**** CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.3
Netscape Agreement #005440
--------------------------
BUNDLING AND DISTRIBUTION SERVICES AGREEMENT
This Bundling and Distribution Services Agreement, including the exhibits
and attachments hereto (the "Agreement"), is effective as of the date of the
last signature as indicated in the signature block below (the "Effective Date"),
between Net2Phone, Inc., a New Jersey corporation located at 000 Xxxx Xxxxxx,
Xxxxxxxxxx, XX 00000 ("Participant"), and Netscape Communications Corporation, a
Delaware corporation located at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX
00000 and its wholly-owned subsidiaries (collectively "Netscape").
RECITALS
A. Netscape markets and distributes computer software to link people
and information over enterprise networks and the Internet.
B. Participant markets and distributes computer software that
provides for the connection and transmission of telecommunications from personal
computers to standard telephone media over enterprise networks and/or the
Internet.
C. Netscape and Participant believe that it would be useful to end
users of Netscape products for such end users to have access to certain of
Participant's software.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. DEFINITIONS
"Bundling Candidate" means a version of the Co-branded Net2Phone Product
that Participant reasonably believes, after having conducted the tests required
under Exhibit A of this Agreement, meets the requirements contained in this
Agreement for acceptance by Netscape.
"Co-brand or Co-branded" means such joint branding, marking and promotion
of products, services and materials, and other related joint marketing efforts
as the parties shall mutually agree, taking into account Netscape's trademark
guidelines and affording Participant with sufficient prominence, in terms of
size, placement, appearance and the like, for Participant's name, logo,
trademarks, and other similar brand features, which in any event shall be no
less favorable than what is afforded to other similarly situated partners of
Netscape.
"Co-branded Net2Phone Product" means the Co-branded version of the
Net2Phone Product together with any other changes to the Net2Phone Product
required to make such co-branded version under this Agreement or as otherwise
mutually agreed.
"Co-branded Service" means the Participant Service to be provided by
Participant for inclusion in the specified communications oriented areas of
Netcenter, any Co-branded pages
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CONFIDENTIAL
accessible from or related to the Co-branded Net2Phone Product, and as the
parties otherwise mutually agree.
"Distribution" means, collectively, Electronic Distribution and Non-
Electronic Distribution.
"Electronic Distribution" means placing information and/or products in
files on servers which permit downloading of such information and/or products.
"Initial Bundling Period" means the period from the Effective Date until
the date two (2) years after the later of (i) the date that the Beta 2 release
of the Netscape Communicator 5.0 (the "Beta 2 Release") that contains the Co-
branded Net2Phone Product is first posted to the Netscape U.S. Website for
download by the general public, or (ii) if the Beta 2 Release does not contain
the Co-branded Net2Phone Product, the date that the next succeeding release
after the Beta 2 Release containing the Co-branded Net2Phone Product is posted
to the Netscape U.S. Website for download by the general public, or, (iii) if
the Beta 2 Release containing the Co-branded Net2Phone Product is released in
less than 14 days after the Beta 1 Release, the date that the next succeeding
release after the Beta 2 Release is first posted to the Netscape U.S. Website
for download by the general public , provided that in any event the Initial
Bundling Period shall start no later than the First Commercial Ship date of the
Netscape Communicator 5.0(such date in (i), (ii) or (iii) being the "Release
Date"). The Initial Bundling Period will end on the earlier to occur of (i) the
end of the 2 year period after the Release Date or (ii) the termination of this
Agreement, whichever comes first. Netscape shall provide Participant with
written notice of the Release Date within thirty (30) days of when such date is
fixed and determinable.
"Inline Plug-in Pages" means that area of Netscape's US Web Site marketed
as the Inline Plug-in Pages.
"Integrated Offering" means a product, inclusive of any beta releases of
the product, produced or offered by Netscape, which combines the Co-branded
Net2Phone Product and/or third party product(s) with Netscape product(s), to
produce a single offering for users of enterprise networks and/or the Internet;
provided that the Integrated Offering must contain significant functionality in
addition to that provided by the Co-branded Net2Phone Product alone. Without
limiting the foregoing, an Integrated Offering includes a Netscape Software
Bundle product that is downloadable from a Netscape web site and that provides
as part of its default installation procedures for the Co-branded Net2Phone
Product to be included in the download and installation.
"Localized Versions" means those international versions of the Co-branded
Net2Phone Product specifically listed in Section 3.1 (b) and other international
versions of the Co-branded Net2Phone Product that are included pursuant to
Section 3.1(b), all of which will meet all the specific requirements of Section
3.1 (b), Exhibit A and Attachment A-1 to Exhibit A.
--------- ---------
"Major Release" means a release of software for which there is a change to
the right of the decimal point in the tenths, or a change to the left of the
decimal point (e.g. 4.0 to 4.1 or 4.0 to 5.0).
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"Minor Release" means a release of software for which there is a change to
the right of the decimal point in the hundredths (e.g. 4.01 to 4.02).
"Netcenter" means that area of Netscape's US Web Site that offers online
services and shopping opportunities to end users.
"Netscape Software Bundle" means the Co-branded Net2Phone Product bundled
with and part of the default installation of every release of the object code
form of the Netscape product offerings identified in Exhibit D as "Products
---------
Covered Under Section 3.1(a)" after the Effective Date which operate on the
platforms and in the languages listed in Exhibit D attached hereto (excluding
---------
specific, custom software projects developed in accordance with customer
requirements that necessitate an exclusion of such Co-branded Net2Phone Product,
provided that Netscape has not encouragedsuch exclusion).
"Netscape's US Web Site" means the collection of U.S. English language HTML
documents targeted at end users in the United States and currently accessible by
the public via the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx and/or at such
other URL or locations as Netscape may designate. For purposes of this
Agreement, Netscape's US Web Site does not include any future technologies or
future uses of existing technologies which might embody a collection of
documents (other than HTML documents) on the Internet.
"Net2Phone Product" means the object code form of the product described
under the "Description" section of Attachment A-1 of Exhibit A and Attachment A-
--------------------------
2 of Exhibit A, related documentation, and any Upgrades (as defined below)
--------------
provided to Netscape during the term of this Agreement.
"Non-Electronic Distribution" means distribution by any means other than
Electronic Distribution, including any method of distribution now available or
hereafter developed.
"Participant Collateral Materials" means all materials, information and
other content (including without limitation product descriptions and logos, FAQs
and product demos) supplied by, managed by or under the control of Participant,
relating to promotion and distribution of the Co-branded Net2Phone Product
hereunder or to promotion of any other products or services of Participant that
are a subject of this Agreement.
"Participant Service" means any Net2Phone related services and any
associated Participant web pages accessible through the Net2Phone Product.
"Products" means products produced or offered by Netscape for use with
enterprise networks and the Internet, including without limitation Netscape
Navigator and Netscape Communicator client software.
"SmartUpdate Program" means that portion of Netcenter known as SmartUpdate,
which area provides end users with access to an Internet service that makes
available, free of charge, certain client software products, as further
described in Exhibit E.
---------
"Upgrades" means any updates, upgrades or enhancements of the Co-branded
Net2Phone Product, including without limitation any releases of the Co-branded
Net2Phone
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Product that include bug fixes, as well as the Localized Versions
provided hereunder and versions provided for those platforms in Exhibit D.
---------
2. GRANT OF RIGHTS
2.1 License. Participant hereby grants Netscape a non-exclusive,
world-wide, royalty-free license to:
(a) distribute Co-branded Net2Phone Product through Netscape's channels of
distribution by including Co-branded Net2Phone Product in one or more Integrated
Offerings which Netscape distributes via any form of Distribution;
(b) distribute Co-branded Net2Phone Product in standalone form through
Electronic Distribution from any Netscape branded web site in the world
(including Netscape branded web sites that may be operated by Affiliates (as
defined below));
(c) use, reproduce, translate, market, create derivative works and
subsets of and distribute via any form of Distribution the user documentation
for the Co-branded Net2Phone Product provided by Participant and any derivative
works or subsets thereof prepared by or for Netscape, for use with Co-branded
Net2Phone Product, provided Netscape meets the provisions defined in Section 7.6
of this Agreement; and
(d) use, reproduce, translate, market, create derivative works and
subsets of and distribute via any form of Distribution the Participant
Collateral Materials and any derivative works or subsets thereof prepared by or
for Netscape provided Netscape meets the provisions defined in Section 7.6 of
this Agreement.
Netscape agrees that it shall not reverse engineer, reverse assemble,
decompile, disassemble or otherwise attempt to derive the source code from the
Co-branded Net2Phone Product. Netscape agrees that, notwithstanding the licenses
granted in subsection (c) and (d) above, Netscape shall not translate, modify or
otherwise create derivative works of the user documentation or Participant
Collateral Materials (and any derivative works or subsets thereof) referred to
in such subsections (c) and (d) above (excluding minor formatting or stylistic
modifications and minor grammatical corrections) without Participant's consent,
which consent shall not to be unreasonably withheld.
With respect to the Co-branded Net2Phone Product, Participant shall grant
the same rights to Netscape as those set forth above for all platforms and
localized versions not already granted by the terms of this Agreement; however,
such grant shall in no way impose any additional obligations under this
Agreement upon Netscape to bundle or distribute such products.
2.2 Discretion. Except as specifically provided for in Section 3 of this
Agreement, Netscape may, in its discretion, determine which of the above forms
of Distribution is appropriate for Co-branded Net2Phone Product. The broad grant
of distribution rights in Section 2.1 to Netscape for the Co-branded Net2Phone
Product, shall not obligate or be construed to obligate Netscape to bundle or
distribute the Co-branded Net2Phone Product beyond the obligations of this
Agreement.
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2.3 Reproduction. Netscape and its channels of distribution may reproduce or
have reproduced Co-branded Net2Phone Product as necessary for Distribution
authorized under Section 2.1.
2.4 Trademark and Logo License. Netscape and its channels of distribution
may use Participant's trademarks and logos applicable to Co-branded Net2Phone
Product in connection with Distribution and related marketing and promotion,
subject to Participant's approval which shall not be unreasonably withheld.
Netscape will use Participant's trademarks and logos as part of the promotional
programs set forth in Exhibit E. On Participant's request, Netscape will furnish
---------
Participant with a sample of such trademark usage. Netscape agrees not to remove
any of Participant' s trademarks or logos from the Co-branded Net2Phone Product
without Participant's prior approval.
2.4.1 Netscape grants Participant a non-exclusive, nontransferable, license
to use the Netscape N and Design Horizon Logo ("the Logo") solely in connection
with the Cobranded Service and Cobranded Net2Phone Product to promote, market,
sell and deliver such Co-branded Service and Co-branded Net2Phone Product in
accordance with the terms of this Agreement. No right is granted to sublicense,
transfer, or assign any rights to use the Logo. Participant may only use the
Logo as a collective whole and shall not separately use any element or elements
of the Logo or modify the Logo in any manner.
2.4.2 Netscape hereby reserves any and all rights not expressly and
explicitly granted in this Agreement, including Netscape's right to authorize or
license use of the Logo to any third party for use in connection with any goods
and services. Without limiting the rights reserved in the first sentence,
Netscape hereby reserves any and all rights to use, authorize use or license use
of the Logo in any geographic territory and in any language. Participant shall
have no obligation to use the Logo as contemplated under this Agreement.
2.4.3 Participant hereby acknowledges that Netscape is the owner of the
Logo, and any applications and/or registrations thereto, agrees that it will not
do anything inconsistent with Netscape's intellectual property rights in the
Logo. Participant agrees that nothing in this Agreement shall give Participant
any right, title or interest in the Logo other than the right to use the Logo in
accordance with this Agreement. Participant agrees not to register or attempt to
register the Logo with any domestic or foreign governmental or quasi-
governmental authority. Participant may not register the Logo. The provisions of
this paragraph shall survive the expiration or termination of this Agreement.
2.4.4 Participant agrees that all use of the Logo shall only occur in
connection with the Co-branded Service and Co-branded Net2Phone Product, and
that such use shall conform with Netscape's trademark guidelines set forth at
hft://xxxx.xxxxxxxx.xxx/xxxx/xxxxxXxxxx.xxxx#xxxxxXxxxx which may be reasonably
-------------------------------------------------------
updated from time to time by Netscape. Participant may not use the Logo in
connection with, or for the benefit of, any third party's products or services.
Participant further agrees not to use the Logo on or in connection with any
products or services that are or could reasonably be deemed to be obscene,
pornographic, or disparaging of Netscape or its products or services, or
otherwise in poor taste, or that are themselves unlawful or whose purpose is to
encourage unlawful activities by others (provided, however, that this clause
shall not be applicable to the content of any
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CONFIDENTIAL
communications sent through the use of the Cobranded Service or Co-branded
Net2Phone Product that is not created by Participant). ).
2.4.5 Participant agrees it shall only use the Logo on the Co-branded
Service and Co-branded Net2Phone Product that comply with the Quality Assurance
provisions of Section 4.6 and in accordance with this Agreement. Participant
further agrees to use commercially reasonable efforts to maintain a level of
quality of the Cobranded Service and Co-branded Net2Phone Product in connection
with its use of the Logo that is consistent with general industry standards.
Failure to comply with this Section may be a basis for suspension of the use of
the Logo, the bundling services and promotional services obligations under
Section 3.5.
2.4.6 Upon reasonable request by Netscape, no more often than quarterly
Participant shall provide Netscape with representative samples of each such use
prior to the time the Logo is used on the Cobranded Service and Co-branded
Net2Phone Product. If Netscape determines in good faith that Participant's use
does not comply with this Agreement, Netscape shall notify Participant, and
Participant shall use reasonable efforts to remedy the improper use within ten
(10) business days following receipt of such notice from Netscape.
2.4.7 Participant shall include with any online publication or publication
in print of the Logo a legend indicating that the Logo is that of Netscape, used
under license, and a disclaimer that Participant and not Netscape has produced
Participant's Cobranded Services and Co-branded Net2Phone Product and the
Licensee Cobranded Product.
2.4.8 If the Cobranded Service or the Cobranded Net2Phone Product contains
or presents any material that constitutes an infringement of the Logo or
Netscape's trademarks, patents, copyrights or trade secrets (except with respect
to any such material provided or included by Netscape or at the request of
Netscape), Participant's right to use the Logo shall be subject to suspension
under Section 3.5. Failure to correct such defects may constitute material
breach which shall be treated in accordance with Section 11.
2.5 Affiliate Sublicenses. Netscape may grant, and will use reasonable
efforts, as appropriate to grant, its Affiliates (as defined herein) a
sublicense to the Co-branded Net2Phone Product equal in scope to, and subject to
the same limitations as, the license granted hereunder by Participant to
Netscape pursuant to this Section 2 only with respect to Netscape branded
Integrated Offerings and standalone Electronic Distribution (only SmartUpdate
and future similar Netscape updating program(s) that check the installed
product) from Netscape branded Netscape web sites or as Participant otherwise
approves in writing. "Affiliates" means any corporation, partnership, joint
venture or other entity or person controlled, controlling or under common
control with Netscape. For purposes of this definition, the term "control" shall
mean the direct or indirect beneficial ownership of fifty percent (50%) or more
of the voting interests (representing the right to vote for the election of
directors or other managing authority) in an entity as of the date Netscape
grants such entity a sublicense to the Co-branded Net2Phone Product.
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CONFIDENTIAL
3. MISCELLANEOUS OBLIGATIONS
3.1 Bundling Requirements. During the Initial Bundling Period, subject to
the terms and conditions herein, Netscape agrees to the following:
(a) Netscape shall bundle the Co-branded Net2Phone Product with, and
make such Co-branded Net2Phone Product a part of the default installation of,
the Netscape Software Bundle, regardless of the means or agent of Distribution,
starting with inclusion in the beta versions of the Netscape 5.0 Communicator
Complete and Netscape 5.0 Client Customization Kit ("CCK") default installs.
Except as provided below, the Co-branded Net2Phone Product shall be installed
without user intervention upon the installation of the Netscape Software Bundle.
Participant acknowledges that the person(s) installing Netscape Software Bundle
may perform a custom installation of the Netscape Software Bundle or may de-
select installation of the Co-branded Net2Phone Product which may result in Co-
branded Net2Phone Product not being installed with the Netscape Software Bundle.
Participant further acknowledges that certain Netscape Software Bundle products
allow third parties to customize the installation and operation of other
Netscape Software Bundle products and that such capability may result in the
distribution, by such third parties to end users, of Netscape Software Bundle
products that do not include the Co-branded Net2Phone Product or do not include
it as a component that is installed by default. Netscape will make good faith
efforts to work with Participant to develop ways to encourage distributors of
CCK versions not to remove the Co-branded Net2Phone Product from the Netscape
Software Bundle. In order to assist Netscape in any such efforts, Participant
acknowledges that it may be necessary for Participant to provide appropriate
incentives for such CCK distributors.
(b) Netscape will bundle the localized versions of the Co-branded
Net2Phone Product specified below and will use commercially reasonable efforts
to bundle other localized versions of the Co-branded Net2Phone Product in the
corresponding localized versions of the Netscape Communicator Complete installs
defined above (i) to the extent that Netscape releases a specific localized
product for such territories and (ii) provided the gold master of the localized
versions and localized Co-branded Service pages meet Netscape's localized
universal registration and branding requirements, and (iii) provided such
localized version and Co-branded Service pages are made available at least eight
(8) weeks prior to the initial Beta Release (or if such release does not have a
beta release, eight (8) weeks prior to Release To Manufacturer ("RTM")) of any
such Localized Version(s) and (iv) provided passage of Netscape's acceptance
test as defined in Exhibit A. Bundling of Localized Versions will commence upon
---------
the first release of localized versions of Netscape 5.0 Communicator Complete
and Netscape 5.0 CCK default installs. Netscape will provide Participant with
reasonable notice of release schedules so as to facilitate Participant's ability
to meet the deadlines set forth above. As soon as practicable following the
Effective Date of this Agreement, Participant agrees to provide Netscape with
the following localized binaries: French, German, Spanish, Dutch, Portuguese,
Chinese, Japanese, Korean, Canadian, Great Britain, Australian and Italian
(c) Netscape agrees to include a preloaded button in the U.S. English
versions of the Netscape Navigator (excluding specific, custom software projects
developed in accordance with customer requirements that necessitate an exclusion
of such Co-branded Net2Phone Product, provided that Netscape has not encouraged
such exclusion) personal toolbar from
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Netscape, or an equivalent position to that of the personal toolbar in the
Communicator 4.5 release (and in equivalent positions of subsequent releases),
for the Co-branded Net2Phone Product ("Button"). Inclusion of the Button in the
personal toolbar will commence when Netscape releases the initial Netscape
Software Bundle subject to the golden master of the Co-branded Net2Phone Product
for the respective platform. Netscape also agrees to include a button in the
versions of the localized language Netscape Navigator (excluding specific,
custom software projects developed in accordance with customer requirements that
necessitate an exclusion of such Co-branded Net2Phone Product, provided that
Netscape has not encouraged such exclusion).personal toolbar from Netscape, or
an equivalent position to that of the personal toolbar in the Communicator 4.5
release (and in equivalent positions of subsequent releases) to the extent that
a Localized Version of the Co-branded Net2Phone Product has been delivered to
Netscape. Inclusion of such button in the personal toolbar will commence when
Netscape releases the Netscape Software Bundle that corresponds with the
delivered Localized Version. The position of the Button is to be such that it is
the second button from the left-most button on the personal toolbar and visible
on a 640x480 pixel screen size. Netscape cannot guarantee that the Button will
remain part of the personal toolbar for CCK releases based on the customizable
nature of the CCK products. The name, design, look and feel of the Button shall
be determined in Netscape's reasonable discretion, subject to Participant's
approval, not to be unreasonably withheld but in any event will properly convey
the functionality of the Co-branded Net2Phone Product. In addition, and provided
that personal toolbar icons are supported for the corresponding version of the
Netscape Navigator Product, Netscape will include an icon that conveys the
functionality of the Co-branded Net2Phone Product on the Button with the text
described in the succeeding sentence. The text on the Button will say
"Net2Phone," unless otherwise mutually agreed upon by the parties. The Button
will either (i) launch the Co-branded Net2Phone Product, if installed, or (ii)
otherwise link to a Co-branded Net2Phone Product sell page.
(d) Subject to Netscape's obligations under Section 3.3, for each
Netscape Software Bundle and each Netscape Navigator release which includes the
Button, Participant will provide the Co-branded Net2Phone Product for all
Primary Platforms described in Exhibit D in accordance with the applicable
---------
specifications and test procedures expressly provided for under this
Agreement, including those set forth in Exhibits A and G. Without limiting
----------------
Participant's obligations pursuant to Exhibits A and G, in the event that a
----------------
given Netscape Software Bundle release can reasonably incorporate a previously
accepted Co-branded Net2Phone Product without requiring any changes, Netscape
shall include such existing Co-branded Net2Phone Product in the Netscape
Software Bundle release in accordance with Sections 3.1(a) and (b).
(e) If Netscape provides a localized version of SmartUpdate for an
international version of Netscape's US Web Site, Netscape will include the Co-
branded Net2Phone Product pursuant to the SmartUpdate program terms and will use
commercially reasonable efforts to promote Participant in ways similar to those
set forth in Section 3.2, if applicable to the particular international website.
Netscape agrees to use commercially reasonable efforts to include the Co-branded
Net2Phone Product and Co-branded Service in international versions of Netscape's
US Web Site and, if so included, Netscape will use commercially reasonable
efforts to promote Participant in ways similar to those set forth in Section
3.2, if applicable to the particular international website.
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Notwithstanding anything contained herein to the contrary, Netscape shall
have no obligation to bundle the Co-branded Net2Phone Product with any version
of the Netscape Software Bundle to the extent that:
(i) Participant has not delivered the applicable Co-branded Net2Phone
Product for each of the primary platforms described in Exhibit D for the
---------
applicable Netscape Software Bundle release;
(ii) Co-branded Net2Phone Product does not meet any of the material
requirements set forth above and in Exhibit G; or
---------
(iii) Co-branded Net2Phone Product does not pass Netscape's acceptance
test as described in Exhibit A.
---------
Furthermore, notwithstanding anything contained herein to the contrary,
Netscape shall have no obligation to bundle the Co-branded Net2Phone Product
with any version of the Netscape Software Bundle to the extent that Netscape
discontinues general commercial distribution of such version of Netscape
Software Bundle, for any reason, provided that Netscape does not discontinue
distribution for the purpose of avoiding its obligations hereunder by promoting
an alternative Product that does not meet the definition of Netscape Software
Bundle or otherwise. In the event Netscape discontinues general commercial
distribution of all versions of the Netscape Software Bundle, but distributes a
Product similar to, but not meeting the definition of, the Netscape Software
Bundle, Netscape shall use its best efforts to bundle the Co-branded Net2Phone
Product in such alternative Product in accordance with this Agreement. In
addition, if Netscape alone, or in conjunction with an Affiliate, distributes or
makes generally available a Product similar to, but not meeting the definition
of, a Netscape Software Bundle with the goal or effect of replacing or phasing
out over time the Netscape Software Bundle, Netscape shall use its best efforts
to bundle the Co-branded Net2Phone Product in such alternative Products in
accordance with this Agreement.
3.2 Netscape's Promotional Programs. During the Initial Bundling Period and
in accordance with the commencement dates set forth in Exhibit E, or as
---------
otherwise mutually agreed by the parties, Netscape shall provide the services
set forth in Exhibit E to promote the Co-branded Net2Phone Product, with such
---------
changes to the manner of promotion as may be reasonably necessary given changes
that may occur in the various promotional programs over time; provided that the
level of promotion of the Co-branded Net2Phone Product (including the manner in
which an end user is encouraged to download Co-branded Net2Phone Product) will
remain substantially the same as is described in Exhibit E. Netscape shall use
---------
good faith efforts not to alter or replace Netcenter, Netscape's US Web Site or
the portions or areas thereof which are a subject of this Agreement (the
"Netscape Sites") with the purpose or effect of significantly avoiding its
obligations under this Section 3.2. In the event Netscape, alters, replaces,
discontinues or otherwise phases out the operation of the Netscape Sites in a
manner that significantly avoids its obligations under this Section 3.2, but
operates an alternative site(s) similar to the Netscape Sites alone or in
conjunction with an Affiliate, Netscape shall comply with its obligations to
provide services in accordance with this Section 3.2 on such alternative
site(s).
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Notwithstanding anything contained in this Section 3.2, Netscape shall have
no obligation to provide such services with respect to Co-branded Net2Phone
Product until thirty (30) days following Netscape's (i) acceptance of the
applicable Co-branded Net2Phone Product in JAR format in accordance with
Exhibits A and E and (ii) receipt of mutually acceptable Participant Collateral
----------------
Materials. However, within thirty (30) days following receipt of the above,
Netscape shall provide the above services with respect to the Co-branded
Net2Phone Product.
3.3 Technical Communication. During the Initial Bundling Period, the parties
will designate certain internal technical contacts for each other as set forth
in Exhibit F and will conduct certain technical communication activities as
---------
described in Exhibit F. Netscape will use commercially reasonable efforts to
---------
provide technical and marketing assistance, including sufficient availability of
applicable contacts and maintenance of regular communication channels between
relevant personnel, for the purpose of assisting both parties to abide by their
obligations under this Agreement.
3.4 General Conditions to Netscape Bundling and Promotional Obligations.
Notwithstanding anything contained in this Section 3, Netscape shall have no
obligation under this Section 3 with respect to a particular version of Co-
branded Net2Phone Product or the Button to the extent that:
(i) Netscape has received notice (written or verbal) of, and
reasonably believes, that the reproduction, use or distribution of any
version of the Co-branded Net2Phone Product in accordance with this
Agreement infringes or misappropriates the intellectual property rights of
any third party; or
(ii) this Agreement is terminated by Participant or Netscape as set
forth in this Agreement; or
(iii) an aspect of such Co-branded Net2Phone Product exists, other
than an acknowledged security risk that a corporation/ user accepts by
opening up holes in its firewall to enable use of the Co-branded Net2Phone
Product, that could be exploited in a manner that Netscape reasonably
believes (a) would expose Netscape's users to potential efforts to invade
their privacy or damage or modify data, software or hardware in an
unauthorized manner or (b) would otherwise result in meaningful and serious
claims that the Co-branded Net2Phone Product presents a security risk to
its users; or
(iv) in the case of a previously accepted Co-branded Net2Phone
Product, the Co-branded Net2Phone Product contains a Priority level 1 or 2
Error, as defined in Exhibit C.
---------
3.5 Procedures Related to Suspension of Bundling or Promotional Services.
Prior to suspending any bundling or promotional services obligations provided
for in Sections 3.1 or 3.2 or suspending use of the Logo as provided for in
Section 2.4(other than in conjunction with termination of this Agreement which
shall be treated in accordance with Section 11) in accordance with the above
occurring events or the events described in Section 2.4 or in accordance with
any other provision of this Agreement (other than termination of this
Agreement), Netscape will give Participant notice and an opportunity to cure, as
provided below,
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unless, in its reasonable discretion, Netscape will be materially and adversely
affected in a substantial manner by failing to act immediately or at some
subsequent time prior to the completion of the notice and cure period. The
notice will be in writing and contain a reasonably detailed explanation for
Netscape's intention to suspend a given bundling or promotional activity or use
of the Logo. Upon receipt of such notice, Participant will have at least seven
(7) business days to cure the applicable error or deficiency to Netscape's
reasonable satisfaction and, if cured, Netscape shall not suspend the given
bundling or promotional services or Logo usage. Netscape will make good faith
efforts to facilitate Participant's cure efforts and to extend the cure period
as appropriate, so long as Netscape, in its reasonable discretion, is not
materially prejudiced thereby. In the event Netscape suspends any bundling or
promotional services obligations provided for in Sections 3.1 or 3.2 or use of
the Logo provided for in Section 2.4 (other than for termination of this
Agreement) in accordance with this Agreement, including the provisions above,
Netscape will notify Participant in writing within twenty-four hours of this
decision setting forth in reasonable detail the explanation for such decision.
Participant will then have the opportunity to cure the applicable error or
deficiency. When such cure is demonstrated to Netscape's reasonable
satisfaction, which satisfaction shall not be unreasonably withheld, Netscape
shall resume the applicable bundling or promotional services or Logo usage as
soon as commercially practical, which may be in the next release of the Netscape
Software Bundle. If, in Participant's reasonable and good faith opinion,
Netscape has improperly suspended any bundling or promotional services
obligations provided for in Sections 3.1 or 3.2 or Logo usage as provided for in
Section 2.4 in a manner that was not in accordance with this Agreement,
Participant shall provide Netscape with written notice of this contention. The
parties will then attempt to determine in good faith whether or not such
contention is true. If the parties both determine that Netscape improperly
suspended any bundling or promotional services or Logo usage in a manner that
was not in accordance with this Agreement, the InitialBundling Period will be
extended by the length of time of such suspension. If the parties cannot reach
agreement on Participant's contention within thirty (30) days of the notice, the
Initial Bundling Period will be extended by a period of time equal to one-half
the length of time of the suspension at issue; provided, however, that the total
aggregate amount of time the Initial Bundling Period may be extended in this
manner (i.e., where the parties cannot agree on the truth of the contention)
cannot exceed sixty (60) days.
Prior to suspending any bundling or promotional services obligations
provided for in Sections 3.1 or 3.2 (other than in conjunction with termination
of this Agreement which shall be treated in accordance with Section 11) in
accordance with the above occurring events or in accordance with any other
provision of this Agreement (other than termination of this Agreement), Netscape
will give Participant notice and an opportunity to cure, as provided below,
unless, in its reasonable discretion, Netscape will be materially and adversely
affected in a substantial manner by failing to act immediately or at some
subsequent time prior to the completion of the notice and cure period. The
notice will be in writing and contain a reasonably detailed explanation for
Netscape's intention to suspend a given bundling or promotional activity. Upon
receipt of such notice, Participant will have at least seven (7) business days
to cure the applicable error or deficiency to Netscape's reasonable satisfaction
and, if cured, Netscape shall not suspend the given bundling or promotional
services. Netscape will make good faith efforts to facilitate Participant's cure
efforts and to extend the cure period as appropriate, so long as Netscape, in
its reasonable discretion, is not materially prejudiced thereby.
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CONFIDENTIAL
In the event Netscape suspends any bundling or promotional services
obligations provided for in Sections 3.1 or 3.2 (other than for termination of
this Agreement) in accordance with this Agreement, including the provisions
above, Netscape will notify Participant in writing within twenty-four hours of
this decision setting forth in reasonable detail the explanation for such
decision. Participant will then have the opportunity to cure the applicable
error or deficiency. When such cure is demonstrated to Netscape's reasonable
satisfaction, which satisfaction shall not be unreasonably withheld, Netscape
shall resume the applicable bundling or promotional services as soon as
commercially practical, which may be in the next release of the Netscape
Software Bundle.
If, in Participant's reasonable and good faith opinion, Netscape has
improperly suspended any bundling or promotional services obligations provided
for in Sections 3.1 or 3.2 in a manner that was not in accordance with this
Agreement, Participant shall provide Netscape with written notice of this
contention. The parties will then attempt to determine in good faith whether or
not such contention is true. If the parties both determine that Netscape
improperly suspended any bundling or promotional services in a manner that was
not in accordance with this Agreement, the Initial Bundling Period will be
extended by the length of time of such suspension. If the parties cannot reach
agreement on Participant's contention within thirty (30) days of the notice, the
Initial Bundling Period will be extended by a period of time equal to one-half
the length of time of the suspension at issue; provided, however, that the total
aggregate amount of time the Initial Bundling Period may be extended in this
manner (i.e., where the parties cannot agree on the truth of the contention)
cannot exceed sixty (60) days.
3.6 Provision of Unavailable Localized Versions. If Netscape desires a
localized version of the Co-branded Net2Phone Product in addition to the
Localized Versions, then Netscape shall notify Participant in writing within 5
months of the expected release date of the localized version. If Participant
notifies Netscape that it has or will have the localized version available 8
weeks prior to the expected release date, then there shall be no fees owed to
Participant and the localized version shall be provided to Netscape at least 8
weeks prior to the release date. Except with respect to Localized Versions, if
Participant does not plan to develop or acquire the localized version as
requested by Netscape prior to the 8 week deadline, then Netscape may elect to
order such localized version from Participant for a fee equal to the
Participant's reasonable costs of localization plus **** percent (to be
quoted and agreed upon by Netscape in writing prior to the localization).
Participant must respond within 10 working days after receiving Netscape's order
for the localized version if Participant wishes to accept such order. If
Participant accepts Netscape's order to develop the localized version, then both
parties shall mutually agree upon a reasonable schedule for development of the
localized version which must be completed at least 8 weeks prior to the expected
release date such that Netscape has the ability to perform the agreed upon
acceptance tests outlined in Exhibit A. Except as set forth specifically in this
---------
Section 3.6 (i.e., Netscape orders and agrees to pay for a localized version to
be developed at Netscape's request), there shall be no fees owed to Participant
for Localized Versions.
3.7 Competitive Products. For the term of this Agreement, Netscape agrees
not to bundle a directly competitive product to the Net2Phone Product that
provides for PC to telephone calls in the Netscape Products described in Exhibit
-------
D.
-
[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
12
CONFIDENTIAL
3.8 Reporting. Netscape agrees to make reasonable efforts to provide
Participant with reporting information regarding aggregate numbers of downloads
or other distributions of Netscape Communicator Complete and CCK, based on
availability, from the Netscape download site and such other information as
Participant shall reasonably request and that Netscape can reasonably provide.
4. CO-BRANDED SERVICE OBLIGATIONS
4.1 Co-branded Service Pages. The pages of the Co-branded Service will be
produced, managed and hosted by Netscape or Participant as indicated in the site
map attached hereto as Exhibit I or as otherwise mutually agreed from time to
------------------------------------------------------
time. Any Co-branded Service pages hosted by Participant on Participant's
----
servers shall be designed by Netscape subject to Participant's approval which
shall not be unreasonably withheld. With no less than 10 days prior written
notice to Participant and except as limited by technical requirements, Netscape
may produce, manage and host all such Co-branded Service pages. All Co-branded
Service pages will have a "Xxxxxxxx.xxx" domain name (or such other domain name
as Netscape may determine) or as otherwise agreed between the parties. All
access to the Co-branded Service shall be deemed to be via Netscape's Web Site,
and therefore shall be Netscape traffic, provided, however, that all traffic
from the Participant billing history, account summary, call details and
substantially similar pages linked directly to the Co-branded Net2Phone Product,
shall be deemed Participant traffic. Except as set forth in the previous
sentence, Participant agrees that for the purpose of third party industry
measurement metrics (such as Media Metrix and Relevant Knowledge), all traffic
(by any industry unit of measurement) within such areas should be exclusively
attributable to Netscape so long as such industry measurement metric companies
do not attribute traffic to more than one entity. Participant shall contact such
industry metrics companies and initiate this process, and Netscape and
Participant will use commercially reasonable efforts and will sign appropriate
documentation to obtain the consent of third party industry measurement firms to
attribute traffic credit to both Participant and Netscape for such pages. The
pages of the Co-branded Service designated for Co-branding shall be Co-branded
by Netscape and Participant and such Co-branding shall appear above the fold.
All use of Participant's name, logos, trademarks and service marks shall be
subject to Participant's approval. Every Co-branded Service page within
Netcenter shall include a header as specified at the following URL: http:/ /
xxxxx.xxxx.xxx:888/nc20/html with User ID = **** and Password = **** or a
replacement URL specified by Netscape from time to time. The overall look and
feel of the header shall be determined by Netscape and be consistent with the
look and feel of the other navigational elements within Netcenter. Netscape will
be responsible for the design and look and feel of the Co-branded Service,
subject to Participant's reasonable approval, not to be unreasonably withheld.
Participant will be notified of any change to such design and look and feel and,
subject to Participant's reasonable approval, given 30 days to implement such
changes. All Co-branded Service pages will follow Netscape re-circulation,
design and template specifications. The Co-branded Service pages may have
mutually agreed upon links to the Participant Service or Participant's website,
however, none of the Co-branded Service pages will link to a Netscape direct
competitor.
4.2 Production, Technology and Content Programming. Subject to Participant's
approval, not to be unreasonably withheld, Netscape shall be responsible for
creating the graphic user interface for the Co-branded Service with commercially
reasonable assistance from
[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
13
CONFIDENTIAL
Participant, upon Netscape's request. The Co-branded Service shall use
substantially the same technology and advantages as Participant uses in the
Participant Service unless otherwise agreed to by the parties. The Co-branded
Service shall not be disadvantaged or suffer from inferior production,
programming or performance relative to the Participant Service, or any
substantially similar service which Participant might make available to, or
operate on behalf of, third parties. Participant shall consider, whenever
reasonably possible, employing in the Co-branded Service and for Participant's
enterprise, Netscape's technology, if available, provided that such use of
Netscape's technology does not unduly burden the performance or production of
the Co-branded Service.
4.3 Sale of Advertising. The parties shall allocate the sale and resulting
revenue from Co-branded pages of the Co-branded Service as follows:
(a) Netcenter Pages. As further described in Exhibit I, Netscape
---------
shall be responsible for selling and serving advertising and any other
promotions within the sell pages that are linked from the Netcenter "Contact"
and "Voice Services" or equivalent nomenclature pages and Participant shall be
responsible for selling and serving advertising and any other promotions within
the download pages that are linked to the sell pages described above and any
pages thereafter linked to Participant's download pages. Each party shall retain
all advertising revenues realized from the sale of advertising pursuant to this
Section 4.3 (a).
(b) Pages Accessed from the Co-branded Net2Phone Product. Participant
shall be responsible for selling and serving advertising and any other
promotions within the Co-branded pages linked directly and indirectly (except
for those pages described in subsections (a) and (c) of this Section) to the Co-
branded Net2Phone Product and will share revenues from such sales in accordance
with Section 13.
(c) Netcenter Pages Accessed from Clicking on the Personal Tool Bar
and the Contact Address Book. Netscape shall be responsible for selling and
serving advertising and any other promotions within the pages accessed by
clicking on the personal toolbar or clicking on the web-based address book
accessible from Contact ("Contact Address Book") hosted by Netscape as indicated
in Exhibit I. Participant shall be responsible for selling and serving
---------
advertising and any other promotions within the pages hosted by Participant as
indicated in Exhibit I. Each party shall retain all advertising revenues
---------
realized from the sale of advertising pursuant to this Section 4.3 (c).
4.4 Technical Support by Participant. During the Term, Participant shall
provide technical support services for the Co-branded Service to Netscape on a
timely basis, appoint a technical contact to whom Netscape may address all
technical questions relating to the Co-branded Service, and use reasonable
commercial efforts to promptly remedy any material malfunctioning of the Co-
branded Service, except to the extent such support services or material
malfunctioning is attributable to any Products or to hardware or software under
Netscape's or the end user's responsibility or control (other than the Co-
branded Net2Phone Product itself or related portions of the Co-branded Service).
Except as provided at the end of the previous sentence, Participant shall be
solely responsible for end user satisfaction with respect to the Co-branded
Service and maintenance and support requirements in connection with the Co-
branded Service. Except for those portions of the Co-branded Service for which
Netscape is
14
CONFIDENTIAL
responsible pursuant to the terms of this Agreement, Participant shall be solely
responsible for the purchase, implementation, maintenance and support of all
software and hardware required to maintain portions of the Co-branded Service
for which Participant is responsible and fulfill its obligations under the
Agreement. Technical support obligations for the Co-branded Net2Phone Product
are outlined in Section 8.1.
4.5 Netscape Technical Support. During the Term, Netscape shall provide
technical support services to Participant for interaction between the Co-branded
Service and other areas of Netcenter on a timely basis, appoint a technical
contact to whom Participant may address all technical questions relating to the
technical interface between such areas and use its commercially reasonable
efforts to promptly remedy any material malfunctioning of areas of Netcenter
that interact with the Co-branded Service. Netscape shall be solely responsible
for end user satisfaction with respect to the Netcenter Service and maintenance
and support requirements in connection with the Netcenter Service. Netscape
shall be solely responsible for the purchase, implementation, maintenance and
support of all software and hardware required to maintain the portions of the
Co-branded Service for which Netscape is responsible and fulfill its obligations
under the Agreement.
4.6 Quality Assurance. All of Participant's service offerings within the Co-
branded Service and Co-branded Net2Phone Product must be "Best of Breed",
meaning competitive with comparable market leading products and services,
excluding price, containing substantially all of the features and functionality
of, and being of the same or superior quality to such other available comparable
market leading products and services. In the event Netscape notifies Participant
that any portion of the Co-branded Service does not meet Best of Breed criteria,
Participant shall have 10 business days within which to submit a mutually agreed
upon action plan to cure such quality issue.
5. END USER REGISTRATION AND CUSTOMER SUPPORT
5.1 User Registration. End users who wish to engage in any activities in the
Co-branded Service including use of the Co-branded Net2Phone Product which
requires User Registration will have to register with the Co-Branded Service in
accordance with the terms described in Exhibit H, as such Exhibit may be revised
---------
by Netscape from time to time. Any and all information regarding end users that
is obtained by Participant through, or in connection with, the Service will be
subject to the terms and conditions of Exhibit H.
---------
5.2 Netcenter Customer Support Programs. Participant shall provide the
following customer support features in the Co-branded Service: (i) 72 hour
response to customer inquiries; (ii) 24 hour notification of order confirmation
and estimated delivery time; and (iii) a secure transaction environment
(supporting at least SSL 3.0, or the then current industry standard). Netscape
may develop additional Netcenter features and programs to help promote sales and
customer loyalty, and Participant shall implement such services and features
when they are developed, provided such implementation is reasonable and is
standard for participants in Netcenter.
15
CONFIDENTIAL
6. PROPRIETARY RIGHTS.
Participant shall have no ownership interest in any of Netscape's products,
including the Products, nor in any of Netscape's trademarks, and Netscape and
its licensors shall retain ownership in such products and trademarks.
Participant and its suppliers shall retain ownership in, and Netscape shall have
no ownership interest in, all copyrights, patents, trade secrets, trademarks and
trade name rights and all other right, title and interest in and to the
Participant Marks, the Net2Phone Products, Co-branded Net2Phone Products (except
for any Netscape trademarks and/or trade names therein), the Participant
Service, the Participant Collateral Materials, international versions of the
foregoing, any enhancements and improvements thereto, and derivative works
thereof, delivered by Participant hereunder, and all proprietary rights therein,
including all packaging designs, logos, slogans, advertising materials,
promotional materials, and all other materials delivered by Participant pursuant
hereto, except for the limited license rights expressly granted to Netscape as
set forth in this Agreement. Netscape will not delete or in any manner alter the
copyright, trademark, and other proprietary rights notices appearing on the Co-
branded Net2Phone Product, the Net2Phone Product or any of the items licensed to
Netscape under Section 2, and will reproduce such notices on all copies it makes
of such products or items.
7. BUSINESS PRACTICES
7.1 End User Fees. Participant acknowledges that Netscape may charge for the
Products and/or Integrated Offerings, provided that Netscape will not charge a
fee for a stand-alone version of the Co-branded Net2Phone Product.
7.2 Identity as Separate Product. All Distributions will distinguish Co-
branded Net2Phone Product as separate and distinct from the Products. The
license grant to the end user for Co-branded Net2phone Product will be granted
by Participant and not Netscape. Participant shall be responsible for all its
obligations with respect to Co-branded Net2Phone Product pursuant to such
license grant to end users. Netscape may utilize whatever reasonable method(s)
Netscape deems appropriate to convey the separate nature of Participant Product
to end users.
7.3 End User License Agreement. Co-branded Net2Phone Product will be
licensed under an end user license agreement between Participant and the end
user which is built into the Co-branded Net2Phone Product and which is
substantially similar to the form attached hereto as Exhibit B ("License Form").
---------
Participant acknowledges that Netscape's installation procedure for the
Integrated Offering may not provide a mechanism for the potential end user to
review the end user license agreement prior to installation
7.4 Integration. Netscape will, with consultation of Participant, determine
installation requirements and other technical requirements applicable to
inclusion of Co-branded Net2Phone Product in the Integrated Offering. At
Netscape's request, Participant will promptly assist Netscape in making the
integration of Co-branded Net2Phone Product into the Integrated Offering as
seamless as reasonably possible.
7.5 Unauthorized Distribution. Participant acknowledges that Electronic
Distribution of the Co-branded Net2Phone Product may result in an increased
number of persons obtaining
16
CONFIDENTIAL
copies through improper channels (e.g., redistribution over the Internet,
"mirror sites," unauthorized posting to newsgroups, etc.). Participant agrees
that Netscape will not bear the risk of unauthorized distribution or
redistribution by third parties, both during and after the term of this
Agreement, and that Netscape shall have no liability to Participant or its
suppliers for any such unauthorized distribution.
7.6 User Documentation Changes. Netscape agrees that if it (a) makes any
major modifications (for distribution) to the Co-branded Net2Phone Product user
documentation and Participant Collateral Materials other than formatting and
non-substantive style ("User Doc Modifications"), the Participant shall have the
right to approve such User Doc Modifications as follows. Netscape shall provide
any such User Doc Modifications to Participant for review and approval, and
Participant shall not unreasonably withhold or delay any such approval. If
Participant does not respond to Netscape with approval or specified reasons for
rejection of User Doc Modifications within five (5) business days after
submission by Netscape, then such User Doc Modifications shall be deemed
approved by Participant. At the time of entering into this Agreement, Netscape
does not anticipate making any User Doc Modifications. Participant shall own
such User Doc Modifications (except for any Netscape trademarks/logos contained
therein), and Netscape hereby transfers and assigns all of its rights therein to
Participant, subject to the following: (1) all User Doc Modifications are
provided to Participant "AS IS"; and (2) except for any Participant
trademarks/logos contained therein, Netscape shall retain a nonexclusive,
perpetual, irrevocable, worldwide license to use, distribute, reproduce, publish
and modify the User Doc Modifications (not the Co-branded Net2Phone Product user
documentation, only the changes thereto), with rights to sublicense such rights.
8. PARTICIPANT OBLIGATIONS
8.1 Support. Netscape will not provide any support for Co-branded Net2Phone
Product. Netscape may notify end users that it does not provide any such support
and that end users must contact Participant directly for support options.
Participant will take reasonable commercial steps to make end users aware that
all support requests for Co-branded Net2Phone Product should be directed to
Participant. Participant will make available to end users of the Co-branded
Net2Phone Product support that, at a minimum, conforms to the requirements of
Exhibit C relating to end user support. Participant also agrees to provide HTML
---------
based user support through the browser. A minimum of 80% of user support should
be located on the server.
8.2 Upgrades. Participant will include Netscape in its alpha and beta
programs for any Upgrades released during the term of this Agreement, and will
provide Netscape with the production version of such Upgrades simultaneously
with its earliest release of such Upgrades to other customers. Participant shall
also provide Netscape during the term hereof with any error corrections, bug
fixes and enhancements to the Co-branded Net2Phone Product (other than
corrections, bug fixes and enhancements specifically for custom or specialized
versions or projects) simultaneously with its earliest release of such error
corrections, bug fixes or enhancements to other customers. Netscape will use
reasonable and good faith efforts to incorporate any such Upgrade, error
correction, bug fix or enhancement in an the applicable Integrated Offering or
Distribution in a commercially reasonable period of time.
17
CONFIDENTIAL
8.3 Complete Listing. Participant will provide Netscape with a complete list
of all files, libraries, etc. that are required for installation and use of Co-
branded Net2Phone Product within five (5) days of Netscape's request.
8.4 No Viruses. Participant will use commercially reasonable efforts to
ensure that the Co-branded Net2Phone Product (i) does not contain any computer
virus or (ii) will not otherwise introduce any harmful or destructive code into
the end user's computer.
8.5 Participant Collateral Material. Participant will provide Netscape the
Participant Collateral Materials as specified in Exhibit A and such additional
---------
or modified Participant Collateral Materials as Netscape may reasonably request
from time to time for Netscape's use in accordance with this Agreement. If
Netscape determines that any Participant Collateral Material, or any material
that is located one click away from any Participant Collateral Materials,
contains anything that Netscape reasonably deems likely to cause Netscape
material harm, Netscape will inform Participant and may exclude Participant
Collateral Materials from Netscape's website, marketing materials and products
until corrected. Netscape reserves the right not to include in its website,
marketing materials and products, any Participant Collateral Materials that do
not substantially conform to the terms set forth in this Agreement.
8.6 Netscape Now. Participant agrees during the Initial Bundle Period to
promote Netscape Navigator as a "recommended browser" for using with Co-branded
Net2Phone Products, and in a manner no less favorably than any other browser,
whenever and wherever Participant promotes the use of any browser. Participant
agrees to place the Netscape Now button(s) on Participant's web site located at
URL xxx.xxx0xxxxx.xxx in accordance with the then current Netscape Now
guidelines provided by Netscape, and which are currently available at
xxxx://xxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxx/xxxxxxxx/xxx/xxxxxxxxxx.xxxx.
--------------------------------------------------------------------
8.7 Payments. Participant agrees to make the payments set forth in Section
13.
8.8 Marketing Promotions. Participant shall provide mutually agreed upon
marketing promotions or product/service bundles for the Co-branded Net2Phone
Product, including all localized versions.
9. WARRANTIES AND INDEMNIFICATION
9.1 Title. Participant warrants to the best of its knowledge that (i) it has
the right to grant the licenses as set forth in this Agreement, (ii) such
licenses do not infringe on any third parties' proprietary rights, (iii) it owns
or possesses all rights to the Co-branded Net2Phone Product and to the
Participant Collateral Materials necessary to grant the licenses hereunder, (iv)
Netscape shall not be obligated to pay any fees or royalties for use of the Co-
branded Net2Phone Product or the Participant Collateral Materials, and (v) there
are no pending or threatened lawsuits concerning any aspect of the Co-branded
Net2Phone Product or any Participant Collateral Materials that would have a
materially adverse impact on Netscape and its ability to exercise the licenses
granted hereunder. If Participant becomes aware of any pending or threatened
lawsuit concerning any aspect of the Co-branded Net2Phone Product or the
Participant Collateral Materials that, in its reasonable opinion, could likely
have a materially
18
CONFIDENTIAL
adverse impact on Netscape and its ability to exercise the licenses granted
hereunder, Participant shall notify Netscape and provide Netscape with
information reasonably related thereto.
9.2 Export. Participant shall be responsible for obtaining any and all
necessary approvals, registrations or certifications for the international sale
or export of the Co-branded Net2Phone Product. Participant shall inform Netscape
and keep Netscape apprised of the export approval status of the Co-branded
Net2Phone Product and must promptly inform Netscape of any cryptographic
technologies used or embedded within the Co-branded Net2Phone Product, and of
any associated international restrictions. Notwithstanding the foregoing, both
parties shall adhere to all applicable laws, regulations and rules relating to
the export of technical data and shall not export or re-export any technical
data, any products received from the other party or the direct product of such
technical data to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized.
9.3 Non-Infringement. Without limiting Netscape's rights under Section 9.8,
should the Co-branded Net2Phone Product become, or in Participant's opinion be
likely to become, the subject of any infringement claim or suit, Participant
shall, at its option: (i) procure for Netscape the right to continue
distributing the Co-branded Net2Phone Product, as well as the right for Netscape
and its customers to continue use of the Co-branded Net2Phone Product, while
maintaining substantially similar functionality, (ii) modify the Co-branded
Net2Phone Product such that it no longer infringes the proprietary rights of any
third party, while maintaining substantially similar functionality, look and
feel of the Co-branded Net2Phone Products, or (iii) if (i) and (ii) are not
commercially practicable and Participant determines in good faith (and is
confirmed by an opinion of its counsel, if reasonably requested by Netscape)
that continued distribution by Netscape (and its other similarly situated
distributors) will likely increase the likelihood of liability to Participant
and Participant ceases distribution of Co-branded Net2Phone Product by its other
similarly situated distributors, Participant may terminate this Agreement.
9.4 Performance. Participant warrants that (i) for a period of 90 days from
the applicable delivery date that the media on which the Co-branded Net2Phone
Product is delivered will be free of defects in material and workmanship, (ii)
the Co-branded Net2Phone Product will function substantially in accordance with
the specifications for the Co-branded Net2Phone Product in applicable
documentation, and (iii) the Co-branded Net2Phone Product documentation shall be
accurate in all material respects. In the case of a breach of the warranties in
this Section 9.4, Participant shall use commercially reasonable efforts to
repair or replace non-conforming, unsuitable or inaccurate Co-branded Net2Phone
Product software or documentation within a reasonable period of time of notice
of such condition.
9.5 Year 2000. Participant warrants that the Co-branded Net2Phone Product is
Year 2000 Compliant. "Year 2000 Compliant" shall mean the Co-branded Net2Phone
Product complies with the following:
(a) General Integrity: No value for the current date will interrupt
-----------------
normal operation: the Co-branded Net2Phone Product returns the correct date
accurate to century in response to a request for current date, the Co-branded
Net2Phone Product correctly provides date output and performs calculations on
dates or portions of dates, and the Co-branded Net2Phone Product is not
adversely affected by any value returned;
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CONFIDENTIAL
(b) Date Integrity: Correct results are returned in the operation of
--------------
all legal, arithmetic, logical and calendar operations of dates that span
century marks;
(c) Explicit Century: The Co-branded Net2Phone Product's internal
----------------
date storage format explicitly includes the century and reporting formats allow
date representations in four digit format;
(d) Implicit Century: On encountering data that does not include the
----------------
century either from transaction input or from an external data source, the
century value is unambiguously inferred by the Co-branded Net2Phone Product.
In the case of a breach of the warranty described in this Section 9.5,
Participant shall use commercially reasonable efforts to modify the Co-branded
Net2Phone Product such that the Co-branded Net2Phone Product is Year 2000
Compliant. Netscape may suspend the distribution of Co-branded Net2Phone Product
if Participant is in breach of the warranty in this Section 9.5 in accordance
with the procedures set forth in Section 3.5 of this Agreement..
9.6 General Warranty. Each party represents and warrants to the other party
that: (i) it has the full corporate right, power and authority to enter into
this Agreement, and to perform the acts required of it hereunder; and (ii) the
execution of this Agreement by it, and the performance by it of its obligations
and duties hereunder, do not and shall not violate any agreement to which it is
a party or by which it is otherwise bound.
9.7 Disclaimer. THE WARRANTIES PROVIDED BY EACH PARTY HEREIN ARE EXCLUSIVE
AND THE ONLY WARRANTIES PROVIDED BY EACH PARTY WITH RESPECT TO THE PARTICIPANT'S
PRODUCTS AND SERVICES AND THIS AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF, AND
BOTH PARTIES AND THEIR SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR,
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NONINFRINGEMENT.
9.8 Participant Indemnity. Participant agrees to defend any action or claim
brought against Netscape to the extent that such action or claim is based upon,
third party claims alleging (i) Participant does not have the right to grant the
licenses as set forth in this Agreement, such licenses do infringe on any third
parties' proprietary rights, Participant does not own or possess all rights to
the Co-branded Net2Phone Product and to the Participant Collateral Materials and
to the portions of the Co-branded Service provided by Participant necessary to
grant the licenses and rights hereunder, and/or Netscape shall be obligated to
pay fees or royalties for use of the Co-branded Net2Phone Product or the
Participant Collateral Materials or the portions of the Co-branded Service
provided by Participant, and/or (ii) that Netscape's exercise of its rights to
the Co-branded Net2Phone Product and/or Participant Collateral Materials and/or
portions of the Co-branded Service provided by Participant granted by
Participant hereunder infringes any trademark patent, copyright, trade secret or
other proprietary right of any third party (in each such case, a "Netscape
Claim"). Participant will pay any costs, damages and expenses (including
settlement costs and reasonable attorneys' fees) attributable to such Netscape
Claim that are awarded in a final judgment against Netscape, provided that
Netscape (i) promptly notifies
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Participant in writing of any such claim and grants Participant sole control of
the defense and all related settlement negotiations, and (ii) cooperates with
Participant, at Participant'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.
Exclusions. Notwithstanding the above, Participant will have no liability
for any Netscape Claim to the extent (i) it relates to any Products, any
portions of the Netscape Software Bundle or Integrated Offering or the Co-
branded Service that are not provided to Netscape by Participant or any other
product or service not provided, in whole or in part, by Participant or (ii) it
results from (a) modifications to the Co-branded Net2Phone Product or
Participant Collateral Materials or portions of the Co-branded Service provided
by Participant made other than by Participant or at Participant's direction or
without Participant's approval; (b) failure of Netscape to use updated or
modified versions of the Co-branded Net2Phone Product or Participant Collateral
Materials when such versions have been timely supplied to Netscape by
Participant to be included in the next relevant Netscape Software Bundle, or
portions of the Co-branded Service; (c) the use of the Net2Phone Product or
Participant Collateral Materials or portions of the Co-branded Service provided
by Participant in combination with software or hardware not provided by
Participant if such infringement would have been avoided but for such
combination.
9.9 Netscape Indemnity to Participant. Netscape agrees to defend any action
or claim brought against Participant to the extent that such action or claim is
based upon third party claims alleging that any portion of the Co-branded
Service provided by Netscape or any portion of the Netscape Software Bundle or
Integrated Offering provided by Netscape infringes any trademark, patent,
copyright or trade secret or other proprietary right of any third party (in each
such case a "Participant Claim"). Netscape will pay any costs, damages and
expenses (including settlement costs and reasonable attorneys' fees)
attributable to such Participant Claim that are awarded in a final judgment
against Participant, provided that Participant (i) promptly notifies Netscape in
writing of any such claim and grants Netscape sole control of the defense and
all related settlement negotiations, and (ii) cooperates with Netscape, at
Netscape's expense, in defending or settling such claim; provided that if any
settlement results in any ongoing liability to, or prejudices or detrimentally
impacts Participant, and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall require
Participant's written consent. In connection with any such claim, Participant
may have its own counsel in attendance at all public interactions and
substantive negotiations at its own cost and expense.
Exclusions. Notwithstanding the above, Netscape will have no liability for
any Participant Claim to the extent (i) it relates to the Net2Phone Product, any
portions of the Netscape Software Bundle or Integrated Offering or the Co-
branded Net2Phone Product or the Co-branded Service that are not provided by
Netscape, or any other product or service not provided, in whole or in part, by
Netscape or (ii) it results from (a) modifications to the portions of the
Netscape Software Bundle or Integrated Offering or Co-branded Net2Phone Product
or Co-branded Service provided by Netscape made other than by Netscape or at
Netscape's direction or without Netscape's approval; (b) failure of Participant
to use updated or modified versions of the portions of the Co-branded Service or
Co-branded Net2Phone Product provided
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by Netscape to Participant provided that Netscape supplies such version to
Participant in a timely manner; (c) the use of the portions of the Co-branded
Service or Co-branded Net2Phone Product provided by Netscape in combination with
software or hardware not provided by Netscape if such infringement would have
been avoided but for such combination.
10. LIMITATION OF LIABILITY.
EXCEPT FOR PARTICIPANT'S OBLIGATIONS AND LIABILITY UNDER SECTION 9.8 AND 12
AND NETSCAPE'S OBLIGATIONS AND LIABILITY UNDER SECTIONS 9.9 AND 12, IN NO EVENT
WILL EITHER PARTY OR THEIR SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR ANY FORM
OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM
ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT OR THE
PARTICIPANT'S PRODUCTS OR SERVICES LICENSED HEREUNDER, WHETHER ARISING IN TORT
(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF IT HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING,
EXCEPT FOR PARTICIPANT'S OBLIGATIONS AND LIABILITIES UNDER SECTIONS 9.8 AND 12
AND NETSCAPE'S OBLIGATIONS AND LIABILITIES UNDER SECTIONS 9.9 AND 12, IN NO
EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT EXCEED THE GREATER OF (i) THE SUM OF THE PAYMENTS MADE BY
PARTICIPANT TO NETSCAPE UNDER THIS AGREEMENT DURING THE 6 MONTH PERIOD PRIOR TO
THE CLAIM GIVING RISE TO SUCH LIABILITY OR (ii) TWO HUNDRED AND FIFTY THOUSAND
DOLLARS (US$250,000).
11. TERMINATION
11.1 Term after Initial Bundling Period. The term of this Agreement shall
continue up until the end of the Initial Bundling period, unless terminated
earlier as set forth herein. This Agreement shall automatically terminate upon
the end of the Initial Bundling Period unless the parties agree in writing to
extend or renew the term of this Agreement. Notwithstanding the foregoing,
Netscape agrees to use commercially reasonable efforts to negotiate in good
faith with Participant mutually satisfactory terms for an additional one (1)
year period. Participant shall provide Netscape with ninety (90) days prior
notice of its desire to renew for a third year.
11.2 Termination for Cause. Either party shall have the right to terminate
this Agreement upon a material default by the other party of any of its material
obligations under this Agreement, in accordance with the following procedures:
(i) the party claiming breach shall provide the breaching party with written
notice setting forth in reasonable detail the material default; (ii) upon
receipt of such notice, the breaching party shall have thirty (30) days to
either remedy such default or provide the other party with a written plan to
remedy such default in no more than sixty (60) days from the date such plan is
provided to the other party; and (iii) upon the failure of the breaching party
to cure such default within the thirty (30) or sixty (60) day period, as
applicable, the party claiming breach may terminate this Agreement effective
immediately upon written notice thereof.
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11.3 Termination. Either Party shall have the right to terminate this
Agreement upon written notice to the other party in the event either party is
dissolved and no successor assumes such dissolved party's obligations under this
Agreement. In the event a governmental authority with applicable jurisdiction
determines that the calling service provided under the Co-branded Net2Phone
Product is contrary to existing laws, rules or regulations, Participant may
terminate this Agreement upon written notice to Netscape.
11.4 Rights Upon Termination. Upon termination of this Agreement, Netscape
shall have the right at its option, to continue producing versions of the
Integrated Offering(s) including the Co-branded Net2Phone Product for the longer
("End Date") of (i) Netscape's production of the next major commercial release
(indicated by a change in version number to the left of the decimal point of an
Integrated Offering(s)) of the Integrated Offering(s), or (ii) twelve (12)
months from date of expiration or termination. Following any termination or
expiration of this Agreement, Netscape and its distribution channels shall be
entitled to continue to exercise the rights granted hereunder indefinitely with
respect to any version(s) of the Integrated Offerings already released prior to
the End Date and with respect to any versions of Co-branded Net2Phone Product
offered through the SmartUpdate Program. Upon termination for cause of this
Agreement by Participant or in the event that Netscape is dissolved and no
successor assumes Netscape's obligations under this Agreement, Participant shall
not be obligated to make any additional payments to Netscape as provided for in
Section 13, however, Participant shall be obligated to pay any amounts due and
payable prior to such termination for cause.
11.5 Survival after Termination.
11.5.1 Sublicenses. All sublicenses to the Co-branded Net2Phone Product
which are properly granted shall survive any termination or expiration of this
Agreement.
11.5.2 Provisions of Agreement. The provisions of Sections 6, 7.5, 8.1, 9.8,
9.9, 10,11.4, 11.5, 12, 13 and 14 will survive any termination or expiration of
this Agreement; provided that the survival of Section 8.1 will not exceed twelve
(12) months following the termination or expiration of this Agreement.
Provisions of other Sections which, by their nature, must remain in effect
beyond the termination or expiration of this Agreement shall also survive.
12. CONFIDENTIALITY
12.1 Confidential Information. Except as provided for Exhibit H, each party
---------
(the "Receiving Party") understands that the other party (the "Disclosing
Party") has disclosed or may disclose information of a confidential nature
including, without limitation, computer programs, code, algorithms, names and
expertise of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information ("Proprietary Information"). All Proprietary Information disclosed
in tangible form by the Disclosing Party shall be marked "confidential" or
"proprietary" and all Proprietary Information disclosed orally or otherwise in
intangible form by the Disclosing Party shall be designated as confidential or
proprietary at the time of disclosure.
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12.2 Disclosure and Use. The Receiving Party agrees (i) to hold the
Disclosing Party's Proprietary Information in confidence and to take all
necessary precautions to protect such Proprietary Information (including,
without limitation, all precautions the Receiving Party employs with respect to
its own confidential materials), (ii) not to divulge any such Proprietary
Information or any information derived therefrom to any third person, except
independent contractors under an obligation of confidentiality and with a need
to know for purposes authorized under this Agreement, (iii) not to make any use
whatsoever at any time of such Proprietary Information except as authorized
under this Agreement, and (iv) not to remove or export any such Proprietary
Information from the country of the Receiving Party except as may be allowed by
applicable export laws. The Receiving Party shall limit the use of and access to
the Disclosing Party's Proprietary Information to the Receiving Party's
employees, attorneys and independent contractors under an obligation of
confidentiality and restricted use who need to know such Proprietary Information
for the purposes authorized under this Agreement. The Receiving Party shall
treat the Proprietary Information with at least the same degree of care and
protection as it would use with respect to its own proprietary information. The
foregoing obligations shall survive for a period of three (3) years from the
date of disclosure of the Proprietary Information. Without granting any right or
license, the Disclosing Party agrees that the foregoing shall not apply with
respect to information that the Receiving Party can establish (i) is in the
public domain and is available at the time of disclosure or which thereafter
enters the public domain and is available, through no improper action or
inaction by the Receiving Party or any affiliate, agent or employee, or (ii) was
in its possession or known by it prior to receipt from the Disclosing Party, or
(iii) was rightfully disclosed to it by another person without restriction, or
(iv) is independently developed by the Receiving Party without access to such
Proprietary Information, or (v) is required to be disclosed pursuant to any
statutory or regulatory authority, provided the Disclosing Party is given prompt
notice of such requirement and the scope of such disclosure is limited to the
extent possible, or (vi) is required to be disclosed by a court order, provided
the Disclosing Party is given prompt notice of such order and provided the
opportunity to contest it.
12.3 Independent Development. The terms of confidentiality under this
Agreement shall not be construed to limit either party's right to independently
develop or acquire products without use of the other party's Proprietary
Information. Further, Proprietary Information as defined in Section 10.1 above
shall not include the Residuals resulting from access to such Proprietary
Information. The term "Residuals" means information in intangible form which may
be retained in the unaided memories of Receiving Party's employees or
independent contractors who have had access to the information. An employee's or
contractor's memory will be considered to be unaided if the employee has not
intentionally memorized the Proprietary Information for the purpose of retaining
and subsequently using or disclosing it. Neither party shall have any obligation
to limit or restrict the assignment of such persons or to pay royalties for any
work resulting from the use of Residuals. However, the foregoing shall not be
deemed to grant to either party a license under the other party's copyrights or
patents.
12.4 Return of Proprietary Information. Upon any termination or expiration
of this Agreement each party upon the reasonable request of the disclosing
party, will destroy, or return to the other party, all tangible copies of the
other party's Proprietary Information.
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12.5 Confidentiality of Agreement. Each party agrees that the terms of this
Agreement shall be deemed Proprietary Information of the other party, provided
that in addition to the permitted disclosures under section 10.2, either party
may disclose the terms of this Agreement (i) if required to do so by law or
generally accepted accounting principles, (ii) as required to assert its rights
hereunder, and (iii) to its own directors, employees, attorneys, accountants,
and other advisors on a "need to know" basis and under an obligation of
confidentiality no less stringent than set forth herein. Each party agrees that
the Disclosing Party will be given prompt notice of any disclosure made pursuant
to clause (i) or (ii) above, and that any such disclosure shall be limited to
the extent possible. In addition, either party may disclose the terms of this
Agreement or matters relating thereto to its Affiliates.
12.6 Use of End-User Information. Any information provided to Participant by
Netscape, or collected by Participant (other than information obtained by
Participant independently from end users who provide their information directly
to Participant and not from a Netscape web site) from Netcenter members or Inbox
Direct subscribers, shall be subject to Netcenter's privacy policy and terms of
use, as in effect from time to time, the current version of which is located at
xxxx://xxx.xxxxxxxx.xxx/xxxxxxxxx/xxxxxxx.xxxx.
----------------------------------------------
13. PAYMENT.
13.1 Percentage of Net Revenues from Participant Service. During the Initial
Bundling Period, (i) Participant shall pay Netscape **** of the Net Revenue, as
defined below, attributable to the initial purchase of the calling service
provided through the Co-branded Net2Phone Product/Co-branded Service by first
time users of the Co-branded Net2Phone Product/Co-branded Service, and (ii)
Participant shall pay Netscape **** of the Net Revenue attributable to recharge
fees for the calling service provided through the Co-branded Net2Phone
Product/Co-branded Service generated by users throughout the Initial Bundling
Period who first registered during the Initial Bundling Period ("Initial
Users"). For a period of two (2) years after the Initial Bundling Period,
Participant shall pay Netscape **** of the Net Revenue attributable to recharge
fees for the calling service provided through the Co-branded Net2Phone Product/
Co-branded Service generated by Initial Users throughout such two (2) year
period. During the Initial Bundling Period and for a period of six (6) months
thereafter, Participant shall pay Netscape **** of Net Revenue attributable to
amounts paid by Initial Users for Participant products and services other than
the Co-branded Net2Phone Product. "Net Revenue" shall mean gross revenues that
have been invoiced and received by Participant and are attributable to accounts
registered through the Co-branded Net2Phone Product and Co-branded Service net
of any taxes, surcharges, refunds, charge-backs and fraudulent usage.
13.2 Advertising Revenue Share. All revenue realized according to
section 4.3 (b) shall be shared **** between the parties.
13.3 Reports. For purposes of tracking payments hereunder, Participant
agrees to provide to Netscape the following data within forty-five (45) days
after the end of each calendar quarter: the quantities of users who registered
for the Co-branded Net2Phone Product in that quarter and made an initial
purchase; the Net Revenue from sales made broken down by category as provided in
Section 13.1 (i.e. initial purchases, recharge fees and upsells) ; advertising
revenue generated from pages linked to the Co-branded Net2Phone Product, number
of downloads from
[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH
THE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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Participant's servers, and such other information as Netscape shall reasonably
request that Participant can reasonably provide. With such report, Participant
shall also report the fees for the quarter that accrued hereunder and provide
payment to Netscape of any fees then due.
13.4 Records and Audit Rights. Participant shall maintain accurate records
relating to the tracking of Co-branded Net2Phone Product Upgrade Sales and names
generated from distribution of Co-branded Net2Phone Product by Netscape
hereunder, sufficient to track and verify the fees payable to Netscape
hereunder. Netscape may through an independent nationally recognized CPA conduct
up to one audit of Participant per year to verify compliance with this Agreement
upon at least twenty (20) business days prior notice, which audit shall be
conducted at Netscape's expense, unless the results establish that inaccuracies
have resulted in underpayment to Netscape of more than five percent (5%) of the
amount actually due, in which case Participant shall pay all amounts due and
bear the expense of the audit. The information obtained during any audit of
Participant shall, subject to the terms of Section 10, be Proprietary
Information of Participant and shall not be disclosed by Netscape except as may
be reasonably necessary in order to enforce this Agreement.
13.5 Payments. All amounts payable to Netscape are nonrefundable, are
stated and to be paid in U.S. Dollars and must be paid in accordance with the
terms set forth herein. All payments shall be made by wire transfer or check.
13.6 Taxes. All payment amounts in this Agreement are in US dollars and are
exclusive of any applicable taxes and shall be made free and clear of, without
reduction for, (and Participant shall be responsible for and shall indemnify
Netscape against) any applicable U.S. and foreign, state and local taxes, value
added or sales taxes, withholding taxes, duties or levies and assessments,
howsoever designated or computed, pertaining to the payments under this
Agreement (excluding taxes based upon the net income of Netscape). Participant
shall promptly furnish Netscape with tax receipts evidencing the payment of any
taxes referred to in the preceding sentence. Netscape and Participant shall
cooperate with each other in minimizing any applicable tax and in obtaining any
exemption from or reduced rate of tax available under any applicable law or tax
treaty.
14. GENERAL
14.1 Governing Law. This Agreement shall be subject to and governed in all
respects by the statutes and laws of the State of Delaware without regard to the
conflicts of laws principles thereof. In the event Participant brings suit
against Netscape, 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. In the event Netscape brings suit against Participant, an appropriate
Superior Court and/or United States District Court for either the State of New
Jersey or the State of New York 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.
14.2 Entire Agreement. This Agreement, including the exhibits and
attachments referenced on the signature page hereto, constitutes the entire
Agreement and understanding
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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.
14.3 Assignment. Except as set forth below, neither party may assign any of
its rights or (except in the normal course of its business) delegate any of its
duties under this Agreement, or otherwise assign or transfer this Agreement
without the prior written consent of the other party. Either party may assign
this Agreement in connection with any merger, acquisition, reorganization, sale
of substantially all the assets or stock of that party or any similar event
("Change of Control Event") without the prior written consent of the other
party. In the event of a Change of Control Event in which Netscape is not to be
a surviving entity, Netscape will use commercially reasonable efforts to ensure
this Agreement is assigned to the successor entity. Netscape shall have the
right to terminate this Agreement upon thirty (30) days prior written notice if
Participant assigns or transfers this Agreement as permitted to a direct
competitor of Netscape in the web client or web portal business without
Netscape's consent. Any attempted assignment, delegation or transfer in
derogation of the foregoing shall be null and void. This Agreement shall apply
to and bind any permitted successors or assigns of the parties hereto and any
reference to the applicable parties herein shall refer to the applicable
successors or assigns.
14.4 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:
Participant: Netscape:
--------------------------------------- --------------------------------------
Net2Phone, Inc. Netscape Communications Corporation
000 Xxxx Xxxxxx 000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Fax: 000-000-0000 Fax: (000) 000-0000
Attn: General Counsel Attn: General Counsel
With a copy to: With a copy to:
--------------------------------------- --------------------------------------
Xxxxxxxx Xxxxx Xxxx Xxxxxxxxx
Senior VP of Marketing and Business Senior Business Development Manager
Development
14.5 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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14.6 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.
14.7 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.
14.8 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.
14.9 Severability. In the event any provision of this Agreement is held by a
court or other tribunal of competent jurisdiction to be unenforceable, the other
provisions of this Agreement will remain in full force and effect.
14.10 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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14.11 Publicity. The parties agree to issue a mutually agreeable joint
press release announcing their relationship and the purpose of this Agreement
Such initial press release will include quotes from both Xxxx Xxxxxxxxxx
endorsing the Net2Phone technology and Xxx Xxxxxxxxx endorsing the strategic
partnership between Net2Phone and Netscape and the potential of the business
opportunity. The parties shall cooperate with each other with respect to the
timing and content of the joint press release, and with respect to any other
press releases either may issue that directly relate to this Agreement or the
relationship hereunder (neither party shall issue a press release on its own
relating to this Agreement or the relationship hereunder prior to the joint
press release). Except as the parties otherwise agree, no press release from
either party shall contain any information regarding the financial or
compensatory provisions of this Agreement. Further, any press release shall
comply with the provisions of Section 10.
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PARTICIPANT NETSCAPE
NET2PHONE, INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------- ----------------------------------
Print Name: XXXXXXXX XXXXX Print Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President Marketing & Title: Senior Vice President, Finance &
Bus. Dev. Corporate Controller
Date: January 31, 1999 Date: 01/31/99
--------------------------------------- ----------------------------------
REVIEWED BY
NETSCAPE LEGAL
Initial AM 1/31/99
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