|
Exhibit
10.47
PAID
LISTINGS
LICENSE
AGREEMENT
This License Agreement
(“ Agreement ”) is entered into as of
July 17, 2006 (the “ Effective Date ”), by
and between Kontera, a
corporation (“ Partner”) and LookSmart, Ltd., a
Delaware corporation (“ LookSmart ”).
RECITALS
The parties wish to provide
for a license to Partner to display LookSmart’s Paid Listings
on the Partner Network sent by LookSmart in response to search
queries, ad requests based on site pages, and other ad calls or
requests for listings made by Partner to LookSmart.
NOW, therefore, for good and
adequate consideration, the receipt of which is acknowledged, the
parties agree as follows:
1. DEFINITIONS
1.1 A “
Click ” occurs when a bona fide Internet user (which
excludes a robot, spider, software, scraper or other mechanical,
artificial or fraudulent means, or a person who is not seeking to
use the Partner Network for a legitimate web search, e.g., has been
paid or otherwise motivated to click, as determined by
LookSmart’s click filtering and tracking systems) clicks on a
Listing and accesses the destination site.
1.2
“Listing” means a link to a website that
includes the display URL, a title, text that describes the site to
which the listing links or encourages the user to visit the site,
and may include a tracking URL.
1.3 “Partner
Network” means the web sites which are owned or operated
by Partner or are contractually part of Partner’s syndication
network, or that will contractually will become part of
Partner’s syndication network.
1.4 “Paid
Listings” means a LookSmart product that returns results
containing only paid Listings. The amount that an advertiser pays
to LookSmart influences (among other factors) the position in which
the advertiser’s listing appears in our Paid
Listings.
2. LICENSE
2.1 License .
Subject to the terms, limitations and conditions herein, LookSmart
hereby grants to Partner a non-exclusive license during the Term to
publicly display, and allow third parties who operate sites on the
Partner Network to publicly display, Paid Listings in electronic
form on the Partner Network. Partner and third parties who operate
sites on the Partner Network may not display any Paid Listings via
any of the following distribution sources: e-mail, pop-ups,
pop-unders or adware without LookSmart’s prior written,
signed consent.
2.2 Limitations on
License . The license granted above is conditioned upon
Partner’s, and sites in the Partner Network’s,
observance of the following restrictions: (i) except as
expressly permitted herein, Partner will not display, use,
reproduce, cache, store, distribute, make derivative works of,
modify, sell, resell, rent, license, sublicense, transfer, assign
or redistribute in any way Paid Listings;
(ii) Partner
Material in the exhibit marked with a
“***” has been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Securities and Exchange Commission.
Page 1
will not modify, add to, edit or delete
the URLs, titles or reviews contained within any Paid Listings
without LookSmart’s prior written approval;
(iii) Partner will not display, sublicense or syndicate Paid
Listings on or to any third party or web site outside of the
Partner Network unless it first obtains LookSmart’s written
consent; (iv) Partner will use the tracking URLs associated
with each individual Listing provided by LookSmart, if any, for all
Paid Listings included on its Partner Network (though Partner may
use the display URLs for purposes of displaying the Listing);
(v) Partner will not display any Paid Listings on any
adult-oriented web sites without the prior written approval of
LookSmart; (vi) Partner will not display any Paid Listings on
any obscene or illegal web sites, or in any manner that violates
any applicable laws or regulations or the rights of any third
party; (vii) Partner will not display any Paid Listings, or
allow any third parties to display any Paid Listings, via any form
of adware, spyware, e-mail or method that violates applicable laws;
and (viii) Partner will not display any Paid Listings, or
allow any third parties to display any Paid Listings, to users
whose IP address is outside of the United States or Canada, except
as described in Exhibit C.
2.3 Display of Ads via
Cookies or Downloadable Applications. The license granted above
is conditioned on Partner’s, and sites in the Partner
Network’s, observance of the following: a) if Partner
displays or allows a third party to display Paid Listings via any
“cookie” or application that is downloaded to a
user’s computer or browser, Partner represents and warrants
that such cookie or application shall: (i) not gather any
personally identifiable information (such as an individual’s
name, telephone number, e-mail address and/or street address) or
financial information of the end user; and (ii) not gather any
information about the web pages accessed by the computer on which
it is installed; b) if Partner displays or allows a third party to
display Paid Listings via any application that is downloaded to a
user’s computer or browser, Partner represents and warrants
that such application shall (iii) only be installed after
clear and conspicuous notice to the end user; (iv) only be
installed after the end user’s express and informed consent
to installation; (v) allow for uninstallation that can be
performed without undue effort or knowledge by the end user;
(vi) allow for successful removal of such client-side
application using the “Add/Remove Programs”
functionality of Microsoft Windows (or similar on other platforms);
(vii) not re-install itself without the end user’s
express consent prior to each such re-installation; (viii) not
install or allow the installation of any other programs not clearly
and conspicuously disclosed to the end user, (ix) clearly
display the Partner’s privacy policy (or a link or other
access to it); and (x) comply with all applicable laws and
regulations. Partner agrees to provide LookSmart with a copy of,
and a license to use, any and all downloadable applications and all
updates and upgrades thereto that Partner uses, or allows third
parties to use, to display Paid Listings.
2.4 Display of Ads on
Partner Network. The license granted above is conditioned on
Partner’s, and sites in the Partner Network’s,
observance of the following: if Partner allows any third party to
display Paid Listings, Partner shall: (1) enter into a legally
binding contract with such third party that is no less restrictive
than the terms, conditions, limitations and restrictions applicable
to Partner under this Agreement, (2) monitor the activities of
such third party on a regular basis to ensure compliance with the
requirements herein, and (3) immediately terminate such third
party’s distribution of Paid Listings upon a determination
that such third party is in material violation of any of the terms
and conditions of such distribution agreement or upon request by
LookSmart to do so.
2.5 Query Source
Identification. For every ad call or other request for listings
to LookSmart, Partner shall clearly identify to LookSmart the query
source by providing the originating IP address of the user (not the
server making the request), the User Agent of the user’s
browser and the HTTP referrer that indicates where the listings are
being displayed.
Material in the exhibit marked with a
“***” has been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Securities and Exchange Commission.
Page 2
3. PAYMENT TERMS.
3.1 Cost Per Click
. Subject to the terms and conditions hereof, for any given
calendar month, LookSmart will pay *** for all qualified Clicks on
listings advertisements, as recorded by LookSmart’s, or its
customer’s as applicable, click tracking systems. For each
Click, ***. LookSmart will have sole discretion to decide the CPC
bid for each Listing, and such CPC bid may change frequently.
Partner may use the CPC bid included in the Paid Listings feed from
LookSmart solely for the purpose of ranking the Paid Listings and
gauging payments from LookSmart, but the parties agree that all CPC
bid amounts submitted by LookSmart are confidential information for
internal use only, and shall not be posted on Partner’s web
pages or disclosed to any third parties. LookSmart shall have no
obligation to pay for clicks if Partner makes any material
misrepresentations in Exhibit C or if Partner violates the
license terms set forth in Section 2 above.
3.2 Reporting and
Payment . LookSmart will make its “PUBLISHER
CENTER” available to Partner for preliminary daily reporting
of clicks, and Partner acknowledges and agrees that (i) such
reporting may not represent the number of qualified Clicks for
which LookSmart will pay Partner and (ii) it will control
access to and maintain the confidentiality of its password for
accessing the POP Portal. Within 30 days after the end of each
calendar month during the Term, LookSmart will deliver (a) a
report describing invoices and billings to LookSmart customers for
such calendar month pursuant to Section 3.1 and
(b) payment pursuant to Section 3.1; provided, that
Partner acknowledges and agrees that to the extent Partner has not
provided the Query Source Identification as described in section
2.5, above. For every request, without such information
LookSmart’s ability to determine which clicks and ads are
qualified or billable is impaired and thus LookSmart may not pay
Partner for the clicks and ads. Partner shall also notify LookSmart
of any changes, inaccuracies, or incompleteness of any statement
Partner makes on Exhibit C , Part II. LookSmart reserves the
right to deduct from payments made pursuant to Section 3.1, or
otherwise recoup any amounts paid to Partner in prior months for
non-qualified Clicks.
3.3 Audit .
Each party will maintain accurate records with respect to the
calculation of all Clicks and/or payments due under this Agreement.
The other party (the “ Examining Party ”) may,
upon no less than 15 days prior written notice to the first party
(the “ Audited Party ”) and no more than once in
any twelve month period, cause an independent auditor of nationally
recognized standing to inspect the appropriate records of the
audited party reasonably related to the calculation of such Clicks
and/or payments during the Audited Party’s normal business
hours. Such examination will be undertaken in a manner reasonably
calculated not to interfere with the Audited Party’s normal
business operations. The fees charged by such auditor in connection
with the inspection will be paid by the Examining Party, unless the
auditor discovers an underpayment of greater than 10%, in which
case the Audited Party will pay the reasonable fees of the
auditor.
3.4 Non-qualified
Clicks. LookSmart shall have no obligation to pay for clicks
which are non-qualified clicks as determined by its click filtering
and tracking systems. Non-qualified clicks may come as a result of
but are not limited to clicks (i) generated via automated
crawlers, robots or click generating scripts, (ii) that an
advertiser receives and rejects, (iii) that come as a result
of auto-spawning of browsers, automated redirects, and clicks that
are required for users to navigate on the Partner Network,
(iv) that are from users in countries other than those
explicitly agreed to in Exhibit C by Partner and LookSmart,
(v) that are on expired, cached or over-budget ads, or
(vi) that come as a result of any incentive such as cash,
credits or loyalty points. LookSmart reserves the right to require
Partner to provide server log files that include, but are not
limited to, the daily number of clicks delivered to LookSmart. In
the event that LookSmart determines in its sole discretion that
Partner or any third party site in the Partner
Material in the exhibit marked with a
“***” has been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Securities and Exchange Commission.
Page 3
Network has delivered non-qualified
clicks, low quality traffic, or traffic that violates any material
term of this Agreement, LookSmart may, at its option,
(1) immediately terminate this Agreement upon written notice
to Partner, or (2) require Partner to immediately cease
displaying, and allowing third party sites in the Partner Network
to display, Paid Listings via any particular means, method,
product, or third party distributor, and/or (3) not pay
Partner for the offending clicks.
3.5 Account Manager
. LookSmart will provide a designated account manager to
Partner.
4. PARTNER
OBLIGATIONS.
4.1 Implementation of Paid
Listings. Within ten (10) days after the Effective Date
Partner will begin querying LookSmart’s servers for Paid
Listings and will implement and display Paid Listings provided by
LookSmart as set forth on Exhibit A .
5. LOOKSMART
OBLIGATIONS.
5.1 Service
Levels/Technical Support . LookSmart will use commercially
reasonable efforts to provide the Service Levels and Technical
Support as specified in Exhibit B .
6. PUBLICITY.
Neither party shall make any
public statement, press release or other announcement relating to
the terms or existence of this Agreement without the prior written
approval of the other party, such approval not to be unreasonably
withheld, conditioned or delayed, provided that either party
may make such disclosures as may be, in its reasonable opinion of
counsel, advisable in order to comply with a subpoena or other
legal process or with applicable laws, regulations or securities
exchange rules.
7. INTELLECTUAL PROPERTY
OWNERSHIP.
7.1 Proprietary Rights of
LookSmart . LookSmart will retain all right, title and
interest in and to the Paid Listings, the related databases, all
data generated by LookSmart’s click tracking system and other
performance measurement applications, and all associated
intellectual property and proprietary rights worldwide (including,
but not limited to, ownership of all copyrights, trademarks,
patents, derivative works, modifications, lists of advertisers and
information, algorithms, taxonomies, trade secrets and other
intellectual property rights therein).
7.2 Proprietary Rights of
Partner . Other than the Paid Listings, Partner will
retain all right, title, and interest in and to the Partner Network
(including, but not limited to, ownership of all copyrights,
trademarks, patents, derivative works, modifications, lists of
advertisers, algorithms, taxonomies, trade secrets and other
intellectual property rights therein).
8. TERM AND
TERMINATION.
8.1 Term . The
term of this Agreement (the “ Term ”) will begin
on the Effective Date and will end ***. The Agreement will then
automatically renew for successive one year periods, unless either
party gives written notice to the other party of its intention not
to renew at least 60 days prior to the end of the then-current term
or renewal term.
Material in the exhibit marked with a
“***” has been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Securities and Exchange Commission.
Page 4
8.2 Termination
. Either party may terminate this Agreement (a) at any
time after the Effective Date, provided that written notice of
termination is delivered to the other party within 30-day period,
or (b) if the other party (i) materially breaches its
obligations hereunder and such breach remains uncured for thirty
(30) days following delivery of written notice to the
breaching party of the breach, or (ii) is subject to voluntary
or involuntary bankruptcy proceedings, insolvency, liquidation or
otherwise substantially discontinues its business
operations.
8.3 Effect of
Termination. Termination of this Agreement by either party will
not act as a waiver of any breach of this Agreement and will not
act as a release of either party hereto from any accrued liability
(including payments as set forth in the following section) or
liability for breach of such party’s obligations under this
Agreement. Within thirty (30) days following the expiration or
termination of this Agreement, each party will pay to the other
party all sums, if any, due and owing as of the date of expiration
or termination, net of any amounts due from the other party as of
such date. Upon the expiration or termination of this Agreement for
whatever reason, each party shall immediately cease to use the
other party’s trademarks, proprietary information, Paid
Listings, intellectual property (including derivative works or
modifications thereof) and Confidential Information in any manner
whatsoever, and shall destroy or return (at the option of the other
party), any such property, or materials representing the same to
the other party, and provide the other party with an
officer’s certificate attesting to such return/destruction.
For the avoidance of doubt, upon termination or expiration of this
Agreement, the licen
|
