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EXHIBIT 10.12
MICROSOFT CORPORATION
This ("AGREEMENT") in entered into by and between
Microsoft Corporation, a Washington corporation ("MICROSOFT"), and xxxxxx.xxx,
a California Corporation ("GC") to be effective as of January 19, 1999
("EFFECTIVE DATE").
RECITALS
GC is an Internet based business that facilitates business relationships
between technology entrepreneurs and potential technology investors. One of the
primary methods by which GC offers its services is through its web site,
currently located at xxxx://xxx.xxxxxx.xxx ("GC WEB SITE"). Pursuant to the
terms of this Agreement, GC desires to engage Microsoft as a founding sponsor
of GC and the GC Web Site and offer the corresponding promotional consideration
to Microsoft as described below. In consideration thereof, Microsoft is willing
to provide GC the financial and promotional consideration described more fully
below.
Now, therefore, in consideration of the covenants and conditions set forth
below, the adequacy of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
1. TERM AND TERMINATION
1.1. Term. This Agreement shall commence as the Effective Date and shall
expire on December 31, 2001, unless earlier terminated as provided
in this Section 1.
1.2. Termination for Convenience. Within forty five (45) days of January
1, 2000 or January 1, 2001, Microsoft may terminate this Agreement
without cause upon written notice to GC.
1.3. Termination By Either Party For Cause. Either party may suspend
performance and/or terminate this Agreement immediately upon
written notice at any time if the other party is in material breach
of this Agreement and fails to cure that breach within thirty (30)
days after written notice thereof.
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2. SPONSORSHIP PAYMENTS
2.1 During the term of this Agreement, Microsoft shall make sponsorship
payments to GC as follows:
PAYMENT DATE
------- ----
* Thirty (30) days after the
Effective Date
* July 15, 1999
* January 15, 2000
* July 15, 2000
* January 15, 2001
* July 15, 2001
2.2 GC shall submit invoices to Microsoft as payments become due hereunder.
Microsoft shall pay all invoices properly submitted pursuant to this
Section 2 within thirty (30) days after Microsoft's receipt of the same.
3. MICROSOFT AS FOUNDING SPONSOR
GC will promote and allow microsoft to participate in all GC-sponsored
events in a manner no less favorable than GC promotes and/or allows any
other Founding Sponsor (defined below) to participate in such events. For
the purposes of this Agreement, "FOUNDING SPONSORS" means the following
original founding sponsors of the GC Web Site: PricewaterhouseCoopers,
Silicon Valley Bank, ABD Insurance, Venture Law Group, Xxxxxxxx & Struggles,
Credit Suisee First Boston, and Advanced Technology Ventures. If such events
require fees to be paid, Microsoft shall be required to pay such fees if it
desires the promotion and participation opportunity offered by the event,
provided that the fees charged to Microsoft shall be no greater than the
fees charged to any other Founding Sponsor for the same level of
sponsorship. If Microsoft desires to become a premium, major, or lead
sponsor of any event that senior sponsorship level may have greater fees
associated with it, provided that such fees shall be no greater than the
fees charged to any other Founding Sponsor for the same level of
sponsorship. The parties agree to discuss opportunities for Microsoft to pay
such fees "in kind" as the parties agree is appropriate.
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* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and have been filed separately with the SEC.
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4. SOFTWARE DEVELOPERS FORUM
4.1 On the GC Web Site, GC shall develop a "Software Developers Forum" or
"Developers Forum" ("DEVELOPERS FORUM") substantially similar to the
"Accounting, Tax and Consulting", "Commercial Banking", "Insurance",
"Law", "Venture Capital", and "Soapbox" forums currently present on
the GC Web Site. GC shall develop the Developers Forum in such a
manner so that, like these other forums, the Developers Forum shall
contain short articles, questions and answers, mailing lists supplied
by the applicable Founding Sponsor, as well as the same functionality
allowing the Founding Sponsor to interact and respond with visitors to
the Developers Forum. GC shall consider in good faith any input from
Microsoft on the structure and design of the Developers Forum.
4.2 During the term of this Agreement, GC shall promote Microsoft as the
Founding Sponsor for the Developers Forum in a manner no less
favorable than GC promotes the Founding Sponsors of the other forums
on the GC Web Site. Such promotion shall include, without limitation,
(i) the attribution of Microsoft as the Founding Sponsor for the forum
wherever sponsors of the forums are mentioned; (ii) the display of a
Microsoft-supplied logo on the entry page of the GC Web Site for the
forums (within 20 business days of the Effective Date located at
xxxx://xxx.xxxxxx.xxx/xxxxxx); (iii) the inclusion in the Developers
Forum of Microsoft-supplied articles and content relating to software
development and business relationships with Microsoft; (iv) allowing
Microsoft to receive and respond to questions submitted by visitors to
the Developers Forum through the functionality by the GC Web Site; and
(v) including hyperlinks within the GC Web Site to
Microsoft-designated URLs in a manner similar to the hyperlinks to
other Founding Sponsors of GC Web Site forums.
4.3 GC shall be entitled to designate other secondary sponsors of the
Developers Forum, provided that no other sponsor shall be promoted or
entitled to benefits equal to or more favorable than those provided to
Microsoft as the Founding Sponsor. Any secondary sponsors may also
provide similar content in the Developers Forum.
5. ADDITIONAL EVENT
Microsoft and GC agree that representatives of Microsoft's Silicon Valley,
or Boston, after it is established, Developer Centers and GC shall discuss
in good faith the possibility of jointly sponsoring an additional
entrepreneur software conference to be held within twelve (12) months of
the Effective Date. The parties' roles, rights, and responsibilities for
the additional conference shall be as agreed by the parties.
Notwithstanding anything to the contrary, neither party shall have any
obligations
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with regard to this additional conference (other than the obligation to
discuss the possibility of such an additional conference) unless and until
the parties agree in writing upon their specific roles, rights, and
responsibilities for the conference.
6. GC PRESENCE AT MICROSOFT DEVELOPER CENTERS
At GC's request, Microsoft shall allow GC to promote its services at
Microsoft's existing developer centers in Silicon Valley, the developer
center in Boston after it is established, and other mutually agreed upon
Microsoft developer centers. Such promotion may consist of (i) on site
signage that indicates the parties' relationship and/or Microsoft's
sponsorship of GC; (ii) the display of copies of GC-supplied promotional
and collateral materials; and (iii) reasonable mentions in Microsoft's
marketing and communications materials sent out by the applicable developer
center when such materials mention their other major alliance partners. The
size, placement, and content of all such promotion, however, shall be
mutually agreed upon by the parties.
7. DEVELOPER CENTER SLOTS/MSDN MEMBERSHIPS
7.1 Microsoft shall provide GC with a schedule of selected classes, labs,
workshops, and briefings offered by Microsoft's Developer Centers. At
GC's request, Microsoft shall reserve a single space for a GC-selected
entrepreneur company at each of these events.
7.2 During the first year of this Agreement, Microsoft will provide up to
ten (10) GC-selected companies with complementary, one-year
memberships to Microsoft's MSDN Universal Program, subject to the
standard terms and conditions for participation in this program. In
future years of this Agreement, Microsoft shall provide additional
complementary, one-year memberships to Microsoft's MSDN Universal
Program to GC-selected companies provided (i) the parties agree upon a
specific number of complementary memberships to be offered, (ii) the
parties agree upon a value for each of the complementary memberships
provided by Microsoft, and (iii) Microsoft's payment obligations
hereunder to GC during such year is reduced by the total value of all
of the complementary memberships provided by Microsoft during such
year (i.e., the agreed upon quantity multiplied by the agreed upon
value).
8. XXX XXXXXXXX ADVISOR
Xxx Xxxxxxxx of GC shall act as an advisor to Microsoft's Silicon Valley
Developer Center. As an advisor he shall (i) attend quarterly meetings for
the group of advisors for Microsoft's Silicon Valley Developer Center
except that if such meetings conflict
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with his previously scheduled travel plans, GC shall send another GC
executive, reasonably acceptable to Microsoft and (ii) provide information
and advice from time-to-time as reasonably requested by Microsoft's Silicon
Valley Developer Center.
9. WEB LINKS
As agreed by the parties, Microsoft and GC shall endeavor to include
mutually acceptable hyperlinks between the GC Web Site and web sides for
Microsoft's Developer Centers. In addition, all logos supplied for display
on the parties' web sites shall, at the supplying party's request, contain
a hyperlink to a web site designated by the supplying party.
10. MSDN FEATURE ARTICLE
Microsoft shall include a GC-supplied feature article or description of GC
and/or GC's services at least five (5) days per year on or linked to the
home page of Microsoft's Developer Network web site (currently located at
xxxx://xxxx.xxxxxxxxx.xxx). The content for the article shall be mutually
agreed upon by the parties, but shall generally be consistent with other
feature articles contained within Microsoft's Developer Network web site.
Once near the beginning of the article or description, the full GC URL will
be shown and hyperlinked to that URL.
11. LOGOS
As each party deems appropriate, each party shall supply the other with
logos to be displayed on the other party's web site, subject to the
provisions of Section 9 and any usage guidelines or terms and conditions
provided in connection with the logos.
12. PRESS RELEASES
The parties anticipate releasing one or more press releases, separately or
jointly relating to the collaboration described in this Agreement. Each
party agrees to obtain the other's prior written approval of any press
releases relating to the collaboration described in this Agreement, with
such approval not to be unreasonably withheld or delayed. Notwithstanding
the foregoing, each party shall be allowed to identify Microsoft as a
founding sponsor of GC without obtaining the other side's permission.
13. COMMUNICATIONS AND BRIEFINGS
Periodically, Microsoft representatives shall provide GC executives with a
presentation on Microsoft-selected selected issues relating to then-current
Microsoft technical and business plans. GC recognizes, however, that
Microsoft shall select the
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information to be described in these briefings and that such information
will not cover all of Microsoft's technical and business plans.
14. SPEAKERS
As mutually agreed by the parties, (i) GC shall provide Xxx Xxxxxxxx to
speak at selected Microsoft events and (ii) Microsoft shall provide
Microsoft-selected Microsoft executives to speak at selected GC events.
15. LIAISONS
Microsoft and GC shall each designate representatives to act as liaisons
to facilitate the exchange of information and referrals of start up
businesses to each other as the parties individually deem appropriate. For
example, the liaisons may facilitate introductions between appropriate
Microsoft product and/or business development groups and premier start up
companies that are members of GC. Notwithstanding anything to the
contrary, neither party shall be required exchange specific information
or referrals hereunder; rather, the intent of this Section is to create a
mechanism to facilitate the exchange of information and referrals in the
event that the parties determine, in their sole discretion, that such
exchange and referrals are appropriate. In addition the Microsoft liaison
shall, upon request, provide information to GC and selected GC represented
developers on available developer support resources offered by Microsoft.
16. CONFIDENTIALITY
16.1 As used in this Section 16, "CONFIDENTIAL INFORMATION" means
nonpublic information that a party designates as being confidential
or which, under the circumstances surrounding disclosure, ought to
be treated as confidential. "Confidential Information" includes,
without limitation, the terms and conditions of this Agreement,
information relating to released or unreleased software or hardware
products, the marketing or promotion of any product, business
policies or practices, the pricing, payment and other provisions of
the Agreement between the parties, and information received from
others that either party is obligated to treat as confidential.
"Confidential Information" shall not include information that: (i)
is or becomes generally known or available by publication,
commercial use or otherwise through no fault of the receiving party;
(ii) is known and has been reduced to tangible form by the receiving
party at the time of disclosure and is not subject to restriction;
(iii) is independently developed or learned by the receiving party;
(iv) is lawfully obtained from a third party that has the right to
make such disclosure; or (v) is
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made generally available by the disclosing party without
restriction on disclosure.
16.2. Each party shall use its best efforts to protect the other's
Confidential Information from unauthorized dissemination and shall
use, at a minimum, the same degree of care that such party uses to
protect its own like information. Neither party will use the
other's Confidential Information for purposes other than those
necessary to directly further the purposes of this Agreement.
Neither party will disclose to third parties the other's
Confidential Information without the prior written consent of the
other party. Except as expressly provided in this Agreement, no
ownership or license rights are granted in any Confidential
Information.
16.3. The parties' obligations of confidentiality under this Agreement
shall not be construed to limit either party's right to
independently develop or acquire products without use of the other
party's Confidential Information. Further, either party shall be
free to use for any purpose the residuals resulting from access to
or work with such Confidential Information, provided that such
party shall maintain the confidentiality of the Confidential
Information as provided herein. The term "residuals" means
information in non-tangible form, which may be retained by persons
who have had access to the Confidential Information, including
ideas, concepts, know-how or techniques contained therein. Neither
party shall have any obligation to limit or restrict the assignment
of such persons or to pay royalties for any work resulting from the
use of residuals. However, the foregoing shall not be deemed to
grant to either party a license under the other party's copyrights
or patents.
17. GENERAL
17.1. Notices. All notices and requests in connection with this Agreement
shall be deemed given as of the day they are received either by
messenger, delivery service, or in the United States of America
mails, postage prepaid, certified or registered, return receipt
requested, or transmitted by facsimile with machine-generated
confirmation of transmission and addressed as follows:
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To GC: To Microsoft:
Xxxxxx.xxx Microsoft Corporation - Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000 One Microsoft Way
Palo Alto, CA 94301 Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxx Attn: XXXXX XXXXXX
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Copy to: Law & Corporate Affairs
Fax: (000) 000-0000
or to such other address as a party may designate pursuant to
this notice provision.
17.2. No Partnership. GC and Microsoft are independent contracting
parties. Nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, or a
joint venture between the parties.
17.3. Governing Law. This Agreement shall be construed and
controlled by the laws of the State of Washington, and GC
consents to exclusive jurisdiction and venue in the federal
courts sitting in King County, Washington, unless no federal
subject matter jurisdiction exists, in which case GC consents
to exclusive jurisdiction and venue in the Superior Court of
King County, Washington. GC waives all defenses of lack of
personal jurisdiction and forum non conveniens. Process may be
served on either party in the manner authorized by applicable
law or court.
17.4. Assignment. This Agreement shall be binding upon and inure to
the benefit of each party's respective successors and lawful
assigns; provided, however, that GC may not assign (by
operation or law or otherwise) this Agreement, in whole or in
part, without the prior written approval of Microsoft. For
purposes of the foregoing, an assignment shall be deemed to
include, without limitation, a merger of GC with another party,
whether or not GC is the surviving entity, or the acquisition
of direct or indirect control of management through one or a
series of transactions. Any attempted assignment by GC in
violation of this Section shall be void and shall entitle
Microsoft to terminate this Agreement immediately upon written
notice to GC.
17.5. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, INDIRECT, OR
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CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES
FOR LOSS OF PROFITS OR OTHER INFORMATION, FOR FAILURE TO MEET ANY DUTY
INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR
ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH
OF WARRANTY OF EITHER PARTY TO THIS AGREEMENT, AND EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17.6 Construction. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision. This Agreement has been negotiated by the parties
and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor
of or against either party.
17.7 Entire Agreement. This Agreement does not constitute an offer by
Microsoft and it shall not be effective until signed by both parties.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and merges all prior and
contemporaneous communications. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and
signed on behalf of GC and Microsoft by their respective authorized
representatives.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MICROSOFT CORPORATION XXXXXX.XXX
/s/ XXXXX XXXXX /s/ XXXX XXXX
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By By
Xxxxx Xxxxx Xxxx Xxxx
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Name (print) Name (print)
GM Silicon Valley DRG VP
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Title Title
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