Branded Home Pages shall reside on the ISP's server.
2.2 Co-Branded Home Page. The Co-Branded Home Pages shall be located at
-------------------- http://www._________.com, such that ISP subscribers will automatically access ---- the Co-Branded Home Page every time that they dial-in to the ISP's server.
2.3 Advertising. Each and every Co-Branded Page shall include space designated
----------- for advertising, including at least one Banner Advertisement per page. Each individual ISP will have the right to decide if an Advertising Banner will reside on their Home Page. The parties agree and acknowledge that LookSmart shall have the exclusive right, except as otherwise set forth in writing, to sell and place all advertisements on the Co-Branded Site and each Co-Branded Page, including the Co-Branded Home Page. LookSmart shall not place any advertisements on the Co-Branded Site that (i) promote websites that display pornographic material, or (ii) promote another company's Internet connection services.
2.4 ISP Content. ISP shall provide LookSmart with ISP Content to incorporate
----------- into the Co-Branded Site. ISP shall deliver such ISP Content via the means of delivery and in the format specified by LookSmart. LookSmart retains the right, in its sole discretion to immediately remove any ISP Content from the Co-Branded Site (excluding the ISP Home Page) if in LookSmart's opinion such ISP Content violates any applicable law or regulation, infringes upon any proprietary right of any third party, violates LookSmart's editorial guidelines or is defamatory, obscene, or offensive.
2.5 Local Directories. If the average daily Advertising Impressions generated
----------------- by the ISPs under Internet Ventures control is greater than 15,000 per day, LookSmart will commit to build, at the request of Internet Ventures, at least one local directory per month and will endeavor to fulfill other reasonable requests based on available resources.
2.6 ISP acknowledges that LookSmart may modify the Co-Branded Site, from time to time without ISP's consent if such modification does not materially impact the rights conferred on the ISP pursuant to this Agreement.
3
3. PAYMENT -- -------
3.1 LookSmart shall pay ISP a fee at the end of each Quarter equal to $2.50 per one thousand Advertising Impressions delivered via the Co-Branded Site during such Quarter (the "Quarterly Payment"). The Quarterly Payment will be payable within fifteen (15) business days after the end of each Quarter. LookSmart shall be responsible for calculating the Advertising Impressions and the Quarterly Payments.
3.2 LookSmart will pay to the ISP an up-front payment to be offset against future revenue sharing. The amount of the up-front payment will be the forecasted amount of revenue to be paid to the ISP for the first quarter that the co-branded sites are live based on the CPM level noted in Clause 3.1.
4. CO-MARKETING -- ------------
4.1 ISP's Obligations. ISP will use its best efforts to maximize the use of
----------------- the Co-Branded Site by its subscribers. Such efforts shall include, but not be limited to, the following:
(a) ISP will provide each new subscriber with a pre-configured version of Netscape Navigator, Internet Explorer, and/or any other Internet browser software ISP distributes to its subscribers in which the default home page is set to the Co-Branded Home Page and, where applicable, the default search engine is set to the Co-Branded Home Page.
