[NETSCAPE LOGO]
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") is 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 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 may
specify from time to time provided that the end users are being directed for the
primary purpose of searching the Internet. 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
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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.
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.xxxxx.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 [XXXX] 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 variance of [XXXX] throughout the Premier
Period. Netscape shall use reasonable commercial efforts to adjust the rotation
percentage so that Premier Provider's Premier Graphic receives this level of
rotated Exposures on a [XXXX].
3.4. END USER DEFAULT. Netscape shall produce the Page such that the end
user may select which Premier Graphic, or the Premier Graphic provided 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 ("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.
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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 Exhibit A, 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 one (1) hour per month of emergency engineering support services time to
help Premier Provider service any newly revised Premier Graphic 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. Netscape will make available, on a pro rata
basis during the term of this Agreement, total advertising services valued at
the level set forth in Section 7.1. 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 [XXXX] 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
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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, including the "NameMe" provider.
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 as a result of an end user
clicking on a link (other than Premier Links) to Premier Provider's Web Site on
Netscape's U.S. English-language Web Site, (iii) 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, or (iv) 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 parties acknowledge
that an end user selecting Premier Provider's search service as a link off of an
Internet navigational service co-branded by the parties shall be included in the
definition of 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 guarantees that the Premier
Graphic and the Bookmarked Page shall receive no fewer than a combined total of
[XXXX] (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: (i) continue to place
the Premier Graphic on the Page as specified in Section 3 beyond the end of the
Premier Period until such time as the Minimum Guaranteed Exposures have been
achieved, or (ii) deliver to Premier Provider a program of equivalent value as
a remedy for the shortfall in Exposures.
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6. PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations set
forth herein, Premier Provider shall:
6.1. NETSCAPE NOW. Premier Provider shall display the "Netscape Now" button
[XXXX], and use reasonable commercial 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 top-most and left-most, and equal in size and prominence than
the virtual button or other graphic for any third party Internet client software
or software provider other than dedicated function software in the appropriate
topical area (e.g., personal finance). 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
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Provider fails to honor the commitment set forth in this Section 6.1, Netscape
be relieved of its obligations described in Section 5.3;
6.2. SERVER SOFTWARE. [XXXX] 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. [XXXX] of HTML Frames, layers, dynamic HTML pages,
Java, JavaScript or the then current client software technology (or subsequent
features displayable by 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 [XXXX] as the parties
shall mutually agree. 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 to any such
question or help request;
6.5. NO DISABLING. Not provide or implement any means or functionality
which would (i) alter or modify, or enable end users to alter or modify, the
Browser standard user interface or configuration, (ii) disable any
functionality of the Browser or any other Internet browser software, or (iii)
modify the functioning of pages served from Netscape's U.S. English-language Web
Site. If Premier Provider fails to honor the commitment set forth in this
Section 6.5, Netscape be relieved of its obligations described in Section 5.3;
and
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 $4,700,000 (the "PAYMENT") comprised of the following:
Participation in the Net Search Program $3,125,000
Other fees, including: engineering services to create Premier
Provider's Bookmark; inclusion of Premier Provider's Bookmark in
Communicator 4.x; redesign of the Net Search Page; and advertising
services on Netscape's U.S. English-language Web Site during the term
of this Agreement. $1,575,000
7.2 TIMING OF PAYMENT. Premier Provider shall pay the Payment as follows:
$1 million upon the execution of this Agreement;
$1,400,000 on or prior to June 30, 1997 (less a credit of $400,000 to
be applied against this portion of the Payment pursuant to
Section 7.7);
$1,000,000 on or prior to September 30, 1997 (less a credit of
$400,000 to be applied against this portion of the Payment pursuant to
Section 7.7);
$1,000,000 on or prior to December 31, 1997 (less a credit of
$400,000 to be applied against this portion of the Payment pursuant to
Section 7.7); and
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$300,000 on or prior to March 31, 1998 (all of which shall be a credit
to be applied against this portion of the Payment pursuant to
Section 7.7).
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 seventeen dollars ($17.00) per One Thousand
(1,000) 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 eighty-eight percent (88%) 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 twelve
percent (12%) of such Overage Payment (the "CREDIT PORTION"). Notwithstanding
the foregoing, in calendar year 1997, cash payments by Premier Provider to
Netscape hereunder shall not exceed Six Million Dollars ($6,000,000). Any
payment amounts in excess of such amounts shall be paid to Netscape before
March 31, 1998.
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 Nine Million Dollars ($9,000,000) (the "PAYMENT CAP") including
all amounts due under Section 7.1 and Section 7.3. If, at any time, Premier
Provider's payments to Netscape, in the aggregate, approaches eighty percent
(80%) of the Payment Cap, Netscape may, in its sole discretion, (1) modify
the location of Premier Provider's tab on the Stack, (2) modify the location
of Premier Provider's listing in the window that allows end users to select
a default Premier Graphic as described in Section 3.4 (End User Default), or
(3) reduce the rotation percentage, as described in Section 3.3, down to zero
percent (0%). In no event shall Premier Provider be removed from the display
of tabs in the Stack.
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. 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 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 One Million Five
Hundred Thousand Dollars ($1,500,000) as such inventory and services are
valued based on Premier Provider's advertising rate card, and Netscape will
provide to Premier Provider a total credit of One Million Five Hundred
Thousand Dollars ($1,500,000) to be applied against the Payment otherwise due
under this Agreement as described in Section 7.2, 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 thirty (30) 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.
Once every quarter during the Premier Period, Netscape shall engage an
independent auditor to audit the Usage Reports submitted to Premier Provider
hereunder. During Netscape's normal business hours and at Premier Provider's
expense,
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Premier Provider shall have the right to audit Netscape's Usage Reports during
the Premier Period and for two months after the end of the Premier Period. If
such audit shows that Premier Provider has overpaid at the end of the Premier
Period, such overpayment shall be corrected by Premier Provider's presence on
the Page being extended after the Premier Period for such time until Premier
Provider has received the Exposures which are commensurate with the total
amount, including credits, paid to Netscape hereunder.
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 UNAUDITED USAGE REPORTS.
9. TERMINATION.
9.1. 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.
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 with the exception of information
contained in the Usage Reports. Notwithstanding the foregoing, if this
Agreement is terminated by Premier Provider, 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. The
following provisions shall survive the expiration or termination of this
Agreement for any reason: Section 7.6 (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 reasonable 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 likely to lead to
material injury, damage or liability to Netscape, 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; provided, however,
that such determination shall not be based on competitive reasons not related to
Netscape's core business. If Netscape, in its reasonable discretion, at any
time determines that, within one (1) click away from the Net Search Program
portion of Netscape's U.S. English-language Web Site (and not including search
results), 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 if Premier Provider has not revised
such material or presentation within seven (7) business days of written notice
from Netscape. 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
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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, within one (1) click away, through the Premier Graphic, the Alphabetical
Listing, Premier Provider's Bookmark, the Bookmarked Page and Premier Provider's
Advertisement but not including search results. 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, within one (1) click
away, 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. In
connection with such indemnification, Netscape will (i) promptly notify Premier
Provider in writing of any such claim and grant Premier Provider control of the
defense and all related settlement negotiations, and (ii) cooperate with Premier
Provider, at Premier Provider's expense, in defending or settling such claim;
provided that if any settlement results in any ongoing liability to, or
prejudices or detrimentally impacts Netscape, and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require Netscape's written consent. In connection with any
such claim, Netscape may have its own counsel in attendance at all public
interactions and substantive negotiations at its own cost and expense.
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
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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 15, 1996, as amended, (the "1996 Net Search Agreement")
shall be terminated effective as of May 1, 1997, and any outstanding rights,
duties or obligations between the parties as described in the 1996 Net Search
Agreement shall be extinguished as of May 1, 1997. 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 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. [XXXX].
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:
Premier Provider: Netscape:
Yahoo, Inc.! Netscape Communications Corporation
0000 Xxxxxxx Xxxxxxxxxx, Xxx. 000 000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000 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 except as having participated in supplying a portion of aggregated
data. Netscape shall provide Premier Provider with notice prior to using
Premier Provider's name in connection with the release of any information
received by Premier Provider in a Usage Report.
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.
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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.
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The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
PREMIER PROVIDER: NETSCAPE:
YAHOO, INC.! NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXXXX XXXXXX
---------------------------- ------------------------------
Print Name: Xxxxxxx X. Xxxxxxx Print Name: Xxxxxxxx Xxxxxx
-------------------- ----------------------
Title: Senior Vice President Title: VP of Electronic Marketing
------------------------- ---------------------------
Date: 3/21/97 Date: 3/21/97
-------------------------- ----------------------------
Premier Provider Address: Netscape Address:
0000 Xxxxxxx Xxxxxxxxxx, Xxx. 000 000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
XXX XXX
Attention: General Counsel Attention: General Counsel
Facsimile: (000) 000-0000 Facsimile: _______________________
Email: xxxxxx@xxxxx.xxx 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
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EXHIBIT A
SPECIFICATIONS OF THE PAGE
Site Samplers are available exclusively to Premier and "Marquee" Providers. As
of May 1, 1997, Net Search will support Netscape Navigator versions 2 and 3
(both Macintosh and PC platforms), and Microsoft Internet Explorer 3.0 (PC
only). (see Net Search Sampler Test Specification, External for complete list)
All other browsers will be routed to a simple version of the page which
encourages users to download a more current version of Netscape's browser.
Netscape will spend up to one hour of engineering time and 1/2 hour of Quality
Assurance time per sampler per week to integrate the site samplers into the Net
Search page if available. If more engineering or QA time than is available
becomes necessary to fix bugs discovered, or if the necessary changes to fix any
bugs include changes to the appearance of the sampler, it will be returned for
revision. The specifications are as follows:
- Size. All Premier Provider materials should be exactly 468 by 165 pixels.
Design Site Samplers that include text and interactive forms for a default
font size of 12 points. (Be aware, however, that text and forms may resize
on your audience's browsers as they change their default font sizes.) Keep
in mind that the < FONT SIZE= > tag is not implemented in early versions of
web browsers.
Site samplers will be measured by taking a screen shot on a system
configured as follows: A PC running Windows 95, with the settings
configured for small fonts, and an NEC MultiSync XV17+ (17 inch) monitor.
The screen shot will be taken of Netscape Navigator Gold version 3.1, with
the Proportional Font set at 12pt Times New Roman, and the Fixed Font set
at 10pt Courier New. The measurement will be taken in Paintbrush.
Netscape will provide "measurement services", if needed, for companies that
don't have the specified platform configuration.
- HTML Quirks. We have found a few less-than-obvious quirks which cause some
browsers to crash, which we thought would be helpful to pass on:
1. < FORM > tags must follow IMMEDIATELY AFTER your sampler's first
< TABLE > tag. Any variation of this whatsoever will cause a
significant number of users to crash.
2. Any empty < TD > tags should be separated by a carriage return. HTML
should read as follows:
< TD >
< /TD >
as opposed to
< TD > < /TD >
3. If text appears without any spacing between words (for instance, in a
sentence as opposed to in a table), any text that falls closer than 50
pixels to the edge of the site sampler should be tested on a Unix
machine. Often, this text will be cut off on that platform.
4. Interleaving HTML tags will cause several browsers to crash. Tags
should be ordered as follows:
5. < H3 > < FONT COLOR="#000055" > Text here < /FONT > < /H3 >
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as opposed to
6. < H3 > < FONT COLOR="#000055" > Text here < /H3 > < /FONT >
- Tables. In order to maintain the robustness of the page, please do not
include any more than one nested table, for a total of two tables per
sampler. Any more than one nested table will cause crashes for a
significant number of users. One simple table is ideal, as even one nested
table may cause some implementation problems when integrated with the Net
Search page. If you are nesting a table, please test carefully.
- Image maps. Only a client-side image map is necessary, since browsers which
don't support client-side maps will not be directed to the main Net Search
page.
- File sizes. To keep the user's load time low, we request that Premier
Provider files not exceed 20K unless cleared by the Destinations production
manager at email: xxxxxxxxxxxxxxxx@xxxxxxxx.xxx.
- Animated GIFs. Due to the large number of users whose browsers do not
support animated GIFs, and their typically large filesize, we are not
implementing animated GIFs at this time.
- JavaScript. JavaScript tends to cause older browsers to behave
unpredictably and in many cases crash, and there is delicate technology in
place to implement the Site Sampler functionality. As a result, the
implementation of Java Script in site samplers is not an option at this
time.
- Delivery. Content providers should email files to Netscape at
xxxxxxxxxxxxxxxx@xxxxxxxx.xxx. If you are providing multiple files, you
should place them in a folder labeled with the content provider's name.
For the best possible results, deliver site samplers that are already
integrated into a copy of the Net Search page.
- Filenames. It is important that filenames be in the following format:
search_providername.fmt (for example, search_yoohoo.gif,
search_yoohoo.htm). If there are two or more files of a certain format,
filenames should be in the following format: search_providername#.fmt (for
example, search_yoohoo1.gif, search_yoohoo2.gif). When you update your site
sampler, continue to increment the number to help avoid caching issues.
- Format. All content providers need to provide HTML files that include the
layout for their materials. All HTML should be uppercase. Please include
the TARGET="_top" attribute in all HREF tags. Height and width tags need to
be specified for all images. Graphics files should be in GIF format; all
other formats should be cleared with the Destinations production manager at
xxxxxxxxxxxxxxxx@xxxxxxxx.xxx.
- Graphics. By limiting the number of individual graphics (server calls) in
your Site Sampler, you will improve overall page performance and allow the
page to load more quickly. Cropping as close as possible to the image,
leaving no white space around them, will also allow the page to load more
quickly. To minimize dithering and insure that the users across all
platforms see what you expect them to see, we recommend use of the Netscape
Color Palette.
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EXHIBIT B
USAGE REPORTS
Sample report provided by Premier Provider to Netscape each month.
For the week of: 5/1/97 - 5/8/97
NSCP 4.x - 5%
3.x - 40%
2.x - 5%
1.x - 2%
Total, basic - 52%
NSCP Gold 3.x - 25%
Total, Gold - 25%
Premier Provider shall also provide Netscape with audits from I/Pro, or audits
from reputable third party Internet auditor, [XXXX].
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Sample report provided by Netscape to Premier Provider each month.
For the month of May, 1997
(1) (2) (3) (4) (5)
Rotated Default Total First User Selected Total
Exposures Exposures Exposures Exposures Exposures
(1+2) (3+4)
May 1 1M 200K 1.2M 400K 1.6M
May 2 1.1M 210K 1.31M 500K 1.81M
May 3 1.2M 220K 1.42M 600K 2.02M
. . .
. . .
May 31 1.8M 280K 2.08M 800K 3.08M
Total
A running total of the Exposures will also be included.
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EXHIBIT C
FORM OF SPONSORSHIP AGREEMENT
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EXHIBIT D
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
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EXHIBIT E
SCHEDULE OF PLANNED UPDATES
- Calendar: The following is the schedule for submitting materials for the
Net Search program during the first two months of the Premier Period.
FINAL MATERIALS DUE: NET SEARCH PAGE GOES LIVE:
-------------------- --------------------------
May 6, 1997 May 12, 1997
May 13, 1997 May 19, 1997
May 19, 1997 (please note this is a Monday) May 22, 1997
May 27, 1997 (please note the 26th is a holiday) June 2, 1997
June 3, 1997 June 9, 1997
June 10, 1997 June 16, 1997
June 17, 1997 June 23, 1997
June 24, 1997 June 30, 1997
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EXHIBIT F
DESCRIPTION OF EXPERT-EXPERT PRODUCT SUPPORT
Designed for medium to large organizations
Web businesses
Internet service providers
Large system integrators
Large resellers
Mission-critical level of support for Netscape customers.
- Priority escalation to expert-level technical support engineer
- Includes support for complex fault isolation
- Customers provide front-line (help-desk) support for their installed base
- 2 authorized customer contacts included
- Unlimited incidents
- 24 x 7 (pager only after hours for P1 issues only)
- Informational support on selected beta products
- Technical support bulletins
- Incident closure reports
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