1
CONFIDENTIAL TREATMENT REQUESTED
NETSCAPE COMMUNICATIONS CORPORATION
U.S. ENGLISH-LANGUAGE NET SEARCH PROGRAM
PREMIER PROVIDER SERVICES AGREEMENT
OBJECTIVE: To direct users of a Netscape client software Internet browser
product (including the Netscape Navigator 2.x and subsequent versions of
Netscape client software) ("BROWSER") to U.S. English-language Internet search
and directory services.
TERMS AND CONDITIONS:
1. PREMIER PROVIDER. The entity ("PREMIER PROVIDER") named on the signature page
to this agreement ("AGREEMENT") will be a premier search and directory service
for the U.S. English-language HTML page accessible by the public via the
Internet at the Universal Resource Locator ("URL")
xxxx://xxxx.xxxxxxxx.xxx/xxxx/xxxxxxxx-xxxxxx, or such other URL as Netscape may
designate from time to time in writing (the "PAGE"). The Page is part of the
collection of U.S. English-language HTML documents accessible by the public via
the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx and/or at such other URL or
URL's as Netscape may designate ("NETSCAPE'S U.S. ENGLISH-LANGUAGE WEB SITE").
The Page may also be accessed by Internet users of the Netscape-distributed
English-language version of the Browser by pressing or "clicking" on the Net
Search Button, by visiting the Page by way of a bookmark pre-loaded in certain
versions of the Browser toolbar as described herein, or such other methods as
Netscape may specify from time to time. Notwithstanding the foregoing, Netscape
reserves the right to determine other means whereby users may access pages which
provide Internet search and directory services on Netscape's U.S.
English-language Web Site including, but not limited to, through the use of
mirror sites and pointers based on a user's IP address, and which pages are
separate and distinct from the Page described in this Agreement.
2. PREMIER PERIOD. Netscape will maintain the Premier Graphic, as defined
below, on the Page for the following one-year period ("PREMIER PERIOD"):
From: May 1, 1997
Until: April 30, 1998
3. SERVICES PROVIDED BY NETSCAPE.
3.1. Premier Graphic. The Premier Provider will supply Netscape with
HTML and/or GIF files, or files of such other format as may be designated from
time to time in writing by Netscape, which conform to the specifications in
Exhibit A ("PREMIER GRAPHIC") which Netscape will place on the Page during the
Premier Period. Premier Provider shall retain all right, title and interest in
and to the Premier Graphic (including the copyright ownership thereof), and
Premier Provider hereby grants Netscape a royalty-free worldwide license,
without payment or other charge therefor, to use, display, perform, reproduce
and distribute the Premier Graphic, and such other licenses with respect to the
Premier Graphic necessary to fulfill the intention of this Agreement. The
Premier Graphic shall contain a functional search field and, if available,
directory tree. The specifications of the Premier Graphic and its placement on
the Page are set forth on Exhibit A hereto, and Premier Provider's compliance
with the content as well as the technical, visual and functional specifications
set forth in Exhibit A are a material obligation of Premier Provider under this
Agreement. Netscape may, upon notice to Premier Provider, revise Exhibit A,
provided that the Premier Graphics for each of the participants in this U.S.
English-language Net Search Program -- Premier Provider shall remain the largest
and most prominent category of search graphics on the Page, shall remain
equivalent in size for each of the Premier
2
Providers, and shall not differ substantially, including, without limitation,
any reduction in the size of the Premier Graphic, from the current
specifications for the Premier Graphics set forth in Exhibit A.
3.2. Stack. Netscape will produce the Page as set forth on Exhibit A.
The Premier Graphic of each of the services appearing in the Premier Provider
category will appear to be overlapped in a stack (the "STACK"). A Premier
Graphic will be accessible by the end user by pressing or "clicking" on a tab
for the relevant Premier Provider's service. Netscape will produce the Page such
that when an end user presses or "clicks" on hypertext links ("PREMIER LINKS")
placed by Premier Provider on the Premier Graphic, the end user's Browser will
access Premier Provider's applicable HTML pages located at the applicable URL's
("PREMIER URL'S") for such pages on the collection of English-language HTML
documents Premier Provider maintains as its primary web site whose home page is
located at the URL xxxx://xxx.xxxxxx.xxx ("PREMIER PROVIDER'S WEB SITE").
3.3. Rotation. Netscape will rotate the display of Premier Graphics
which will appear on the top of the Stack when the Page is served to an end user
who has not selected a Premier Graphic as a default, as described in Section
3.4. Subject to the provisions of Section 3.4, Premier Provider's Premier
Graphic will appear on the top of the Stack [***********] ("ROTATION
PERCENTAGE") of the time in which the Page is served up to end users who have
not selected a particular Premier Graphic or selected a default Premier Graphic
when accessing the Page. Premier Provider acknowledges that the above-stated
rotation percentage is an annualized target. Netscape shall use reasonable
commercial efforts to serve up the Premier Graphic at such rotation frequency
with a [************************************] throughout the Premier Period.
3.4. End User Default. Netscape shall produce the Page such that the end
user may select which Premier Graphic, or the premier graphic supplied by
certain marquee providers participating in the Net Search Program, the end user
would prefer to have served on the top of the Stack. If an end user selects a
default Premier Graphic, the Premier Graphic selected by the end user will be
served on top of the Stack when that end user accesses the Page. If an end user
has elected to have a particular Premier Graphic appear on top of the Stack on a
default basis, the other Premier Graphics will not appear on the top of the
Stack unless selected by the end user.
3.5. Alphabetical Listing. Premier Provider will supply Netscape with
text describing Premier Provider's search service ("Alphabetical Text"), which
shall be no more than fifty (50) words in length and which Alphabetical Text
Netscape may edit in Netscape's sole discretion. (The Alphabetical Text together
with Premier Provider's name are collectively referred to herein as the
"ALPHABETICAL LISTING"). During the Premier Period, Netscape will place the
Alphabetical Listing on an HTML page linked to the Page and which linked HTML
page lists Internet search services (the "ALPHA PAGE"). Netscape will produce
the Alpha Page such that when an end user presses or clicks on a link
("ALPHABETICAL LINK") embedded in the Alphabetical Listing, the end user's
Browser will access Premier Provider's applicable HTML page located at the
applicable URL for such page on Premier Provider's Web Site ("ALPHABETICAL
URL"). Premier Provider hereby grants Netscape a worldwide license to use,
display, perform, reproduce and distribute the Alphabetical Listing,
Alphabetical Link and Alphabetical URL and such other licenses with respect to
the Alphabetical Listing, Alphabetical Link and Alphabetical URL necessary to
fulfill the intention of this Agreement.
3.6. Page Specifications. The specifications of the Premier Graphic, the
Stack, the Alphabetical Listing and their placement on the Page and Alpha Page
are set forth on Exhibit A hereto; provided however, that Netscape may, within
reasonable limits and upon notice to Premier Provider, (i) change the location
of the Stack on the Page, the Premier Graphic or the Alphabetical Listing on the
Page or Alpha Page, (ii) redesign or reconfigure the Stack, the Page, the Alpha
Page, Netscape's U.S. English-language Web Site, and/or the manner in which an
end user interacts with any of the pages of Netscape's U.S. English-language Web
Site, or (iii) revise
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
2
3
Exhibit A, with the changes described in (i), (ii) and (iii) of this sentence to
apply to all Premier Providers equally, and Premier Provider shall promptly, and
in any event, within no more than thirty (30) days following receipt of the
notice, supply Netscape with a revised Premier Graphic and Alphabetical Listing
which conform to the specifications of the revised Exhibit A. In the event that
Netscape revises Exhibit A and Premier Provider must supply conforming
materials, such conforming materials shall be received by Netscape and fully
functional within five (5) days (excluding holidays) prior to the revised
Premier Graphic, Stack or Alphabetical Listing being posted on Netscape's U.S.
English-language Web Site. If Netscape has not received such revised and
conforming materials within such five (5) day time period described above, or if
the materials supplied by Premier Provider do not function in accordance with
the specifications set by Netscape, then Netscape shall either (i) post previous
versions of Premier Provider's supplied materials, or (ii) make such changes as
necessary to bring the materials into conformity with the new specifications,
until such time as the specifications of Exhibit A are again revised. The
schedule of planned updates for the Page are set forth in Exhibit E, as such
Exhibit E may be revised from time to time.
3.7. Update of Premier Graphic. Premier Provider may elect to revise or
update its Premier Graphic, provided that such Premier Graphic complies with the
specifications of Exhibit A. Netscape shall provide Premier Provider with a
schedule of material due dates and planned Page updates.
3.8. Emergency Engineering Support. Netscape will provide, free of
charge, up to an aggregate of one (1) hour per month of emergency engineering
support services time per update to help Premier Provider service any newly
revised Premier Graphic(s) so that the Premier Graphic complies with the new
specifications. Netscape will use reasonable commercial efforts promptly to
remedy any material malfunctioning of the tabbing mechanism for the Premier
Graphics, any material misplacement of the Alphabetical Listing or any material
malfunctioning of the Premier Links or Alphabetical Link under the control of
Netscape, provided Premier Provider will fully cooperate with Netscape to remedy
any such material malfunctioning or misplacement, and provided further that
Netscape shall not incur liability for any failure to remedy such material
malfunctioning or misplacement if such remedy is not within the reasonable
control of Netscape. Premier Provider may report malfunctions to Netscape at the
email address xxxxxxxx@xxxxxxxx.xxx. Notwithstanding the foregoing, Netscape has
no obligation to perform services in connection with malfunctions resulting from
software not supplied by Netscape.
4. ADDITIONAL PREMIER PROVIDER BENEFITS.
4.1. Advertising Services. During the Premier Period, Netscape will
provide Premier Provider with total advertising services valued at the level set
forth in Section 7.1(i). During the Premier Period, Premier Provider may
purchase additional advertising on Netscape's U.S. English-language Web Site for
advertising that will run during the Premier Period for the service of Premier
Provider at a discount of [**********] off Netscape's then standard rates for
such advertising. Premier Provider shall execute Netscape's Sponsorship
Agreement, a copy of which is attached as Exhibit C, with respect to postings of
Premier Provider's advertisement ("PREMIER PROVIDER'S ADVERTISEMENT"). Premier
Provider and Netscape shall mutually agree to the schedule and the placement of
Premier Provider's Advertisement on Netscape's U.S. English-language Web Site.
Premier Provider shall supply Netscape with the graphic files and other
materials and information within the timeframes and as set forth in the
specifications of the applicable Netscape advertising program and as reasonably
requested by Netscape to produce the Premier Provider's Advertisement. Premier
Provider's Advertisement shall not contain any Internet search functionality as
such Premier Provider's Advertisement is served to end users.
4.2. Limit on Premier Providers. Netscape shall limit the number
of companies whose tabs appear on the Stack at any one time to a total of five
(5) entities.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
3
4
4.3. Preset Bookmark. Netscape shall include a graphic HTML link to
Premier Provider's URL ("PREMIER PROVIDER'S BOOKMARK") in the bookmark section
of the Netscape Communicator client software versions 4.x. Premier Provider
hereby acknowledges that Premier Provider's Bookmark, although preset in the
shipping version of the Netscape Communicator 4.x distributed by Netscape, may
be reconfigured, customized or deleted by an end user. Should a user upgrade
their version of the Communicator, the bookmarks which the user has loaded at
the time of the upgrade will be carried forward and installed as part of the
upgraded Communicator software.
4.4. Infoblock. Premier Provider shall be accorded consideration for
the possible inclusion of Premier Provider's service as a default "Infoblock",
or similar opportunity, in Netscape's Constellation client software, subject to
terms and conditions as Netscape may determine in its sole discretion.
5. EXPOSURE GUARANTEE
5.1. Occurrence of Exposures. An exposure ("EXPOSURE") occurs upon the
serving up to an end user of: (i) Premier Provider's Premier Graphic on the top
of the Stack, (ii) Premier Provider's Web Site in conjunction with a search
query executed by an end user through entering the search terms in the URL
window of the Browser, (iii) Premier Provider's Web Site as a result of an end
user clicking on a link (excluding Premier Links) to Premier Provider's Web Site
on Netscape's U.S. English-language Web Site, (iv) the page on Premier
Provider's Web Site linked to Premier Provider's Bookmark (the "BOOKMARKED
PAGE") in conjunction with the program described in this Agreement, (v) Premier
Provider's Web Site as a result of an end user clicking on or performing a
search through a Disabling Device (as defined below), or (vi) other Premier
Provider content as a consequence of an end user accessing a promotional page on
Netscape's U.S. English-language Web Site if the parties agree that such
promotional page traffic shall constitute an Exposure. The Premier Graphic may
be served on the top of the Stack to an end user by the following means: (i) the
Premier Graphic appears as part of the Stack rotation, as described in Section
3.3, (ii) the Premier Graphic has been set as an end user's default selection,
as described in Section 3.4, and (iii) an end user selects or clicks on the
Premier Graphic tab in the Stack.
5.2. Minimum Guaranteed Exposures. Netscape a total of
[******************************] Exposures (such number of Exposures being
referred to as the "MINIMUM GUARANTEED EXPOSURES") during the Premier Period.
5.3. Make-Good. If, at the end of the Premier Period, Premier
Provider's content has not, in the aggregate, received total Exposures equal to
or greater than the Minimum Guaranteed Exposures, and provided that Premier
Provider has complied with its obligations hereunder, Netscape will:
[*******************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*************************************************************].
5.4.
[***********************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*************************************************************************]
4
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
5
6. PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations set forth
herein, Premier Provider shall:
6.1. Netscape Now. Display the "Netscape Now" button
[****************************] of Premier Provider's [***********] on Premier
Provider's Web Site, on any
[***********************************************************************], and
use best efforts to include the following statement (or a statement designated
by Netscape and generally used by Netscape as a successor to the following
statement or in connection with any successor program to Netscape's Netscape Now
program) next to the Netscape Now button: "This site is best viewed with
Netscape Navigator 3.0. Download Netscape Now!" (or such higher non-beta version
as is then available). Premier Provider will produce the page such that when an
end user presses or clicks on the Netscape Now button (or such other button used
in connection with any successor program to the Netscape Now program), the end
user's Internet client software will access the applicable HTML page located at
a URL supplied by Netscape. On any page on which the Netscape Now button, or a
successor button, is displayed, the Netscape Now button shall be
[***********************************] and
[*****************************************] than the virtual button or other
graphic
[**********************************************************************].
Premier Provider shall use reasonable commercial efforts promptly to remedy any
misplacement of the Netscape Now button on its home page or other pages or any
malfunctioning of the button, provided Netscape will fully cooperate with
Premier Provider to remedy any such misplacement or malfunctioning, and provided
further that Premier Provider shall not incur liability for any failure to
remedy such misplacement or malfunctioning if such remedy is not within the
reasonable control of Premier Provider. In the event that Netscape replaces the
Netscape Now program with a successor program, Netscape shall advise Premier
Provider and Premier Provider shall produce the page to conform to such
successor program, provided Premier Provider's obligations under such successor
program shall not be materially increased. Netscape hereby grants Premier
Provider a nonexclusive, nontransferable, nonassignable, nonsublicensable
license to perform and display the Netscape Now button directly in connection
with fulfilling the foregoing obligation. Premier Provider's use of the Netscape
Now button shall be in accordance with Netscape's reasonable policies regarding
advertising and trademark usage as established from time to time by Netscape,
including the guidelines of the Netscape Now Program published on Netscape's
U.S. English-language Web Site. Premier Provider acknowledges that the Netscape
Now button is a proprietary logo of Netscape and contains Netscape's trademarks.
In the event that Netscape determines that Premier Provider's use of the
Netscape Now button is inconsistent with Netscape's quality standards, then
Netscape shall have the right to suspend immediately such use of the Netscape
Now button. Premier Provider understands and agrees that the use of the Netscape
Now button in connection with this Agreement shall not create any right, title
or interest in or to the use of the Netscape Now button or associated trademarks
and that all such use and goodwill associated with the Netscape Now button and
associated trademarks will inure to the benefit of Netscape. Premier Provider
agrees not to register or use any trademark that is similar to the Netscape Now
button. Premier Provider further agrees that it will not use the Netscape Now
button in a misleading manner or otherwise in a manner that could tend to
reflect adversely on Netscape or its products. If Premier Provider fails to
honor the commitment set forth in this Section 6.1, Netscape shall be relieved
of its obligations described in Section 5.3;
6.2. Server Software. [***********] current version of Netscape core Web
server software product (currently comprised of Netscape Enterprise Server and
Netscape FastTrack Server) to maintain Premier Provider's Web Site and, if
requested, provide Netscape of evidence of such use. Netscape will provide
Premier Provider with "Expert-Expert" product support, as described in Exhibit
F, free of charge for any Netscape software deployed by Premier Provider in
accordance with this obligation;
6.3. Site Features. [********] HTML Frames, layers, dynamic HTML pages,
Java, JavaScript or the then current client software technology (or subsequent
features displayable by
5
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
6
the Browser, within the beta testing period of the availability of such
features) ("SITE FEATURES") for display with those Internet software clients
capable of displaying the Site Features on (i) the Premier Provider's Web Site,
provided that Premier Provider shall use reasonable commercial efforts to
implement the Site Features on Premier Provider's Web Site in a location and in
a fashion as Netscape may agree, and (ii) at least one (1) HTML page located at
each Premier URL (or on an HTML page located further down the directory tree
from the page located at the Premier URL; provided Premier Provider will use
reasonable efforts to implement the Site Features as high in such directory tree
structure as possible), and, where appropriate, on all other HTML pages of
Premier Provider's primary Web site; provided Premier Provider shall not be
required to implement the Site Features on pages of any secondary Web site of
Premier Provider that Premier Provider is required to construct to satisfy
Premier Provider's obligations under any third party contract existing as of the
date of this Agreement. Netscape shall use reasonable commercial efforts to help
Premier Provider implement changes in order to comply with new Site Features;
6.4. Mailto Link. Include on the page served to an end user in
conjunction with the results of the end user's search query a "mailto" link
which users of Premier Provider's service can use to direct questions or help
requests to Premier Provider. Netscape shall also include such a "mailto" link
on the Page. Premier Provider will use reasonable efforts to reply promptly, but
in any event within one (1) week, to any such question or help request; and
6.5. Disabling Devices. Premier Provider agrees to establish and
maintain controls and procedures sufficient to timely and accurately
[*************************************************]. In the event that the
[***********************************] in any
[***************************************************] that the Page is served up
to end users [*********************************]. For purposes of this
Agreement, the term "DISABLING DEVICE" shall mean any means or functionality
provided, directly or indirectly pursuant to an agreement between Premier
Provider and a third party (other than an on-line end user agreement that
accompanies such means or functionality), by Premier Provider which (i) alters
or modifies, or enables end users to alter or modify, the Browser standard user
interface or configuration (other than Browsers that are altered or modified by
third parties to accommodate search functionality and that have been granted the
right by Netscape to make such alterations or modifications), (ii) disables any
functionality of the Browser (other than search functionality of Browsers that
is disabled by third parties that have been granted the right by Netscape to
disable such search functionality), or (iii) modifies the functioning of pages
served from Netscape's U.S. English-language Web Site; provided that a Disabling
Device shall not include any such means or functionality implemented by an end
user prior to the Premier Period.
6
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
7
7. PAYMENT TO NETSCAPE.
7.1. Payment. For the benefits and services provided by Netscape
to Premier Provider for the one (1) year Premier Period, Premier Provider shall
pay Netscape a total of [********] (the "PAYMENT") comprised of the following:
[*********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************]
7.2 Timing of Payment. Premier Provider shall pay the Payment as
follows:
[*********] upon the execution of this Agreement;
[*********] no later than June 30, 1997;
[*********] no later than September 30, 1997;
[*********] no later than December 31, 1997; and
[*********] no later than March 31, 1998.
7.3. Overage Payments. If, during the Premier Period, the number of
Premier Provider's Exposures exceeds the number of Minimum Guaranteed Exposures,
Premier Provider shall remit to Netscape additional payments ("OVERAGE
PAYMENTS") equal to [***************************] Exposures received in excess
of the Minimum Guaranteed Exposures, subject to the terms of Section 7.4.
Netscape shall invoice Premier Provider on a quarterly basis for such Overage
Payments. Premier Provider shall remit to Netscape [**************************]
of such Overage Payment (the "PAYABLE PORTION") within thirty (30) days of
receipt of such invoice and Premier Provider shall immediately grant to Netscape
a credit, for application against the cost of Netscape's participation in
advertising programs on Premier Provider's Web Site in accordance with Section
7.7, equal to [*******************] of such Overage Payment (the "CREDIT
PORTION").
7.4. Payment Cap. Notwithstanding the foregoing, the total amount
payable by Premier Provider to Netscape as described in this Section 7 shall not
exceed [******************************************] (the "PAYMENT CAP")
including all amounts due under Section 7.1 and Section 7.3;
[*******************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*********************].
7.5. Interest. Any portion of the Payment or the Overage Payments which
has not been paid to Netscape within the applicable time set forth above shall
bear interest at the lesser of (i) one percent (1%) per month, or (ii) the
maximum amount allowed by law.
7.6. No Taxes. All payments due hereunder are exclusive of any
applicable taxes. Premier Provider shall be responsible for all applicable
national, state and local taxes, value added or sales taxes, exchange, interest,
banking, collection and other charges and levies and assessments pertaining to
payments other than U.S. taxes based on Netscape's net income. If
7
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
8
Premier Provider is required by law to make any deduction or to withhold from
any sum payable to Netscape by Premier Provider hereunder, (i) Premier Provider
shall effect such deduction or withholding, remit such amounts to the
appropriate taxing authorities and promptly furnish Netscape with tax receipts
evidencing the payments of such amounts, and (ii) the sum payable by Premier
Provider upon which the deduction or withholding is based shall be increased to
the extent necessary to ensure that, after such deduction or withholding,
Netscape receives and retains, free from liability for such deduction or
withholding, a net amount equal to the amount Netscape would have received and
retained in the absence of such required deduction or withholding.
7.7. Credit against Payment. Premier Provider shall provide Netscape
with committed advertising inventory and services valued at
[********************************************************] as such inventory and
services are valued based on Premier Provider's advertising rate card, and
Netscape will provide to Premier Provider a credit of a total of
[********************************************************] off the Payment
otherwise due under this Agreement, as such credit is determined by the value of
the advertising services Netscape receives from Premier Provider based on
Premier Provider's advertising rate card. Such advertising inventory and
services shall be mutually agreed upon by the parties including placement and
available advertising key words or other value added targeting services.
8. USAGE REPORTS.
8.1. Provide Usage Reports. Netscape and Premier Provider will each
provide the other, via email to the email address set forth below, with usage
reports ("USAGE REPORTS") containing the information and in the format set forth
in Exhibit B hereto. The Usage Reports shall cover each one-month time period of
the Premier Period, and the parties shall use reasonable commercial efforts to
deliver the Usage Reports within fifteen (15) days following the end of each
month. If, due to technical problems, a party is unable to provide any portion
of a Usage Report in any given month, the previous month's Usage Report data
will be substituted as a proxy for the unavailable data. The parties may, by
mutual written agreement, alter the content and format of the Usage Reports.
8.2. No Liability. NETSCAPE AND PREMIER PROVIDER WILL USE REASONABLE
COMMERCIAL EFFORTS TO ENSURE THE TIMELY DELIVERY, ACCURACY AND COMPLETENESS OF
THE USAGE REPORTS, BUT NEITHER PARTY WARRANTS THAT THE USAGE REPORTS WILL
CONFORM TO ANY PUBLISHED NUMBERS AT ANY GIVEN TIME. NEITHER PARTY SHALL BE HELD
LIABLE FOR ANY CLAIMS AS THEY RELATE TO SAID USAGE REPORTS.
9. TERMINATION.
9.1. Methods of Termination.
a. Termination on Breach. Either party may terminate this
Agreement if the other party materially breaches its obligations hereunder and
such breach remains uncured for fifteen (15) days following notice to the
breaching party of the breach or as otherwise provided in Section 10.
b. Termination for Convenience. Premier Provider may terminate
this Agreement for its convenience ("TERMINATION FOR CONVENIENCE") upon sixty
(60) prior written notice to Netscape.
9.2. Effect of Termination. Except as specifically provided otherwise
in this Agreement, upon termination of the Agreement, all rights and obligations
hereunder shall cease and each party will promptly and at the direction of the
other party, either return or destroy, and will not take or use, any items of
any nature that belong to the other party and all items containing or related to
Confidential Information of the other party. Notwithstanding the
8
9
foregoing, (a) if this Agreement is terminated by Premier Provider other than as
a Termination for Convenience, or is terminated by Netscape because of a breach
by Premier Provider, Premier Provider shall remain liable for the value of the
payments which are due or, but for the breach, would otherwise become due and
payable under the terms of this Agreement, and (b) if this Agreement is
terminated by Premier Provider as a Termination for Convenience, Premier
Provider shall remain liable for the value of the payments which are due or
would otherwise become due and payable under the terms of this Agreement. The
following provisions shall survive the expiration or termination of this
Agreement for any reason: Section 7.6 (No Taxes), Section 8.2 (No Liability),
Section 9.2 (Effect of Termination), Section 11 (Responsibility), Section 12
(Limitation of Liability), and Section 13 (General).
10. RIGHT TO REFUSE. Netscape will have the right to review the contents and
format of the Premier Graphic, the Alphabetical Listing, the Bookmarked Page and
Premier Provider's Advertisement. If Netscape, in its sole discretion, at any
time determines that the Premier Graphic, the Alphabetical Listing, the
Bookmarked Page or Premier Provider's Advertisement contains any material, or
presents any material in a manner that Netscape deems inappropriate for any
reason, Netscape will inform Premier Provider of the reason Netscape has made
such determination and may (i) refuse to include the Premier Graphic or the
Alphabetical Listing in the Page or Premier Provider's Advertisement on
Netscape's U.S. English-language Web Site, and/or (ii) immediately terminate
this Agreement if Premier Provider has not revised to Netscape's reasonable
satisfaction the Premier Graphic, the Alphabetical Listing, the Bookmarked Page
or Premier Provider's Advertisement within one (1) business day of written
notice from Netscape. If Netscape, in its sole discretion, at any time
determines that the Premier Provider's Web Site contains any material, or
presents any material in a manner, that Netscape deems inappropriate for any
reason, Netscape may immediately terminate this Agreement upon notice to Premier
Provider. Netscape reserves the right to refuse to include in the Page any
Premier Graphic, or any Alphabetical Listing in the Alpha Page, that does not
completely conform to the specifications set forth in Exhibit A, and any Premier
Provider's Advertisement that does not completely conform to the specifications
of the applicable advertising program.
11. RESPONSIBILITY. Premier Provider is solely responsible for any legal
liability arising out of or relating to (i) the Premier Graphic, the
Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page and
Premier Provider's Advertisement, and/or (ii) any material to which users can
link through the Premier Graphic, the Alphabetical Listing, Premier Provider's
Bookmark, the Bookmarked Page and Premier Provider's Advertisement. Premier
Provider represents and warrants that it holds the necessary rights to permit
the use of the Premier Graphic, the Alphabetical Listing, the Premier URL, the
Alphabetical URL, the Premier Links, the Alphabetical Link, Premier Provider's
Bookmark, the Bookmarked Page and Premier Provider's Advertisements by Netscape
for the purpose of this Agreement; and that the permitted use, reproduction,
distribution, or transmission of the Premier Graphic, the Alphabetical Listing,
Premier Provider's Bookmark, the Bookmarked Page, Premier Provider's
Advertisements and any material to which users can link through the Premier
Graphic, Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page
and Premier Provider's Advertisements will not violate any criminal laws or any
rights of any third parties, including, but not limited to, infringement or
misappropriation of any copyright, patent, trademark, trade secret, music,
image, or other proprietary or property right, false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity, violation
of any antidiscrimination law or regulation, or any other right of any person or
entity, or otherwise violate any applicable local, state, national or
international law. Premier Provider agrees to indemnify Netscape and to hold
Netscape harmless from any and all liability, loss, damages, claims, or causes
of action, including reasonable legal fees and expenses that may be incurred by
Netscape, arising out of or related to Premier Provider's breach of any of the
foregoing representations and warranties.
9
10
12. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY
OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR
ALLEGED DAMAGES ARISING UNDER SECTION 11) WHETHER IN CONTRACT OR TORT OR ANY
OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED THE PAYMENT DUE FROM
PREMIER PROVIDER HEREUNDER.
13. GENERAL.
13.1. Governing Law. This Agreement shall be subject to and governed in
all respects by the statutes and laws of the State of California without regard
to the conflicts of laws principles thereof. The Superior Court of Santa Xxxxx
County and/or the United States District Court for the Northern District of
California shall have exclusive jurisdiction and venue over all controversies in
connection herewith, and each party hereby consents to such exclusive and
personal jurisdiction and venue.
13.2. Entire Agreement. The parties agree that by signing this
Agreement, the Net Search Program - Premier Provider agreement between the
parties dated March 8, 1996, as amended, (the "1996 Net Search Agreement") shall
be terminated, and any outstanding rights, duties or obligations between the
parties as described in the 1996 Net Search Agreement shall be extinguished.
This Agreement shall be the sole recital of the rights, duties and obligations
of the parties with respect to Netscape's U.S. English-language Web Site and
Premier Provider participation in the Net Search Program and shall supersede and
replace in its entirety the U.S. English-Language Net Search Program - Premier
Provider Services Agreement entered into between the parties on March 17, 1997.
This Agreement, including the exhibits and attachments referenced on the
signature page hereto, constitutes the entire Agreement and understanding
between the parties and integrates all prior discussions between them related to
its subject matter. No modification of any of the terms of this Agreement shall
be valid unless in writing and signed by an authorized representative of each
party.
13.3. Assignment. Premier Provider may not assign any of its rights or
delegate any of its duties under this Agreement, or otherwise transfer this
Agreement (by merger, operation of law or otherwise) without the prior written
consent of Netscape. Any attempted assignment, delegation or transfer in
derogation hereof shall be null and void.
13.4. Notices. All notices required or permitted hereunder shall be
given in writing addressed to the respective parties as set forth below and
shall either be (i) personally delivered, (ii) transmitted by postage prepaid
certified mail, return receipt requested, or (iii) transmitted by
nationally-recognized private express courier, and shall be deemed to have been
given on the date of receipt if delivered personally, or two (2) days after
deposit in mail or express courier. Either party may change its address for
purposes hereof by written notice to the other in accordance with the provisions
of this Subsection. The addresses for the parties are as follows:
10
11
Premier Provider: Netscape:
Excite, Inc. Netscape Communications Corporation
000 Xxxx Xxxxxxxxxxx Xxxx
------------------------------
Mountain View, CA 94043
------------------------------
Fax: (000) 000-0000
------------------------------
Attn: General Counsel Attn: General Counsel
13.5. Confidentiality. All disclosures of proprietary and/or
confidential information in connection with this Agreement as well as the
contents of this Agreement shall be governed by the terms of the Mutual
Confidential Disclosure Agreement either entered into previously by the parties
or entered into concurrently with this Agreement, a copy of which is attached
hereto as Exhibit D. The information contained in the Usage Reports provided by
each party hereunder shall be deemed the Proprietary Information of the
disclosing party. Notwithstanding the foregoing, Netscape may, in its sole
discretion, make publicly available client software market share information
contained in the Usage Reports submitted by Premier Provider, provided that
Netscape shall not indicate that Premier Provider is the source of the
information.
13.6. Force Majeure. Neither party will be responsible for any failure
to perform its obligations under this Agreement due to causes beyond its
reasonable control, including but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods or accidents.
13.7. Waiver. The waiver, express or implied, by either party of any
breach of this Agreement by the other party will not waive any subsequent breach
by such party of the same or a different kind.
13.8. Headings. The headings to the Sections and Subsections of this
Agreement are included merely for convenience of reference and shall not affect
the meaning of the language included therein.
13.9. Independent Contractors. The parties acknowledge and agree that
they are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring upon
either party the power of authority to bind the other party in any transaction
with third parties.
13.10. Severability. In the event any provision of this Agreement is
held by a court or other tribunal of competent jurisdiction to be unenforceable,
such provision shall be reformed only to the extent necessary to make it
enforceable, and the other provisions of this Agreement will remain in full
force and effect.
13.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto, shall be
deemed to be an original. Notwithstanding the foregoing, the parties shall
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
11
12
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
PREMIER PROVIDER: NETSCAPE:
EXCITE, INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------- ------------------------------
Print Name: Xxxxxx X. Xxxx Print Name: Xxxxxxxx Xxxxxx
------------------------------ ----------------------
Title: EVP-CAO/CFO Title: VP of Electronic Mktg.
----------------------------------- ---------------------------
Date: 3-21-97 Date: 3/21/97
------------------------------------ ----------------------------
Premier Provider Address: Netscape Address:
000 Xxxx Xxxxxxxxxxx Xxxx
-----------------------------------------
Mountain View, California 94043
-----------------------------------------
USA
-----------------------------------------
Attention: Attention: General Counsel
-------------------------------
Facsimile: Facsimile:
------------------------------- -----------------------
Email: Email:
----------------------------------- ---------------------------
Attached Exhibits:
Exhibit A: Specifications of the Page
Exhibit B: Usage Reports
Exhibit C: Form of Sponsorship Agreement
Exhibit D: Mutual Confidential Disclosure Agreement
Exhibit E: Schedule of Planned Updates
Exhibit F: Description of Expert-Expert Product Support
12
