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EXHIBIT 10.13
[NETSCAPE LOGO]
NETSCAPE COMMUNICATIONS CORPORATION
CO-MARKETING SERVICES AGREEMENT
This Co-Marketing Services Agreement ("Agreement"), entered into by and between
Netscape Communications Corporation ("Netscape"), a Delaware corporation located
at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, and CyberSource
Corporation ("Co-Marketer"), a California corporation with its principal place
of business at 000 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx
00000, is effective as of the effective date set forth below ("Effective Date").
RECITALS
A. Netscape is in the business of developing manufacturing, marketing and
distributing Internet-related products and technology, provides related
services, and in connection with its marketing efforts, maintains World
Wide Web sites for the provision of local language
geographically-targeted Internet content, navigation and directory
services;
B. Co-Marketer is in the business of electronic distribution of software
and digital products over the Internet; and
C. The parties wish to perform certain co-marketing activities, and
therefore wish to enter into this Agreement to provide certain services
in connection with the performance of such co-marketing activities.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, in addition to the capitalized terms defined
elsewhere in this Agreement, the following terms shall have the meanings set
forth below:
"CO-MARKETER BRAND SERVICE" means the Internet-related content service specified
as "CoMarketer Brand Service" on Exhibit A.
"CONTENT PROVIDER" means a party meeting the requirements of the definition of
"Content Provider" as set forth on Exhibit A.
"FRONT PAGE" means. the page on the Internet which is the initial point of entry
for an end user accessing a Service.
"LAUNCH DATE" means the date set forth on Exhibit A.
"NETSCAPE'S LOCAL WEB SITES" means the collection of local-language
geographically-targeted HTML documents corresponding to the Territories and
accessible by the public via the Internet at the URLs Listed on Exhibit B and/or
at such other URL or URLs as Netscape may designate.
"PAGE VIEW" means the calling up of an HTML page.
"SERVICE" means the services specified as "Service" on Exhibit D, the operation
of which is further described in this Agreement. For the purposes of this
Agreement, the Service for each particular Territory shall be deemed a distinct
Service hereunder.
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"Service Ad Inventory" means the electronic advertising inventory within the
Services and any other advertising inventory which Co-Marketer will manage as
described in this Agreement.
"Service Name" means the name of a Service and local-language equivalents for
the Service's Territory, if any, such name(s) to be decided upon the mutual
agreement of the parties.
"Term" means the period specified as "Term" on Exhibit A.
"Territory" means each of the target language and geographic combinations listed
on Exhibit E attached hereto, collectively the "Territories".
2. Scope. All rights and obligations of Co-Marketer and Netscape set forth in
Sections 3 through 8 herein and on Exhibit D shall apply to each of the
Territories listed in Exhibit E. As further described herein, Co-Marketer shall
be responsible for the production and content programming for each Territory of
a Service, such production and content programming to be uniquely tailored to
the cultural, economic and linguistic qualities of, and the use of the Internet
in, such Territory, and to appear to an end user to be wholly-integrated for the
purposes of such Territory. The rights and obligations of the parties as set
forth in Sections 9 through 16 shall apply to the Territories in the aggregate,
as further described in such Sections.
3. Service Features. In addition to the features of each Service as described on
Exhibit D, each Service shall also conform with the following requirements:
3.1. Location of Service. The Services will reside solely on Co-Marketer's
servers but will have a "Xxxxxxxx.xxx" domain name and will be directly linked,
within one click away, to Netscape's Local Web Sites. The parties acknowledge
and agree that all access to the Services shall be deemed to be via Netscape's
Local Web Sites, and therefore shall be counted as Netscape traffic. Co-Marketer
shall neither promote any other Web site, including but not limited to other
sites operated by Co-Marketer, from the Services nor promote the Services from
any other web site unless mutually agreed by Co-Marketer and Netscape.
Co-Marketer expressly agrees that Co-Marketer shall be solely responsible for
the purchase, implementation, maintenance and support of all software and
hardware required to fulfill its obligations under this Agreement.
3.2. Target Market The Service's primary target market is as specified as
"Target Market" on Exhibit A. The Services will be provided by Co-Marketer only
in the languages and focused on the geographic markets set forth in Exhibit E.
3.3. Name of the Service. Each Service Name will be mutually agreed upon
by Netscape and Co-Marketer. Co-Marketer shall not independently use the Service
Names without Netscape's prior written consent unless such use occurs in
connection with Co-Marketer's advertising sales and promotional efforts on
behalf of the Services. Each Service Name shall be displayed on every page of
the corresponding Service and no other locations without Netscape's prior
written consent except in connection with such advertising sales and promotional
efforts on behalf of such Service. If a Service Name includes a co-branding
component, Co-Marketer may not use the corresponding Service Name with
Netscape's name expunged, provided, however, that nothing herein shall restrict
Co-Marketer's use of the name "xxxxxxxx.xxx" used independently of the Service
Name. Co-Marketer may not use a Service Name independent of the corresponding
Service except as provided for above in this Section 3.3.
3.4. Design of Service. The Services shall be co-branded equally by
Netscape and Co-Marketer. Co-Marketer shall be responsible for creating the
graphic user interface including navigation, architecture, look and feel as well
as the tone of each Service, taking into consideration the cultural, economic
and linguistic qualities of such Service's Territory; provided, however, that
Netscape and Co-Marketer shall mutually agree to the initial design of each
Service.
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4. Service Log Reports; Search Functionality.
4.1 Weekly Log Reports. On a weekly basis, Co-Marketer shall provide
Netscape with the daily user access logs for each URL or entry point into the
Service. The content and format of such reports shall be mutually agreed by
Co-Marketer and Netscape. The information contained in the report shall be
Netscape's and Co-Marketer's Confidential Information, provided, however that
Netscape shall have the right to use the information contained in such reports
in Netscape's confidential and public reporting of access to (1) the Services in
the aggregate, (2) Netscape's Local Web Sites, individually and in the
aggregate, and (3) Netscape's web sites worldwide in the aggregate.
4.2. Search Functionality. A field providing search functionality will be
included on pages within each Service as the parties may mutually determine. The
search executed from the search field will only cover content within such search
field's Service itself.
5. [*] in the Services.
5.1. Application Process. [*] in a Service. Co-Marketer will be
responsible for administering the Content Provider application process and serve
as the primary point of contact for companies interested in becoming Content
Providers.
5.2. Organization of Content Providers. In each Service, content provided
by Content Providers shall appear as set forth in Exhibit F or as otherwise
agreed to by the parties in writing from time to time.
5.3. Integrated Community. Netscape and Co-Marketer acknowledge that the
intent of each Service is to provide an "integrated community" experience for
Netscape users and not to provide Co-Marketer with any special prominence in
listings relative to Co-Marketer's other services, unless such enhanced presence
or positioning is agreed to by Netscape. Promotion of Co-Marketer's web sites
and Internet-related services within the Service will be minimized to prevent
diversion of user traffic from the Services. [*]
5.4. Technical Support. If Co-Marketer receives any questions from a
prospective or existing Content Provider relating to specific development or
technical support (such as how to develop on the Netscape platform), Co-Marketer
will refer the prospective or existing Content Provider to the Netscape
Developer Program as described on the language- and/or
geographically-appropriate Netscape Local Web Site.
6. Promotion of the Services in Netscape's Products; Performance Reviews. For as
long as Netscape offers the products and services described in Exhibit G,
Netscape shall provide the services set forth in Exhibit G to promote the
Services during the Term. The parties shall participate in performance reviews
as set forth on Exhibit G.
7. Co-Marketer's Obligations.
7.1. Production, Technology and Content Programming. Co-Marketer shall be
responsible for all production and content programming of the Services. The
Services shall be fully functional and accessible to end users on the Launch
Date unless otherwise mutually agreed by Co-Marketer and Netscape. The Services
shall use substantially the same technology and advantages as Co-Marketer uses
in Co-Marketer Brand Service unless otherwise agreed to by the parties. The
Services shall not be materially disadvantaged or suffer from inferior
production, programming or performance relative to Co-Marketer Brand Service, or
any similar service which Co-Marketer might make available to, or operate on
behalf of, third parties. The Services shall perform
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substantially up to the same performance standards as Co-Marketer Brand Service,
including, but not limited to, load time, timeliness of content, and quality of
programming. Co-Marketer shall perform its duties described herein with
substantially the same diligence and vigor as it employs with respect to its own
services and Web sites and the services and Web sites Co-Marketer may operate
for third parties, and Co-Marketer shall not favor its own Web sites, or those
of any third party, over any Service. With respect to features and
functionalities offered within the Services, Co-Marketer shall employ in the
Services Netscape's technology, if available, rather than a technology which
might compete with Netscape products or services. Co-Marketer's obligation to
produce the Services, including production services, technology and content
programming which meet or exceed standards established by Co-Marketer on its own
Web site or services (or the Web site or services Co-Marketer manages for any
third party) and general industry standards, is a material obligation of
Co-Marketer under this Agreement.
7.2. Equivalent Effort In operating the Service and performing
merchandising and transaction services thereon, Co-Marketer will operate the
Service and perform such services with substantially the same diligence and
vigor as it employs operating its own services and Web sites. Without limiting
the foregoing in the event Co-Marketer approaches a Content Provider for one or
more of its own services and Web sites, Co-Marketer shall not unreasonably favor
its own Web site, or the Web site or services of any third party, over any of
the Services. The parties acknowledge that nothing contained herein requires
that placement on the Services and Co-Marketer Web sites be offered at equal
pricing.
7.3. Material Harm to Netscape. Netscape may, in its reasonable
discretion, at any time refuse to accept or publish, or direct Co-Marketer to
refuse to accept or publish and cease publication of, a Content Provider listing
an advertisement and/or other content on a Service or Services and any other
areas related to the Services if such content is, in Netscape's reasonable
opinion, unlawful, harmful, fraudulent, threatening abusive, harassing,
defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise
objectionable, including, without limitation, any material that encourages
conduct that would constitute a criminal offense, give rise to civil liability,
or otherwise violate any applicable local, state, national or international law.
If Netscape, in its sole discretion, at any time reasonably determines that any
of Co-Marketer's web sites, including but not limited to the Services and any
other areas related to the Services, contains any material, or presents any
material in a manner that Netscape reasonably deems likely to cause Netscape
material damage, or an infringement of Netscape's or a third party's rights, or
unlawful in any country or territory, Netscape may immediately terminate this
Agreement if Co-Marketer has not revised to Netscape's reasonable satisfaction
that material or presentation within five (5) business days of notification by
any means from Netscape.
7.4. Co-Marketer's Policy of Neutrality; Netscape Now Program Compliance
on Co-Marketer's Web Site and the Services. In managing the Co-Marketer Brand
Service, Co-Marketer has adopted, and shall continue to keep in full force and
effect during the Term, a policy of neutrality regarding the issue of which
Internet client software, software provider or "push" content delivery system is
the preferable choice for users of such products. As a critical element of this
policy, Co-Marketer [*] and [*] that it [*] in general [*] or [*] of the
Co-Marketer [*] in a manner that [*] or [*] any particular Internet client
software, software provider or "push" content delivery system; provided,
however, that Co-Marketer may, in a manner substantially consistent with its
past practices, [*] programs (typically no longer than [*] in duration)
concerning specific software products and software providers which may result in
the [*] of certain Internet client software, software providers or "push"
content delivery systems on the Co-Marketer Brand Service. Co-Marketer agrees
that Netscape's "Netscape Now" button, or the corresponding button or text in a
successory program, shall be provided [*] and an [*] of [*]
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[*] on the Co-Marketer Brand Service as provided any other virtual button for
any other Internet client software, software provider or "push" content delivery
system. On pages operated by Co-Marketer on which the "Netscape Now" button is
to appear, Co-Marketer will produce such pages such that when an end user
presses or clicks on the Netscape Now button (or such other button used in
connection with any successor program to the Netscape Now program), the end
user's Internet client software will access the applicable HTML page located at
a URL supplied by Netscape. Co-Marketer shall use reasonable commercial efforts
promptly to remedy any malfunctioning of the "Netscape Now" button, provided
Netscape will fully cooperate with Co-Marketer to remedy any such
malfunctioning, and provided further that Co-Marketer shall not incur liability
for any failure to remedy such malfunctioning if such remedy is not within the
reasonable control of Co-Marketer. In the event that Netscape replaces the
Netscape Now program with a successor program, Netscape shall advise Co-Marketer
and Co-Marketer shall produce the page to conform to such successor program,
provided Co-Marketer's obligations under such successor program shall not be
materially increased. Netscape hereby grants Co-Marketer a nonexclusive,
nontransferable, nonassignable, nonsublicensable license to perform and display
the Netscape Now button directly in connection with fulfilling the foregoing
obligation. Co-Marketer's use of the Netscape Now button shall be in accordance
with Netscape's reasonable policies regarding advertising and trademark usage as
established from time to time by Netscape, including the guidelines of the
Netscape Now Program published on Netscape's U.S. English language Web Site.
Co-Marketer acknowledges that the Netscape Now button is a proprietary logo of
Netscape and contains Netscape's trademarks. In the event that Netscape
determines that Co-Marketer's use of the Netscape Now button is inconsistent
with Netscape's quality standards, then Netscape shall have the right to suspend
immediately such use of the Netscape Now button. Co-Marketer understands and
agrees that the use of the Netscape Now button in connection with this Agreement
shall not create any right, title or interest in or to the use of the Netscape
Now button or associated trademarks and that all such use and goodwill
associated with the Netscape Now button and associated trademarks will inure to
the benefit of Netscape. Co-Marketer agrees not to register or use any trademark
that is similar to the Netscape Now button. Co-Marketer further agrees that it
will not use the Netscape Now button in a misleading manner or otherwise in a
manner that could tend to reflect adversely on Netscape or its products.
7.5. Marketing Collateral. Co-Marketer will maintain on each Service
marketing collateral for such Service. The collateral will be updated regularly
and on an as-needed basis. The marketing collateral, as well as an application
for Content Provider participation in such Service, as described in Section 5.1,
shall be located in an easily accessible location. Each party shall include a
link to each Service's marketing collateral in an appropriate area of the
party's primary web site.
7.6. Service Enrollment Support. Co-Marketer shall provide information
and sales support to Content Providers regarding participation in the Service.
All fees charged by Co-Marketer to Content Providers related to the preparation
and maintenance of Content Provider's content on the Service shall be collected
and retained by Co-Marketer, such fees to be agreed upon by Co-Marketer and
Netscape.
7.7. Technical Support of Service. During the Term, Co-Marketer shall
provide technical support services for the Services in a timely basis.
Co-Marketer shall appoint a technical contact to whom Netscape may address all
technical questions relating to the Services. Co-Marketer shall use best
efforts to promptly remedy any material malfunctioning of the Services.
8. Joint Activities.
8.1. Advertising. Commencing on the Effective Date, Netscape and/or its
agent will manage and sell all advertising and sponsorships within the Service
Ad Inventory. The process of placement of advertisements on the Services shall
be mutually agreed by Co-Marketer and Netscape. [*] shall be reserved to
advertising by
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Content Providers related to such Content Provider's content on the Service.
In operating the Service, the performance of site auditing, traffic analysis,
functionality and other advertising related services shall be mutually agreed by
Co-Marketer and Netscape. Co-Marketer may require all advertisers on the
Services to execute Co-Marketer's then current form of insertion order.
8.2. Press Plans. Co-Marketer and Netscape agree to participate in a
joint press announcement regarding the Services which will take place on a
mutually agreed upon date. The parties shall agree to the form and content of
the joint press release. Notwithstanding the foregoing, either party may issue
its own press release, subject to the other party's prior approval of the
content within the release. With respect to major advertising and marketing deal
announcements regarding the Services, Netscape and Co-Marketer shall have
forty-eight (48) hours to respond, in writing, to any proposed announcement. In
any press announcement regarding any or all of the Services, both Co-Marketer
and Netscape's name and logo shall be included in the press release, and the
names and logos shall appear with equal prominence. Interviews with the press
regarding announcement of the Services shall be coordinated between both
Netscape and Co-Marketer.
8.3. Research. If Co-Marketer or Netscape conducts any research regarding
any or all of the Services, such research results shall be shared between both
companies on a timely basis. If Co-Marketer or Netscape conducts a study on
their respective local Web sites, both companies shall include the Services in
the study, as appropriate. Co-Marketer will conduct substantially the same level
and as much research and data collection regarding the Services as Co-Marketer
conducts with respect to Co-Marketer Brand Service.
8.4. Quarterly Reviews of the Services. Netscape and Co-Marketer agree
to establish quarterly reviews of the Services to evaluate the success of the
Services and agree to modifications and improvements to the Services.
8.5. Design Reviews and Ownership. The graphic user interface ("GUI") of
the Services shall be jointly owned by the parties, as mutually determined by
the parties. Netscape and Co-Marketer shall mutually agree to all major design
changes in the GUI, including, but not limited to, significant new artwork or
functional changes. As part of the approval process for significant changes to
the GUI the parties shall determine the ownership rights with respect to the
newly added feature or functionality, and either party may decline to add such
feature or functionality to the GUI. If either party has contributed to the GUI
such features or functionality owned by that party, the other party shall be
granted a royalty-free, irrevocable, perpetual world-wide license, without
payment or other charge therefore, to use, display, perform, reproduce and
distribute such feature or functionality in connection with the GUI in the
Services or any successor service after the termination or expiration of this
Agreement. In no event shall Netscape be entitled to a license or any ownership
right in any computer code written by Co-Marketer in connection with the GUI.
Any versions of the Services or successor programs or promotions to the Services
operated by Netscape after termination or expiration of this Agreement shall be
distinct from Co-Marketer Brand Service and shall have a concept, look and feel
distinct from Co-Marketer Brand Service. Nothing contained herein shall prevent
Netscape from independently developing features or functionality which are
similar to the features and functionality owned by Co-Marketer and implemented
in the Services, provided that no intellectual property of Co-Marketer is
utilized. The parties agree that Co-Marketer is not creating the Services as a
work made for hire. Except as set forth above with respect to the GUI, nothing
in the Agreement shall be deemed to grant to Netscape an express or implied
license or ownership right to any copyright, trademark, trade secret or patent
to any technology, content, or other material of Co-Marketer created for or
included in the Services, whether or not such were created at Netscape's request
or with Netscape's cooperation.
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8.6. Optimize for Netscape Technology. In order to demonstrate Netscape
and Co-Marketer's support of current Internet browser technologies, Co-Marketer
shall implement within each Service at least one of the following: HTML Frames,
layers, absolute positioning, dynamic HTML, Java, JavaScript or the then current
client software technology (or subsequent features displayable by an end user's
browser) within the beta testing period of the client software. Such features
shall be positioned in at the Front Page to each Service, at minimum, and the
optimized content shall be fully operational and publicly accessible at the time
of the release of the new Netscape client products. In addition, Co-Marketer
shall, at Netscape's request, implement user interface elements and interface
applications for the Service, provided that, in Co-Marketer's reasonable
judgment, such implementation does not require extraordinary development efforts
in the operation of the Services.
8.7. Server Software. In order to [*] the close relationship between
Co-Marketer and Netscape and [*] Co-Marketer's [*] of Netscape's products,
Co-Marketer agrees to use at least [*] of Netscape [*] product (currently
comprised of Netscape [*] [*] and Netscape [*]) to maintain Co-Marketer's web
sites and, if requested, provide Netscape with evidence of such use.
8.8. Traffic Building Programs. Co-Marketer shall participate in programs
designed and implemented by Netscape to increase traffic to the Services,
including but not limited to, Netscape's Universal Registration system or
equivalent services.
8.9. Other Co-Marketing Activities. In addition to joint activities set
forth in this Section 8, the parties shall participate in other co-marketing
activities related to the Services and this Agreement as agreed to by the
parties from time to time.
9. Payments.
9.1. Payment of Netscape's Portion of Shared Revenue. Co-Marketer shall
pay to Netscape Netscape's portion of the shared revenues, as such revenue
sharing is described in Section 10 and on Exhibit C as set forth on Exhibit C.
9.2. Current Interest and Taxes. All amounts payable hereunder are
denominated in U.S. Dollars, and all amounts payable to Netscape hereunder shall
be remitted in U.S. Dollars. Any portion of amounts due and payable hereunder
which has not been paid to Netscape within the applicable time set forth herein
shall bear interest at the lesser of (i) one percent (1%) per month, or (ii) the
maximum amount allowed by law. All payments due hereunder are exclusive of any
applicable taxes. Co-Marketer shall be responsible for all applicable national,
state and local taxes, value added or sales taxes, exchange, interest, banking,
collection and other charges and levies and assessments pertaining to payments
other than U.S. taxes based on Netscape's net income. If Co-Marketer is required
by law to make any deduction or to withhold taxes from any sum payable to
Netscape by Co-Marketer hereunder, (i) Co-Marketer shall effect such deduction
or withholding remit such amounts to the appropriate taxing authorities and
promptly furnish Netscape with tax receipts evidencing the payments of such
amounts, and (ii) the sum payable by Co-Marketer upon which the deduction or
withholding is based shall be increased to the extent necessary to ensure that,
after such deduction or withholding Netscape receives and retains, free from
liability for such deduction or withholding a net amount equal to the amount
Netscape would have received and retained in the absence of such required
deduction or withholding.
10. Revenue Sharing. For all pages in the Services, the parties will share
revenues derived from the Services as set forth on Exhibit C.
11. Focus of Priorities. During the Term, and in order to insure that
Co-Marketer's resources, priorities and attention are adequately focused on
developing and maintaining the Service, Co-
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Marketer shall maintain, on a consistent basis, both the quality and resources
required to operate the Services at the levels of quality and operation as
agreed by the parties upon the commencement of the Services, and shall take all
such steps as are required to maintain the Services to the levels of quality
maintained by Co-Marketer in its operation of the Co-Marketer Brand Service and
similar services operated by Co-Marketer on behalf of third parties.
12. Reporting and Audit Rights.
12.1. Reporting. In addition to the weekly log reports to be provided by
Co-Marketer as set forth in Section 4.1, within fifteen (15) days after the end
of each month during the Term: (i) Co-Marketer shall provide Netscape with a
report in common log format describing the total number of hits and page
impressions for each of the pages in the Services, and such other tracking
information as the parties shall mutually agree ("Access Logs"), and (ii)
Netscape shall provide Co-Marketer with a report describing the number of
redirects of traffic to the Services from Netscape's Local Web Sites and such
other tracking information as the parties shall mutually agree.
12.2. Audit Rights. Each party shall retain complete, clear and accurate
records regarding its activities under this Agreement. Each June and December
during the Term, the parties shall review the financial results for the Services
and Access Logs. Each party shall have the right, upon no less than fifteen (15)
days prior written notice to the other party, to cause an independent Certified
Public Accountant to inspect and audit, during the other party's normal business
hours, all relevant records of the other party upon which such other party's
revenue reports are based and, in the case of Co-Marketer, the Access Logs. The
costs of such audit shall be paid by the party requesting such audit, provided,
however, that (1) if said inspection shall reveal an error in excess of five
percent (5%) in monies due to by the party being audited, the audited party
shall pay for the audit, or (2) if such audit is of Co-Marketer and if said
inspection shall reveal an error in excess of five (5%) in traffic to the
Service, Co-Marketer shall pay for the audit. The audit rights as described
herein shall continue for two (2) months after the expiration or termination of
this Agreement.
13. Term and Termination.
13.1. Term. Unless earlier terminated pursuant to the provisions of
Section 13.2 or by Netscape as otherwise provided in this Agreement, this
Agreement shall remain in force for the Term.
13.2. Termination for Cause. In addition to rights to terminate this
Agreement as set forth elsewhere in this Agreement, including but not limited to
such rights as set forth in Section 7.3 and in Exhibit G attached hereto, either
party shall have the right to terminate this Agreement upon a material default
by the other party of any of its material obligations under this Agreement,
unless within thirty (30) calendar days after written notice of such default the
defaulting party remedies such default.
13.3. Rights Upon Termination or Expiration. Upon expiration or
termination of this Agreement, Co-Marketer shall remain obligated to provide
support service and maintenance operations for the Services for a period of
ninety (90) days from the time of termination or expiration. During this
wind-down period, the parties shall continue to perform the services with the
same level of care as specified in this Agreement, subject to Netscape's right
to request termination of operation of the Services by Co-Marketer at any time,
upon which Co-Marketer shall immediately cease the operations of the Services.
Upon expiration or termination of this Agreement, Netscape shall have the right,
without any additional payment, charge or royalty to Co-Marketer, to produce
versions of the Services which do not include Co-Marketer's proprietary
technology, logo or name but which might employ a graphic user interface which
is substantially similar to the graphic user interfaces of the Services. In
addition to the right to receive amounts
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payable at the time of the termination of expiration of this Agreement, Sections
3.3 ("Name of the Service"), 8.5 ("Design Reviews and Ownership"), 12.2 ("Audit
Rights"), 13.3 ("Rights Upon Termination or Expiration"), 13.4 ("No
Compensation"), 14 ("Warranties and Indemnification"), 15 ("Limitation of
Liability") and 16 ("General"), and provisions on Exhibits attached hereto that
provide for their survival, shall survive the termination or expiration of this
Agreement for any reason. Provisions of other Sections which, by their nature,
must remain in effect beyond the termination or expiration of this Agreement,
shall also survive termination or expiration of this Agreement for any reason.
13.4. No Compensation. Except for payments pursuant to Section 9 which
shall have accrued prior to the termination or expiration of this Agreement,
Co-Marketer shall not be entitled to any compensation, damages or payments in
respect to goodwill that has been established or for any damages on account of
prospective profits or anticipated sales, and Co-Marketer shall not be entitled
to reimbursement in any amount for any training advertising market development,
investments, leases or other costs that shall have been expended by either party
before the expiration or termination of this Agreement, regardless of the reason
for or method of termination of this Agreement. Co-Marketer hereby waives its
rights under applicable laws for any such compensation, reimbursement or
damages.
14. Warranties and Indemnification
14.1. Title. Co-Marketer warrants that (i) it has the right to perform
the services set forth in this Agreement, (ii) such performance does not
infringe on any third parties' proprietary or personal rights, (iii) it owns or
licenses all rights, title and interest in and to the technology underlying the
production of the Services, (iv) Netscape shall not be obligated to pay any fees
or royalties for implementing the Services other than as specifically set forth
in this Agreement, and (v) there are no pending or threatened lawsuits
concerning any aspect of the technology underlying the Services.
14.2. Performance. Co-Marketer warrants that the Services will function
substantially in accordance with the specifications set forth in this Agreement
and as the parties may determine from time to time. Co-Marketer shall repair any
malfunctions of the Services within a reasonable period of time (not to exceed
two (2) days) after notice by any party of such condition.
14.3. Responsibility. Co-Marketer represents and warrants to Netscape
that the Content Provider listings (other than Content Provider listings
provided by Netscape, if any), advertisements and other content managed by
Co-Marketer which will appear on the Services or any other areas related to the
Services, and material linked to the Services and managed by Co-Marketer will
not violate any criminal laws or any rights of any third parties, including but
not limited to, infringement or misappropriation of any copyright, patent,
trademark, trade secret, music, image, or other proprietary or property right,
false advertising, unfair competition, defamation, invasion of privacy or rights
of celebrity, violation of any antidiscrimination law or regulation, or any
other right of any person or entity, or otherwise violate any applicable local,
state, national or international law.
14.4. Disclaimer. THE WARRANTIES PROVIDED BY CO-MARKETER HEREIN ARE THE
ONLY WARRANTIES PROVIDED BY CO-MARKETER WITH RESPECT TO THE SERVICES. SUCH
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY CO-MARKETER, EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES.
14.5. Indemnification. Co-Marketer agrees to indemnify Netscape and to
hold Netscape harmless from any and all liability, loss, damages, claims, or
causes of action, including reasonable legal fees and expenses that may be
incurred by Netscape, arising out of or related to CoMarketer's breach of any of
the representations and warranties set forth in Section 14.3 or arising
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from third party claims alleging that Netscape's exercise of its rights to
benefit from the production of the Services granted by Co-Marketer hereunder
infringes any trademark, patent, copyright, trade secret or other proprietary
right of any third party. In connection with such indemnification, Netscape will
(i) promptly notify Co-Marketer in writing of any such claim and grant
Co-Marketer control of the defense and all related settlement negotiations, and
(ii) cooperate with Co-Marketer, at Co-Marketer's expense, in defending or
settling such claim; provided that if any settlement results in any ongoing
liability to, or prejudices or detrimentally impacts Netscape, and such
obligation, liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require Netscape's written consent. In
connection with any such claim, Netscape may have its own counsel in attendance
at all public interactions and substantive negotiations at its own cost and
expense.
15. Limitation of Liability. EXCEPT FOR CO-MARKETER'S OBLIGATIONS AND LIABILITY
UNDER SECTION 14.5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS
OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT,
WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF
IT HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION,
IN NO EVENT SHALL NETSCAPE'S LIABILITY HEREUNDER EXCEED THE AMOUNTS [*] BY
[*] UNDER THIS AGREEMENT.
16. General.
16.1. Governing Law. This Agreement shall be subject to and governed in
all respects by the statutes and laws of the State of California without regard
to the conflicts of laws principles thereof. The Superior Court of Santa Xxxxx
County and/or the United States District Court for the Northern District of
California shall have exclusive jurisdiction and venue over all controversies in
connection herewith, and each party hereby consents to such exclusive and
personal jurisdiction and venue.
16.2. Entire Agreement. This Agreement, including the exhibits and
attachments referenced on the signature page hereto, constitutes the entire
Agreement and understanding between the parties and integrates all prior
discussions between them related to its subject matter. No modification of any
of the terms of this Agreement shall be valid unless in writing and signed by an
authorized representative of each party.
16.3. Assignment. Co-Marketer may not assign any of its rights or delegate
any of its duties under this Agreement, or otherwise transfer this Agreement (by
merger, operation of law or otherwise) without the prior written consent of
Netscape. Any attempted assignment, delegation or transfer in derogation hereof
shall be null and void.
16.4. Notices. All notices required or permitted hereunder shall be given
in writing addressed to the respective parties as set forth below and shall
either be (i) personally delivered, (ii) transmitted by postage prepaid
certified mail, return receipt requested, or (iii) transmitted by nationally
recognized private express courier, and shall be deemed to have been given on
the date of receipt if delivered personally, or two (2) days after deposit in
mail or express courier. Either party may change its address for purposes hereof
by written notice to the other in accordance with the provisions of this
Subsection. The addresses for the parties are as follows:
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Co-Marketer: Netscape:
CyberSource Corporation Netscape Communications Corporation
000 Xxxxx Xxxxxxxxxx Xxxx., Xxxxx 000 000 Xxxx Xxxxxxxxxxx Xxxx, XX-000
Xxx Xxxx, Xxxxxxxxxx 00000-0000 Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: [ ] Attn: General Counsel
with copies to:
Xxxxxxx Tufts Cole & Black, LLP
00 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: [ ]
16.5. Confidentiality. All disclosures of proprietary and/or
confidential information in connection with this Agreement as well as the
contents of this Agreement, the financial arrangements described in this
Agreement, the Content Providers, advertising sales, end user information and
research related to the Service shall be governed by the terms of the Mutual
Nondisclosure Agreement attached hereto as Exhibit H. Except for information
regarding users of the Service and as otherwise set forth herein, the
information contained in the reports provided by each party hereunder shall be
deemed the Confidential Information of the disclosing party. Notwithstanding the
foregoing, the parties may, in its sole discretion, make publicly available the
auditing of traffic results and indicate that Co-Marketer is the source of the
information.
16.6. Force Majeure. Neither party will be responsible for any failure
to perform its obligations under this Agreement due to causes beyond its
reasonable control, including but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods or accidents.
16.7. Waiver. The waiver, express or implied, by either party of any
breach of this Agreement by the other party will not waive any subsequent breach
by such party of the same or a different kind.
16.8. Heading. The headings to the Sections and Subsections of this
Agreement are included merely for convenience of reference and shall not affect
the meaning of the language included therein.
16.9. Independent Contractors. The parties acknowledge and agree that
they are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring upon
either party the power of authority to bind the other party in any transaction
with third parties.
16.10. Severability. In the event any provision of this Agreement is
held by a court or other tribunal of competent jurisdiction to be unenforceable,
such provision shall be reformed only to the extent necessary to make it
enforceable, and the other provisions of this Agreement will remain in full
force and effect
16.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto, shall be
deemed to be an original. Notwithstanding the foregoing, the parties shall
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
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The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
Co-Marketer. Netscape:
CYBERSOURCE CORPORATION NETSCAPE COMMUNICATIONS
CORPORATION
By: [SIG] By: [SIG]
------------------------------ -----------------------------
Print Name: Xxxx Xxxxxxx Print Name: Xxxx Xxxxx
---------------------- ---------------------
Title: Exec V.P. Title: Senior V.P. Marketing
--------------------------- --------------------------
Date: 23 June 1997 Date: 06/23/97
---------------------------- ---------------------------
Co-Marketer Address: Netscape Address:
000 Xxxxx Xxxxxxxxxx Xxxx., Xxxxx 000 000 Xxxx Xxxxxxxxxxx Xxxx, XX-000
Xxx Xxxx, Xxxxxxxxxx 00000-0000 Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
X.X.X. X.X.X.
Attention: K. Fargo Attention: General Counsel
--------------------------
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
-------------------------- ----------------------
Email: XxxxxxxX@Xxxxxxxx.xxx Email:
------------------------------ --------------------------
Attached Exhibits:
Exhibit A: Additional Definitions
Exhibit B: Netscape's Local Web Sites
Exhibit C: Revenue Sharing
Exhibit D: Service
Exhibit E: Territories
Exhibit F: Pro Forma Layout of Service
Exhibit G: Netscape's Promotional Services, Performance Reviews
Exhibit H: Mutual Non-Disclosure Agreement
Exhibit I: End User Registration
Attachment 1: Form of End User Registration
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EXHIBIT A
Additional Definitions
Co-Marketer Brand Service: xxxxxxxx.xxx
Content Provider. A party supplying (1) a product or products (as
such are approved by Netscape as set forth in Exhibit D)
which are marketed and distributed on the Service, and (2)
information and promotional materials regarding such
products, these items (1) and (2) collectively referred to
as such Content Provider's "Content".
Launch Date: August 1, 1997, subject to change by mutual agreement of the
parties.
Target Market: The Service's primary target market is the individual and
corporate/business end user who would use the Service for
personal use at home or the office. The Service will be
available only in the English language and targeted at the U.S.
and Canada markets.
Term: From: Effective Date
To: Second Anniversary of the Launch Date, provided, however, that
the Term shall be automatically extended for a one (1) year
period thereafter, provided that neither party objects to such
automatic renewal during the eighteen (18) month period
commencing on the Launch Date. Eighteen (18) months after the
Launch Date, the parties agree to enter into exclusive
negotiations for a period of sixty (60) days during which time
the parties shall negotiate in good faith the terms of a one (1)
year renewal period. If, at the end of such sixty (60) day
negotiations, no agreement is reached as to the terms of the
renewal period, this Agreement shall expire at the end of the
Term.
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EXHIBIT B
NETSCAPE'S LOCAL WEB SITES
NETSCAPE LOCAL WEB SITE URL FOR LOCAL Page
----------------------- ------------------
U.S. English xxxx://xxxx.xxxxxxxx.xxx
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EXHIBIT C
Revenue Sharing
1. Net Revenues. Net Revenue will be allocated [*]
2. [*]
3. Payment Terms. Amounts payable by Co-Marketer to Netscape hereunder shall
accrue upon receipt by Co-Marketer of Net Revenues. Within thirty (30) days
after the end of each Reporting Period during the Term of this Agreement,
Co-Marketer shall deliver to Netscape a report describing in detail the
calculation of Net Revenue for such Reporting Period, and shall remit to
Netscape Netscape's portion of such Net Revenue calculated as described above.
Amounts payable by [*] to [*] hereunder shall accrue upon receipt by [*] of [*].
Within thirty (30) days after the end of each Reporting Period during the Term
of this Agreement, Netscape shall deliver to Co-Marketer a report describing in
detail the calculation of Advertising Revenue for such Reporting Period, and
shall remit to Co-Marketer Co-Marketer's portion of such Advertising Revenue
calculated as described above.
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EXHIBIT D
Service
1. Description of Service. The primary features and functions of the Service is
the marketing and distribution of, and sale of licenses to use, Titles (as
defined below), such marketing to include, but not be limited to, the provision
of facilities for the immediate downloading of Titles by potential customers for
evaluation purposes. Features of the Service shall be mutually agreed by
Co-Marketer and Netscape. The Service will be modeled after, yet differentiated
from, the Co-Marketer Brand Service. Notwithstanding the foregoing, Co-Marketer
shall develop, subject to Netscape's approval, the concept, look and feel of the
Service to be distinct from Co-Marketer Brand Service. Access to and use of the
information provided on the Service will be provided free of charge to end
users. The Service will begin on or before the Launch Date. The Service will
operate as an on-line storefront and manage the marketing and distribution of
products created and/or distributed by Netscape's developers, the carrying of
such products on the Service to be subject to Netscape's prior approval as set
forth in paragraph 3 below. In addition to obligations set forth elsewhere in
this Agreement, Co-Marketer shall be responsible for (a) the negotiation of
agreements with Content Providers regarding their participation in the Service,
(b) the initial identification of proposed products to be included as Titles (as
defined below) in the Service, (c) the provision of technical and customer
support to end users of the Service, both by e-mail and telephone, (d) the
recording of transactions effected by means of the Service, including the
collection of revenue resulting therefrom and payment of any corresponding sales
and other taxes, (e) except as otherwise set forth in this Agreement, all
merchandising and promotions related to the Service, and the scheduling thereof,
(f) the provision of end user license agreements and proof of destruction
agreements will all Titles distributed by means of the Service, (g) actively
pursuing any product-related leads presented by Netscape to Co-Marketer, (h) the
maintenance of consistent and good relations with Netscape's developers
including without limitation, Content Providers, and (i) the development of
editorial content, other than that provided by publishers, developers and other
third parties, related to the products marketed on the Service, such development
to occur as agreed by the parties. As used herein, "Netscape's developers"
refers to those parties that develop software that operate in conjunction with
the Netscape ONE product platform.
2. End User Registration. If an end user elects either to purchase a license to
a Title or Titles or download a Title or Titles for evaluation through the
Service, the end user will have to register with the Service, as such
registration is set forth on Exhibit I.
3. Customer Service. Co-Marketer shall be responsible for all customer service
related to the marketing and distribution of the Titles, with the standards for
such customer service, including content and response time, to be mutually
agreed by Co-Marketer and Netscape. Co-Marketer shall be solely responsible for
supplying the necessary levels of staffing to support such customer service in
light of the projected growth in visitors to and transactions on the Service. In
the event Co-Marketer elects to delegate its customer support responsibilities
to a third party, Co-Marketer shall ensure that the services provided by such
third party meet or exceed the standards for customer services set forth herein
and as agreed to by Co-Marketer and Netscape prior to and after such
delegation.
4. Netscape Approval of Products. All products to be marketed for potential sale
on the Service must be compatible with the Netscape ONE platform, provided,
however, that Netscape may waive this requirement for a particular product in
its sole discretion. In addition, prior to displaying any product on the
Service, Co-Marketer shall send to Netscape, by means of e-mail sent to an
e-mail address specified by Netscape from time to time, a description of such
product. Within three (3) business days of receipt of such e-mail, Netscape
shall notify Co-Marketer of its determination of such product's appropriateness
for inclusion in the Service. Such determination
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shall be in Netscape's [*]. Co-Marketer [*] any Product in the Service for which
[*] an [*] from Netscape of such products [*] for [*] in the Service. In
addition, while the general purpose of inclusion in the Service of any product
is to maximize the profits of the Service, Netscape [*] to [*] products that [*]
in the Service for [*] or other purposes, and Co-Marketer [*] such products in
the Service and [*] such products [*] in the Services [*] to that of [*]
available in the Service. A product included in the Service is herein referred
to as a "Title".
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EXHIBIT E
Territories
Target Language Geographic Territory
--------------- --------------------
English United States and Canada
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EXHIBIT F
Pro Forma Layout of Service
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EXHIBIT G
Netscape's Promotional Services; Performance Reviews
1. Netscape's Local Web Sites. Pages of Netscape's Local Web Sites deemed by
Netscape in its sole discretion as likely to attract qualified prospective
customers of the Services shall feature a prominent link to the local-language
and geographically-appropriate Service in a location and format as Netscape
shall determine. Such pages may include, in Netscape's sole discretion, the home
page, the main Netscape client and server software download pages, the download
"thank you" page, the Netscape General Store page, the Netscape General Store
"thank you" page, the Software Direct page and the Intranet Solutions page.
2. Netscape Products and Services. During the Term, Netscape shall include
information regarding the Services in "Netscape Communicator News", "The
Netscape Channel" available to users of the Netscape Netcaster program,
"Software Direct" newsletters, and in the Netscape developer community by means
of Netscape's monthly newsletters and DevEdge web site. The frequency and
content of such information shall be in the sole discretion of Netscape.
3. Netscape Software. During the Term, at Co-Marketer's request Netscape shall
make available to Co-Marketer, for no additional fee, Netscape products and
software solely for Co-Marketer's use in developing, maintaining and enhancing
the Services during the Term. Upon expiration or termination of this Agreement,
Co-Marketer shall return, and erase all copies of, all Netscape products and
software provided by Netscape pursuant to this paragraph.
4. [*]
Period Page Views Net Revenue
------ ---------- -----------
[*] [*] [*]
[*]
(1) [*]
(2) [*]
(3) [*]
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EXHIBIT H
Mutual Non-Disclosure Agreement
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EXHIBIT I
End User Registration
1. Registration Process. End users who wish to purchase a license for a Title or
Titles or download a Title or Titles for evaluation through the Service will
have to register with such Service. User registration information [*] during the
[*] process and prior to the downloading of any product. In addition, the user
registration page will be linked to the Front Page as well as all other
appropriate pages in the Service. Initially, each Service will use Co-Marketer
Brand Service's registration back-end database in conjunction with a co-branded
front-end form of registration presented to end users. Such form of registration
shall be substantially similar to Attachment 1 attached hereto. At the time the
end user is asked to register, the end user will be notified as to what [*] is
required for them to provide, how the [*] will [*] and who will have [*] to the
[*] as described in Attachment 1. Co-Marketer will [*] to Netscape the [*]
during the registration process at a time interval and format to be mutually
agreed upon by the parties. The parties hereto acknowledge that it is their
intent to integrate the Services' user registration processes with Netscape's
"Universal Registration" system when such system becomes available. At such time
as each registration process is transferred to Netscape, Netscape shall use
reasonable commercial efforts to collect the same data from each Service
registration process as was collected by Co-Marketer. At such time as Netscapes
"Universal Registration" system is deployed, Netscape will provide to
Co-Marketer information about users registering for the Services by means of the
"Universal Registration" system in a format and timeframe to be mutually agreed
upon by Netscape and Co-Marketer. Netscape and Co-Marketer shall use reasonable
commercial efforts to coordinate the prompt transfer of user information from
Netscape to Co-Marketer at such time as Netscape's "Universal Registration"
system is used in connection with the Services.
2. Additional User Information. If Co-Marketer [*] information about [*] the
Services, in addition to information [*] during the registration process, such
information [*] to Netscape in a format and time frame as the parties shall
mutually agree.
3. [*] Confidential; Ownership. Information [*] provided by [*] during
registration with the Service, as well as information [*] provided from or about
[*], shall be the Confidential Information of and [*] by [*]. During the Term,
either party [*] such Confidential Information [*] for [*], in joint promotional
efforts related to the Services, but [*] such Confidential Information to any
third party. Notwithstanding the foregoing, (i) information [*] may be
aggregated and such aggregated information shall not be deemed Confidential
Information, provided such disclosure of information conforms with Netscape's
policy regarding the protection of [*], (ii) Netscape shall [*] any [*] of [*]
of the Service obtained during the Term of this Agreement, (iii) Co-Marketer
shall own information that it obtains independent of the operation of the
Service, and (iv) Co-Marketer shall be entitled to use any [*] obtained through
the operation of the Service in connection with [*] reporting by Co-Marketer,
[*] support of Service [*], and [*] database maintenance and operations. The
provisions of this paragraph shall survive termination or expiration of this
Agreement
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ATTACHMENT 1 TO EXHIBIT I
Form of User Registration
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AMENDMENT NO. 1
Co-Marketing Services Agreement
No: 002949-1
This Amendment No. 1 (the "Amendment") is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Netscape"), and
CyberSource Corporation, a California corporation ("Licensee"), with a usual
place of business at 000 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxx
Xxxxxxxxxx 00000 effective as of the date of execution by Netscape ("Effective
Date").
WHEREAS, the parties have entered into a Co-Marketing Services effective June
23rd, 1997 (the "Agreement") for distribution of certain third party products on
the Internet through Licensee's affiliate, xxxxxxxx.xxx, under the terms and
conditions therein; and
WHEREAS, the parties wish to modify and supplement the provisions of the
Agreement to enable xxxxxxxx.xxx to distribute "shrink-wrapped" versions of
certain third party products through Netscape Software Depot by xxxxxxxx.xxx;
NOW THEREFORE, the parties hereto, in consideration of the terms and conditions
herein, agree as follows:
1. [*]
2. Capitalized terms defined in the Agreement shall have the same meaning
in this Amendment as in the Agreement.
3. Except as explicitly modified, all terms, conditions and provisions of
the Agreement shall continue in full force and effect.
4. In the event of any inconsistency or conflict between the Agreement and
this Amendment, the terms, conditions and provisions of this Amendment
shall govern and control.
5. This Amendment and the Agreement constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and Agreement with respect to this subject matter
are superseded by the Agreement and this Amendment.
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6. This Agreement can be executed in counterparts or by facsimile, each of
which shall be an original, but all of which shall constitute one
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized representatives, effective as of the Effective Date.
NETSCAPE COMMUNICATIONS CORPORATION CYBERSOURCE CORPORATION
By: [SIG] By: [SIG]
------------------------------- -------------------------------
Signature Signature
Name: [SIG] Name: [SIG]
----------------------------- -----------------------------
Print or Type Print or Type
Title: Director of Revenue Title: CTO
---------------------------- ----------------------------
Date: 3/9/98 Date: 3/9/98
----------------------------- -----------------------------
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