EXHIBIT 10.13
PREMIUM PARTNER WEBSITE MARKETING AGREEMENT
This Agreement (the "Agreement") is entered into and effective as of July 1 1999
(the "Effective Date"), by and between MICROSOFT CORPORATION ("Microsoft"), a
Washington corporation located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-0000, and
E-STAMP CORPORATION, ("E-Stamp"), a Delaware corporation located at 0000 Xxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx XX 00000.
RECITALS
A. E-Stamp has developed technology approved by the United States Postal
Service for limited beta testing allowing consumers and businesses to
buy United States postage over the Internet and to print purchased
postage onto envelopes and other documents created with Microsoft
Office and other applications.
B. Microsoft maintains a Web site for Microsoft Office, the Microsoft
Office Update site, containing information and hyperlinks to goods and
services useful to consumers and businesses using Microsoft Office
applications.
C. E-Stamp wishes to be identified on the Microsoft Office Update Web site
as Microsoft's Premium online Postage Partner, and wishes for
Microsoft to display information about E-Stamp and its services on the
Office Update Web site, including placing hyperlinks from the Office
Update Web site back to E-Stamp's Web site.
NOW, THEREFORE; the parties agree as follows:
AGREEMENT
1. DEFINITIONS
1.1. "ACCOUNT MANAGER" means the individual assigned by each of the
parties to serve as that party's primary liaison with the other party
for purposes of administration of this Agreement during the Term of
Promotion.
1.2. "CONTENT" means any and all text, logos, artwork, graphics, pictures,
sounds, video, or other material, in any format whatsoever, supplied
by E-Stamp to Microsoft from time to time during the term of this
Agreement for purposes of promoting E-Stamp on the Office Site.
1.3. "E-STAMP COMPETITOR" means any business offering services pursuant to
the United States Postal Service's Information Based Indicia Program
(IBIP) for providing postage via the Internet or other Internet
postage-related services substantially similar to those provided by E-
Stamp.
1.4. "HOME PAGE" means the default Web Page displayed upon accessing
xxxx://XxxxxxXxxxxx.Xxxxxxxxx.xxx. or its functional equivalent.
1.5. "IMPRESSION" means the appearance of text, graphics, or other
material on an accessed Web Page.
1.6. "INTRODUCTORY PAGES" means the Web Pages created by Microsoft and
updated from time to time pursuant to this Agreement that are: (i) co-
branded with Microsoft and E-Stamp logos, (ii) contain certain
Content, (iii) the targets of Quicklinks and Promotions, and (iv)
contain prominent hyperlinks to the E-Stamp site on the World Wide Web
located at xxxx://xxx.x-xxxxx.xxx, or its functional replacement, all
as more fully described in Exhibit A.
1.7. "LOGS" means the appropriate logs from the Web server(s) on which the
Office Update Site are hosted indicating the number of Impressions of
the Quicklinks on the Home Page and Product Pages, the Promotion, and
the Services Page Listings delivered during a specified time period.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
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1.8. "OFFICE SITES" means the group of Web Sites within the Xxxxxxxxx.xxx
domain which showcase. market, and provide information about Microsoft
Office and its component applications, including, by way of example,
the Office Update Site.
1.9. "OFFICE UPDATE SITE" means the Web Site located at
xxxx://XxxxxxXxxxxx.Xxxxxxxxx.xxx or its functional replacement.
1.10."PRODUCT PAGES" means the Web Pages located on the Office Update
Site devoted to the software applications of which Microsoft Office is
composed, or their functional replacements, current examples of which
are welcomeWord.htm and welcomeExcel.htm.
1.11."PROMOTION" means the display and placement of certain Content, as
more fully described in Exhibit A.
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1.12."PROMOTIONAL IMPRESSION" means an Impression of a Promotion.
1.13."QUICKLINK IMPRESSION" means an Impression of a Quicklink delivered
from the Home Page or the Product Pages.
1.14."QUICKLINK" means the display and placement of hyperlinked text in a
certain region of a Web Page on the Office Update Site linking to an
Introductory Page, as more fully described in Exhibit A.
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1.15."SERVICES PAGE" means the Web page located at
xxxx://XxxxxxXxxxxx.Xxxxxxxxx.xxx/xxxxxxxx.xxx or its functional
replacement.
1.16."SERVICES PAGE LISTING" means the display and placement of
hyperlinked text in a certain region of the Services page, as more
fully described in Exhibit A.
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1.17."SERVICES PAGE LISTING IMPRESSION" means an Impression of a Services
Page Listing.
1.18."SPECIFICATIONS" means the specifications, mock-ups, and other
material attached as Exhibit A.
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1.19."TERM OF PROMOTION" means the period beginning on the date described
in Section
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2.1 and ending one (1) year thereafter, as may be renewed
pursuant to Section 9.1.
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1.20."WEB PAGE" means a document written in HTML or other industry
standard xxxx-up language made available via the Internet by server
software using HTTP to effect data transmission.
1.21."WEB SITE" means a collection of hyperlinked Web Pages.
2. MICROSOFT TO PROMOTE E-STAMP ON THE OFFICE UPDATE SITE
2.1. Commencement of Term of Promotion. The Term of Promotion shall
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commence on the later of (i) August 1, 1999; or (ii) thirty (30) days
following the date E-Stamp receives approval from the United States
Postal Service to participate in its Information Based Indicia Program
(IBIP) for providing postage via the Internet; provided, however, that
E-Stamp may waive such thirty-day period by providing Microsoft
written notice of its desire for the Term of Promotion to commence
earlier.
2.2. Promotion of E-Stamp. During the Term of Promotion, Microsoft shall
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promote E-Stamp by means of Quicklinks on the Home Page and the
Product Pages and any other Web Pages created by Microsoft on the
Office Sites that contain Quicklinks, and by means of Introductory
Pages, the Promotions, and the Services Page Listing created by
Microsoft, as described in the
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Specifications, and shall deliver the Impressions described in Exhibit
B. E-Stamp may request changes to the Specifications to maximize
click-through from time to time, and such requests shall be considered
by Microsoft's Account Manager in good faith. In promoting E-Stamp
during the Term of Promotion, Microsoft shall provide E-Stamp with
positioning and editorial content on the Office Sites more favorable
than that given to any E-Stamp Competitor. Without limiting the
foregoing, Microsoft shall allow E-Stamp to propose editorial content
and request editorial topics for the Office Update Site and shall not
post editorial content of any E-Stamp Competitor in an area of the
Office Update Site other than on pages similar to Introductory Pages
that Microsoft may provide to an E-Stamp Competitor.
2.3. Premium Partner Status. During the Term of Promotion, Microsoft shall
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(i) treat E-Stamp as a "Premium Partner" with respect to the Office
Update Site and (ii) not treat any E-Stamp Competitor as a "Premium
Partner" with respect to the Office Update Site. "Premium Partner"
status during the Term of Promotion shall be defined exclusively by
the provisions of this Section 2.3, as follows:
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2.3.1. Press Releases. Microsoft agrees that any mention of E-Stamp
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in press releases and customer communications will refer to E-
Stamp as a "Premium Partner."
2.3.2. Services Page. Microsoft shall provide E-Stamp with the
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prominent on-line postage position on the Services Pages in
accordance with the Specifications and Exhibit B, and shall not
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allow any E-Stamp Competitor to occupy the same on-line postage
position.
2.3.3. Product Pages. Microsoft shall provide E-Stamp with the
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Promotion areas indicated in the Specifications and shall provide
the Impressions of such Promotions described on Exhibit B.
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Further, Microsoft shall not sell to any E-Stamp Competitor more
than [***] percent [***] of eligible Impressions on the Product
Pages and shall not allow any E-Stamp Competitor to occupy the
large Promotion position on the Product Pages as indicated in the
Specifications.
2.3.4. Home Page. Microsoft shall provide E-Stamp with the largest
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promotional space (as measured in pixel area when displayed), the
small promotional space, and a Quicklink on the Home Page in
accordance with the Specifications and Exhibit B and shall not
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allow any E-Stamp Competitor to occupy any promotional spaces on
the Home Page or to have a Quicklink.
2.3.5. Enhanced Introductory Pages. Microsoft agrees that the
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Introductory Pages provided to E-Stamp hereunder shall include
greater function and/or depth than Introductory Pages provided to
any E-Stamp Competitor pages. At such time as E-Stamp develops a
wholly software-based solution for on-line postage, E-Stamp shall
be allowed to link, market, and otherwise mention that solution
as a part of the Content on the Introductory Pages. Microsoft and
E-Stamp agree to discuss in good faith the possibilities for
integration of E-Stamp's software-only Internet postage service
(HTML version) into the Office Update Site once such service is
available. Microsoft agrees to offer any opportunities covered in
the previous sentence to E-Stamp prior to offering them to any E-
Stamp Competitor.
2.3.6. Possible Enhancements to Office Update Site. If Microsoft
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decides to include on the Office Update Site a Web Page or Pages
containing standard postage information ("Postage Information
Page(s)"), including by way of example postage rate information,
shipping zones, and zip code look-up functionality, and if
Microsoft further decides not to create the Postage Information
Page(s) itself, it will offer E-Stamp the opportunity to create
such co-branded Postage Information Page(s) before offering the
opportunity to any E-Stamp Competitor. Microsoft retains complete
discretion over whether to include Postage Information Page(s) on
the Office Update Sites, and, if so, whether to create the
Postage Information Page(s) itself. If Microsoft decides to
include an "Office Services"
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
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pull-down menu on the Home Page in accordance with the
Specifications, Microsoft shall include E-Stamp on such menu.
2.3.7. Additional Opportunities. If Microsoft decides to provide to
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an E-Stamp Competitor or other businesses which it deems "Premium
Partners" on the Office Update Site other benefits regarding the
Office Update Site, Microsoft shall offer such benefits to E-
Stamp as well on similar terms.
2.4. Provision of Content; Links; Most Favored Customer. In order to
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facilitate Microsoft's promotion of E-Stamp as provided in Section
2.2, E-Stamp shall provide the Content to Microsoft and shall
supplement and update the Content from time to time as requested by
Microsoft or as submitted by E-Stamp. Subject to the placement
required by Section 2.3 and the Specifications, all Content shall be
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subject to approval by Microsoft prior to inclusion in any Office
Site, and the inclusion, placement, type and position of Content,
hyperlinks, and other material or elements of any type whatsoever on
the Office Sites shall be at Microsoft's reasonable discretion to
promptly accept or reject. During the Term of Promotion, E-Stamp shall
use reasonable efforts to ensure that all URLs to which Microsoft
provides a hyperlink are functional and accessible at all times.
Microsoft may test E-Stamp's URLs, and in Microsoft's reasonable
discretion may remove any hyperlink that fails to comply with the
requirements of this Section 2.4. Microsoft will make commercially
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reasonable attempts to notify E-Stamp of any broken hyperlinks and
allow E-Stamp the opportunity to correct the broken hyperlinks before
removing them from the Office Sites. E-Stamp shall further ensure
that, during the term of this Agreement, E-Stamp will offer to
Microsoft customers using E-Stamp customer benefits equal to or better
than that which E-Stamp provides to other similarly situated customers
of other of its other similarly situated online partners. Without
limiting the foregoing, if E-Stamp offers any promotional or special
offers through any other similar distribution channels, E-Stamp will
offer similar services via the Office Update Site (the "Special
Offers"). Any Special Offers made available by E-Stamp will be no less
favorable, in any respect, than any special offers funded solely by E-
Stamp through any other online distribution channels.
2.5. Control of Web Sites. Microsoft retains sole right and control over
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the programming, content and conduct of the Office Sites. E-Stamp
acknowledges that Microsoft, in its discretion, periodically may make
changes to the organization, content, design, and features of the
Office Sites. Nothing in this Agreement shall prohibit such changes;
nor shall any such changes relieve E-Stamp from its payment
obligations under Section 5 of this Agreement; provided, however,
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Microsoft shall provide E-Stamp with advance notice of any change that
is, in Microsoft's reasonable discretion, likely to have a material
and adverse impact on the promotion of E-Stamp via any Office Site. In
the event of such changes, Microsoft shall substitute Web Pages
substantially similar to those that were affected by the change and
continue to deliver the Impressions listed on Exhibit B.
2.6. Logs: On-Line Access. Microsoft shall provide weekly reports to E-
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Stamp based on the Logs in the standard format customarily provided to
other businesses receiving similar promotion on the Office Sites.
Microsoft shall provide E-Stamp with a URL address and password to
gain access to an on-line Log reporting site operated by Microsoft.
Microsoft shall use commercially reasonable efforts to have the on-
line Log reporting site updated at the end of every business day with
respect to the prior business day's information, and to provide E-
Stamp with 24-hour-per-day and 7-day-per-week access to this reporting
site. The information available through the on-line reporting shall be
for preliminary reference purposes only and subject to amendment by
the reports delivered under this Section 2.6.
2.7. Account Managers. Each party shall appoint an Account Manager whose
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responsibilities shall include monitoring the performance of
obligations under this Agreement. The parties' Account Managers shall
have regular communications to review each others' respective
performance under this Agreement, and to discuss any proposed changes
to Content, Web Pages, and Promotions that are the subject of this
Agreement.
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2.8. Impression Shortfall or Overage. Within ten (10) days of the last day
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of each quarter during the Term of Promotion, Microsoft shall provide
to E-Stamp a full report of the total number of Impressions (separated
to show Quicklink Impressions and Service Listing Impressions)
delivered by Microsoft to E-Stamp during such quarter.
2.8.1. Shortfall. If during any month during the term of this
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Agreement. Microsoft does not provide the total number of
Impressions set forth on Exhibit B in Sections B.1 and B.2, then
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Microsoft shall, during the next month, deliver the required
total number of Impressions set forth in Sections B.1 and B.2,
plus the difference between the total number of Impressions in
Sections B.1 and B.2 and the number of Impressions delivered in
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the month giving rise to the shortfall. If the total number of
Impressions delivered in any quarter is less than [***] then
Microsoft shall provide E-Stamp with a pro rata reimbursement for
fees paid for those Impressions not delivered.
2.8.2. Overage. Alternatively, if during any month during the term of
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this Agreement the total number of Quicklink Impressions and
Service Listing Impressions is greater than [***], E-Stamp
shall pay to Microsoft an additional US$[***] (the "Overage
Fee"). Microsoft shall provide E-Stamp with an invoice for all
Overage Fees on a quarterly basis. Along with such invoice,
Microsoft shall provide a report containing a description of the
Overage Fees incurred during that quarter. Any Overage Fee shall
be due within thirty (30) days of issuance of the invoice for
such Overage Fee.
2.9. Purchase of Additional Promotional Impressions. If at any time during
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the term of this Agreement, Microsoft has an opportunity on the Home
Page or Product Pages, or on other Web Pages within the Office Update
Site, to make available additional Promotional Impressions, or
additional Quicklinks, Microsoft agrees that E-Stamp shall be offered
the right to purchase those Impressions or Quicklinks before any right
of purchase is offered to any E-Stamp Competitor; provided, however,
that E-Stamp's right to purchase under this Section 2.9 shall not
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allow E-Stamp to purchase more than [***] percent ([***])% of total
Promotion Impressions for these pages.
3. LICENSE GRANTS
3.1. To the extent Content contains or constitutes a trademark, service
xxxx, or other similar intellectual property (a "Xxxx"), E-Stamp
hereby grants to Microsoft a non-exclusive, non-transferable, royalty-
free, worldwide right and license to use and display such Xxxx solely
for purposes of inclusion of such Xxxx on the Office Sites to carry
out the intentions of this Agreement.
3.2. To the extent that Content contains or constitutes copyrightable or
copyrighted material, E-Stamp further hereby grants Microsoft a non-
exclusive, non-transferable, royalty-free, worldwide right and license
to use, copy, publicly perform, reformat, convert, display, and
transmit any such Content provided by E-Stamp solely for purposes of
inclusion of such Content on the Office Sites to carry out the
intentions of this Agreement. In carrying out its obligations under
this Agreement, Microsoft shall use the Marks and the Content solely
in the manner approved by E-Stamp.
4. OWNERSHIP
4.1. Except as licensed to Microsoft under the terms of this Agreement, E-
Stamp retains all right, title, and interest in and to the Content and
the Marks. Microsoft retains all right, title, and interest in and to
the Office Websites and any portion thereof, excluding the Content.
Individual customer information collected by either party on its
respective Web Sites shall be the sole property of such party and
shall not be used by the other party for any reason.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
5
5. PAYMENT TERMS
5.1. E-Stamp shall pay to Microsoft US$[***] as follows: E-Stamp shall
pay to Microsoft US$[***] within [***] of the commencement of the Term
of Promotion, shall pay to Microsoft US$[***] on or before [***]
following the commencement of the Term of Promotion; shall pay to
Microsoft US$[***] on or before [***] following the commencement of
the Term of Promotion; and shall pay to Microsoft US$[***] on or
before [***] following the commencement of the Term of Promotion.
6. CONFIDENTIALITY
6.1. Each party shall keep confidential and not disclose to any third
party the terms of this Agreement and all non-public information,
know-how and materials (collectively, "Confidential Information")
provided by one party to the other pursuant to this Agreement;
provided, however, that either party may disclose the terms of this
Agreement (i) in confidence to its immediate legal and financial
consultants and advisors as required in the ordinary course of such
party's business, or (ii) as necessary to comply with applicable law
or stock exchange rules, pursuant to the good faith advice of legal
counsel (provided that with respect to disclosures to be made in a
court or regulatory proceeding, the disclosing party shall give notice
of such process or requirement and give the other party the
opportunity to file for a protective order). Each party agrees to use
any Confidential Information provided to it only in its performance
hereunder.
6.2. All tangible materials containing Confidential Information
("Confidential Materials"), including without limitation documents,
tapes, computer disks and other fixed storage devices (whether or not
machine or user readable), are the property of the party making
disclosure of the Confidential Information contained therein. Upon
expiration or earlier termination of this Agreement, Confidential
Materials (and all copies thereof) belonging to one party in the other
party's possession must be returned or destroyed, at the option of its
owner. If Confidential Materials are destroyed, a certificate of
destruction must be provided promptly upon request to their owner.
7. WARRANTIES
7.1. E-Stamp Warranties. E-Stamp represents, warrants, and covenants that:
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7.1.1. E-Stamp has the power and authority to enter into and perform
its obligations under this Agreement; and,
7.1.2. The Content provided by E-Stamp hereunder is provided in
compliance with applicable laws and shall not infringe the
copyrights, trademarks, service marks or any other proprietary
right of any third party.
7.2. Microsoft Warranties. Microsoft represents, warrants, and covenants
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that:
7.2.1. Microsoft has the power and authority to enter into and
perform its obligations under this Agreement; and,
7.2.2. The Office Sites provided by Microsoft hereunder are provided
in compliance with applicable laws and shall not infringe the
copyrights, trademarks, service marks or any other proprietary
right of any third party.
8. INDEMNITY
8.1. Indemnification by E-Stamp. E-Stamp agrees to indemnify, defend, and
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hold Microsoft and Microsoft's affiliates, successors, officers,
directors and employees harmless from any and all actions, causes of
action, claims, demands, costs, liabilities, expenses (including
reasonable
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
6
attorneys' fees) and damages arising out of or in connection with any
claim made by a third party which, if true, would be a breach by E-
Stamp of its obligations under Section 7 or of any warranty set forth
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in this Agreement. E-Stamp may request that any or all allegedly
infringing Content be removed from the Office Sites at its sole
discretion, and, upon receipt of such request, Microsoft shall use
commercially reasonable efforts to remove such Content as soon as
possible.
8.2. Indemnification by Microsoft. Microsoft agrees to indemnify, defend,
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and hold E-Stamp and E-Stamp's successors, officers, directors and
employees harmless from any and all actions, causes of action, claims,
demands, costs, liabilities, expenses (including reasonable attorneys'
fees) and damages arising out of or in connection with any claim made
by a third party which, if true, would be a breach by Microsoft of its
obligations under Section 7 or of any warranty set forth in this
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Agreement.
8.3. Mechanics of Indemnification: Removal of Alleged Infringing Content.
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In connection with any claim or action described in this Section 8,
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the party seeking indemnification (i) shall give the indemnifying
party prompt written notice of the claim, (ii) shall cooperate with
the indemnifying party (at the indemnifying party's expense) in
connection with the defense and settlement of the claim, and (iii)
shall permit the indemnifying party to control the defense and
settlement of the claim, provided that the indemnifying party may not
settle the claim without the indemnified party's prior written consent
(which shall not be unreasonably withheld). Further, the indemnified
party (at its cost) may participate in the defense and settlement of
the claim. In the event that Microsoft receives a claim of
infringement alleging a breach of E-Stamp's obligations under Section
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7, Microsoft may, in addition to any other remedies provided for
-
herein, immediately remove any or all allegedly infringing Content
from the Office Sites or any other Microsoft site at its sole
discretion, pending receipt from E-Stamp of a non-infringing
replacement link or satisfactory resolution of the claim. Any such
removal shall not constitute a breach of this Agreement.
9. TERM AND TERMINATION
9.1. Term. The term of this Agreement shall commence as of the Effective
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Date and shall remain in effect until the end of the Term of
Promotion, at which point the Agreement shall automatically renew,
subject to the agreement of the parties on modified payment terms and
number of Impressions. Microsoft agrees to negotiate in good faith
with E-Stamp to effect such renewal prior to negotiating with any E-
Stamp Competitor or any other third party for the provision of similar
services.
9.2. Termination without Cause. At any time ninety (90) days after the
Effective Date or later, either party may notify the other of its
intent to terminate this Agreement in such party's sole discretion
(i.e., for convenience). The effective date of such termination shall
be the date that is sixty (60) days from the date that the non-
terminating party receives written notice of termination from the
terminating party in accordance with the provisions of Section 11.1.
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9.3. Termination for Cause. Either party may suspend performance and/or
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terminate this Agreement immediately upon written notice at any time
in the event of an assignment pursuant to Section 11.6.1, or if the
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other party is in material breach of any material warranty, term,
condition or covenant of this Agreement, and fails to cure that breach
within thirty (30) days after written notice thereof.
9.4. Effect of Termination. Neither party shall be liable to the other for
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damages of any sort resulting solely from terminating this Agreement
in accordance with its terms; provided, however, that (a) if E-Stamp
terminates under Section 9.3 for a material breach by Microsoft of the
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Agreement, or (b) if Microsoft terminates under Section 9.2, or (c) if
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Microsoft terminates under Section 9.3 because of an assignment by E-
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Stamp as described in Section 11.6.1, E-Stamp shall be entitled to a
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pro rata reimbursement of fees paid to Microsoft hereunder. Except as
provided in this Section 9.4,
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Section 2.8.1 or Section 11.6.1, E-Stamp shall not be entitled to any
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reimbursement of fees paid or any reduction in fees owed to Microsoft.
The parties agree that any portion of fees paid to Microsoft that
Microsoft retains pursuant to the previous sentence is fair and
reasonable in connection with the transactions contemplated in this
Agreement, and that actual damages in such case would be difficult, if
not impossible, to assess. Termination of this Agreement shall not
affect any other agreement between the parties, nor shall it affect
the obligation of E-Stamp to pay Microsoft any amounts that become due
on or before the effective date of termination.
10. LIMITATION OF LIABILITIES
00.0.XX NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL.
INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER,
INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS.
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE,
ARISING OUT OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH
OF WARRANTY AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
11. GENERAL PROVISIONS
11.1.Notices. All notices and requests in connection with this Agreement
shall be deemed given as of the date they are received either by
messenger, delivery service, or in the United States of America mails,
postage prepaid, certified or registered, return receipt requested,
and addressed as follows:
TO E-STAMP: TO MICROSOFT:
E-Stamp Microsoft Corporation
0000 Xxxxxx Xxxxx, Xxx. 000 One Microsoft Way
San Mateo, CA 94403 Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx, President & CEO Attention: Group Manager - Office Update
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Copy to: Legal Copy to: Legal
or to such other address as a party may designate pursuant to this
notice provision.
00.0.Xxxxx Releases. The parties agree to issue a press release concerning
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their relationship within ten (10) days of the Effective Date. The
content of this press release shall be mutually agreed upon by the
parties prior to release. Neither party shall issue any press release
or make any public announcement relating in any way whatsoever to this
Agreement or the relationship established by this Agreement without
the express prior written consent of the other party, which consent
shall not be unreasonably withheld.
11.3.Independent Parties. Nothing in this Agreement shall be construed as
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creating an employer-employee relationship, a partnership, or a joint
venture between the parties. All persons employed by a party hereto in
the performance of services hereunder shall be under the sole and
exclusive direction and control of such party, and for no purpose
shall they be considered the employees of the other party. Each party
shall remain an independent contractor and shall be responsible for
and shall promptly pay all federal, state and local taxes, chargeable
or assessed with respect to its employees, including but not limited
to social security, unemployment, federal and state withholding, and
all other assessed taxes.
11.4.Governing Law. The laws of the State of Washington shall govern this
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Agreement. Each party hereto shall comply, during the Term and at its
own expense, with all applicable federal, state and
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local laws, rules and regulations which may be applicable to such
party. Venue shall be exclusively in King County, Washington.
11.5.Attorneys' Fees. In any action or suit to enforce any right or remedy
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under this Agreement or to interpret any provision of this Agreement,
the prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees.
11.6.Assignment. This Agreement shall be binding upon and inure to the
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benefit of each party's respective successors and lawful assigns;
provided, however, that neither party may assign its rights under this
Agreement, in whole or in part, to any third party without the prior
written approval of the other party. The parties acknowledge that an
initial public offering of stock by E-Stamp shall not constitute an
assignment under this Section 11.6.
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11.6.1. Either party may, however, assign this Agreement (a) by
operation of law through a merger or consolidation, or (b)
to the purchaser of all or substantially all of such party's
business or assets to which this Agreement relates, and may
assign this Agreement to one of its majority-owned or
controlled subsidiaries if such subsidiary agrees in writing
to be bound hereby; provided, however, that in the event of
such assignment by E-Stamp under this Section 11.6.1 (y) E-
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Stamp shall remain liable for all of its obligations
hereunder notwithstanding the foregoing and (z) Microsoft
shall have the right to terminate this Agreement with cause
under Section 9.3.
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11.7.Force Majeure. Neither party shall be liable to the other under this
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Agreement for any delay or failure to perform its obligations under
this Agreement if such delay or failure arises from any cause(s)
beyond such party's reasonable control, including by way of example
labor disputes, strikes, acts of nature, floods, fire, lightning,
utility or communications failures, earthquakes, vandalism, war, acts
of terrorism, riots, insurrections, embargoes, or laws, regulations or
orders of any governmental entity. Notwithstanding the foregoing, the
parties shall exercise due diligence to resume performance hereunder
as soon as commercially possible.
00.0.Xxxxxxxxxxxx. If for any reason a court of competent jurisdiction
------------
finds any of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement shall be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the
remainder of this Agreement shall continue in full force and effect.
Failure by either party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any
other provision. The parties and their respective counsel have
negotiated this Agreement.
11.9.Headings. The headings used in this Agreement shall be for the
--------
convenience of the parties only and shall not be considered in
interpreting or applying the provisions of this Agreement.
11.10. Additional Documents. The parties agree to execute such additional
--------------------
documents as may be necessary or desirable for the other party to
enforce its rights hereunder or otherwise to effectuate the purposes
of this Agreement.
11.11. Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall
constitute one instrument.
11.12. Entire Agreement. This Agreement shall not be effective until
----------------
signed by both parties. This Agreement, including the Exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and merges all prior and contemporaneous
communications. In the event of any inconsistencies between the
Agreement and the Exhibits attached hereto, the Agreement shall
control. This Agreement may not be modified except by a written
agreement signed on behalf of E-Stamp and Microsoft by their
respective duly authorized representatives.
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
duly authorized representatives as of the dates written below.
MICROSOFT CORPORATION E-STAMP, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
Name (print): Xxxx Xxxxx Name (print): XXXXXX X. XXXXX
Title: Director Title: PRES. & CEO
Date: 7/14/98 Date: 7/8/99
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EXHIBIT A
SPECIFICATIONS
Home Page and Product Pages
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The site home page is expected to be substantially similar to the following
mock-up:
[CHART OMITTED]
The large and small promotional areas, and the quicklinks area on the home page
are indicated above.
The Product Pages will follow the same basic layout, and have the same
promotional and quicklink areas.
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Services Page
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The Services Page is expected to be substantially similar to the following mock-
up:
[CHART OMITTED]
The Services Page Listing is indicated above.
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EXHIBIT B
IMPRESSIONS
B.1. IMPRESSIONS OF QUICKLINKS AND PROMOTIONS
B.1.1. [***] Impressions per month delivered from the Home Page, the
Product Pages, or any combination of these pages. As part of this
[***] Impressions, Microsoft shall provide:
B.1.1.1. [***] QuickLink Impressions per month delivered
from the Home Page, the Product Pages, or any
combination of these pages.
B.1.1.2. [***] Promotion Impressions per month delivered from
the Home Page.
B.1.1.3. [***] Promotion Impressions per month delivered from
the Product Pages.
B.2. IMPRESSIONS OF SERVICES LISTINGS
B.2.1. [***] Impressions per month delivered from the Services Page.
[***] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been omitted and
filed separately with the Securities and Exchange Commission.
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