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EXHIBIT 10.10
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS WITH ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
ANCHOR PROVIDER AGREEMENT
This agreement (the "Agreement") is made and entered into as of August 27, 1999
(the "Effective Date"), between Microsoft Corporation ("Microsoft"), with
offices at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-0000, and Xxxx.xxx (the
"Company"), with offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000. Microsoft and
Company agree as follows:
SECTION 1. DEFINITIONS
"COMPANY LOGO" means the Company logo(s) and trademark(s) provided to
Microsoft for use in connection with the Service.
"COPY" means a single email delivered to a specific Subscriber
consisting of a reproduction (in whole or in part) of, and/or hypertext link to,
a specific version of the Newsletter.
"IPRs" means trade secrets, patents, copyrights, trademarks, service
marks, trade names, know-how, moral rights, rights of publicity and privacy, and
similar rights of any type under the laws of any governmental authority,
domestic or foreign, including all applications and registrations relating to
any of the foregoing.
"NEWSLETTER" means the publication to be provided by Company to
Microsoft, Copies of which will be distributed to Subscribers via the Service.
"REGISTRATION PAGES" means those web pages that are displayed to users
of the U.S. English language Hotmail service in a manner to permit such users to
register to receive the Copies and other third party content via the Service.
"SERVICE" means the WebCourier Service whereby a person registering or
registered for a U.S. English language Hotmail email account may also register
to receive generic third party content via the Hotmail service.
"SUBSCRIBER" means a Hotmail account that has consented to receiving the
Newsletter.
SECTION 2. MICROSOFT OBLIGATIONS
2.1 Service. Microsoft will provide Company with placement on the first
page of the Registration Pages consisting of Company or Newsletter name (at
Company's option) and a link to the Company Logo and a text description of the
Newsletter. Company will be listed in the Teens/Young Adults category (the
"Category"). Microsoft may modify the Registration Pages from time to time,
provided that Company receives reasonably comparable placement on the revised
pages as specified herein.
2.2 Providers. The Newsletters of not more than four (4) "Anchor
Providers" and one (1) "Premier Provider" may be referenced in the Category
(with the "Premier Provider" receiving the most prominent placement in the
Category). The "Anchor Providers" will be placed within the Category in
descending order based upon the level of compensation paid by each "Anchor
Provider" to Microsoft to appear in such Category.
2.3 Distribution. Subject to paragraph 3.1, Microsoft will deliver
Copies to Subscribers according to such schedules as mutually agreed upon by
Company and Microsoft.
2.4 Promotional Banners. Microsoft will provide Company with a monthly
credit of [ * ] promotional banners to be used in the Hotmail service. Such
promotional credits will be specified for use in particular months, and may not
be transferred to any other month or redeemed for cash. Unused promotional
banner credits will expire at the end of the month specified for use. Company
will create and deliver to Microsoft all promotional banners for review at least
ten (10) days prior to the first run date for such banner as designated by
Company. All promotional banners shall meet all specifications and submission
requirements provided by Microsoft, and will contain a link to such Hotmail URL
as Microsoft may designate.
2.5 Hotmail Promotion. Microsoft will use reasonable efforts to promote
the Newsletter to new and current Hotmail users through Hotmail standard
promotional vehicles.
SECTION 3. COMPANY OBLIGATIONS
3.1 Delivery and Specifications. Company will make the Newsletter
available to Microsoft at a specified URL and on a delivery schedule agreed upon
by the parties in writing. The Company Logo, Newsletter text description and the
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Newsletters are all subject to specifications and submission deadlines (as
applicable) established by Microsoft and set forth in Appendix A, as the same
may be modified from time to time by Microsoft upon notice. Company will deliver
the Company Logo and Newsletter text description to Microsoft in the manner
directed by Microsoft. Company acknowledges that time is of the essence in
providing the foregoing to Microsoft, and the Company's failure to meet the
foregoing timing requirements or any applicable specifications may delay or
prevent delivery of Copies hereunder.
3.2 License. Company hereby grants Microsoft a world-wide,
non-exclusive, royalty-free license to:
(a) reproduce, promote, market, distribute, display, transmit,
download, upload, edit, modify and otherwise use the Newsletter as
reasonably anticipated to fulfill Microsoft's obligations under this
Agreement; and
(b) reproduce, display, transmit and otherwise use the Company
Logo and Newsletter text description in connection with (i) providing
the Service and Newsletter to Subscribers, and (ii) marketing and
promoting the Service and Newsletter.
3.3 MSN Ad Buy. Prior to September 30, 1999, Company will purchase from
Microsoft an aggregate of [*] of advertising on Microsoft properties, at an
average CPM rate of [*], to be displayed during the Term (the "Media Buy").
Terms of Media Buy (including the location, number of ad requests, ad types, and
dates), will be agreed upon by both parties in writing or by Microsoft Insertion
Order. The Media Buy will be made pursuant to Microsoft's standard terms and
conditions and must be completed during the Term. If Company fails to complete
the Media Buy prior to termination or expiration of the Term, Company will
immediately pay such amount to Microsoft all remaining unpaid amounts of the
Media Buy.
3.4 Limitations. The Newsletter may not contain, promote, market,
advertise, distribute, offer to distribute, link (either directly or, if with
the knowledge of Company, indirectly) to or otherwise be related to content
that:
(a) promotes, markets or advertises competing e-mail, newsletter
and/or other communication products whether offered by Company or a
third party (e.g., Lycos, Excite and other services designated by
Microsoft);
(b) is inappropriate, obscene, defamatory, libelous, slanderous,
profane, indecent or unlawful;
(c) infringes or misappropriates third party IPRs;
(d) constitutes "hate speech", whether directed at an individual
or a group, and whether based upon the race, sex, creed, national
origin, religious affiliation, sexual orientation or language of such
individual or group;
(e) promotes or contains viruses, worms, corrupted files, cracks
or other materials that are intended to or may damager or render
inoperable software, hardware or security measures of Microsoft,
Subscribers or any third party;
(f) facilitates or promotes gambling, or the sale or use of
liquor, tobacco products or illicit drugs;
(g) facilitates, promotes or forwards illegal contests, pyramid
schemes or chain letters; or
(h) otherwise restricts or inhibits any person's use or enjoyment
of Hotmail or the Service.
Microsoft may, but is under no obligation to, review the Newsletter, and may
refuse to host or make the Newsletter available to Subscribers in whole or in
part if Microsoft determines that the Newsletter violates the foregoing
limitations or such other limitations as Microsoft may adopt from time to time.
3.5 Subscriber Information. All information regarding Subscribers
collected through the Service constitutes Confidential Information (as that term
is used in Section 9) of Microsoft, and is subject to the confidentiality
requirements of Section 9. Notwithstanding the foregoing, information obtained
by Company directly from Subscribers will not constitute Confidential
Information of Microsoft and may be used by Company from time to time; provided,
Company does not collect, use or disclose such information in any manner that
identifies the subject as a Subscriber or Hotmail customer.
3.6 Changes to Newsletter. Company will provide Microsoft with thirty
(30) days' prior written notice of any material change to the nature or intended
audience of the Newsletter. Microsoft will have the option to terminate this
Agreement with respect to each Newsletter for which such a change is anticipated
or implemented upon written notice.
SECTION 4. CONSIDERATION
4.1 Advance. Company will prepay Microsoft an advance of the fees set
forth in paragraph 4.2 in an amount equal to [*] (the "Advance"). The Advance is
a non-refundable,
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guaranteed payment to Microsoft. The Advance will be rendered to Microsoft in
four (4) equal installments on a quarterly basis (i.e., every three (3) months
during the Term). The first payment hereunder is due when this Agreement is
signed and returned to Microsoft. Microsoft will invoice Company for the three
(3) remaining payments approximately thirty (30) days prior to the beginning of
each subsequent quarter, and Company will pay such invoiced amounts on or before
the first day of each such subsequent quarter. Notwithstanding the foregoing,
upon termination or expiration of this Agreement, other than by Company pursuant
to paragraph 5.2 or Microsoft pursuant to paragraph 5.3, Company will
immediately pay Microsoft any amounts of the Advance not yet paid.
4.2 Fee. Company will pay Microsoft the following fees as consideration
for Microsoft distributing the Newsletter to Subscribers:
(a) for Newsletters scheduled to be distributed two (2) to seven
(7) times per week, [ * ] per Copy distributed to a Subscriber; and
(b) for Newsletters scheduled to be distributed one (1) time per
week, [ * ] per Copy distributed to a Subscriber.
4.3 Distribution Adjustment. On a quarterly basis (including, at the end
of the Term), Microsoft will compare the number of Copies actually distributed
hereunder against the Advance paid for such quarter (or the Term). If the fees
incurred pursuant to paragraph 4.2 for the number of Copies actually distributed
during such quarter (or the Term) are greater than the portion of the Advance
paid for such quarter (or the Term), Microsoft will invoice Company for the
difference at the applicable rates noted in paragraph 4.2. If at the end of the
Term the fees (including the Advance) received by Microsoft hereunder exceed the
amount of the fees incurred by Company for distribution of Copies hereunder,
Microsoft will refund the difference to Company; except that in no event will
Microsoft be required to refund or otherwise return to Company any portion of
the Advance.
4.4 Invoice and Payment. Within thirty (30) days after the date of an
invoice, Company will pay Microsoft all amounts owing pursuant to such invoice
in readily available funds. Amounts not paid when due under this Agreement will
accrue interest at a rate of one and one-half percent (1.5%), compounded on a
monthly basis. Microsoft reserves the right to immediately suspend distribution
of the Newsletter if Company fails to make timely payment of any amounts owing
hereunder. All payments of amounts owing to Microsoft will be made at the
following location or such other location designated by Microsoft in writing:
Microsoft Corporation
XX Xxx 0000 - 0000
Xxxxxxxxxxxx XX 00000-0000
4.5 Reports. Microsoft will provide Company with monthly reports setting
forth the number of Subscribers receiving Copies and the total number of Copies
delivered per month.
4.6 Taxes. The fees, advances and other amounts owing to Microsoft
pursuant to this Agreement do not include taxes or other governmental fees.
Company will pay all taxes and other governmental fees arising out of or related
to all transactions undertaken pursuant to this Agreement, other than taxes on
Microsoft income and revenue, and will provide Microsoft with appropriate
evidence of such payment upon request.
4.7 Audits. Microsoft will maintain during the Term and for at least
twelve (12) months thereafter all of its regular books of account relating to
Copies distributed via the Service and amounts owing to Microsoft hereunder. If
Company believes in good faith that Microsoft invoiced Company in excess of
amounts actually owing pursuant to paragraph 4.2, Company will have the right at
Company's sole expense to audit such books of account, subject to the following:
(a) Company will provide Microsoft with at least thirty (30) days' prior written
notice of such audits; (b) audits may occur only during Microsoft's regular
business hours, and at the location where such books of account are maintained
by Microsoft or such other location reasonably specified by Microsoft; (c)
Company will cooperate with Microsoft in good faith to avoid and limit any
disruption of such audits to Microsoft's business and operations; (d) such audit
will be conducted by an independent accounting firm, acceptable to Microsoft and
compensated by Company in a manner that is not affected by the outcome of the
audit (e.g., no contingency fees); (e) the auditors provide Microsoft with all
results and other communications to Company related to the audit at the same
time such auditors provide such communications to Company; (f) audits may not
occur more than once during the Term, may not exceed three (3) consecutive days
and must be completed within twelve (12) months after the end of the Term; (g)
the auditors provide their final conclusions of the audit to Company and
Microsoft simultaneously and within thirty (30) days after the last day of the
audit. Any information disclosed to or otherwise learned by Company or its
auditors in connection with an audit conducted pursuant to this paragraph
constitutes Confidential Information (as the term is used in Section 9) of
Microsoft and subject to the limitations on use set forth in paragraph 9.1.
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SECTION 5. TERM AND TERMINATION
5.1 Term. This Agreement will be in effect for a period of twelve (12)
months commencing upon the Effective Date ("Term").
5.2 Termination. Either party may immediately terminate this Agreement
upon written notice if the other party breaches the Agreement in any material
respect, and the breach remains uncured for a period of ten (10) days following
the breaching party's receipt of written notice of the breach from the
non-breaching party. If Company terminates the Agreement pursuant to this
paragraph, Microsoft will refund to Company a pro rata portion of the Advance,
less any fees owing by Company to Microsoft.
5.3 Microsoft Termination. Notwithstanding paragraph 5.1, Microsoft may
terminate this Agreement upon thirty (30) days' prior written notice if
Microsoft ceases to offer the Service. In such a case, Microsoft will return to
Company a pro rata portion of the Advance actually paid to Microsoft (less any
additional fees incurred by Company hereunder), and at Company's option will
refund to Company any amounts for advertising purchased by Company pursuant to
paragraph 3.3, but not used as of the date of such termination. If fees incurred
by Company hereunder exceed the amount of the pro rated Advance actually paid by
to Microsoft as of the date of termination, Microsoft will invoice, and Company
will promptly pay, any additional amounts owing hereunder.
5.4 Survival. This paragraph and Sections 4 (Consideration), 6
(Representations and Warranties), 7 (Indemnification), 8 (Limitation of
Liability), 9 (Confidentiality), and 10 (General) shall survive any termination
of this Agreement, together with all obligations, rights and causes of action
that may have accrued prior to termination, along with any other provisions that
might reasonably be deemed to survive such termination.
SECTION 6. REPRESENTATIONS AND WARRANTIES
6.1 Company. Company represents and warrants that:
(a) Company has the full corporate rights, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder;
(b) Company's execution and performance of this Agreement do not
and will not violate any agreement to which Company is a party or by
which Company is otherwise bound, or any applicable law, rule or
regulation;
(c) the Newsletter does not and will not violate any third party
IPRs or give rise to any obligation for the payment of any sums to any
third party by Microsoft or Microsoft's successors in interest;
(d) the Newsletter (in whole or in part) does not and will not
violate the limitations set forth in paragraph 3.4;
(e) it will not harvest or otherwise collect through the Service
information about Subscribers, including e-mail addresses, without
Subscribers' express consent;
(f) it will not link the Service or Hotmail to any unsolicited
communication sent to any third party, or otherwise use or mention the
Service or Hotmail in connection with any such unsolicited
communication; and
(g) it is a member in good standing of an industry recognized
online privacy organization (e.g., the TRUST-E Program), and it will
adhere to the information gathering, dissemination, privacy protection
and other practices specified by such organization.
6.2 Microsoft: Microsoft represents and warrants to the Company that has
the full corporate rights, power and authority to enter into this Agreement and
to perform the acts required of it hereunder.
6.3 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE
SERVICE, NEWLETTER, HOTMAIL, AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR
ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND WITH
ALL DEFECTS. MICROSOFT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, TITLE, NONINFRINGEMENT, COMPATIBILITY, SECURITY, AND CONDITION
OR OPERATION OF THE FOREGOING. MICROSOFT DOES NOT WARRANT THE CONTINUED OR
UNINTERRUPTED OPERATION OF THE INTERNET, SERVICE, OR HOTMAIL.
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SECTION 7. INDEMNIFICATION
7.1 Company. The Company will indemnify and hold harmless Microsoft
against, and will defend or settle at the Company's expense, any and all
actions, claims, liabilities, losses, damages, costs, expenses, judgments and
penalties, including but not limited to reasonable attorneys' fees, or other
proceeding brought by third parties against Microsoft to the extent based on a
claim that, if true would (a) result from any misrepresentation or breach of
representation or warranty of the Company contained herein, or (b) result from
any breach of any covenant or agreement to be performed by Company hereunder.
7.2 Microsoft. Microsoft will indemnify and hold harmless the Company
against, and will defend or settle at Microsoft's expense, any action actions,
claims, liabilities, losses, damages, costs, expenses, judgments and penalties,
including but not limited to reasonable attorneys' fees, or other proceeding
brought by third parties against Company to the extent based on a claim that, if
true would (a) result from any misrepresentation or breach of representation or
warranty of Microsoft contained herein, or (b) result from any breach of any
covenant or agreement to be performed by Microsoft hereunder.
7.3 Procedure. The party to be indemnified , defended and held harmless
pursuant to paragraph 7.1 or 7.2 will: (a) provide the indemnifying party with
prompt written notice of any such claim, (b) permit the indemnifying party to
assume and control the defense of such action, and (c) not enter into any
settlement or compromise of any such claim without the indemnifying party's
prior written consent (not to be unreasonably withheld). The indemnifying party
will pay any and all costs, damages, and expenses (including but not limited to
reasonable attorneys' fees and costs) awarded against or incurred by the
indemnified party in any such action or proceeding attributable to any such
claim. The indemnified party may also retain counsel at its own expense in
connection with the defense or settlement of any such claim.
SECTION 8. LIMITATION OF LIABILITY
8.1 Limitation of Remedies. EXCEPT TO THE EXTENT ARISING PURSUANT TO
SECTION 7 OR A BREACH OF SECTION 9, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE, PROFITS, ACCOUNTS OR LOST BUSINESS, AND WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
8.2 Limitation of Damages. EXCEPT TO THE EXTENT ARISING PURSUANT TO
SECTION 7 OR A BREACH OF SECTION 9, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID AND
OWING TO MICROSOFT HEREUNDER.
SECTION 9. CONFIDENTIALITY
The parties acknowledge and agree that the Microsoft Non-Disclosure Agreement
dated as of ________________ ("NDA") entered into by and between the parties
applies to this Agreement as if fully set forth herein and that all of the terms
of this Agreement (including but not limited to its existence) and all
discussions and negotiations related thereto are considered Confidential
Information (as that term is defined in the NDA) of Microsoft under the NDA. If
Company has not executed a NDA, Company agrees to sign the NDA attached hereto
as Exhibit B and return it to Microsoft with this Agreement. Upon termination or
expiration of this Agreement, each party will destroy (or upon the other party's
request return) any and all Confidential Information of the other party in its
possession or control.
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SECTION 10. GENERAL.
10.1 Notices. All notices and requests in connection with this Agreement
will be deemed given (a) when personally delivered, (b) when delivered by
facsimile or telex, (c) the next business day following delivery to a nationally
recognized courier service guarantying next-day delivery, or (d) five (5)
business days after being placed in the United States mail, postage prepaid,
certified or registered, return receipt requested, as follows:
Notices to Company: Notices to Microsoft:
------------------- ---------------------
Xxxx.xxx Microsoft Corporation
000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx Xxx
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attn.: Xxxxxx Xxxxx Attn.: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000 x000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Copy to:
Microsoft Law & Corporate Affairs
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn.: Xxxxxxx Xxxxx
or to such other address as the party to receive the notice or request so
designates by at least ten (10) days prior written notice to the other party.
10.2 Independent Contractor. Company is an independent contractor, and
nothing in this Agreement will be construed as creating an employer-employee
relationship, partnership, or joint venture between the parties.
10.3 Governing Law. This Agreement will be governed by the laws of the
State of Washington. Company hereby irrevocably consents to the personal
jurisdiction of, and exclusive venue for any legal proceeding commenced by or on
behalf of Company in, the state and federal courts sitting King County,
Washington, USA. In any suit or action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
10.4 Assignment. Company may not assign, sub-license, transfer, encumber
or otherwise dispose of this Agreement without Microsoft's prior written
approval. Any attempted assignment, sub-license, transfer, encumbrance or other
disposal of this Agreement by Company without Microsoft's prior written approval
will be void and will constitute a material default and breach of this
Agreement. Except as otherwise provided, this Agreement will be binding upon and
inure to the benefit of the parties' successors and lawful assigns.
10.5 Headings. The section headings used in this Agreement are intended
for convenience only and will not be deemed to affect in any manner the meaning
or intent of this Agreement or any provision hereof.
10.6 Modification. This Agreement may not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed on
behalf of Company and Microsoft by their respective duly authorized
representatives.
10.7 Waiver. No waiver of any breach of this Agreement will constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by the waiving party.
10.8 Severability. To the extent that any provision of this Agreement
conflicts with governing law or any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (a) such
provision will be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable law, and (b)
the remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect.
10.9 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together will constitute one agreement
10.10 Entire Agreement. Subject to Section 9, this Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements or communications
between the parties.
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the date written above.
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Microsoft Company
MICROSOFT CORPORATION XXXX.XXX
Xxx Xxxxxxxxx Xxx 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000
By /s/ Xxxxxx X. Xxxx /s/ Xxxxx X. Xxxxxxxx
-------------------------- ------------------------------------
(Sign) (Sign)
Xxxxxx X. Xxxx
----------------------------- ------------------------------------
Name (Print) Name (Print)
Director
----------------------------- ------------------------------------
Title Title
9/9/99
----------------------------- ------------------------------------
Date Date
------------------------------------
Company's Federal Employer ID Number
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EXHIBIT A
SPECIFICATIONS
A. Specifications for Anchor Providers
a. Company logo: 100x 30, 1.5K file size, gif, non-animated,
non-clickable
b. Newsletter description: 215 Latin characters(including spaces)
that briefly describes the newsletter
c. Company name: 20 characters
d. Promotional banners
i. 468x60, 12K file size, gif or jpeg
ii. At Microsoft discretion, Company must include Hotmail
and/or WebCourier logo, making it clear to the user that
the banner is a co-branded banner.
iii. URL determined by Microsoft
iv. Banner must meet standard Microsoft guidelines set forth
in Standard Terms and Conditions
B. Hosting Schedule
a. Company will make the newsletter content available to Microsoft
according to a schedule agreed upon by Microsoft and Company.
b. Company will run newsletter content through an HTML validator
program to catch any errors before posting it for pickup.
c. Company will provide Microsoft with the URL of the newsletter
content for Microsoft pick-up.
d. Company may not alter the newsletter content more than once each
day.
C. Delivery Schedule
a. Microsoft will distribute the Newsletter to Subscribers
according to the schedule agreed upon by Microsoft and Company.
NEWSLETTER TECHNICAL REQUIREMENTS
1. Code must be syntactically correct, and resemble the following;
[HTML]
[BODY]
............
[/BODY]
[/HTML]
Note: Tables are good if you want the page to retain its attributes,
but if any of the above tags are missing, it WILL NOT work. Code
that is not clean will run into problems with WebCourier
automated content pickups and page display.
2. No Relative Links.
The following are examples of relative links
[a href="/hotmail/link.html"]
[img src="../../../../hotmail/img.gif"]
All links must have full headings similar to these:
[a href="xxxx://xxx.xxxxxxx.xxx/xxxxxxx.xxxx"]
[img src="xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxx.xxx"]
3. Use NO JavaScript/DHTML.
For security reasons, we do not allow JavaScript or DHTML.
4. We accept only the GET method instead of the POST method in Form tags
(i.e., [FORM] tags should have "METHOD=GET".
Scripts receiving [FORM] input must accept the "GET" method.
5. Links may NOT open new browser windows.
6. Tags that are opened must be closed.
7. Suggestion: Code for a maximum resolution screen size of 800 x 600. For
best results across all platforms, use a minimum of 600 pixels.
8. Setting Background Colors:
If you wish to set a background color, then set it in a table around
your HTML, rather than using body tags. DO NOT USE BODY TAGS. DO NOT USE
GLOBAL STYLE TO SPECIFY COLORS. DO NOT SET A BODY BACKGROUND. Use nested
styles within the table. Anything with body tags will be stripped out or
ignored.
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Example of what NOT to do:
[body bgcolor="#FFFFFF" text="#000000" link="#003366" vlink="#003366"
alink="#003366"]
What you can do:
- create CSS classes specific to your content, or
- create all styles in-line
9. Variable Subject Lines: (You must inform the Program Manager to turn ON
this feature.) Subject must be enclosed in the [title]...[/title] tags
on same line. 46 character max, including spaces. SUBJECT LINE MUST
BEGIN WITH YOUR NEWSLETTER NAME. (Ex. MSNBC: followed by subject).
10. Content: maximum of 512 characters per line. If it's longer than 512
characters, people using email clients will not be able to retrieve your
WebCourier newsletter.
SERVER RULES
11. Server Accessibility:
The server on which your HTML resides must be accessible via telnet
client. We will retrieve the HTML by "telnet"ing into the site and using
the GET command to retrieve the material.
telnet xxx.xxxxxxx.xxx 80
Trying 207.82.250.251...
Connected to xxx.xxxxxxx.xxx.
Escape character is '[CARAT]]'.
GET /hotmail/test.html HTTP/1.0
The server can reside on any port as long as it is not a secure server.
SID's are supported.
12. No Password Protected Pages.
13. Note: Some codes that may work in a browser alone may not be permissible
in WebCourier content.
14. Please run your newsletters through an HTML validator program to catch
any errors before posting it for pickup.
PICKUP RULES
15. The URL where the page resides for pickup cannot be changed. If it must
be changed, Hotmail must be notified as far in advance as possible.
16. Content must be ready at the time of pickup. Materials that have not
been changed from the previous pickup will not be delivered.
SUBSCRIBER CUSTOMER SUPPORT:
17. If subscribers have problems with their WebCourier subscription, please
have them send a blank email to xxxxxx@xxxxxxx.xxx. This alias will send
the user some troubleshooting instructions. If a subscriber continues to
have problems after following the autoresponder directions, there is
another email alias provided for a personal response.
18. Company must maintain WebCourier delivered newsletter content pages,
links, and images for a minimum of six (6) months.
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EXHIBIT B
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement") is made between MICROSOFT CORPORATION, a
Washington corporation, and Xxxx.xxx (the "Company") and entered into this
______ day of ________________, 19_____.
In consideration of the mutual promises and covenants contained in this
Agreement, the mutual disclosure of confidential information to each other, the
parties hereto agree as follows:
1. Confidential Information and Confidential Materials
(a) "Confidential Information" means nonpublic information that Disclosing
Party designates as being confidential or which, under the circumstances
surrounding disclosure ought to be treated as confidential. "Confidential
Information" includes, without limitation, information relating to released or
unreleased Disclosing Party software or hardware products, the marketing or
promotion of any Disclosing Party product, Disclosing Party's business policies
or practices, and information received from others that Disclosing Party is
obligated to treat as confidential. Confidential Information disclosed to
Receiving Party by any Disclosing Party Subsidiary and/or agents is covered by
this Agreement.
(b) Confidential Information shall not include any information that: (i) is
or subsequently becomes publicly available without Receiving Party's breach of
any obligation owed Disclosing Party; (ii) became known to Receiving Party prior
to Disclosing Party's disclosure of such information to Receiving Party; (iii)
became known to Receiving Party from a source other than Disclosing Party other
than by the breach of an obligation of confidentiality owed to Disclosing Party;
or (iv) is independently developed by Receiving Party.
(c) "Confidential Materials" shall mean all tangible materials containing
Confidential Information, including without limitation written or printed
documents and computer disks or tapes, whether machine or user readable.
2. Restrictions
(a) Receiving Party shall not disclose any Confidential Information to
third parties for five (5) years following the date of its disclosure by
Disclosing Party to Receiving Party, except to Receiving Party's consultants as
provided below. However, Receiving Party may disclose Confidential Information
in accordance with judicial or other governmental order, provided Receiving
Party shall give Disclosing Party reasonable notice prior to such disclosure and
shall comply with any applicable protective order or equivalent.
(b) Receiving Party shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own confidential information,
to keep confidential the Confidential Information. Receiving Party may disclose
Confidential Information or Confidential Material only to Receiving Party's
employees or consultants on a need-to-know basis. Receiving Party will have
executed or shall execute appropriate written agreements with its employees and
consultants sufficient to enable it to comply with all the provisions of this
Agreement.
(c) Confidential Information and Confidential Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of Receiving Party's
business relationship with Disclosing Party, and only as otherwise provided
hereunder. Receiving Party agrees to segregate all such Confidential Materials
from the confidential materials of others in order to prevent commingling.
(d) Receiving Party may not reverse engineer, decompile or disassemble any
software disclosed to Receiving Party.
3. Rights and Remedies
(a) Receiving Party shall notify Disclosing Party immediately upon
discovery of any unauthorized use or disclosure of Confidential Information
and/or Confidential Materials, or any other breach of this Agreement by
Receiving Party, and will cooperate with Disclosing Party in every reasonable
way to help Disclosing Party regain possession of the Confidential Information
and/or Confidential Materials and prevent its further unauthorized use.
(b) Receiving Party shall return all originals, copies, reproductions and
summaries of Confidential Information or Confidential Materials at Disclosing
Party's request, or at Disclosing Party's option, certify destruction of the
same.
(c) Receiving Party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure of Confidential Information and
that Disclosing Party shall be entitled, without waiving any other rights or
remedies, to such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction.
(d) Disclosing Party may visit Receiving Party's premises, with reasonable
prior notice and during normal business hours, to review Receiving Party's
compliance with the terms of this Agreement.
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4. Miscellaneous
(a) All Confidential Information and Confidential Materials are and shall
remain the property of Disclosing Party. By disclosing information to Receiving
Party, Disclosing Party does not grant any express or implied right to Receiving
Party to or under Disclosing Party patents, copyrights, trademarks, or trade
secret information.
(b) If either party provides pre-release software as Confidential
Information or Confidential Materials under this Agreement, such pre-release
software is provided "as is" without warranty of any kind. Receiving Party
agrees that neither Disclosing Party nor its suppliers shall be liable for any
damages whatsoever relating to Receiving Party's use of such pre-release
software.
(c) All software provided to the U.S. Government pursuant to solicitations
issued on or after December 1, 1995 is provided with the commercial rights and
restrictions described elsewhere herein. All software provided to the U.S.
Government pursuant to solicitations issued prior to December 1, 1995 is
provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE
1987) or XXXX, 00 XXX 252.227-7013 (OCT 1988), as applicable. Manufacturer is
Microsoft Corporation/One Microsoft Way/Redmond, WA 98052-6399.
(d) Both parties agree that they do not intend nor will they, directly or
indirectly, export or re-export (i) any Confidential Information or Confidential
Materials, or (ii) any product (or any part thereof), process or service that is
the direct product of the Confidential Information or Materials to (A) any
country that is subject to U.S. export restrictions (currently including, but
not necessarily limited to, Iran, Iraq, Syria, Cuba, North Korea, Libya, the
Federal Republic of Yugoslavia (Serbia and Montenegro) and Sudan), or to any
national of any such country, wherever located, who intends to transmit or
transport the products back to such country; (B) to any end-user who either
party knows or has reason to know will utilize them in the design, development
or production of nuclear, chemical or biological weapons; or (C) to any end-user
who has been prohibited from participating in U.S. export transactions by any
federal agency of the U.S. government.
(e) 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 Confidential Information. Further,
either party shall be free to use for any purpose the residuals resulting from
access to or work with such Confidential Information, provided that such party
shall maintain the confidentiality of the Confidential Information as provided
herein. The term "residuals" means information in non-tangible form, which may
be retained by persons who have had access to the Confidential Information,
including ideas, concepts, know-how or techniques contained therein. 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.
(f) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed by
both parties. None of the provisions of this Agreement shall be deemed to have
been waived by any act or acquiescence on the part of Disclosing Party, its
agents, or employees, but only by an instrument in writing signed by an
authorized officer of Disclosing Party. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision(s) or of the same
provision on another occasion.
(g) If either party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees. This Agreement shall be construed and controlled by
the laws of the State of Washington, and both parties further consent to
jurisdiction by the state and federal courts sitting in the State of Washington.
Process may be served on either party by U.S. Mail, postage prepaid, certified
or registered, return receipt requested, or by such other method as is
authorized by the Washington Long Arm Statute.
(h) Subject to the limitations set forth in this Agreement, this Agreement
will inure to the benefit of and be binding upon the parties, their successors
and assigns.
(i) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
(j) All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
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5. Suggestions and Feedback
Either party may from time to time provide suggestions, comments or other
feedback to the other party with respect to Confidential Information provided
originally by the other party (hereinafter "Feedback"). Both parties agree that
all Feedback is and shall be entirely voluntary and shall not, absent separate
agreement, create any confidentiality obligation for the Receiving Party.
However, the Receiving Party shall not disclose the source of any feedback
without the providing party's consent. Feedback shall be clearly designated as
such and, except as otherwise provided herein, each party shall be free to
disclose and use such Feedback as it sees fit, entirely without obligation of
any kind to the other party. The foregoing shall not, however, affect either
party's obligations hereunder with respect to Confidential Information of the
other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Microsoft Company
MICROSOFT CORPORATION XXXX.XXX
Xxx Xxxxxxxxx Xxx 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000
By /s/ Xxxxxx X. Xxxx /s/ Xxxxx X. Xxxxxxxx
------------------ ---------------------
(Sign) (Sign)
Xxxxxx X. Xxxx Xxxxx X. Xxxxxxxx
--------------------- ---------------------
Name (Print) Name (Print)
Director CFO
--------------------- ---------------------
Title Title
9/9/99
--------------------- ---------------------
Date Date
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