EXHIBIT 10.7
CONTENT LICENSE AND CO-BRANDED AREA AGREEMENT
This content license and co-branded area agreement ("Agreement") is entered into
as of the 15th day of April, 1998 ("Effective Date"), by and between Excite,
Inc., a California corporation, located at 000 Xxxxxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Excite"), and Mpath Interactive, Inc. (the "Content
Provider"), a California corporation, located at 000 Xxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxx 00000 ("Content Provider").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx (the
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"Excite Site") and owns and/or manages related Web sites worldwide
(collectively, the "Excite Network") which, among other things, allow its
users to search for and access content and other sites on the Internet.
B. Content Provider owns and operates a branded multi-player interactive games
service on the Web located at xxxx://xxx.xxxxxxx.xxx ("Xxxxxxx.xxx") based
on technology and the Mpath Interactive system that enables users to play
multi-player games over the Internet whether through third party personal
computer resident games or online only games.
C. Excite and Content Provider wish to create, on the World Wide Web, an area
for Excite that contains online, interactive computer games and to promote
each other's services as more fully set forth in this Agreement.
Therefore, the parties agree as follows:
1. THE CONTENT OF THE EXCITE SITE
a) Content Provider will create and design Web pages (the "Excite Co-
Branded Pages"). The Excite Co-Branded Pages will incorporate the
content outlined in Exhibit A (the "Co-Branded Content"). The Excite
Co-Branded Pages will display the name and/or brands of Content
Provider and Excite. Content Provider and Excite will collaborate on
the "look and feel" of the Excite Co-Branded Pages including, but not
limited to, the display, appearance and placement of the parties'
respective names and/or brands and of advertising displayed on the
Excite Co-Branded Pages. Excite will have final approval over the
"look and feel" of the Excite Co-Branded Pages, which approval will
not be unreasonably withheld or delayed.
b) The Excite Co-Branded Pages will reside completely on the Excite Site.
c) Content Provider agrees that the Excite Co-Banded Pages will at all
times (allowing for a commercially reasonable delay for
implementation) feature the full array of options and features
generally made available by Content Provider for web pages
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produced for other third-party xxxxxxx.xxx content license and co-
branding relationships in similar circumstances, terms and conditions.
d) Excite will promote the Excite Co-Branded Pages through the Games
Channel on Xxxxxx.xxx. In the event that changes in Internet
technologies, Internet advertising markets or other factors lead to
the elimination of the channel structure from the Excite Network,
Excite and Content Provider will negotiate in good faith to adapt this
Agreement to such changes.
e) Excite, at its option, will have the right to promote Mplayer Plus
throughout the Excite Games Channel and/or Excite Co-Branded Pages.
"Mplayer Plus" means the area on Xxxxxxx.xxx where users must pay a
subscription fee for game play.
f) Excite will have sole responsibility for providing, hosting and
maintaining, at its expense, Xxxxxx.xxx.
2. THE CO-BRANDED AREA OF XXXXXXX.XXX
a) Content Provider will create and design Web pages (the "Partner Co-
Branded Pages") outlined in Exhibit B. The Partner Co-Branded Pages
will display the name and/or brands of Content Provider and Excite.
Content Provider and Excite will collaborate on the "look and feel" of
the Excite Co-Branded Pages including, but not limited to, the
display, appearance and placement of the parties' respective names
and/or brands and of advertising displayed on the Partner Co-Branded
Pages. Excite will have final approval over the "look and feel" of the
Partner Co-Branded Pages, which approval will not be unreasonably
withheld or delayed.
b) Content Provider will incorporate a link to the Excite Games Channel
on the Content Provider's home page.
c) The launch button for the Co-Branded Gizmo client, outlined in Exhibit
B, will be co-branded and will link to a co-branded page on the
Content Provider's site.
d) The Partner Co-Branded Pages will reside completely on Xxxxxxx.xxx.
e) Excite and Content Provider will work together to integrate the
registration data that is collected through this Agreement into
Excite's universal registration service once it is live on the Excite
Network.
f) Content Provider will be responsible for hosting the download of the
game client and the online game play.
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g) Content Provider will be responsible for providing and maintaining, at
its expense, Xxxxxxx.xxx, the Partner Co-Branded Pages, the Excite Co-
Branded Content and all billing, consumer usage reporting, fulfillment
and customer support related thereto.
h) Excite and Content Provider agree to attend quarterly meetings to
review the burden of this responsibility and to make changes, in good
faith, as appropriate to preserve the performance integrity of
xxxxxxx.xxx and the Excite Site based on costs of performance, and any
other relevant business considerations. If the parties are unable to
come to terms then either party may terminate the Agreement with a
thirty (30) day written notice.
3. ADVERTISING
a) Excite will be solely responsible for selling advertising on Excite
Co-Branded Pages and retain [XXXXX] of the revenue generated on their
URL.
b) Content Provider will be solely responsible for selling advertising on
Partner Co-Branded Pages and will retain [XXXXX] of the revenue
generated on their URL.
c) Content Provider will pay Excite a [XXXXX] bounty for each Excite user
to subscribe to Mplayer Plus provided that Excite maintains an Mplayer
Plus promotion page on the Excite Site.
d) Payments by Content Provider to Excite will be due within [XXXXX] of
the end of each calendar month.
e) With each payment, Content Provider will provide to Excite
documentation reasonably detailing the calculation of the payment.
f) Content Provider will maintain accurate gaap (generally accepted
accounting practice) records with respect to the calculation of all
payments due under this Agreement. Excite may, upon no less than
thirty (30) days prior written notice to Content Provider, cause an
independent Certified Public Accountant to inspect the records of
Content Provider reasonably related to the calculation of such
payments during Content Provider's normal business hours. The fees
charged by such Certified Public Accountant in connection with the
inspection will be paid by Excite unless the payments made to Excite
are determined to have been less than [XXXXX] of the payment owed to
Excite, in which case Content Provider will be responsible for the
payment of the reasonable fees for such inspection.
g) Neither party will make any public statement, press release or other
announcement relating to the terms of or existence of this Agreement
without the prior written approval of the other. Notwithstanding the
foregoing, the parties agree to issue an
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initial press release regarding the relationship between Excite and
Content Provider, the timing and wording of which will be mutually
agreed upon.
4. USER DATA
a) For the purposes of this Agreement, "User Data" means all user
registration information submitted by users hyperlinked to Xxxxxxx.xxx
from the Excite Network during the term of the Agreement. The parties
acknowledge that any individual user of the Internet could be a user
of Excite and/or Content Provider through activities unrelated to this
Agreement and that user data gathered independent of this Agreement,
even from individuals who are users of both parties' services, will
not be deemed to be "User Data" for the purposes of this Agreement.
Expressly excluded from User Data is the Confidential Information (as
defined below in the section on confidentiality) of Content Provider's
developers and Xxxxxxx.xxx usage data.
b) User Data will be deemed to be the joint property of the parties and,
subject to the limitations contained herein, both parties will retain
all rights to make use of any User Data obtained through this
Agreement.
c) Content Provider will provide to Excite all User Data collected by
Content Provider within thirty (30) days following the end of each
calendar month during the term of this Agreement in a mutually
determined electronic format.
d) Unless users select to be placed on mailing lists by an "opt-in"
election, Content Provider will not use User Data to directly or
indirectly solicit any Excite-only subset of Xxxxxxx.xxx users either
individually or in the aggregate during the term of this Agreement and
for a period of [XXXXX] following the expiration or termination of
this Agreement.
e) Neither party will sell, disclose, transfer or rent any User data for
the purpose of identifying a specific named individual ("Individual
Data") to any third party nor will either party use Individual Data on
behalf of any third party without the express permission of the
individual user. Where user permission for dissemination of Individual
Data to third parties has been obtained, each party will use
commercially reasonable efforts to require the third party recipients
of Individual Data to provide an "unsubscribe" feature in any email
communications generated by, or on behalf of, the third party
recipients of Individual Data.
f) Notwithstanding the foregoing, each party may disclose Confidential
Information or User Data (i) to the extent required by a court of
competent jurisdiction or other governmental authority or otherwise as
required by law or (ii) on a "need-to-know" basis under an obligation
of confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
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5. USAGE REPORTS
a) Content Provider will provide to Excite via email or by World Wide Web
interface with usage reports containing the information set forth in
Exhibit C ("Usage Reports"). Each Usage Report will cover a calendar
month and will be delivered within fifteen (15) days following the end
of the applicable month. The parties may, by mutual written agreement,
alter the content of such Usage Reports.
b) Excite will provide to Content Provider via email or by World Wide Web
interface with usage reports containing the information set forth in
Exhibit C ("Usage Reports"). Each Usage Report will cover a calendar
month and will be delivered within fifteen (15) days following the end
of the applicable month. The parties may, by mutual written agreement,
alter the content of such Usage Reports.
c) BOTH PARTIES WILL USE REASONABLE EFFORTS TO ENSURE THE ACCURACY OF THE
USAGE REPORTS BUT NEITHER PARTY WARRANTS THAT THE USAGE REPORTS WILL
CONFORM TO ANY SPECIFICATIONS AT ANY GIVEN TIME. NEITHER PARTY WILL BE
HELD LIABLE FOR ANY CLAIMS AS THEY RELATE TO SUCH USAGE REPORTS,
EXCEPT TO THE EXTENT THAT SUCH USAGE REPORTS SERVE AS THE BASIS FOR
PAYMENTS UNDER THIS AGREEMENT.
6. CONTENT OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and to
the Co-Branded Content, Xxxxxxx.xxx and the Co-Branded Pages worldwide
(including, but not limited to, ownership of all copyrights and other
intellectual property rights therein). Subject to the terms and
conditions of this Agreement, Content Provider hereby grants to Excite
a non-exclusive, worldwide license to use, reproduce, distribute,
transmit and publicly display the Co-Branded Content to Excite's
wholly-owned subsidiaries or to joint ventures in which Excite
participates for the sole purpose of using, reproducing, distributing,
transmitting and publicly displaying the Co-Branded Content in
accordance with this Agreement.
b) Excite will retain all right, title, and interest in and to the Excite
Network worldwide (including, but not limited to, ownership of all
copyrights, look and feel and other intellectual property rights
therein).
c) There are no implied licenses granted under this Agreement. Neither
party may reverse engineer, reverse compile, reduce to human
perceivable form, or disassemble any software of the other party,
except as expressly authorized in this Agreement.
7. TRADEMARK OWNERSHIP AND LICENSE
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a) Content Provider will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide, subject to
the limited license granted to Excite hereunder.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Content Provider hereunder.
c) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding
advertising, trademark prominence, dilution and abuse and usage as
established from time-to-time.
d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
8. TERM
The term of this Agreement will begin on the Effective Date and
will end [XXXXX] thereafter. This Agreement will automatically
renew for additional terms of [XXXXX] each, unless either party
notifies the other in writing at least thirty (30) days prior to
automatic renewal that it does not wish to renew this Agreement.
9. TERMINATION
a) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach remains
uncured for thirty (30) days following the notice to the breaching
party of the breach, with the following exception:
i) In the event of [XXXXX] errors, failures or outages (beyond
the industry Internet norm for errors, failures or outages) of
the Co-Branded Content and/or Partner Co-Branded Pages in any
thirty (30) day period, Excite may elect to immediately terminate
this Agreement upon written notice to Content Provider and enter
into other arrangements for the acquisition of similar content.
b) All payments that have accrued prior to the termination or expiration
of this Agreement will be payable in full within thirty (30) days
thereof.
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c) The provisions of Section 10 (Confidentiality), Section 11 (Warranty
and Indemnity), Section 12 (Limitation of Liability) and Section 13
(Dispute Resolution) will survive any termination or expiration of
this Agreement.
10. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
or activities that is proprietary and confidential, which shall
include all business, financial, technical and other information of a
party marked or designated by such party as "confidential or
"proprietary"; or information which, by the nature of the
circumstances surrounding the disclosure, ought in good faith to be
treated as confidential.
b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation, or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
c) Each party agrees that it will: (i) not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) take all reasonable
measures to maintain the confidentiality of all Confidential
Information of the other party in its possession or control, which
will in no event be less than the measures it uses to maintain the
confidentiality of its own information of similar importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) The information contained in the Usage Reports provided by the Content
Provider hereunder will be deemed to be the Confidential Information
of the disclosing party.
f) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
11. WARRANTY AND INDEMNITY
a) Content Provider warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, any and
all content provided to Excite or made available to third parties in
connection with this Agreement.
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b) Content Provider will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
i) The breach of Section 11(a);
ii) Any claim that the Co-Branded Content and/or Partner Co-
Branded Pages infringes or violates any third party's
copyright, patent, trade secret, trademark, right of publicity
or right of privacy or contains any defamatory content; or
iii) Any claim arising from content displayed on the Xxxxxxx.xxx
other than the Co-Branded Content and/or Partner Co-branded
Pages.
a) Excite will promptly notify Content Provider of any and all such
claims and will reasonably cooperate with Content Provider with the
defense and/or settlement thereof; provided that, if any settlement
requires an affirmative obligation of, results in any ongoing
liability to or prejudices or detrimentally impacts Excite in any way
and such obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require Excite's
written consent (not to be unreasonably withheld or delayed) and
Excite may have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim.
b) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND
HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
REGARDING SUCH SUBJECT MATTER.
12. LIMITATION OF LIABILITY
EXCEPT UNDER SECTION 11(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED
ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER
OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE
LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER,
WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND
WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID BY CONTENT PROVIDER TO EXCITE
HEREUNDER.
13. DISPUTE RESOLUTION
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a) The parties agree that any breach of either of the parties'
obligations regarding the other party's intellectual property rights
and/or confidentiality may result in irreparable injury for which
there is no adequate remedy at law. Therefore, in the event of any
breach or threatened breach of a party's obligations regarding the
other party's intellectual property rights or confidentiality, the
aggrieved party will be entitled to seek equitable relief in addition
to its other available legal remedies in a court of competent
jurisdiction. For the purposes of this section only, the parties
consent to venue in either the state courts of the county in which
Excite has its principal place of business or the United States
District Court for the Northern District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning the other party's
intellectual property rights and/or confidentiality, the parties will
first attempt to resolve the dispute(s) through good faith
negotiation. In the event that the dispute(s) cannot be resolved
through good faith negotiation, the parties will refer the dispute(s)
to a mutually acceptable mediator for hearing in the county in which
Excite has its principal place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning the other party's
intellectual property rights and/or confidentiality, cannot be
resolved through good faith negotiation and mediation, the parties
will refer the dispute(s) to the JAMS End Dispute for resolution
through binding arbitration by a single arbitrator pursuant to the
JAMS End Dispute's rules applicable to commercial disputes. The JAMS
proceeding will be held in the county in which Excite has its
principal place of business.
14. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
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part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required
in connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets or equity. Any attempt to
assign this Agreement other than as permitted above will be null and
void.
b) Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of Content
Provider.
c) Notice. Any notice under this Agreement will be in writing and
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delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed given upon personal delivery, one (1)
day after deposit with express courier, upon confirmation of receipt
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of facsimile or email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set forth below or such
other addresses as that party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors and will have no
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power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint venture.
e) Force Majeure. Any delay in or failure of performance by either party
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under this Agreement will not be considered a breach of this Agreement
and will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts
of God, power outages and governmental restrictions.
f) Severability. In the event that any of the provisions of this
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Agreement are held by to be unenforceable by a court or arbitrator,
the remaining portions of the Agreement will remain in full force and
effect.
g) Entire Agreement. This Agreement is the complete and exclusive
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agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a written document
executed by both parties.
Mpath Interactive, Inc. Excite, Inc.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxx
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Title: Vice President Title: EVP, CAO/CFO
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Date: 4/16/98 Date: 4/15/98
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000 Xxxxx Xxxxxx 000 Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxx Xxxx, Xxxxxxxxxx 00000
000-000-0000 (voice) 650.568.6000 (voice)
000-000-0000 (fax) 000.000.0000 (fax)
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EXHIBIT A
CO-BRANDED CONTENT DESCRIPTION
Content Provider will include the following Co-Branded Content on the Co-
Branded Pages:
1. Game Information Pages
(a) Main Game Page
(b) Game FAQ (when available)
(c) Game Quick Start (Read Me)
1. Xxxxxxx.xxx Help Information
2. Xxxxxxx.xxx Install Information
3. Xxxxxxx.xxx PLUS Promotion Pages
4. Download Information Page
Links to Xxxxxxx.xxx content on the Co-Branded Pages will include:
1. Xxxxxxx.xxx Registration
2. Xxxxxxx.xxx Support Pages
3. Intermediate Gizmo Launch Page
4. Other Game-related links
Channel Page, Game-Specific News, Rankings, Ladders, Teams, Events, Forum
BBs, and other Xxxxxxx.xxx game-related links as appropriate.
See attached
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EXHIBIT B
PARTNER CO-BRANDED PAGES
Content Provider will co-brand the following Web pages and/or applications:
. Gizmo Client -- the Content Provider will customize pages within the Gizmo
client to highlight games specified by Excite
. Content Provider's home page for Excite desktop launch
. Partner Co-Branded Pages may link to non-co-branded Web pages on xxxxxxx.xxx
See attached
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EXHIBIT C
DESCRIPTION AND FORMAT OF USAGE REPORTS
1. Content Provider will provide to Excite, on a monthly basis, usage reports
containing the following information:
a. Total number of advertising impressions on the Xxxxxxx.xxx Gizmo client
software;
b. Number of hours Excite users play games;
c. Number of Excite subscribers to Mplayer Plus;
d. Conversion rate of Excite users to Mplayer Plus.
1. Excite will provide to Content Provider, on a monthly basis, usage reports
containing the following information:
a. Total number of page views on the Excite Co-Branded Pages.
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