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** CERTAIN CONFIDENTIAL
MATERIAL CONTAINED IN THIS
DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
EXHIBIT 10.13
XXX.XXX, INC. AND XXXXXXXX.XXX
PARTNERSHIP AGREEMENT
Set forth below are the terms and conditions upon which XXX.XXX, Inc., a
Delaware corporation with offices at 0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("XXX.XXX") will provide Email Services to
Xxxxxx Interactive Corp., a New York corporation with offices at 000 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx XX 00000 ("XXXXXXXX.XXX") for resale to authorized
customers of Xxxxxxxx.xxx's services ("CUSTOMERS"). This Agreement (the
"AGREEMENT") is effective this 1st day of March, 1999 (the "EFFECTIVE DATE").
1. DEFINITIONS. "ACCOUNT," as used herein, shall mean a "post office" set up
on XXX.XXX's server for Customer's use of the Email Services, containing (i) a
Seat for use by the Postmaster (as defined below) and (ii) the number of Seats
for use by End Users, all as purchased by Customer from Xxxxxxxx.xxx. "SEAT" as
used herein shall mean a mailbox created within an Account for use of the Email
Services by the Postmaster or an end user ("END-USER"), as the case may be.
"SOFTWARE" as used herein means the computer software programs developed or
licensed by XXX.XXX for use in connection with the provision of Email Services.
"EMAIL SERVICES" as used herein means the XxxxXxxxxx.Xxx branded web-based email
services provided by XXX.XXX, including email hosting, server and network
maintenance, Account setup and technical support via email during XXX.XXX's
normal business hours. "DOMAIN REGISTRATION SERVICES" as used herein means
domain name registration services available through the Web site currently
located at xxxx://xxx.xxxxxxxx.xxx and do not include any other domain name
registration services provided by Xxxxxx Interactive Corp.
2. APPOINTMENT; RELATIONSHIP. XXX.XXX hereby appoints Xxxxxxxx.xxx as a
nonexclusive reseller of XXX.XXX's Email Services, specifically XxxxXxxxxx.Xxx.
Xxxxxxxx.xxx is an independent contractor; the relationship between XXX.XXX and
Xxxxxxxx.xxx or Xxxxxxxx.xxx's agents shall not be construed as an agency of any
kind. Neither Xxxxxxxx.xxx nor its agents shall have authority to make any
agreement or incur any liability on behalf of XXX.XXX, except as set forth in
this Agreement.
3. XXXXXXXX.XXX'S OBLIGATIONS.
(a) CUSTOMER INFORMATION; TERMS AND CONDITIONS OF SERVICE. Xxxxxxxx.xxx
agrees (i) to provide XXX.XXX with the Customer information required by Exhibit
A upon the resale of Email Services to a Customer, and to keep XXX.XXX informed
of any changes to such information; provided, however, that except as permitted
by the Terms and Conditions and Sections 9(b) and 17 below, XXX.XXX shall not
use such Customer information to contact Customers for the purpose of selling or
marketing any services including, but not limited to, Email Services to them
directly and (ii) to require each Customer to agree to be bound, and to cause
its End-Users to be bound, by XXX.XXX's terms and conditions attached hereto as
Exhibit B, as amended from time to time by XXX.XXX in its sole discretion
("TERMS AND CONDITIONS").
4. TERMS OF USE.
(a) ACCOUNT SETUP. Xxxxxxxx.xxx may create an Account for each Customer,
containing the number of End User Seats purchased by such Customer plus one
Postmaster Seat. Each Account will be provided with a postmaster Seat which will
allow Customer to designate one person from time to time (the "POSTMASTER") who
shall have authority to (i) control the creation and deletion of End User Seats,
(ii) manage changes to the End User Seat information (such as changes to
End-User name or password) and (iii) customize the Email Services as set forth
in Section 4(b) below. Notwithstanding the foregoing, XXX.XXX may make such
changes to a Customer's Account and the Seats contained therein as it deems
necessary or appropriate for the functioning of the Email Services; provided
that, with respect to any material change, XXX.XXX shall use commercially
reasonable efforts to provide advance notice to Xxxxxxxx.xxx prior to
implementing such changes.
(b) CUSTOMIZATION. The Software permits Customer to customize certain
aspects of the Email Services. Within the parameters of the Software, which may
be modified from time to time as XXX.XXX deems necessary or appropriate, the
Postmaster will have control over the selection of options for those aspects. If
the
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Postmaster does not customize an option, the Software shall default to XXX.XXX's
standard template, which template may be modified by Xxxxxxxx.xxx within the
parameters set by XXX.XXX.
(c) TECHNICAL SUPPORT. Except as set forth below, XXX.XXX shall have first
line responsibility for responding to and resolving technical support inquiries
from Customers; provided, however, that XXX.XXX's obligation under this Section
4(c) shall be limited to providing such technical support (i) in English, (ii)
via email and (iii) during XXX.XXX's normal business hours (Monday through
Friday, 8:00 a.m. until 6:00 p.m. M.T.). In the event that a Customer requires
technical support in a language other than English, Xxxxxxxx.xxx acknowledges
that (i) Xxxxxxxx.xxx shall have first line responsibility for providing
technical support to such Customer, in English, and (ii) XXX.XXX will provide
second line technical support to Xxxxxxxx.xxx.
(d) POSTMASTER TRAINING. Each Customer shall be provided with Postmaster
and End User manuals, both of which may be downloaded by the Postmaster through
the Postmaster's "Help/Feedback" section. In addition, Customers who purchase
Accounts with [ ** ] Seats or more shall be eligible for Postmaster training
provided by XXX.XXX over the telephone at [ ** ]; provided,
however, that XXX.XXX shall determine the times for the Postmaster training.
(e) MAINTENANCE. Xxxxxxxx.xxx acknowledges that XXX.XXX's servers go down
periodically for maintenance. XXX.XXX shall use commercially reasonable efforts
to schedule such maintenance during off-peak periods and no more frequently than
once per month.
(f) STORAGE SPACE. Each Customer will be allotted a maximum of five (5)
megabytes of storage space per Seat on XXX.XXX's servers. Customers may purchase
additional storage space as further set forth on Exhibit C. In the event a
Customer exceeds its maximum permitted storage space, XXX.XXX reserves the right
to delete any and all Email messages from the Seats within such Customer's
Account who have exceeded their maximum storage space in order to bring the
storage space of such Seats back within their permitted range; provided that
XXX.XXX will provide the Customer with reasonable advance notice to reduce the
amount of storage space being used. If XXX.XXX reasonably determines in good
faith that a Customer's excess storage use is an immediate threat to XXX.XXX's
systems or operations, then XXX.XXX may immediately delete any and all Email
messages from the Seats within such Customer's Account without prior notice to
the Customer.
(g) MODIFICATIONS. XXX.XXX reserves the right to modify or discontinue any
feature or functionality of the Email Services at any time; provided, however,
that XXX.XXX shall use commercially reasonable efforts to provide notice to
Xxxxxxxx.xxx within a reasonable time prior to any modification or
discontinuance.
(h) VIOLATION OF TERMS AND CONDITIONS. If XXX.XXX believes conduct by a
Customer or a Customer's End-Users violates the Terms and Conditions, or is
otherwise harmful to XXX.XXX or its customers, XXX.XXX may restrict, suspend or
terminate the provision of Email Services to such Customer. XXX.XXX shall use
commercially reasonable efforts to provide notice to Xxxxxxxx.xxx prior to
implementing such actions.
(i) CUSTOMER BILLING. During the term of this Agreement, Xxxxxxxx.xxx shall
be solely responsible for billing and collecting Customer payments. Xxxxxxxx.xxx
hereby acknowledges and affirms that Xxxxxxxx.xxx's payment obligations to
XXX.XXX must be satisfied in full, irrespective of Xxxxxxxx.xxx's billing or
collection status with any Customer.
5. FEES; BILLING; TAXES.
(a) FEES. For each Customer Account ordered by Xxxxxxxx.xxx and setup by
XXX.XXX, Xxxxxxxx.xxx agrees to pay both (i) monthly wholesale service fees and
(ii) as applicable, Account adjustment fees (collectively, the "Fees").
XXX.XXX's current fee structure is set forth on the fee schedule attached hereto
as Exhibit C (the "FEE SCHEDULE"). XXX.XXX reserves the right to amend the Fee
Schedule at any time, in its sole discretion, with a sixty (60) day advance
notice to Xxxxxxxx.xxx. Xxxxxxxx.xxx may provide each individual Customer with
[ ** ] Account containing up to [ ** ] of Seats for an initial
thirty (30) day period at [ ** ] to Xxxxxxxx.xxx.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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(b) BILLING; PAYMENT. XXX.XXX shall invoice Xxxxxxxx.xxx monthly for all
Fees due, less [ ** ] Accounts as provided in Section 5a.
Xxxxxxxx.xxx shall pay XXX.XXX the amount invoiced net thirty (30) days after
receipt thereof. Any unpaid balances shall accrue interest at the prime rate,
from the due date until paid, and shall include XXX.XXX's reasonable cost of
collection. Each invoice will be accompanied by a report setting forth (i) the
number of Seats ordered by Xxxxxxxx.xxx during the month, (ii) the number of
Seats which remained active through the end of the month, (iii) the number of
Seats cancelled during the month, (iv) Account adjustments made during the month
and (v) the type and amount of additional services ordered by Xxxxxxxx.xxx on
behalf of Customers during the month.
(c) TAXES. The Fees are exclusive of all federal, state, municipal or other
government excise, sales, use, occupational, or like taxes. Any such tax, fee,
or charge of any nature whatsoever imposed by any governmental authority on, or
measured by, the transactions between XXX.XXX and Xxxxxxxx.xxx (exclusive of
taxes based on XXX.XXX's net income) shall be paid by Xxxxxxxx.xxx in addition
to the Fees invoiced. All payments to XXX.XXX shall be made free and clear of,
and without reduction for, any withholding taxes.
6. CO-OP MARKETING FUNDS. XXX.XXX will accrue and reserve [ ** ]
of each payment it receives from Xxxxxxxx.xxx (the "FUNDS") which XXX.XXX will
use to reimburse Xxxxxxxx.xxx for joint promotions of the Email Services
identified by Xxxxxxxx.xxx in accordance with the license granted pursuant to
Sections 10 and 11 below and subject to the limits set forth herein. The Funds
must be used by Xxxxxxxx.xxx within one (1) year of the date of accrual and the
expenditure must be approved in writing by XXX.XXX in accordance with XXX.XXX
policy.
7. CO-MARKETING AGREEMENT. XXX.XXX and Xxxxxxxx.xxx shall each use
commercially reasonable efforts to promote and market each other's products and
services during the term of this Agreement, which may include the promotional
efforts specified on Exhibit D attached hereto, as amended from time to time by
written agreement of the parties.
8. MINIMUM SALES. In order to continue their rights hereunder, Xxxxxxxx.xxx
shall pay XXX.XXX a minimum of [ ** ] in Fees per
month (the "MINIMUM MONTHLY FEE"), which minimum obligation shall commence [
** ] after XXX.XXX implements the Application
Programming Interface ("API") for the Email Services. In the event Xxxxxxxx.xxx
fails to either (i) order a sufficient number of Accounts to satisfy the Minimum
Monthly Fee requirement, or (ii) pay XXX.XXX the shortfall in the Minimum
Monthly Fee, XXX.XXX shall have the right, but not the obligation, to terminate,
or otherwise renegotiate, the co-marketing agreement specified in Section 7
above. Minimum Monthly Fees shall be paid with the Fees as set forth in Section
5(a) above.
9. XXX.XXX'S OBLIGATIONS.
(a) SERVICES. XXX.XXX shall, in accordance with the terms and conditions
set forth herein, use commercially reasonable efforts to provide the Email
Services to the Customers.
(b) CUSTOMER NAMES. XXX.XXX shall not sell or distribute the names of the
Customers to any third parties or use the Customers' names for XXX.XXX's own
marketing purposes (other than the distribution of the Customers' names to
XXX.XXX's suppliers as necessary to provide the Email Services pursuant to this
Agreement and as set forth in the Terms and Conditions and Section 17 below),
without the prior written consent of Xxxxxxxx.xxx. XXX.XXX shall be able to use
information relating to the aggregate number of Customers (without any reference
to Customer names) subscribing to the Email Services for its own marketing
purposes.
10. XXX.XXX LICENSE GRANT. XXX.XXX hereby grants Xxxxxxxx.xxx a revocable,
nonexclusive, nontransferable license to use XXX.XXX's trademarks and trade
names (the "XXX.XXX MARKS"), in promotional materials distributed by
Xxxxxxxx.xxx during the term of this Agreement solely for the purpose of (i)
soliciting sales of the Email Services from Customers; or (ii) jointly promoting
XXX.XXX and Xxxxxxxx.xxx. Xxxxxxxx.xxx shall submit all promotional and other
materials containing XXX.XXX Marks to, and obtain written approval from,
XXX.XXX's Marketing Department, at the address specified in the preamble hereto,
prior to the distribution or use thereof. XXX.XXX reserves the right to revoke
the license granted hereunder as to any use of the XXX.XXX Marks it finds
objectionable, and Xxxxxxxx.xxx shall cease using the XXX.XXX Marks in such
objectionable manner within
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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fifteen (15) days after the date of XXX.XXX's written notice thereof. The
license set forth in this Section 10 shall expire immediately upon the
expiration or termination of this Agreement. Xxxxxxxx.xxx's use of the license
granted herein, and any goodwill arising therefrom, shall inure to the sole
benefit of XXX.XXX. Xxxxxxxx.xxx shall not promote the Email Services under any
trademark or trade name other than the XXX.XXX Marks, except as expressly
permitted by XXX.XXX. XXX.XXX will monitor the quality of the services for which
Xxxxxxxx.xxx will be using the XXX.XXX Marks to ensure that they conform to the
standards of quality of XXX.XXX's other services. Xxxxxxxx.xxx agrees not to
adopt or use any other trademarks, words, symbols, letters, designs or marks in
combination with the XXX.XXX Marks in a manner that would create combination
marks or that would be confusingly similar to the XXX.XXX Marks. Xxxxxxxx.xxx
shall not seek or obtain any trademark or trade name registration embodying the
XXX.XXX Marks, nor register or cause to be registered any XXX.XXX Marks in
Xxxxxxxx.xxx's own name. In addition, Xxxxxxxx.xxx will not seek to challenge
the validity of the XXX.XXX Marks.
11. XXXXXXXX.XXX LICENSE GRANT. Xxxxxxxx.xxx hereby grants XXX.XXX a revocable,
nonexclusive, nontransferable license to use Xxxxxxxx.xxx's trademarks and trade
names (the "XXXXXXXX.XXX MARKS"), during the term of this Agreement solely for
the purpose of promoting Xxxxxxxx.xxx as set forth herein in Section 7.
Xxxxxxxx.xxx reserves the right to revoke the license granted hereunder as to
any use of the Xxxxxxxx.xxx Marks it finds objectionable, and XXX.XXX shall
cease using the Xxxxxxxx.xxx Marks in such objectionable manner within fifteen
(15) days after the date of Xxxxxxxx.xxx's written notice thereof. The license
set forth in this Section 11 shall expire immediately upon the expiration or
termination of this Agreement. XXX.XXX's use of the license granted herein, and
any goodwill arising therefrom, shall inure to the sole benefit of Xxxxxxxx.xxx.
Xxxxxxxx.xxx will monitor the quality of the services for which XXX.XXX will be
using the Xxxxxxxx.xxx Marks to ensure that they conform to the standards of
quality of Xxxxxxxx.xxx's other services. XXX.XXX agrees not to adopt or use any
other trademarks, words, symbols, letters, designs or marks in combination with
the Xxxxxxxx.xxx Marks in a manner that would create combination marks or that
would be confusingly similar to the Xxxxxxxx.xxx Marks. XXX.XXX shall not seek
or obtain any trademark or trade name registration embodying the Xxxxxxxx.xxx
Marks, nor register or cause to be registered any Xxxxxxxx.xxx Marks in
XXX.XXX's own name. In addition, XXX.XXX will not seek to challenge the validity
of the Xxxxxxxx.xxx Marks.
12. TERM. This Agreement shall have a term of one (1) year commencing on the
Effective Date, unless terminated earlier pursuant to Section 13 or Section 14
below (the "INITIAL TERM") and shall be automatically renewed for successive one
year terms (each a "SUBSEQUENT TERM").
13. TERMINATION FOR CONVENIENCE. During the Initial Term, either party may
terminate this Agreement for any reason upon at least six (6) months written
notice. During any Subsequent Term, either party may terminate this Agreement
for any reason upon at least sixty (60) days written notice.
14. TERMINATION FOR CAUSE. Either party may terminate this Agreement upon
thirty (30) days written notice to the other party upon (i) a material breach of
the terms of this Agreement, including, but not limited to, any default in
payment obligations which have not been cured or addressed within thirty (30)
days of notice of breach or (ii) the liquidation of the other party's assets.
15. TERMINATION BY XXXXXXXX.XXX. Xxxxxxxx.xxx may terminate this Agreement, at
their sole discretion, on thirty (30) days written notice to XXX.XXX, if XXX.XXX
sells advertisements in any particular month on any XXX.XXX branded Email
Services site, including NET@DDRESS and XxxxXxxxxx.Xxx, to [ ** ] which
exceeds the prior monthly average of advertising sales to [ ** ]. XXX.XXX
agrees to notify Xxxxxxxx.xxx in writing prior to such an increase taking
effect. Notwithstanding the foregoing, the termination obligations set forth
herein shall not include any privately branded XXX.XXX Email Services, including
but not limited to AmExMail and Netscape WebMail. XXX.XXX acknowledges that
[ ** ] is the only current advertiser that [ **
] on any XXX.XXX branded Email Services site, including
NET@DDRESS and XxxxXxxxxx.Xxx.
16. EFFECT OF TERMINATION.
(a) Upon termination of this Agreement, whether for convenience or for
cause, each party shall immediately cease all efforts to promote and market the
products and services of the other. In addition, XXX.XXX
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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shall not be obligated to continue to provide the Email Services to the
Customers unless XXX.XXX receives an assignment of the Customers as provided in
Section 17.
(b) Immediately upon the expiration or termination of this Agreement, (i)
Xxxxxxxx.xxx shall cease all use of the XXX.XXX Marks, (ii) XXX.XXX shall cease
all use of the Xxxxxxxx.xxx Marks, and (iii) Xxxxxxxx.xxx shall return all
XXX.XXX property in Xxxxxxxx.xxx's possession or control.
(c) Neither party shall incur any liability whatsoever for any damage, loss
or expenses of any kind suffered or incurred by the other because of the act of
termination or the expiration of this Agreement, in either case in a manner
which complies with the terms of this Agreement. Without limiting the foregoing,
neither party shall be entitled to any damages on account of prospective profits
or anticipated sales. Xxxxxxxx.xxx waives the benefit of any law or regulation
providing compensation to Xxxxxxxx.xxx arising from the termination of or
failure to renew this Agreement and Xxxxxxxx.xxx represents and warrants that
such waiver is irrevocable and enforceable by XXX.XXX. However, all payments
normally due to one party by the other party shall be paid in full immediately
upon termination or expiration of this Agreement.
17. ASSIGNMENT OF CUSTOMERS. In the event that this Agreement is terminated for
any reason whatsoever, other than termination by XXX.XXX for cause pursuant to
Section 14 above, Xxxxxxxx.xxx may require that XXX.XXX pay to effect a transfer
of all rights to contact the Customers as follows: (i) XXX.XXX shall pay
Xxxxxxxx.xxx an amount equal to [ ** ] times the Fees Xxxxxxxx.xxx
received from the Customers in the last full month immediately preceding the
effective date of termination and (ii) Xxxxxxxx.xxx shall be automatically
deemed to have immediately transferred and assigned to XXX.XXX all rights to
contact the Customers for the purpose of offering, marketing and selling the
Email Services to the Customers directly. In the event this Agreement is
terminated by XXX.XXX for cause pursuant to Section 14 above, Xxxxxxxx.xxx, at
no charge to XXX.XXX, shall be automatically deemed to have immediately
transferred and assigned to XXX.XXX the right to contact the Customers for the
purpose of offering, marketing and selling the Email Services to the Customers
directly. Upon any such transfer, XXX.XXX will assume full responsibility for
billing and collecting payments from any Customers who accept such offer and may
immediately cancel Email Services for all Customers who decline such offer. In
the event that XXX.XXX acquires an assignment of the Customers as provided in
this Section 17, then Xxxxxxxx.xxx agrees that it will not, directly or
indirectly, for a period of [ ** ) years after the effective date of such
assignment, solicit, market or promote to, sell or distribute any services which
are competitive with the Email Services to any Customers; provided however, that
Xxxxxxxx.xxx may advertise and promote any competitive services to the Customers
in connection with general advertisements and promotions so long as the
advertisements and promotions are not directed at the Customers and so long as
Xxxxxxxx.xxx does not use the Customer names in any way for the sale or
marketing of any services which are competitive with the Email Services.
18. WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY.
(a) MUTUAL WARRANTIES. Each party represents and warrants to the other that
neither this Agreement (or any term hereof) nor the performance of, or exercise
of rights under, this Agreement, is restricted by, contrary to, in conflict
with, ineffective under, requires registration, approval or tax withholding
under, or will require any compulsory licensing under, any law, regulation or
written contract to which it is subject.
(b) XXX.XXX WARRANTY DISCLAIMER. THE EMAIL SERVICES ARE PROVIDED ON AN "AS
IS" AND "AS AVAILABLE" BASIS. XXX.XXX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. XXX.XXX MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED THROUGH THE EMAIL SERVICES OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE
CORRECTED. XXX.XXX WILL NOT BE RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER SYSTEM
OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF THE EMAIL SERVICE, NOTWITHSTANDING ANY
PURCHASE OF VIRUS PROTECTION FROM XXX.XXX. XXX.XXX MAKES NO WARRANTY REGARDING
ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE EMAIL SERVICES OR ANY
TRANSACTIONS ENTERED INTO THROUGH THE EMAIL SERVICES. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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FROM XXX.XXX OR THROUGH THE EMAIL SERVICES SHALL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN.
(c) XXXXXXXX.XXX WARRANTY DISCLAIMER. THE XXXXXXXX.XXX SERVICES ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. XXXXXXXX.XXX EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. XXXXXXXX.XXX MAKES NO WARRANTY THAT THE
REGISTRATION SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR
DOES XXXXXXXX.XXX MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
THROUGH THE REGISTRATION SERVICES OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE
CORRECTED. XXXXXXXX.XXX WILL NOT BE RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER
SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF THE REGISTRATION SERVICE. NOTWITHSTANDING
THE PURCHASE OF VIRUS PROTECTION FROM XXXXXXXX.XXX, XXXXXXXX.XXX MAKES NO
WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE
REGISTRATION SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE REGISTRATION
SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
XXXXXXXX.XXX OR THROUGH THE REGISTRATION SERVICES SHALL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN.
(d) NO WARRANTY PASS-THROUGH. Xxxxxxxx.xxx shall not pass through to the
Customers or any third party the warranties made by XXX.XXX under this
Agreement. Xxxxxxxx.xxx shall not make any representations to the Customers or
any third party on behalf of XXX.XXX, and, except as set forth in Section 4(c)
above,Xxxxxxxx.xxx shall expressly indicate that the Customers and third parties
must look solely to Xxxxxxxx.xxx in connection with any problems, warranty claim
or other matters concerning the Email Services. No warranty, representation, or
agreement herein shall be deemed to be made for the benefit of any Customer or
any third party.
(e) LIMITATION OF LIABILITY. IN NO EVENT SHALL XXX.XXX OR ITS SUPPLIERS BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, REVENUE, EXPENDITURES, DATA,
INVESTMENTS OR COMMITMENTS, INCURRED BY XXXXXXXX.XXX OR ANY CUSTOMER OR ANY
THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON ANY WARRANTY,
EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. XXX.XXX'S LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT SHALL
IN NO. EVENT EXCEED THE AMOUNTS RECEIVED BY XXX.XXX UNDER THIS AGREEMENT IN THE
TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
19. OWNERSHIP. Each party shall retain all right, title and interest in and to
all of such party's copyrights, trademarks, trade secrets (including, but not
limited to, customer lists, which lists shall include, but not be limited to,
lists of Customers hereunder), patents, mask works and all other intellectual
property embodied in the Email Services or the XXX.XXX Marks and Xxxxxxxx.xxx
Marks, respectively, including any improvements thereto or goodwill associated
therewith, respectively.
20. NON-SOLICITATION OF EMPLOYEES. During the term of this Agreement and for
one (1) year following its termination or expiration, neither party nor its
agents shall induce any employee of the other party to leave such party's
employment.
21. CONFIDENTIALITY. During the term of this Agreement and for five (5) years
following its expiration or termination each party shall maintain the
Confidential Information of the other party in strict confidence; provided,
however, that each party may disclose Confidential Information (i) to the extent
required by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants or employees. "CONFIDENTIAL
INFORMATION" includes customer lists, (including, but not limited to, lists of
Customers hereunder), source codes, software tools, designs, schematics, plans
or any other information relating to any project, work in process, future
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development, marketing or business plan, or financial or personnel matter
relating to a party, its present or future products, services, sales, suppliers,
customers, employees, investors or business, including whether or not identified
by such party as confidential. "CONFIDENTIAL INFORMATION" does not include
information which (i) is or becomes generally known or available through no act
or failure to act by the receiving party or (ii) is independently developed by
the receiving party without access to the Confidential Information, as shown by
the receiving party's competent written records.
22. PUBLICITY. Neither party shall publicize the terms and conditions of this
Agreement or the existence or details of the relationship between the parties
without the other's prior written consent, unless it is required to be disclosed
by law or a governmental authority. Notwithstanding the foregoing the parties
shall issue a joint press release upon execution of this Agreement.
23. INDEMNIFICATION
(a) INDEMNIFICATION BY XXXXXXXX.XXX. Xxxxxxxx.xxx shall indemnify and hold
harmless XXX.XXX, and all officers, directors, employees or agents thereof and
their successors and assigns (collectively, "XXX.XXX INDEMNITEES") against, and
hold the XXX.XXX Indemnitees harmless from, any third party losses or damages,
costs and expenses (including reasonable attorneys' fees) arising out of, or
incurred in connection with (i) Xxxxxxxx.xxx's or any Customer's use of the
Email Services, including any claim of libel, defamation, violation of rights of
privacy or publicity, loss of service by other subscribers and infringement of
intellectual property or other rights, (ii) any breach by Xxxxxxxx.xxx of any of
its obligations under this Agreement or any violation by a Customer of the Terms
and Conditions and (iii) any unauthorized representation, warranty, agreement or
the like, express or implied, made by Xxxxxxxx.xxx or any of its agents.
(b) INDEMNIFICATION BY XXX.XXX. XXX.XXX shall indemnify and hold harmless
Xxxxxxxx.xxx, and all officers, directors, employees or agents thereof and their
successors and assigns (collectively, "XXXXXXXX.XXX INDEMNITEES") against, and
hold the Xxxxxxxx.xxx Indemnitees harmless from, any third party losses or
damages, costs and expenses (including reasonable attorneys' fees) arising out
of, or incurred in connection with (i) any claim by a Customer related to use of
the Email Services involving a breach by XXX.XXX of any of its obligations under
this Agreement, (ii) the grossly negligent or willful act or omissions of
XXX.XXX, its officers, directors, employees, or agents and (iii) any
unauthorized representation, warranty, agreement or the like, express or
implied, made by XXX.XXX or any of its agents.
24. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, including all Exhibits attached
hereto and the Terms and Conditions, constitutes the entire agreement between
the parties with respect to the subject matter hereof.
(b) GOVERNING LAW; VENUE. This Agreement shall be governed in all respects
by the laws of the State of New York as applied to agreements entered into
solely between residents of, and to be performed entirely within, such state.
The parties expressly exclude the application of the 1980 United Nations
Convention on Contracts for the International Sale of Goods, if applicable. For
any action brought by Xxxxxxxx.xxx, Xxxxxxxx.xxx irrevocably submits to the
jurisdiction of the courts of the State of Colorado and the United States
District Court located in the City of Denver, Colorado, and irrevocably waives
any objection that it may have at any time to the venue or convenience of forum
of any suit, action or proceeding arising out of this Agreement brought in any
such court. For any action brought by XXX.XXX, XXX.XXX irrevocably submits to
the jurisdiction of the courts of the State of New York and the United States
District Court located in the City of New York, New York, and irrevocably waives
any objection that it may have at any time to the venue or convenience of forum
of any suit, action or proceeding arising out of this Agreement brought in any
such court.
(c) LANGUAGE. The official text of this Agreement (and any Exhibit hereof
or notice submitted hereunder) shall be in English. In the event of any dispute
concerning the construction or meaning of this Agreement, reference shall be
made only to this Agreement (or such exhibits or notices) as written in English
and not to any translation into another language.
7.
8
(d) FOREIGN CORRUPT PRACTICES ACT. Each party shall comply with the U.S.
Foreign Corrupt Practices Act and shall not make any payments to third parties
which would cause XXX.XXX or Xxxxxxxx.xxx to violate such laws.
(e) LICENSES AND PERMITS. Each party shall obtain any required non-U.S.
governmental authorizations, including without limitation any import licenses
and foreign exchange permits, and, if applicable, shall file or register this
Agreement with the appropriate authorities. Each party shall provide proof of
compliance with required non-U.S. governmental authorization to the other party
upon request.
(f) NO FRANCHISE. Each party expressly agrees that it is not a franchisee
of the other party. Each party waives the benefit of any law or regulation
regarding franchises and each party represents and warrants that such waiver is
irrevocable and enforceable by the other party.
(g) COMPLIANCE WITH LAWS. At its own expense, each party shall comply with
all applicable laws, regulations, rules, ordinances and orders regarding its
activities related to this Agreement.
(h) EXPORT CONTROL. The Email Services to be resold by the Xxxxxxxx.xxx
under this Agreement may be subject to U.S. export control laws and export or
import regulations in other countries. Xxxxxxxx.xxx agrees to comply strictly
with all such laws and regulations and acknowledges that it has the
responsibility to obtain such licenses to export, re-export or import as may be
required.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
(j) SEVERABILITY. If any provision of this Agreement is declared invalid or
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement will remain in full force. The parties shall use their best
efforts to agree upon a valid and enforceable provision which shall be a
reasonable substitute for such invalid or unenforceable provision in light of
the intent of this Agreement.
(k) WAIVER. Any express waiver or failure to exercise promptly any right
under this Agreement will not create a continuing waiver or any expectation of
non-enforcement.
8.
9
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be signed and delivered as of the date set forth below.
XXX.XXX, INC.: XXXXXXXX.XXX:
/s/ XXXX X. STREET /s/ XXXXXXX X. XXXXXX
------------------------------ ------------------------------
Authorized Signature Authorized Signature
Xxxx X. Street Xxxxxxx X. Xxxxxx
------------------------------ ------------------------------
Printed Name Printed Name
President, CEO President
------------------------------ ------------------------------
Title Title
3/2/99 2/25/99
------------------------------ ------------------------------
Date Date
9.
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EXHIBIT A
CUSTOMER SETUP INFORMATION
Except as set forth in the Agreement, and during the term of this Agreement,
this information is confidential and only to be used for the benefit of
Xxxxxxxx.xxx or support of the Customers. Xxxxxxxx.xxx agrees to prepare and
submit to XXX.XXX the following information for each Customer Account sold by
Xxxxxxxx.xxx:
1. PARTNER INFORMATION:
o Partner Name
o Partner Code
o Sales Representative Name and Phone Number
2. CUSTOMER INFORMATION:
o Contact Name, Company Name, Address, City, State, Zip Code, Country and
Phone Number
3. SALES INFORMATION:
o Purchase Date
o Whether the Sale is a First Purchase, Account Adjustment or an Account
Cancellation
o Number of Accounts Purchased
o Number of Seats Purchased per Account
o Additional Services Purchased per Account and Amount (i.e. storage, etc.)
4. DOMAIN INFORMATION:
o Whether the Type of Domain is a New Domain, Current Domain, or Sub-Domain
o Domain Name
1.
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EXHIBIT B
XXX.XXX, INC.
CUSTOMER TERMS AND CONDITIONS
1. SPAMMING, REDISTRIBUTION PROHIBITED. Spamming and bulk mail, as determined
by XXX.XXX in its sole discretion, is strictly prohibited. This includes, but is
not limited to, the transmission of any message or bulk mail that can be
interpreted as "junk" mail, mail generated via mass-mailer distribution list, or
mail which the recipient would not reasonably expect to receive. In addition,
reselling, redistribution, or repackaging of any email services provided by
XXX.XXX is strictly prohibited, except as otherwise expressly permitted by
XXX.XXX in writing.
2. USER CONTENT. XXX.XXX acts as a passive conduit for the distribution of
data and the User is solely responsible for content. User represents and
warrants that the content provided to XXX.XXX (or its servers) (a) does not
infringe on any third party's copyright, patent, trademark, trade secret or
other intellectual property or proprietary rights or rights of publicity or
privacy; (b) does not violate any law, statute, ordinance, or regulation
(including without limitation the laws and regulations governing export
control); (c) is not defamatory, trade libelous, pornographic, obscene,
unlawfully threatening or unlawfully harassing; (d) does not violate any laws
regarding unfair competition, anti-discrimination or false advertising, and (e)
does not contain viruses, trojan horses, worms, time bombs, cancelbots or other
similarly harmful or deleterious programming routines that are intended to
damage, detrimentally interfere with, surreptitiously intercept or expropriate
any system, data or personal information. The term "User" as used herein shall
include the customer which purchased the account and such customer's end-users.
3. SERVICE LEVELS. XXX.XXX will provide the email service at the level
purchased at account initiation or as a result of subsequent email service
upgrades. Email service levels are determined by the number of seats, amount of
storage and additional services purchased. Each email service level has
pre-determined seat, storage, and additional service thresholds.
4. TERM AND TERMINATION. Email services provided by XXX.XXX shall commence on
the day of account initiation, and shall continue until cancelled by Customer or
XXX.XXX or until User is deemed non-compliant with the terms or conditions set
forth herein, as determined by XXX.XXX in its sole discretion.
5. DISCLAIMER OF WARRANTIES. THE EMAIL SERVICES ARE PROVIDED ON AN "AS IS"
AND "AS AVAILABLE" BASIS. XXX.XXX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. XXX.XXX MAKES NO WARRANTY THAT THE EMAIL SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES XXX.XXX MAKE ANY WARRANTY
AS TO THE RESULTS THAT MAY BE OBTAINED THROUGH THE EMAIL SERVICES OR THAT ANY
DEFECTS IN THE SOFTWARE WILL BE CORRECTED. XXX.XXX WILL NOT BE RESPONSIBLE FOR
ANY DAMAGE TO ANY COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL
AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE EMAIL
SERVICE OR THE SYSTEM, NOTWITHSTANDING THE PURCHASE OF VIRUS PROTECTION FROM
XXX.XXX. XXX.XXX MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR
OBTAINED THROUGH THE EMAIL SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE
EMAIL SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
XXX.XXX OR THROUGH THE EMAIL SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY
MADE HEREIN.
2.
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6. LIMITATION OF LIABILITY. XXX.XXX SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR INTERRUPTED COMMUNICATIONS,
LOST DATA OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
EVEN IF XXX.XXX HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
7. GOVERNING LAW. Any dispute arising out of the provision of email services
by XXX.XXX will be governed by and construed in accordance with the laws of the
State of Colorado without giving effect to principles of conflict of laws. If
any provision of these terms and conditions is held to be invalid or
unenforceable, such provision shall be struck and the remaining provisions shall
be enforced. XXX.XXX's failure to act with respect to a breach by User or others
does not waive its right to act with respect to subsequent or similar breaches.
8. CONTENT REMOVAL/RETENTION. Upon the termination of User's account, XXX.XXX
may remove some or all of the User content from its servers or may elect to
retain such content, at XXX.XXX's sole discretion.
9. PRIVACY. Although privacy issues are very important to XXX.XXX, given the
current regulatory and technical environment User should not have an expectation
of privacy in its account. By way of example (without limiting the foregoing),
XXX.XXX may be forced to disclose email to the government or third parties under
certain circumstances, or third parties may unlawfully intercept User's private
communications. XXX.XXX cannot ensure that all private email or information
associated with User's account will remain private.
10. ACCESS TO CONTENT OF OTHERS. Through User's account, XXX.XXX provides User
with unfiltered access to other people's content. XXX.XXX cannot, nor does it
try to, control the content that User will receive. By its very nature, other
people's content may be offensive, harmful or inaccurate, and in some cases
content will be mislabeled or deceptively labeled. XXX.XXX expects that User
will use caution--and common sense--when using its account. Furthermore, User
shall comply with all applicable laws regarding User's access to its account.
11. AMENDMENT. User acknowledges and agrees that (i) XXX.XXX may amend these
Terms and Conditions at any time in its sole discretion (ii) the Terms and
Conditions, as amended from time to time may be accessed and viewed by User at
any time by clicking on the "Terms and Conditions" link located at the bottom of
each page of User's personalized xxxxxxxxxx.xxx site, (iii) providing access to
the Terms and Conditions, as amended from time to time through such links shall
be adequate notice to User of any such amendment and (iv) User will be deemed to
have accepted the amended Terms and Conditions if User continues to use its
account after such Terms and Conditions have been made available for viewing
through such links. Except as set forth in this Section 11, the Terms and
Conditions may not be amended except in a writing signed by both parties.
3.
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EXHIBIT C
FEE SCHEDULE
A. BASIC SERVICES SCHEDULE
Set forth below are the terms upon which XXX.XXX shall provide Email
Services to Xxxxxxxx.xxx for resale to Customers, including XXX.XXX's Domestic
and International wholesale price lists, effective as of December 30, 1998 (all
prices are listed in United States Dollars). Notwithstanding the prices set
forth herein, Xxxxxxxx.xxx may resell the Email Services to its Customers at
such prices as Xxxxxxxx.xxx may determine in its sole discretion.
1. STORAGE SPACE: Each Seat sold by Xxxxxxxx.xxx to a Customer shall be
entitled to a maximum of 5 Mb of storage.
2. DOMESTIC WHOLESALE SERVICE FEES: ("DOMESTIC" means sales involving any
corporation or other business entity formed under the laws of any state of
the United States or having its principal place of business within the
United States): [ **] per Seat per month.
3. INTERNATIONAL WHOLESALE SERVICE FEES: ("INTERNATIONAL" means sales
involving all entities other than "DOMESTIC" entities, as defined above):
[ **] per Seat per month.
4. VOLUME DISCOUNTS. Notwithstanding the foregoing, for each month that
Xxxxxxxx.xxx has the following number of Active Seats, the annual Domestic
and International Wholesale Service Fees shall be as follows:
------------------------------------------------------------------------
Monthly Number of Active Seats Monthly Wholesale Price Per Seat
------------------------------------------------------------------------
[ ** ] [ **]
------------------------------------------------------------------------
[ ** ] [ **]
------------------------------------------------------------------------
[ ** ] [ **]
------------------------------------------------------------------------
[ ** ] [ **]
------------------------------------------------------------------------
For example, assume Xxxxxxxx.xxx has 50,000 Active Seats during January,
the monthly service fees for January would be [ **
]
5. [
**
]
B. ADDITIONAL SERVICES
Set forth below is XXX.XXX's Wholesale Price List for the specified
Additional Services (all prices are listed in United States Dollars):
o ADDITIONAL STORAGE WHOLESALE PRICE: [ **] per 1 Mb of additional
storage per year over the initial 5 Mb, with a 5 Mb minimum increase
to be billed monthly. For example, assume one Customer purchased the
minimum 5 Mb increase in January. The monthly service fee billed to
Xxxxxxxx.xxx for one (1) year for the additional storage would be
[ ** ]
C. GENERAL
o XXX.XXX RETAIL LIST PRICE. A copy of XXX.XXX's current retail price
list is available upon request.
o PAYMENT. All fees are payable upon Xxxxxxxx.xxx's subscription for
service on behalf of a Customer and shall be paid in United States
Dollars, as further set forth in the Agreement.
o INVOICES. All invoices and billing inquires for Xxxxxxxx.xxx should be
directed to the following:
4.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
14
Name: Xxxxx Xxxxxxxx, XXX.XXX Accounts Receivable
Address: 0000 Xxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxx, Xxxxx, Xxx: Xxxxxxxx Xxxxxxx, XX 00000
Phone No.: 000-000-0000
5.
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EXHIBIT D.
CO-MARKETING AGREEMENT
The co-marketing activities as set forth in this Exhibit D shall be subject
to a [ ** ] trial period (the "TRIAL PERIOD") following
the date of API implementation, and shall begin immediately upon execution of
the Agreement. Prior to the termination of the Trial Period, each party shall
give the other party written notice that the co-marketing activities are
acceptable. In addition to the termination rights set forth in Sections 13 and
14 of the Agreement, and during the Trial Period only, either party may
terminate the Agreement upon thirty (30) days prior written notice to the other
in the event that the co-marketing activities are unacceptable to either party.
1. XXX.XXX AGREES TO PROMOTE XXXXXXXX.XXX AS FOLLOWS:
o Net@ddress SPONSORSHIP:
XXX.XXX shall promote Xxxxxxxx.xxx on the navigation bar of NET@DDRESS,
which is displayed throughout the site upon subscriber login. Xxxxxxxx.xxx will
receive a button with continuous presence on the navigation bar (current
specifications are 90x40 gif image with a file size maximum of 8K) which will
link to a co-branded Web page designed and approved by both Xxxxxxxx.xxx and
XXX.XXX. [ ** ] of the time the button will
be above the fold and [ ** ] of the time the
button will be below the fold.
o PARTNER ON THE XXX.XXX PARTNERSHIPS PAGE:
XXX.XXX will promote Xxxxxxxx.xxx as a partner on the XXX.XXX
Partnerships Page (xxxx://xxx.xxx.xxx/xxxxxxxx.xxxx), with a Xxxxxxxx.xxx logo.
o PARTNER ON THE XXXXXXXXXX.XXX PARTNERS PAGE:
XXX.XXX will promote Xxxxxxxx.xxx as a partner on the XxxxXxxxxx.Xxx
Partnerships Page (xxxx://xxx.xxxxxxxxxx.xxx/xxx/Xxxx/Xx_xxxxxxxx), with a
Xxxxxxxx.xxx logo .
2. EXCLUSIVITY AS DOMAIN NAME REGISTRAR FOR ALL NEW XXX.XXX BRANDED EMAIL
SERVICE CUSTOMERS
Except where precluded by a previous or existing agreement which is in
effect as of the Effective Date, or a previous or existing advertising
agreement, or an extension of an existing advertising agreement, to which
XXX.XXX is a party or by which it is bound (each a "Third Party Agreement"),
XXX.XXX (i) will promote Xxxxxxxx.xxx as the exclusive domain name registration
service to all current and future XXX.XXX branded Email Services direct
customers, including NET@DDRESS and XxxxXxxxxx.Xxx customers, and (ii) will not
knowingly promote the domain registration services of any third party other than
Xxxxxxxx.xxx to current and future XXX.XXX branded Email Services customers,
including NET@DDRESS and XxxxXxxxxx.Xxx customers in any form, including
banners, emails, text mentions, buttons or promotional materials.
Notwithstanding the foregoing, the exclusivity obligations set forth herein
shall not include any co-branded or private-label version of the branded XXX.XXX
Email Service customers, including but not limited to AmExMail and Netscape
WebMail customers. XXX.XXX shall notify Xxxxxxxx.xxx of the existence of any
Third Party Agreement as soon as reasonably practicable. XXX.XXX shall not amend
any Third Party Agreement, except any previous or existing advertising
agreement, after the Effective Date in a manner which would conflict with the
terms of this agreement without the written consent of Xxxxxxxx.xxx.
During the term of this Agreement, Xxxxxxxx.xxx shall supply to XXX.XXX
a primary and secondary contact name and phone number for any service issues
arising from XXX.XXX's use of the domain registration services. Xxxxxxxx.xxx
shall use commercially reasonable efforts to provide same business day responses
to all service issue inquires.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
1.
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3. EXCLUSIVITY AS EMAIL PROVIDER FOR ALL NEW XXXXXXXX.XXX BRANDED EMAIL
SERVICE CUSTOMERS
Except where precluded by a previous or existing agreement, or a co-branded
or private label version of the Domain Registration Services, to which Xxxxxx
Interactive Corp. is a party or by which it is bound and which is in effect as
of the Effective Date (each a "Third Party Agreement"), during the term of this
Agreement Xxxxxxxx.xxx agrees that it will not, directly or indirectly, market
or promote, distribute or sell any services which are competitive with the Email
Services through its Xxxxxxxx.xxx branded domain name registration service. This
restriction and clause is limited solely to the domain name registration
services available to direct customers of Xxxxxxxx.xxx branded domain
registration services from the web site currently located at
xxxx://xxx.xxxxxxxx.xxx. Xxxxxxxx.xxx shall notify XXX.XXX of the existence of
any Third Party Agreement as soon as reasonably practicable. Xxxxxxxx.xxx shall
not amend any such Third Party Agreement after the Effective Date in a manner
which would conflict with the terms of this Agreement without the prior written
consent of XXX.XXX.
4. INCLUSION OF XXXXXXXX.XXX IN ALL FUTURE XXXXXXXXXX.XXX PROMOTIONS
Except where precluded by a previous or existing agreement which is in
effect as of the Effective Date, to which XXX.XXX is a party, XXX.XXX will
include Xxxxxxxx.xxx in all future XxxxXxxxxx.Xxx promotional activities.
5. CO-BRAND ALL NEW ACCOUNTS
XXX.XXX will co-brand all new XxxxXxxxxx.Xxx accounts signed up through
Xxxxxxxx.xxx with both a XXX.XXX logo as well as a Xxxxxxxx.xxx logo.
6. XXXXXXXXXX.XXX CUSTOMER OPT-IN:
XXX.XXX agrees to allow Xxxxxxxx.xxx to promote Xxxxxxxx.xxx's services
to all XxxxXxxxxx.Xxx customers that "opt in" to receive marketing materials
when this ability becomes available. XxxxXxxxxx.Xxx customers "opt-in" during
the XxxxXxxxxx.Xxx subscription process.
7. NET@DDRESS CUSTOMER OPT-IN:
XXX.XXX agrees to allow Xxxxxxxx.xxx to promote Xxxxxxxx.xxx's services
to all NET@DDRESS customers that "opt in" to receive marketing materials when
this ability becomes available. NET@DRESS customers "opt-in" during the
NET@DDRESS subscription process. This will be a general "opt in" to receive
marketing materials, versus information on Xxxxxxxx.xxx specifically.
8. XXXXXXXX.XXX AGREES TO PROMOTE XXX.XXX AS FOLLOWS:
o Xxxxxxxx.xxx will include XXX.XXX in the form of a co-branded page whenever
a customer of Xxxxxxxx.xxx links via text or button to "Email Services".
o Xxxxxxxx.xxx will advertise the Email Services via a link named "Email
Services", or the like, via a link on every page of Xxxxxxxx.xxx (in the
re-launch of the product expected to be completed March 1999). The link
will connect to a co-branded registration page designed and approved by
both Xxxxxxxx.xxx and XXX.XXX.
o Xxxxxxxx.xxx will offer domain based email services on the last page of the
registration process, once a customer has confirmed their domain name
registration.
2.
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o Xxxxxxxxxxxx.xxx will include XXX.XXX in the small business resources
(re-launch of site and introduction of this service March 1999).
o Xxxxxxxx.xxx will include email services, which include the co-branded
version of XXX.XXX and Xxxxxxxx.xxx off of the "futuresite" page. This page
is created for each customer that registers and "parks" a domain name, and
can be found at xxxx://xxxxxxxxxx.xxxxxxxx.xxx.
In the event XXX.XXX substantially changes its look, feel and/or user interface,
it will use commercially reasonable efforts to provide Xxxxxxxx.xxx with
substantially similar promotion and representation as indicated in this Exhibit
D; provided that Xxxxxxxx.xxx shall have the right to approve, in its sole
discretion, such altered promotion and representation.
3.
