EXHIBIT 10.18
EXECUTION COPY
AMENDMENT
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TO
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EMAIL SERVICES AGREEMENT
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THIS AMENDMENT ("Amendment") is entered into effective as of 30th day of
September, 1998 ("Amendment Effective Date"), by and between CRITICAL PATH INC.,
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a California corporation having its principal place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000 ("CP"), and E*TRADE GROUP, INC., a Delaware
corporation, having a principal place of business at 0 Xxxxxxxxxxx Xxxxx, 0000
Xxxx Xxxx, Xxxx Xxxx, XX 00000 ("E*TRADE GROUP").
R E C I T A L S:
A. CP and E*TRADE GROUP entered into that certain Email Services Agreement
dated as of April 28, 1998 (the "Agreement") for the provision by CP to E*TRADE
GROUP of the Services (as defined in the Agreement).
B. The parties desire to amend the Agreement to provide for the pre-
payment of Services by E*TRADE GROUP, to modify certain terms under which the
Services will be provided by CP to E*TRADE GROUP and to add terms for the
parties' mutual advertising and promotional efforts with respect to each other's
products and services.
C. The parties entered into a Letter of Intent dated September 8, 1998
(the "LOI") under which the parties expressed their then-current understanding
with respect to the desired changes and additions to the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Amendment, the parties to this Amendment agree as follows:
1. Effect of Amendment; Entire Agreement.
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This Amendment amends the terms and conditions of the Agreement as
specified in this Amendment. All other terms and conditions of the Agreement
shall remain in full force and effect. In the event of an inconsistency between
a provision of this Amendment and a provision of the Agreement, the provision of
this Amendment shall control. Unless defined in this Amendment, all capitalized
terms used in this Amendment shall have the same meanings as provided in the
Agreement. This Amendment supersedes the LOI in its entirety. Unless otherwise
expressly stated herein, the Agreement, as amended by this Amendment, is the
entire agreement by and between the parties with respect to the subject matter
herein and supersedes any and all agreements, either oral or written, between CP
and E*TRADE GROUP with respect to such subject matter.
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[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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2. Definitions.
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2.1 "XX Xxxxx" means any and all trademarks, service marks, and logos used
by CP to market and promote the Services.
2.2 "Customers" means accountholders of the E*TRADE GROUP Service, as
defined therein.
2.3 "E*TRADE GROUP Service" means the Internet-based online brokerage
service made available by E*TRADE, which is currently located at xxx.xxxxxx.xxx.
2.4 "E*TRADE GROUP Marks" means the trademarks, service marks, and logos
designated by E*TRADE GROUP for use by CP under this Agreement, as may be
amended from time to time upon reasonable notice to CP.
2.5 "International Offering" means any E*TRADE GROUP Service made
available to Users in any country outside of the United States.
2.6 "Intellectual Property Rights" means any and all patents and patent
applications (including any divisions, substitutions, continuations,
continuations-in-part, revisions, reissuances, reexaminations and extensions
thereof), copyrights, trademarks, service marks, trade names, trade secrets and
other intellectual property and proprietary rights in any country of the world.
2.7 "Members" means registered users of the E*TRADE GROUP Service who are
neither Customers nor Subscribers.
2.8 "Strategic Partner" means any business or entity with whom E*TRADE
GROUP has an arrangement for the joint advertising/promotion of each other's
products and services.
2.9 "Subscribers" means subscribers to the premium services of the E*TRADE
GROUP Service.
2.10 "Users" means collectively the Customers, Members and Subscribers. As
used in the Agreement (not including this Amendment), "Customers" means "Users."
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3. Exhibit A.
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Both Exhibits A (Exhibit A - Private Email Offering for E*TRADE Clients,
and Exhibit A - Public Email Offering) of the Agreement are deleted in their
entirety and replaced with Exhibit A attached to this Amendment.
4. Joint Advertising and Promotional Efforts
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4.1 Advertising Efforts. For the fee specified in Section 4.2 of this
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Amendment, E*TRADE agrees to include CP in appropriate E*TRADE's advertising and
promotional campaigns (collectively, "Advertising") made available or otherwise
provided to other Strategic Partners. Such Advertising will, at a minimum,
include the display of a "Powered by Critical Path" or similar logo as mutually
agreed on E*TRADE's Web Mail client during the term of this Amendment. CP will
use reasonable efforts to include E*TRADE in CP's own marketing campaign/efforts
over the term of this Amendment.
4.2 Payment by CP. On or before the Effective Date of this Amendment, CP
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has paid, and E*TRADE hereby acknowledges receipt of, [**] as payment in full
for Advertising. For each calendar year after 1998 during the term of this
Amendment, if CP decides to continue receiving Advertising, CP shall pay E*TRADE
a mutually-agreeable fee for the Advertising.
4.3 International Business and Strategic Partner Offerings. During the
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term of this Amendment, E*TRADE will use reasonable commercial efforts to
promote CP in all International Offerings and Strategic Partner relationships.
If E*TRADE resells the Services to or through such International Offerings or
Strategic Partners, then, notwithstanding any other provision of the Agreement,
as amended by this Amendment, E*TRADE and CP will share equally in the gross
revenue received for all such resold Services.
4.4 License of XX Xxxxx.
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(a) Subject to the terms and conditions of this Agreement, CP grants
to E*TRADE GROUP a nonexclusive, royalty-free, worldwide license to use the XX
Xxxxx in connection with E*TRADE GROUP's marketing, promotion and resell of the
Services as provided under this Amendment. E*TRADE GROUP agrees to provide or
make available to CP and obtain CP's prior approval of an example of each such
use of the XX Xxxxx. E*TRADE GROUP agrees that it will not adopt any trademark,
trade name, or service xxxx that is confusingly similar to the XX Xxxxx and that
it will use reasonable efforts to preserve CP's rights in the XX Xxxxx. E*TRADE
GROUP acknowledges that, as between the parties, CP owns the XX Xxxxx, and all
use of the XX Xxxxx by E*TRADE GROUP shall inure solely to the benefit of CP.
E*TRADE GROUP agrees that it will not apply for registration of the XX Xxxxx (or
any xxxx confusingly similar thereto) anywhere in the world and that it will not
engage, participate
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INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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or otherwise become involved in any activity or course of action that diminishes
and/or tarnishes the image and/or reputation of any CP Xxxx.
(b) Use and Display of XX Xxxxx. E*TRADE GROUP acknowledges and
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agrees that the presentation and image of the XX Xxxxx should be uniform and
consistent with respect to all services, activities and products associated with
the XX Xxxxx. Accordingly, E*TRADE GROUP agrees to use the XX Xxxxx solely in
the manner which CP shall specify from time to time in CP's sole and reasonable
discretion. All usage by E*TRADE GROUP of the XX Xxxxx shall include the
registered trademark symbol and shall be in the following form, as designated by
CP: [CP Xxxx](R) or [CP Xxxx]/TM/. All literature and materials printed,
distributed or electronically transmitted by E*TRADE GROUP and containing the XX
Xxxxx shall include the following or similar notice as designated by CP:
[CP Xxxx] is a [registered] trademark of Critical Path Inc.
4.5 License of E*TRADE GROUP Marks.
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(a) Subject to the terms and conditions of this Agreement, E*TRADE
GROUP grants to CP a nonexclusive, royalty-free, worldwide license to use the
E*TRADE GROUP Marks in connection with CP's marketing and promotion of the
E*TRADE GROUP Service as provided under this Amendment. CP agrees to provide or
make available to E*TRADE GROUP and obtain E*TRADE GROUP's prior approval of an
example of each such use of the E*TRADE GROUP Marks. CP agrees that it will not
adopt any trademark, trade name, or service xxxx that is confusingly similar to
the E*TRADE GROUP Marks and that it will use reasonable efforts to preserve
E*TRADE GROUP's rights in the E*TRADE GROUP Marks. CP acknowledges that, as
between the parties, E*TRADE GROUP owns the E*TRADE GROUP Marks, and all use of
the E*TRADE GROUP Marks by CP shall inure solely to the benefit of E*TRADE
GROUP. CP agrees that it will not apply for registration of the E*TRADE GROUP
Marks (or any xxxx confusingly similar thereto) anywhere in the world and that
it will not engage, participate or otherwise become involved in any activity or
course of action that diminishes and/or tarnishes the image and/or reputation of
any E*TRADE GROUP Xxxx.
(b) Use and Display of E*TRADE GROUP Marks. CP acknowledges and
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agrees that the presentation and image of the E*TRADE GROUP Marks should be
uniform and consistent with respect to all services, activities and products
associated with the E*TRADE GROUP Marks. Accordingly, CP agrees to use the
E*TRADE GROUP Marks solely in the manner which E*TRADE GROUP shall specify from
time to time in E*TRADE GROUP's sole and reasonable discretion. All usage by CP
of the E*TRADE GROUP Marks shall include the registered trademark symbol and
shall be in the following form, as appropriate: [E*TRADE GROUP Xxxx](R). All
literature and materials printed, distributed or electronically transmitted by
CP and containing the E*TRADE GROUP Marks shall include the following notice:
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[E*TRADE GROUP Xxxx] is a registered trademark of E*TRADE GROUP,
Inc.
5. JFAX Services. Exhibit B JFAX Services Order Schedule of the
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Agreement is hereby deleted in its entirety and replaced with Exhibit B attached
to this Amendment.
6. Service Level Agreement. Exhibit D of the Agreement is hereby deleted
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in its entirety and replaced with Exhibit C attached to this Amendment.
7. Use of Certain E*TRADE GROUP Products.
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In the event CP decides to implement an employee stock option plan ("ESOP")
or employee stock purchase plan ("ESPP"), CP shall offer to E*TRADE GROUP's
subsidiary, E*TRADE Securities, Inc., the opportunity to provide its OptionsLink
and ShareData ESOP and ESPP administration products and services, on reasonable
terms and conditions to be negotiated between the parties.
8. Production Email.
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The parties agree to negotiate in good faith to reach agreement by December
31, 1998, on the terms and conditions, including additional fees, for the
provision of services by CP relating to E*TRADE GROUP's production email (email
from E*TRADE GROUP to its Users) for the E*TRADE GROUP Service customer support
center. Upon the parties' mutual agreement, such terms and conditions shall be
included as a written addendum to this Amendment.
9. Exclusivity; Freedom of Action.
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9.1 Exclusivity. CP agrees that it will not provide the Services to
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competitors of E*TRADE GROUP for a six-month period after the Effective Date of
this Amendment. E*TRADE GROUP competitors are deemed to include any companies
mentioned in the Xxxxx Advisors Survey of Online Investing Services. E*TRADE
agrees not to resell any Services to competitors of CP during the term of the
Agreement, as amended by this Amendment. CP competitors are deemed to include
any companies offering email services or products for re-distribution, currently
including but not limited to, iName, XXX.Xxx, WhoWhere, SendMail, and
Xxxxxxxx.xxx.
9.2 Freedom of Action. Except as expressly provided in Section 9.1, the
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Agreement (including this Amendment) shall not be construed to restrict either
party from engaging in any activities with respect to competitive products or
services.
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10. Ownership.
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10.1 CP Ownership. As between the parties, CP shall be the sole owner of
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all rights and interests in and to the Services, the CP System and the XX Xxxxx,
including without limitation all Intellectual Property Rights therein
(collectively, "CP Property").
10.2 E*TRADE GROUP Ownership. As between the parties, E*TRADE GROUP shall
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be the sole owner of all rights and interests in and to the E*TRADE GROUP
Services and the E*TRADE GROUP Marks, including without limitation all
Intellectual Property Rights therein (collectively, "E*TRADE Property").
11. Indemnification. Section 6 of the Agreement is hereby deleted.
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12. Term and Termination.
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12.1 Term of Agreement as Amended. Section 7.1 Term of the Agreement is
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hereby deleted and replaced with the following:
7.1 Term. This Agreement shall continue in effect from the
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Effective Date for a [**] year period from the Amendment Effective Date,
unless sooner terminated in accordance with this Section. This Agreement
will renew automatically for successive one (1) year periods unless either
party gives the other party at least sixty (60) days notice, prior to the
end of the then-current term, of its election not to renew this Agreement.
12.2 Effect of Termination. Section 7.4 Effect of Termination of the
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Agreement is hereby deleted and replaced with the following:
7.4 Effect of Termination.
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7.4.1 Migration of Services. Upon any termination of this Agreement,
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CP shall immediately cease providing all Services, and E*TRADE
GROUP and Users shall no longer have access to the CP System.
Except in the event of termination for E*TRADE GROUP's breach,
CP shall work with E*TRADE GROUP in the migration of its e-mail
system back to its setup in existence immediately before the
Effective Date of this Agreement or to a service that is
similar is scale and scope. The parties agree to complete the
migration process in a reasonable timeframe. Thereafter, CP
shall delete all
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[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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stored e-mail messages of E*TRADE GROUP and Users on the CP
System.
7.4.2 Payment of Amounts Due. Within thirty (30) days of any
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termination of this Agreement, each party shall pay to the
other all unpaid fees accrued prior to termination.
7.4.3 Termination of Advertising. Upon any termination of this
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Agreement, the parties' rights and obligations under Section 4
of the Amendment (including without limitation the license to
use each other's marks) shall immediately terminate, and
neither party will have any further right or obligation to
market and sell the other party's products or services to
prospective users or customers; provided, however, that if this
Agreement is terminated during any year in which CP has paid
E*TRADE GROUP pursuant to Section 4.1 for Advertising, CP will
be entitled to a pro rata refund of such payment for that year.
12.3 Survival. Section 7.5 Survival of the Agreement is hereby deleted and
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replaced with the following:
7.5 Survival. Sections 2, 3, 4, 5, 6, 7.4, 7.5 and 9 of the
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Agreement, and Sections 1, 2, 9 (for the six-month period after the
Effective Date of this Amendment if terminated earlier), 10, 11, 12.2,
12.3, and 13 and Exhibit A (as to amounts accrued but unpaid and
paragraphs C.4, I and J as to ownership provisions) of the Amendment
shall survive any expiration or termination.
13. Miscellaneous.
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13.1 Injunctive Relief. Each party agrees that in addition to any other
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rights and remedies available to the other party for any breach of the
Agreement, as amended by this Amendment, the non-breaching party shall be
entitled to seek to enforce the breaching party's obligations by court
injunction.
13.2 Dispute Resolution. Any dispute, controversy or claim concerning or
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relating to the Agreement, as amended by this Amendment, shall be resolved in
the following manner:
13.2.1 The parties agree to use all reasonable efforts to resolve the
dispute through direct discussions. To that end, either party may give the
other party written notice of any dispute not resolved in the normal course
of business. Upon such notice,
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the parties shall attempt in good faith to resolve the dispute promptly by
negotiation between executives who have authority to settle the controversy
and who are at a higher level of management than the persons with direct
responsibility for administration of the Agreement;
13.2.2 If the parties are unable to resolve the dispute by such means
within thirty (30) days of the notice date, or such other time period as
mutually agreed, then either party may commence arbitration pursuant to the
Rules of Commercial Arbitration of the American Arbitration Association
("AAA"), as modified or supplemented under this Section 13.2. The
arbitration shall be governed by the United States Arbitration Act, 9
U.S.C. Sec. 1, et. seq., and judgment upon the award rendered by the
arbitrator(s) may be entered by any court with jurisdiction or application
may be made to such a court for judicial recognition and acceptance of the
award and any appropriate order including enforcement. The arbitration
proceedings will be held in San Francisco, California.
13.2.3 The arbitration proceedings contemplated by this Section shall
be as confidential and private as permitted by law. To that end, the
parties shall not disclose the existence, content or results of any
proceedings conducted in accordance with this Section, and materials
submitted in connection with such proceedings shall not be admissible in
any other proceeding, provided, however, that this confidentiality
provision shall not prevent a petition to vacate or enforce an arbitral
award, and shall not bar disclosures required by law. The parties agree
that any decision or award resulting from proceedings in accordance with
this Section shall have no preclusive effect in any other matter involving
third parties; and
13.2.4 Judgment on an arbitral award may be entered by any court of
competent jurisdiction, or application may be made to such a court for
judicial recognition and acceptance of the award and any appropriate order
including enforcement.
13.3 Further Assurances. Each party agrees to execute and deliver all
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further instruments and documents, and shall take all further action that may be
necessary or desirable as reasonably requested by the other party to effectuate
the parties' intent under the Agreement, as amended by this Amendment.
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IN WITNESS WHEREOF, the parties to this Amendment have executed and
delivered this Amendment as of the date first above written.
CRITICAL PATH INC.
By_________________________________
Its__________________________________
E*TRADE GROUP, INC.
By_________________________________
Its__________________________________
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EXHIBIT A
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SERVICES, CHARGES AND PAYMENT
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This Exhibit A is attached to and made a part of the Agreement between
E*TRADE GROUP and Critical Path, Inc, as amended by the Amendment, and is
subject to the terms and conditions of the Agreement, as amended.
A. Basic Web Mail Fees -
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1. Fee and Payment during Pre-paid Period. [**]
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2. Fee and Payment after Pre-paid Period. [**] E*TRADE GROUP agrees to
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pay to CP a monthly charge of [**] Mailbox.
3. [**]
B. Premium Features Fees - In addition to the fees specified in Section A
of this Exhibit, E*TRADE GROUP agrees to pay CP the fees for Premium Features
ordered by E*TRADE GROUP as specified in Addendum 1 to this Exhibit A.
C. Branding of Web Mail Page
1. Fees - E*TRADE GROUP will pay to CP a one-time fee of [**] for
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CP's branding of the Web Mail Page, which fee CP acknowledges and
agrees has been paid in full.
2. Provision, Development and Approval - E*TRADE GROUP shall
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provide CP with all text and images ("Branding Materials")
necessary for CP to brand E*TRADE GROUP's Web Mail Page. E*TRADE
GROUP warrants and represents to CP that E*TRADE GROUP has full
power and authority to provide to CP, and to authorize CP's use
of, the Branding Materials provided by E*TRADE GROUP for branding
the Web Mail Page, and agrees to defend and indemnify CP with
respect to any claims arising from CP's use of such Branding
Materials. CP shall develop the branded Web Mail Page using such
Branding Materials and shall provide, or otherwise make available
to E*TRADE GROUP, such developed Web Mail Page for E*TRADE
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[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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GROUP's review and approval, which approval shall not be
unreasonably withheld, delayed or conditioned. E*TRADE GROUP's
approval shall be deemed given if E*TRADE GROUP does not provide
to CP notice of its rejection of the branded Web Mail Page within
twenty-four (24) hours of CP's provision of it.
3. Modifications - Once approved, CP shall only be obligated to
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make one change to the look and feel of the branded Web Mail Page
at no additional charge. Any further requested changes will be
chargeable at the rate of [**] each.
4. Proprietary Rights - E*TRADE GROUP grants to CP a non-exclusive,
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nontransferable, worldwide, royalty-free, irrevocable (during the
term of the Agreement) license to reproduce, display, perform,
modify, prepare derivative works of and otherwise use the
Branding Materials for the purpose of branding E*TRADE GROUP's
Web Mail Page and making such Web Mail Page available through the
Services to Users. E*TRADE GROUP shall retain all other
Intellectual Property Rights it has in and to the Branding
Materials. CP shall retain all Intellectual Property Rights in
and to the Services (not including the Branding Materials as
incorporated into E*TRADE GROUP's Web Mail Page) and all
development tools, routines, subroutines, applications, software
and other materials (not including the Branding Materials) that
CP may use in connection with branding the Web Mail Page.
D. Support - CP shall provide 2nd tier telephone and web-based support
directly to E*TRADE GROUP twenty-four (24) hours a day, seven (7) days a week.
E*TRADE GROUP shall be responsible for first-level telephone support to Users
and for all other support not otherwise specified herein to Users.
E. Payment by E*TRADE GROUP to CP - All fees for Services shall be
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applicable for any month, or portion thereof, in which such Services are
rendered. Except as provided in Section A of this Exhibit, all fees are payable
to CP by E*TRADE GROUP within twenty (20) days of the end of each month in
accordance with this Exhibit and the Agreement as amended by the Amendment. In
addition, if during the previous month, CP performed any work on the branding of
the Web Mail Page as provided herein, E*TRADE GROUP shall include the applicable
fees for such work in the next month's payment. Payments received by CP after
the due date shall be subject to a late fee of one and one-half percent (1.5%)
per month, or, if less, the maximum amount allowed by applicable law.
F. Advertising Revenues
1. Sharing of Advertising Revenues - The parties shall share in the
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Advertising Revenue as follows:
a) [**] to E*TRADE GROUP and [**] to CP of Advertising Revenues for
advertising provided to Members; and
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INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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b) [**] to E*TRADE GROUP and [**] to CP of Advertising Revenues for
advertising provided to Customers; and
c) [**] to E*TRADE GROUP and [**] to CP of Advertising Revenues for
advertising provided to Subscribers.
2. Payment of Advertising Revenues - E*TRADE GROUP shall pay to CP
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its share of Advertising Revenues received by E*TRADE GROUP during the preceding
month within ninety (90) days of the end of each month, subject to the terms and
conditions of Section E above. CP shall pay E*TRADE GROUP its share of
Advertising Revenues received by CP during the preceding month within ninety
(90) days after the end of each month during the term of this Agreement. If, in
prior remittances, the paying party included revenues in the calculation of
Advertising Revenues, as to which during the preceding month the paying party
granted credits or refunds, then the paying party may reduce the Advertising
Revenues paid to the other party by the amount of any such credits or refunds.
Payments received after the due date shall be subject to a late fee of one and
one-half percent (1.5%) per month, or, if less, the maximum amount allowed by
applicable law.
3. Definitions - As used in this Exhibit A, "Advertising Revenues"
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shall mean the revenue received from third party ("Advertisers") by either party
from advertisements included on the Web Mail Page, less any commissions,
credits, or refunds paid to Advertisers with respect to such revenues.
G. Storage Capacity - Each mailbox provided hereunder shall have a
maximum storage capacity of [**]. E*TRADE GROUP may purchase additional storage
space from CP upon payment of CP's then-current fees. CP shall notify any
Customer that Customer's mailbox is approaching or exceeds the maximum limit.
Thereafter, if such Customer exceeds the maximum storage capacity, CP may delete
e-mail messages from the affected mailboxes, at CP's discretion. CP will store
E*TRADE GROUP end-user messages, less those messages deleted by the end-user and
or E*TRADE GROUP.
H. Web Presence - CP will use best commercial efforts to imbed the
E*TRADE GROUP logo in CP's Web-based email interface. The imbedded logo will be
a standard and brandable (which CP customers may elect not to include) offering
by CP to its customers. For each new Customer introduced to the E*TRADE Service
through such imbedded logo, CP will receive a fee of $75 for assisting E*TRADE
in the acquisition of such Customer. Such fees shall accrue upon execution by
the Customer of E*TRADE GROUP's applicable account agreement and shall be paid
to CP by E*TRADE GROUP in accordance with Section E of this Exhibit.
I. [**]
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INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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[**]
J. User Interface - In upgrading and modifying the CP user interface to
the Services ("Interface"), CP agrees to use reasonable commercial efforts to
consider any suggestions, ideas or recommendations provided by E*TRADE GROUP to
CP with respect to the Interface; provided, however, that CP will be under no
obligation to implement any such suggestions, ideas or recommendations. E*TRADE
GROUP acknowledges and agrees that CP shall own the entire right, title and
interest in and to the Interface (including without limitation all Intellectual
Property Rights therein) and that E*TRADE GROUP will assign, and hereby does
assign, any and all interest it may have or acquire in such Interface as a
result of CP's implementation of any of E*TRADE GROUP suggestions, ideas or
recommendations.
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INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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ADDENDUM 1
TO
EXHIBIT A
PREMIUM FEATURES
From time to time during the term of this Agreement, CP will make available
to E*TRADE GROUP optional features ("Premium Features") of the Services no later
than such Premium Features are generally made available by CP to its customers.
These Premium Features currently include or are expected to include:
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POP3 e-mail hosting [**]/month/mailbox
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Virus Protection [**]/month/mailbox
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Certified Delivery TBD
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IMAP TBD
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Archiving (storage > 5 MB) TBD
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E*TRADE GROUP will have the right to set its own prices at which it resells
such Premium Features to Users (the "Resell Prices"); provided, however, [**]
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INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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EXHIBIT B
JFAX SERVICES
This Exhibit B is attached to and made a part of the Agreement between
E*TRADE GROUP and Critical Path, Inc, as amended by the Amendment, and is
subject to the terms and conditions of the Agreement, as amended.
A. JFAX Services and Current Fees
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As part of the Services, CP make available to E*TRADE GROUP and Users
the following services ("JFAX Services") provided by XXXX.XXX through its voice
and fax gateway for the following fees. All of the following amounts are
charges per mailbox, unless otherwise noted.
BASIC
SERVICE DESCRIPTION SIGN-UP MONTHLY USAGE FEES
FEES FEES
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JFAX Fax and Voice to Email Service [**] [**] $.20 per message in
excess of 200
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Toll Free 888 service [**] [**] $.20 per message
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Fax and Voice to Email
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JFAX/Send Email to Fax Service [**] [**] Pricing based on
JFAX/Send pricing
schedule for fax
delivery to specific
cities, as posted on the
xxxx.xxx website.
-----------------------------------------------------------------------------------------------------------------------
JFAX/Operator Message access from Telephone [**] [**] $.10 per message
-----------------------------------------------------------------------------------------------------------------------
Message Access From Web [**] [**] Included
Browser
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JFAX/Notify! Pager Notification of Message [**] [**] $.10 per message
Receipt
-----------------------------------------------------------------------------------------------------------------------
SMS Notification [**] [**] $.25 per message
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B. Rights of XXXX.XXX
------------------
E*TRADE GROUP will provide its application to CP for forwarding to
XXXX.XXX. XXXX.XXX has sole discretion to accept or reject E*TRADE GROUP's
application for JFAX Services. XXXX.XXX may at any time (i) impose additional
terms on use of the JFAX Services, (ii) modify, discontinue or terminate the
JFAX Services and (iii) modify the fees for JFAX Services.
C. Commissions
-----------
[**]
Confidential
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Page 15
EXECUTION COPY
commission shall be based only on revenue actually paid by Users to XXXX.XXX. To
be qualified, Users new to the JFAX Services must be in good standing with
XXXX.XXX for a period of sixty (60) days.
Within forty-five (45) days of the end of each calendar quarter (i.e., each
three-month period ending March, June, September and December), CP shall remit
to E*TRADE GROUP its commission for re-selling JFAX Services to Users as
specified in this Exhibit B. Actual commission payments to E*TRADE GROUP are
conditioned upon such payment exceeding $200. Commissions due to E*TRADE GROUP
that are less than $200 will be accumulated until the total commission due
E*TRADE GROUP exceeds $200.
D. Payment to XXXX.XXX
-------------------
E*TRADE GROUP and Users shall pay all fees for JFAX Services directly to
XXXX.XXX at the address as directed by XXXX.XXX.
Confidential
Page 16
EXECUTION COPY
EXHIBIT C
SERVICE LEVEL AGREEMENT
This Exhibit C is attached to and made a part of the Agreement between
E*TRADE GROUP and Critical Path, Inc, as amended by the Amendment, and is
subject to the terms and conditions of the Agreement, as amended.
1. Performance
a) Definition: As used in this Exhibit, "system outage" means any
----------
unplanned interruption in the provision of the Services during which E*TRADE
GROUP's Users are unable to access or use the Services and which is caused by a
problem in the CP System and confirmed by CP. "System outage" does not include
any interruptions in the Services caused by act, omission or condition beyond
Critical Path's reasonable control, such as acts of nature or any third party.
b) Processing E-mails: Monthly average service response time of less
------------------
than [**] seconds response time for [**] of requests. Measurement does not
include any network transmission time or delays. This average does not include
any period of unforeseen, unsolicited bulk email messages that degrade service.
c) Availability of E-mail Server: CP will use commercially reasonable
-----------------------------
attempts to maintain an average of [**] up time for availability of the
Services (not including scheduled downtimes for maintenance, which currently
take place Monday mornings between 12am and 3 am Pacific time).
d) Procedures for System Outages: CP will post a message in the event of a
-----------------------------
system outage, whenever possible. In the event of a User-affecting scheduled
outage (in which Users will not be able to access and use the Services) is
required, CP will send notification to Users via e-mail no less than forty eight
(48) hours in advance of the scheduled outage unless it is an emergency
requiring immediate attention.
2. Monitoring/Reporting
a) CP will prepare a monthly stewardship report that will track the
performance metrics stated in Section 1 of this Exhibit. In addition, upon
reasonable request by either party, the parties will meet on a regular basis to
discuss the stewardship report and its associated performance metrics.
b) CP will provide E*TRADE GROUP with monthly reports which document all
CP System outages or enhancements made during such month. Each report shall
have capacity planning information outlined [above] and include, at a minimum,
the following additional information:
Summary:
. CP System uptime (average server up time and actual daily up time)
. Average response
Confidential Page 17
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXECUTION COPY
. Actual daily response time detail
. Number of new User mailboxes
. Number of deleted User mailboxes
. Total number of User mailboxes
. Mean storage used for mailboxes
. Number of CP System outages
. CP System total downtime and average daily and monthly downtimes
Specific System Outage Report:
. Time of outage
. Length of outage
. Affected areas
. Reason for outage
. Long term remedy
. Person notified
Enhancement:
. Reason for change
. Areas affected
This information will be emailed to E*TRADE GROUP by the third working day
of the month following the reported month.
3. Escalation Procedures
a) CP will notify E*TRADE GROUP in the event of a system outage. CP will
notify E*TRADE GROUP within [**] minutes of the time that CP first learns of the
outage. CP will send an email notice whenever possible. In the event that
email is not working, or CP is otherwise unable to send an email message, then
CP will notify E*TRADE GROUP by telephone.
. E*TRADE GROUP email addresses: [**]
[**]
E*TRADE GROUP telephone number:
-------------------
b) Status information, if known by CP, to include:
reason for the outage; and
Estimated time for service restoration.
c) If E*TRADE GROUP experiences a system outage and has not been notified
by CP, E*TRADE GROUP will contact the Technical Support staff at CP by pager at
415/764-6203 (or such other telephone number as provided by CP) for the latest
status information.
d) Critical Path will periodically notify E*TRADE GROUP with updated
status for the duration of the outage.
Confidential
Page 18
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXECUTION COPY
e) Critical Path will provide a post-incident summary that will include:
cause of the problem;
method used to correct the problem; and
measures Critical Path will take to prevent similar occurrences
in the future.
4. Business Resumption
a) CP must prove the ability to switch processing from the primary server
to a hot backup server within 20 minutes. Testing of this procedure will be
conducted as requested by E*TRADE GROUP on a designated weekend by both CP and
E*TRADE GROUP personnel during CP's maintenance window [**]
b) Any modifications and/or network configuration changes (including
system maintenance) as well as upgrades and removal of devices that impact the
production and network connectivity need to be advised of by E*TRADE Group to CP
before they occur by designated/qualified personnel.
c) CP will perform an analysis that documents all of the single points of
failure in the CP network and system configuration. Such analysis will include
network components such as routers, hardware and software components.
d) Upon performing such an analysis, CP agrees to eliminate all the
single points of failure within the CP domain within 3 months from the date of
such analysis.
5. Revenue Impact Recoupment
a) As stated in Section 2 of this Exhibit, CP will prepare a monthly
Stewardship report that will track the performance metrics stated in Section 1
and the parties will meet on a regular basis to discuss such report and its
performance metrics.
b) If CP fails to meet one of the performance metrics, [**]
c) These penalties will be credited to the month's billing in which the
performance failure occurred.
d) Failure by CP to meet the performance objectives specified in Section
1 of this Exhibit for 3 consecutive months or [**] out of [**] consecutive
months shall constitute a breach of this Agreement, and E*TRADE GROUP will have
the right to terminate immediately after providing written notice to CP of such
intent.
Confidential
Page 19
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT C
---------
TERMS OF USE
------------
Please read the following agreement carefully.
You must accept the agreement to be able to use TABNet's services.
1. Acceptance of Terms of Use
TABNet's mail service is provided free of charge to registered users (each,
a "User") under these Terms of Use. BY COMPLETING THE REGISTRATION PROCESS AND
CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY
THESE TERMS OF USE. These Terms of Use are the entire agreement between you and
TABNet with respect to the services provided by TABNet.
2. Registration Information; Disclosure
User agrees that TABNet may disclose to third parties certain information,
in the aggregate, contained in users' registration applications, including
User's application. TABNet will not disclose Users name, address, e-mail address
or telephone number, without User's prior written consent, except to the extent
necessary or appropriate to comply with applicable laws or regulations or in
legal or administrative proceedings where such information is relevant. TABNet
reserves the right to terminate any User's account if TABNet learns that such
User has provided TABNet false or misleading registration information.
3. Modifications of these Terms of Use
TABNet may modify these Terms of Use from time to time in its sole
discretion. TABNet will provide User with reasonable notice of any such changes,
and User's continued use of TABNet's services will be deemed to constitute
User's acceptance of any such changes.
4. Modifications of TABNet Services
TABNet may modify or discontinue User's account or the TABNet services with
or without notice to User, without liability to User or any third party.
5. Contents of Messages
It is TABNet's policy to respect the privacy of its Users. TABNet does not
and cannot, monitor, censor or edit the contents of User's e-mail messages. User
alone is responsible for the contents of User's messages, and the consequences
of any such messages. User agrees that User will not use TABNet or its services
for chain letters, junk mail, "spamming", solicitations (commercial or non-
commercial) or any use of distribution lists to any person who has not given
specific permission to be included in such a process. User further agrees not to
use TABNet or its services to send any messages or material that are unlawful,
harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise
objectionable material of any kind or nature (including without limitation any
material that infringes or violates any third party's copyright, trademark, or
other proprietary or property right) or that encourages conduct that could
constitute a criminal offense, give rise to civil liability or otherwise violate
any applicable local, state,
20
national or international law or regulation. TABNet will only access and
disclose information as necessary to comply with applicable laws and government
requests, to provide the services, to operate or maintain its systems or to
protect itself or its suppliers.
TABNet reserves the right to terminate User's account if it becomes aware
and determines, in TABNet's sole discretion, that User is violating any of these
Terms of Use.
6. Account and Password
User is responsible for maintaining the confidentiality of its account
number and password. User shall be responsible for all uses of its account,
whether or not authorized by User. User agrees to immediately notify TABNet of
any unauthorized use of its account.
7. Disclaimer of Warranties
USER EXPRESSLY AGREES THAT USE OF TABNet SERVICES IS AT USER'S SOLE RISK.
TABNet SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
TABNet DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT.
TABNet DOES NOT MAKE ANY WARRANTY THAT TABNet SERVICES WILL MEET USER'S
REQUIREMENTS, OR THAT TABNet SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR FREE; NOR DOES TABNet MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM THE USE OF TABNet SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF
ANY INFORMATION OBTAINED THROUGH TABNet SERVICES.
USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF TABNet SERVICES IS AT USER'S OWN
DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH
MATERIAL AND/OR DATA.
TABNet DOES NOT MAKE ANY WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED
OR OBTAINED THROUGH TABNet SERVICES OR ANY TRANSACTIONS ENTERED INTO BY USE OF
OR THROUGH TABNet SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM
TABNet OR THROUGH TABNet SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE
HEREIN.
8. Limitation of Liability
TABNet AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING
21
FROM THE USE OR THE INABILITY TO USE TABNet SERVICES OR FOR THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR
SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO
BY MEANS OF OR THROUGH TABNet SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO
OR ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF TABNet OR
ITS SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. E-mail Message Storage
TABNet will not assume any responsibility for the deletion or failure to
store e-mail messages.
10. Promotional Messages
TABNet and/or third parties may, from time to time, send e-mail messages to
User containing advertisements, promotions, etc. Such e-mail messages will be
sent to mailbox(es) other than User's Inbox or mailboxes created by User. TABNet
does not make any representation or warranty with respect to any such e-mail
messages or any goods or services which may be obtained from such third parties,
and User agrees that TABNet shall have no liability with respect thereto.
11. Indemnification
User agrees to indemnify and hold TABNet its suppliers and their respective
affiliates, officers, directors, employees and agents, harmless from any claim,
action or demand, including reasonable attorneys' fees, made by any third party
due to, arising out of or related to User's use of TABNet services or the
violation of these Terms of Use by User, including without limitation the
infringement by User, or any other user of User's account, of any intellectual
property or other right of any person or entity.
12. Applicable Law
These Terms of Use shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to its conflict of
laws provisions.
13. Third Party Beneficiary
Critical Path, Inc., as a supplier of TABNet, shall be a third party
beneficiary of User's obligations under these Terms of Use and thus shall be
entitled to enforce those obligations against User as if a party to these Terms
of Use.
I ACCEPT/I DECLINE
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