EXHIBIT 10.9(A)
1999-2000 U.S. NET SEARCH PREMIER PROVIDER AGREEMENT
Netscape Communications Corporation, 000 X. Xxxxxxxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000, a Delaware corporation, ("Netscape"), and LookSmart, Ltd., a
Delaware corporation with principal offices at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
XX 00000 ("Premier Provider"), hereby enter into the following agreement
("Agreement"), effective as of the date of the last signature on the Agreement
("Effective Date"):
1. Premier Provider. Premier Provider will be one of the premier search and
directory services (the "Premier Providers") for the U.S. English-language HTML
page accessible via the Internet at xxxx://xxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxx (or
such other URL as Netscape may designate from time to time in writing) (the
"Page") that provides Internet search and directory services on the collection
of HTML pages maintained by Netscape, with a homepage of
xxxx://xxxx.xxxxxxxx.xxx or at such other URL(s) as Netscape may designate)
("Netscape's Web Site"). The Page may also be accessed by Internet users of the
Netscape-distributed English-language version of its internet browsing software
(the "Browser") by clicking on the Net Search button, by clicking on bookmarks
pre-loaded in certain versions of the Browser toolbar as described herein, or by
such other methods as Netscape may specify from time to time. Netscape reserves
the right to determine additional means through which users may access the Page,
including, but not limited to, the use of mirror sites and pointers based on a
user's IP address.
2. Premier Period. Netscape will maintain the Premier Graphic, as defined
below, on the Page in accordance with Section 3 from July 1, 1999 through June
30, 2000 (the "Premier Period").
3. Services Provided by Netscape.
3.1 Premier Graphic. Premier Provider will supply Netscape with files
---------------
in HTML, GIF, or such other format as Netscape may designate from time to time
(the "Premier Graphic"). Netscape will place these files on the Page during the
Premier Period. Premier Provider will retain all rights to the Premier Graphic,
but hereby grants Netscape a royalty-free worldwide license, without charge, to
use, display, perform, reproduce, modify, and distribute the Premier Graphic as
necessary to fulfill the intention of this Agreement. The Premier Graphic will
contain a functional search field and, if available, directory tree. The Premier
Graphic will conform to the specifications of Exhibit A, which also describes
the placement of the Premier Graphic on the Page.
3.2 Stack. Netscape will produce the Page as set forth on Exhibit A. The
-----
Premier Graphics on the Page will appear to be overlapped in a stack (the
"Stack"). The Premier Graphic will be accessible by an end user by clicking on
a tab for the Premier Provider's service. When an end user clicks on hypertext
links ("Premier Links") placed by Premier Provider on the Premier Graphic, the
end user's Browser will access pages ("Premier URLs") on the collection of
English-language HTML documents Premier Provider maintains as its primary web
site, with a home page of xxxx://xxx. .com or such other address as
-----------
Premier Provider may provide in writing ("Premier Provider's Web Site").
Netscape reserves the right to use, in its sole discretion, those
[*]- CERTAIN INFORMATION WITHIN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
portions of the Page not used by the Stack. The Premier Graphic may be served on
the top of the Stack to an end user by the following means: (i) random rotation,
as described in Section 3.3; (ii) end user default selection, as described in
Section 3.4; or (iii) an end user selection of the Premier Graphic tab in the
Stack.
3.3 Rotation. Netscape will rotate the display of the Premier Graphics
--------
to be displayed on the top of the Stack when each Page is served to an end user
who has not selected a Premier Graphic as a default, as described in Section
3.4. Subject to the provisions of Section 3.4, the Premier Graphic will appear
on the top of the Stack of each Page [*] ("Rotation Percentage") of the
instances in which the Page is served up to end users who have not selected a
default Premier Graphic when accessing the Page, prior to any selection of a
particular Premier Graphic tab. Premier Provider acknowledges that the Rotation
Percentage is an annualized target, and that Netscape may adjust the display of
the Premier Graphic to occur at a rate above or below the Rotation Percentage at
any particular time, subject to Netscape's obligations to deliver the Rotation
Percentage averaged over the course of the Premier Period.
3.4 End User Default. An end user may select which of the Premier
----------------
Graphics he or she would prefer to have displayed on the top of the Stack upon
the calling up of the Page. If an end user selects a default Premier Graphic,
the Premier Graphic selected by that end user will be displayed on top of the
Stack each time he or she accesses the Page until he or she eliminates or alters
the default selection.
3.5 Page Specifications. Exhibit A sets forth the specifications of the
-------------------
Premier Graphic, the Stack, and their placement on the Page. Netscape may, upon
not less than thirty business days advance written notice to Premier Provider,
(i) change the location of the Stack or the Premier Graphics on the Page, (ii)
redesign or reconfigure the Stack, the Page, Netscape's Web Site, and/or the
manner in which an end user interacts with any of the pages of Netscape's Web
Site, or (iii) otherwise revise Exhibit A, subject to Netscape's obligation to
deliver the Rotation Percentage averaged over the course of the Premier Period,
and provided that the display of Premier Providers' graphics will remain the
largest and most prominent category of search graphic or the Page and that the
Premier Graphic will remain equal in size to graphics of other Premier
Providers. In the event Netscape revises Exhibit A, Premier Provider will supply
Netscape with a Premier Graphic that conforms to the revised specifications
within thirty days after it receives notice of the revision and no fewer than
five business days prior to the date Netscape specifies for the posting of the
revised Premier Graphic or Stack. If Netscape has not received such revised and
conforming materials in a timely fashion or if the materials supplied by Premier
Provider do not function in accordance with the specifications set by Netscape,
then Netscape will either (i) post previous versions of Premier Provider's
supplied materials, or (ii) make such changes as necessary to bring the
materials into conformity with the new.
3.6 Update of Premier Graphic. Premier Provider may elect to revise or
-------------------------
update its Premier Graphic on a weekly basis in conjunction with Netscape's Page
production schedule, provided that the new version of the Premier Graphic
complies with the specifications of Exhibit A.
4. Additional Premier Provider Benefits.
4.1 Pre-loaded Bookmark. During the Premier Period, Netscape will
-------------------
include a graphic HTML link ("Bookmark") for the Premier Provider to the Page in
the bookmark section of the U.S.
[*]- CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-2-
English-language version of 4.x versions of the Browser. End users may
reconfigure, customize, or delete the Bookmark.
4.2 Limit on Premier Providers. Netscape will limit the number of
--------------------------
companies whose tabs appear on the Stack at any one time to a total [*].
5. Exposures. An exposure ("Exposure") occurs upon: (i) the serving up to an
end user of the Premier Graphic on the top of a Stack as described in sections
3.2, 3.3, and 3.4; (ii) an end user clicking on a link programmed by Netscape
directly to Premier Provider's search functionality on Premier Provider's Web
Site (excluding Premier Links) or executing a search query directed to Premier
Provider's Web Site from any location on Netscape's Web Site with search
functionality other than the Page; (iii) the Page when accessed by a click from
the Bookmark; (iv) a link through a disabling device only if and to the extent
permitted under Section 6.3; or (v) any other Premier Provider content as a
consequence of an end user accessing a promotional page on Netscape's Web Site
if the parties agree that such promotional page traffic will constitute an
Exposure.
6. PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations set
forth herein, Premier Provider agrees to the following provisions.
6.1 Netscape Now. Premier Provider will display the then-current
------------
version of the "Netscape Now" button as provided by Netscape or the equivalent
successor button or the words "Download Netscape Now" (or successor text
reasonably designated by Netscape) ("THE NETSCAPE NOW BUTTON/TEXT") prominently
on the home page of Premier Provider's Web Site or on any page Premier Provider
links to it. When an end user clicks on the Netscape Now button/text, the end
user's Internet client software or online service will access the applicable
HTML page located at a URL supplied by Netscape. On any page on which it is
displayed, the Netscape Now button/text will be displayed in the same format
(i.e., button, text, or graphic) and equal to or greater in size and prominence
than the button, text, or graphic for any other Internet client software, online
service, software provider, "push" content delivery system, or other online
service. Premier Provider will use its best efforts to remedy promptly any
misplacement or malfunctioning of the Netscape Now button/text on its pages.
Netscape will fully cooperate with Premier Provider to remedy any such
misplacement or malfunctioning. Premier Provider will not be liable for any such
misplacement or malfunctioning outside its reasonable control. Netscape hereby
grants Premier Provider a nonexclusive, non-transferable, non-assignable, non-
sublicensable license to use, reproduce, and display the Netscape Now
button/text in connection with fulfilling the foregoing obligation, Premier
Provider's use of the Netscape Now button/text will be in accordance with
Netscape's reasonable policies regarding advertising and trademark usage as
established from time to time by Netscape, including the guidelines of the
Netscape Now Program published on Netscape's U.S. English-language Web Site.
Netscape may immediately suspend Premier Provider's use of the Netscape Now
button/text if Netscape determines that such use violates quality standards. The
use of the Netscape Now button/text in connection with this Agreement will not
create any right to the Netscape Now button/text or associated trademarks and
that all goodwill associated with the Netscape Now button/text and associated
trademarks will inure to the benefit of Netscape. Premier Provider agrees not to
register or use any trademark that is similar to the Netscape Now button/text.
[*]- CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-3-
Premier Provider further agrees that it will not use the Netscape Now
button/text in a manner that could mislead end users or reflect adversely on
Netscape or its products. Premier Provider's compliance with the terms and
conditions of this section are a material obligation of the Agreement.
6.2 Mailto Link. Premier Provider will include on the page served to an
-----------
end user in conjunction with the results of the end user's search query on
Premier Provider's service a "mailto" link to its support services that users of
Premier Provider's service can use to direct questions or help requests to
Premier Provider. Netscape will also include such a "mailto" link to its support
services on the Page. Premier Provider will use reasonable efforts to reply
promptly, but in any event within one week, to any such question or help
request.
6.3 No Disabling. Premier Provider will not provide or implement any
------------
means or functionality that would (i) alter, modify, or enable end users to
alter or modify, the Browser standard user interface or configuration, (ii)
disable any functionality of the Browser or any other Internet browser software,
or (iii) modify the functioning of pages served from Netscape's Web Site.
Premier Provider's compliance with the terms and conditions of this section are
considered a material obligation of the Agreement.
6.4 Use of Premier Graphic Space. Premier Provider will maintain the
----------------------------
Premier Graphic for the purpose of promoting Premier Provider's Internet search
and directory services, any associated online services provided under Premier
Provider's brand and/or any associated content provided by Premier Provider.
Premier Provider will not use the space allotted the Premier Graphic, or links
therein, for the benefit of a third party without first obtaining Netscape's
prior written consent. The Premier Graphic will not compare Premier Provider's
services with other services or promote any internet browser or internet access
service provider. Netscape will require all Premier Providers to comply with
materially the same restrictions on the use of their respective Premier
Graphics.
6.5 Premier Provider Website Operating Standards. Premier Provider
--------------------------------------------
will comply with the website operating standards set forth in Exhibit C.
7. Payment to Netscape.
7.1 Payment. Premier Provider will pay Netscape non-refundable fees for
-------
its inclusion on the Page ("Participation Fees") of [*] for engineering services
and [*] for page redesign. These fees are independent of payments for traffic
provided. Premier Provider will also pay Netscape fees for Exposures delivered
("Traffic Payments") of [*] for each thousand Exposures (the "CPM Rate")
provided under the agreement. Premier Provider will receive a credit of [*] (the
"Credit") against Traffic Payments for per quarter of the Premier Period.
7.2 Timing. Premier Provider will pay the Participation Fees upon
------
execution of this agreement. All Traffic Payments will be payable on a quarterly
basis (with quarters ending September 30, 1999; December 31, 1999; March 31,
2000; and June 30, 2000), based on total Exposures delivered for that quarter
multiplied by the CPM Rate, less the Credit for that quarter.
[*]- CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-4-
7.3 Payment Terms. All amounts payable to Netscape hereunder will be
-------------
paid in U.S. dollars within thirty days after receipt by Premier Provider of the
corresponding invoice submitted by Netscape. Any part of the Payment not paid to
Netscape within this period will bear interest at the lesser of one percent per
month or the maximum amount allowed by law.
7.4 Taxes. Premier Provider will pay all amounts in the Agreement in U.S.
-----
dollars, without reduction for any related U.S. or foreign local, state,
national taxes, duties, leaves, or assessments, however described or calculated
(excluding taxes based on Netscape's net income). Amounts in the Agreement do
not include any tax payments. Participant will make, and indemnify Netscape
against, any such payments and promptly give Netscape corresponding receipts.
Netscape and Participant will cooperate in minimizing any applicable tax and in
obtaining any exemption from or reduced rate of tax available under any
applicable law or tax treaty.
8. Usage Reports.
8.1 Provision of Usage Reports. Netscape and Premier Provider will each
--------------------------
provide the other with usage reports ("Usage Reports") containing the
information and in the format set forth in Exhibit B hereto. The Usage Reports
will cover each one-month time period of the Premier Period, and the parties
will use reasonable commercial efforts to deliver the Usage Reports within
fifteen days following the end of each month. If, due to technical problems, a
party is unable to provide any pan of a Usage Report in any given month, the
following data will be used for each day for which data is missing: ninety
percent of the usage figures reported for the same day of the week most recently
reported (e.g., if data for the day seven days prior is available, ninety
percent of the usage figures for such day; if not available, the data for the
day fourteen days prior, and so on).
8.2 No Liability. Netscape and Premier Provider will use reasonable
------------
commercial efforts to ensure the timely delivery, accuracy, and completeness of
the usage reports, but neither party warrants that the usage reports will
conform to any published numbers at any given time. Neither party will be liable
for any claims related to the usage reports other than premier provider's
obligation under Section 7.
9. Term & Termination.
9.1 Methods of Termination. This Agreement will remain in effect from the
----------------------
Effective Date through the end of the Premier Period. Either party may terminate
this Agreement before the end of the Premier Period if the other party
materially breaches its obligations hereunder and such breach remains uncured
for fifteen days following written notice to the breaching party of the breach
or as otherwise provided in Section 10.
9.2 Effect of Termination/Survival of Obligations. Except as specifically
---------------------------------------------
provided otherwise in this Agreement, upon the expiration or termination of the
Agreement, all rights and obligations will cease (other than Premier Provider's
payment obligations hereunder to the extent accrued on or prior to the
termination, which will become due upon termination). The following provisions
will survive the expiration or termination of this Agreement for any reason:
Section 7.1 (Payment), Section 7.4 (Taxes), Section 8.2 (No Liability), Section
9.2 (Effect of Termination),
-5-
Section 9.3 (No Compensation), Section 11 (Responsibility), Section 12
(Limitation of Liability), and Section 16 (General).
9.3 No Compensation. Premier Provider will not be entitled to and hereby
---------------
waives its rights to any compensation, damages, or payments in respect to
goodwill that has been established or for any damages on account of prospective
profits or anticipated sales, and Premier Provider will not be entitled to any
reimbursement for training, advertising, market development, investments,
leases, or other costs expended before the expiration or termination of this
Agreement, regardless of the grounds for termination of this Agreement.
10. Inappropriate Content. Netscape will have the right to review the contents
and format of the Premier Graphic, the Bookmark, and Premier Provider's Web
Site. If Netscape, in its sole discretion, at any time determines that the
Premier Graphic, Bookmark, or Premier Provider's Web Site contain any material
that Netscape deems inappropriate for any reason or that fails to comply with
Exhibit A, Netscape will inform Premier Provider of the reason Netscape has made
such determination and may refuse to include the Premier Graphic in the Page.
Netscape may terminate this Agreement if Premier Provider has not revised to
Netscape's reasonable satisfaction material to which Netscape has objected
within five business days of written notice from Netscape.
11. Responsibility/Indemnity.
11.1 Responsibility. As between Netscape and Premier Provider, Premier
--------------
Provider is solely responsible for any liability arising out of or relating to
the "Services", defined as: (i) the Premier Graphic, the Bookmark, the Premier
URLs, or the Premier Links, (ii) any material to which users can link through
any of the foregoing, or (iii) any use of Premier Provider's search and
directory service pursuant to this Agreement. Premier Provider represents and
warrants that it holds the necessary rights to permit the use of the Services by
Netscape for the purpose of this Agreement; and that the permitted use,
reproduction, distribution, or transmission of the Services will not violate any
laws, government regulations, or, rights of third parties, including, but not
limited to, infringement or misappropriation of any copyright, patent,
trademark, trade secret, music, image, or other proprietary or property right,
false advertising, unfair competition, defamation, or invasion of privacy or
right of publicity.
11.2 Indemnity. Either party will defend and indemnify the other party
---------
and its officers, directors, agents, affiliates, distributors, franchisees, and
employees from any third-party claims ("Liabilities"), resulting from the
indemnifying party's material breach of any duty, representation, or warranty of
this Agreement. If a party entitled to indemnification hereunder (the
"Indemnified Party") learns of any potentially indemnifiable claim or other
proceeding against it (an "Action"), the Indemnified Party will give the other
party (the "Indemnifying Party") prompt written notice. That notice will
describe the basis for indemnification and include copies of all relevant
pleadings, demands, and other papers related to the Action that the Indemnified
Party possesses. The Indemnifying Party will have ten days after delivery of
such notice to respond. If the Indemnifying Party elects to defend the Action or
does not respond within ten days, the Indemnifying Party will be obliged to
defend the Action, at its own expense, controlling the defense of the Action and
using counsel reasonably satisfactory to the Indemnified Party. The Indemnified
Party will cooperate, at
-6-
the expense of the Indemnifying Party, in the defense of the Action and have the
right to participate, at its own expense, in that defense. If the Indemnifying
Party responds within the required ten days and elects not to defend an Action,
the Indemnified Party will be free, without waiving its rights hereunder, to
compromise or defend (and control the defense of) such Action. In such case, the
Indemnifying Party will cooperate, at its own expense, with the Indemnified
Party in defending against the Action and have the right to participate, at its
own expense, in the defense of the Action. In any other case, any compromise or
settlement of an Action will require the prior written consent of both parties,
which they will not unreasonably withhold or delay.
12. Limitation of Liability/No Additional Warranties.
12.1 Limitation of Liability. Except as provided in Section 11.2, neither
-----------------------
party will be liable to the other for indirect, incidental, consequential,
special or exemplary damages (even if it knows of the possibility of such
damages) arising from this agreement, including, but not limited to, loss of
revenue, anticipated profits, or lost business. Except as provided in Section
11.2, neither party will be liable to the other for more than the aggregate
amount payable hereunder as of the date liability accrued.
12.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
------------------------
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF (MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT
LIMITING THE FOREGOING, NETSCAPE SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
OVERALL TRAFFIC LEVELS, TRAFFIC PERFORMANCE, OR REVENUES TO BE DERIVED UNDER
THIS AGREEMENT.
13. COURSE OF DEALING. In consideration of Premier Provider's participation in
the Premier Program, Premier Provider will not change the form or function of
Premier Provider's Web Site in a manner that directly results in a material
adverse effect to users of Netscape's Internet browser software as compared to
its performance at the time the Agreement was executed.
14. Alternative Dispute Resolution.
14.1 Negotiation. The parties will act in good faith and use commercially
-----------
reasonable efforts to promptly resolve any claim or dispute between them or any
of their subsidiaries, affiliates, successors and assigns related to this
Agreement ("DISPUTE"). If the parties cannot resolve a Dispute within ten days,
they will escalate it to the senior business representative of each party with
responsibility for the contractual relationship. If those representatives are
unable to resolve the Dispute during a ten-day period, they will consider
retaining a mediator to assist in discussions. Neither party will seek binding
outside resolution of the Dispute unless the parties have been unable to
resolve the Dispute through such negotiation.
-7-
14.2 Arbitration. Except for Disputes relating to issues of (i)
-----------
proprietary rights, including but not limited to intellectual property and
confidentiality, and (ii) any provision of this Agreement that expressly or
implicitly provides that the parties will mutually agree, any Dispute not
resolved by negotiation will be resolved by arbitration. Such arbitration will
be conducted by the American Arbitration Association ("AAA") in Washington, D.C.
(in the event that Premier Provider initiates the arbitration) or the county in
which Premier Provider maintains its principal place of business (in the event
that Netscape initiates the arbitration and will be initiated and conducted in
accordance with the Commercial Arbitration Rules ("Commercial Rules") of the
AAA, including the AAA Supplementary Procedures for Large Complex Commercial
Disputes ("Complex Procedures"), as such rules will be in effect on the date of
delivery of a demand for arbitration, except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the parties may agree not to apply the Complex Procedures to any
given Dispute. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state
law, will govern the arbitrability of all Disputes. Either party will have the
right to seek injunctive relief from any court of competent jurisdiction pending
the outcome of the arbitration.
14.3 Arbitration Process. The arbitration panel will consist of three
-------------------
arbitrators. Each party will name an arbitrator within ten days after the
delivery of the Demand. The two arbitrators named by the parties may have prior
relationships with the naming party that in a judicial setting would be
considered a conflict of interest. The third arbitrator, selected by the first
two will be a neutral Premier Provider, with no prior working relationship with
either party. If the two arbitrators are unable to select a third arbitrator
within ten days, a third neutral arbitrator will be appointed by the AAA from
the panel of commercial arbitrators of any of the AAA Large and Complex
Resolution Programs. If a vacancy in the arbitration panel occurs after the
hearings have commenced, the remaining arbitrator or arbitrators may not
continue with the hearing and determination of the controversy, unless the
parties agree otherwise.
14.4 Discovery. The arbitrators will allow such discovery as is
---------
appropriate to the purposes of arbitration in accomplishing a fair, speedy and
cost-effective resolution of the Disputes. The arbitrators will refer to the
Federal Rules of Civil Procedure then in effect in setting the scope and timing
of discovery. The Federal Rules of Evidence will apply in toto. The arbitrators
-------
may enter a default decision against any party who fails to participate in the
arbitration proceedings.
14.5 Arbitration Award/Confidentiality. The arbitrators will have the
---------------------------------
authority to award compensatory damages and injunctive relief only. The
arbiters will accompany any award with written findings of fact and conclusions
of law relied upon in reaching the decision. The arbiters' award will be final,
binding, and non-appeallable, and judgment upon such award may be entered by any
court of competent jurisdiction. Thee parties will keep confidential the
existence, conduct and content of any arbitration, except as may be required by
law or by any governmental authority or for financial reporting purposes.
14.6 Costs and Fees. Each party will pay all costs associated with the
--------------
presentation of its own case. The parties will share equally the costs of the
arbitration. Notwithstanding the foregoing, the arbitrators may award and
allocate expenses and costs to the prevailing party as the interests of justice
may require.
-8-
15. Insurance. Premier Provider, at its sole expense, will secure and maintain
adequate insurance to enable it to bear its obligations under this Agreement.
16. General.
16.1 Governing Law/Jurisdiction. This Agreement will be interpreted,
---------------------------
construed and enforced in all respects in accordance with the laws of the
Commonwealth of Virginia except for its conflicts of laws principles.
16.2 Entire Agreement. This Agreement, including the exhibits and
----------------
attachments referenced on the signature page hereto, constitutes the entire
agreement and understanding between the parties and integrates all prior
discussions between them related to its subject matter. No modification of any
of the terms of this Agreement will be valid unless in writing and signed by an
authorized representative of each party.
16.3 Assignment. Premier Provider may not assign any of its rights or
----------
delegate any of its duties under this Agreement, or otherwise transfer this
Agreement (whether by merger, operation of law, or otherwise).
16.4 Notices. Any notice or other communication under this Agreement
-------
will be given in writing and will be deemed to have been delivered: (i) on the
delivery date if delivered personally to the other party; (ii) one business day
after deposit with a commercial over-night carrier, with written verification of
receipt; or (iii) five business days after the mailing date if sent by U.S.
mail, return receipt requested, postage and charges prepaid, or any other means
of rapid mail delivery for which a receipt is available. In the case of
Netscape, such notice will be provided to both the Senior Vice President for
Business Affairs, America Online, Inc. (fax 000.000.0000) and the General
Counsel, Netscape Communications Corporation (fax 000.000.0000), each at the
address of Netscape set forth in the first paragraph of this Agreement. In the
case of Premier Provider, the notices will go to Premier Provider's General
Counsel, at the address for Premier Provider set forth in the first paragraph of
this Agreement.
16.5 Confidentiality. Each party acknowledges that either party may
---------------
disclose proprietary or confidential information ("Confidential Information") to
the other party during the course of this Agreement. All Confidential
Information will be so marked or designated at the time of disclosure or within
ten days thereafter. Confidential Information will not include material made;
public by the disclosing party or developed by, known to, or made known to the
receiving party from an independent source. The information contained in the
Usage Reports provided by each party hereunder will be deemed the Confidential
Information of the disclosing party. Each party agrees that, during the term of
this Agreement and for three years after it terminates, it will not disclose the
other party's Confidential Information, other than to its employees or agents
who need to access such Confidential Information to perform obligations under
this Agreement. Netscape will have the right to share information with America
Online, Inc., subject to the terms of this Section. Netscape may, in its
discretion, make public client software market share information contained in
the Usage Reports submitted by Premier Provider in a form aggregated with data
provided by other Premier Providers. Either party may disclose Confidential
Information without the consent of the other party
-9-
where such disclosure is required by law, rule, regulation, or government or
court order. In such event, the disclosing party will provide at least five
business days prior written notice of such proposed disclosure to the other
party. If any government authority requires such disclosure, the disclosing
party will: (i) redact mutually agreed-upon portions of this Agreement to the
fullest extent permitted by the requiring body, and (ii) ask that such portions
receive confidential treatment to the fullest extent permitted by law. Upon the
expiration or termination of this Agreement, each party will promptly, return or
destroy (at the option of the party receiving the request) all of the other
party's Confidential Information.
16.6 Force Majeure. Neither party will be responsible for any failure to
-------------
perform its obligations under this Agreement due to causes beyond its
reasonable control, including but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods or accidents.
16.7 Waiver. The failure of either party to insist upon strict performance
------
by the other party of any provision of this Agreement or to exercise any right
under this Agreement will not be construed as a waiver that party's right to
assert or rely upon any such provision or right in that or any other instance.
16.8 Headings. The headings to the Sections and Subsections of this
--------
Agreement are merely for convenience and do not affect the meaning of the
Agreement.
16.9 Independent Contractors. The parties arm dealing with each other
-----------------------
hereunder as independent contractors. Nothing contained in this Agreement will
be interpreted as making either party the joint venturer, employee or partner of
the other party or as giving either party the authority to bind the other.
16.10 Severability. In the event any provision of this Agreement is held
------------
to be unenforceable, such provision will be reformed only to the extent
necessary to make it enforceable, and the other provisions of this Agreement
will remain in full force and effect.
16.11 Further Assurances. Each party will take such action (including,
------------------
but not limited to, the execution, acknowledgment, and delivery of documents)
as may reasonably be requested by the other party for the implementation or
continuing performance of this Agreement.
16.12 Remedies. Except where otherwise specified, the rights and remedies
--------
granted to a Party under this Agreement are in addition to, not in lieu of, any
other rights or remedies it may have at law or equity.
16.13 Counterparts. This Agreement maybe executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together will constitute a single instrument. A facsimile of this Agreement,
including the signature pages hereto, will be deemed to be an original.
16.14 Additional Consideration. Part of the material consideration for
------------------------
the execution of this Agreement by each party is the contemporaneous execution
by each party of Amendment 1 to the U.S. English Language Net Search Services
Agreement - Premier Provider, effective May 20, 1998.
-10-
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to execute this Agreement.
Premier Provider: Netscape:
LOOKSMART, LTD. NETSCAPE COMMUNICATIONS
CORPORATION
By:/s/ Xxxxx Xxxxxx By:/s/ Xxxx Xxxxxxxx
---------------------------- ---------------------------------
Print Name: Xxxxx Xxxxxx Print Name: Xxxx Xxxxxxxx
-------------------- -------------------------
Title: VP, Business Development Title: Director - Business Affairs
------------------------- ------------------------------
Date: May 25, 1999 Date: May 27, 1999
-------------------------- ------------------------------
Attached Exhibits:
Exhibit A: Specifications of the Page / Site Sample Specifications
---------
Exhibit B: Sample Formats of Usage Reports
---------
Exhibit C: Premier Provider Website Operating Standards
---------
-11-
EXHIBIT A
Specifications of the Page/Site Sampler Specifications
The accompanying screen shot displays the current overall look of the Page.
As of July 1, 1999, Net Search will support the highest iterations of
Netscape Navigator versions 2.x, 3.x, 4.x for both Macintosh and PCs. (See Net
Search Sampler Test Specification, External for complete list.) Other browsers,
including early versions of Microsoft Explorer, will be routed to a simple
version of the Page that encourages users to download a more current version of
Netscape's browser. The specifications are as follows:
Page Update Schedule: Changes to Netscape Net Search will be made once a
week, typically late Thursday evenings (exceptions to this schedule will be made
for conflicting holidays). Changes received by the end of day Thursday will go
live the following Thursday. Changes received on Friday will be considered part
of the following change cycle, and will not be implemented until the second
Thursday following.
The Site Sampler: The site sampler will consist of one graphic logo, a
text entry field, a search button, and directory listings. All samplers will
have a uniform xxxx background, #CCCCCC. The size of the complete sampler will
be 480x180 pixels. Netscape will place each element in the same position on
each sampler. There are three deliverables the Premier Providers can alter:
The graphic logo, the copy for a search button, and directory listings.
The Graphic:
. The graphic should be a logo less than or equal to 50 pixels tall and
200 pixels wide.
. Logos should be dithered to a xxxx background.
. The file size may not be any larger than 3K. Graphics any larger than 3K
will be returned.
. Likewise, animated GIFs will not be accepted.
. To minimize dithering and ensure that the users across all platforms see
what you expect them to see, we recommend use of the Netscape Color
Cube.
The Search Button Copy: A standard 20-character text entry field will be
provided. Please submit your choice of copy for the search button, which will
be positioned next to it. If no copy is specified, the word "Search" will be
used. The copy must be 10 characters (including punctuation) or less.
The Directory Listings:
. All submissions should consist only of text links only. No graphics of
any kind (other than the logo) will appear within the sampler, and font
size will remain uniform throughout all samplers. The table will support
exactly 24 links within exactly 4 columns. The two leftmost columns will
contain exactly four links, the two rightmost
columns will contain exactly eight links. For changes to the sampler
listing, simply send the link text and URL to xxxxxxx@xxxxxxxx.xxx
(please make sure to indicate link order).
. All links should be created such that the back button in the user's
browser takes them back to the Page. Redirects that keep the back button
from working properly will not be accepted.
. Links that wrap on any platform will not be accepted. Each link can
contain up to 15 characters without wrapping. Netscape will provide
"wrap-checking services," if needed, for companies that do not have the
specified platform configuration.
. FONT SIZE may be set to -1, if desired. BOLD and ITALIC tags may also be
used. Please check your table carefully to make sure it doesn't expand
when you use these tags. If you have 6 links in a column, you will
probably have to remove one if you're using the BOLD tag.
Compatibility: All sites linked to from anywhere within the search page,
including those links found within samplers, MUST support all browsers supported
by the search page (Navigator 2, 3, 4; IE 3, 4, 5; see above for more
information). If a link points to a site that does not support a particular
browser, a one-week grace period will be allowed to implement a fix. If the
site does not support a particular browser after the grace period, the link will
be removed until a fix is implemented. Once a fix is implemented, the link will
be reinstated according to the search page change schedule detailed above.
. Compatibility issues typically arise around Netscape Navigator 2.x
browsers. Experience has shown that two common errors cause most of the
issues:
1. Navigator 2.x requires HEIGHT and WIDTH attributes within image
tags, and,
2. Navigator 2.x is very sensitive to nesting errors.
. Eliminating nesting errors and adding the appropriate image attributes
will mitigate most browser incompatibility issues. Please test all sites
linked to from Net Search with Navigator 2.x available for download from
Netscape's product archive at
xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxx/xxxxxxx/xxxxx.xxxx
Delivery: Content providers should e-mail logos and links to Netscape at
xxxxxxx@xxxxxxxx.xxx. If you are providing multiple files, please place them in
a folder labeled with the content provider's name.
PICS: We request that all Premier providers label their sites with PICS
labels if they haven't already done so.
PICS, the "Platform for Internet Content Selection" is an Internet rating
standard designed to help parents, teachers and employers screen our material
they feel is inappropriate for children or employees. PICS gives Web publishers
a standard way to describe the content of Web sites or Web pages; it gives Web
browsers a standard way to read the description.
Netscape will be supporting PICS in the 4.06 release of Communicator with
its NetWatch feature. As a Netscape search participant, labeling your site is
important if NetWatch is to launch
-2-
successfully. As an Internet content provider, labeling your site is important
if you want users who may have enabled a variety screening products to see the
pages you have provided there.
It should take no more than 30 minutes to procure and place the PICS labels
you will need for the home page of your site. In most cases, you will spend no
time maintaining these labels. The steps to follow are detailed below.
1. Register Your Site with RSACi and SafeSurf
NetWatch currently supports two PICS labeling schemes: one from the
Recreational Software Advisory Council on the Internet and another
from SafeSurf.
Register with RSACi at xxxx://xxx.xxxx.xxx/xxxxxxxx.xxx
Register with SafeSurf at xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx/xxxxx.xxxx
You typically will want to register the "entire site" with RSACI and
"an entire directory" with SafeSurf. All ratings should be set to the
lowest, or least objectionable, level unless there is a need to do
otherwise. The process for rating multiple areas of a single site and
the ratings themselves are described in more detail at both the RSACi
and SafeSurf sites.
When specifying your e-mail address, you will want to use or set up a
separate account or an alias, and will want to make sure you have a
filter on any alias. You most likely will be getting a lot of spam.
RSACi no longer includes the e-mail address in its labels; SafeSurf
should be making the e-mail address optional in the near future.
If your home page goes by multiple names for example,
xxxx.xxxxxxxx.xxx and xxx.xxxxxxxx.xxx - you will have to request
an additional set of labels.
Note that these labels will be e-mailed to the address you specify when
registering.
2. Place the Labels After the Tag Exactly as You Receive Them As
mentioned above, these labels will come to you at the e-mail address
you specify when registering.
Copy the labels exactly as they appear in the message, and paste them
immediately after the tag in the source code of your home page.
Note that you only should copy the label from an HTML-based mail
system. If you copy the label from a UNIX-based mail system, you most
likely will break it.
-3-
3. Update Your Registration or Request New Labels When Things Change
Maintenance of these labels should not be required. However, if you
want to update your registration (RSACi) or request new labels (RSACi
and SafeSurf), just begin the process again at Step 1.
-4-
EXHIBIT B
Sample Formats of Usage Reports
Sample report provided by Premier Provider to Netscape each month:
Netscape Browsers MSIE Browsers AOL Browsers
------------------------------ --------------------------------- -----------------------------------
Netscape % of total browsers = MSIE % of total browsers = 25% AOL % of total browsers = 25%
50%
Breakdown of Netscape Breakdown of MSIE Browsers: Breakdown of AOL Browsers:
Browsers:
4.x = 50% 4.x = 50% 4.x = 50%
3.x = 25% 3.x = 25% 3.x = 25%
2.x = 20% 2.x = 20% 2.x = 20%
1.x = 5% 1.x = 5% 1.x = 5%
Sample report provided by Netscape to Premier Provider each month:
Random Default User Selected Other Exposures Total
Exposures Exposures Exposures (Home page, etc.) Exposures
June 1 1M 300K 400K 500K 2.1M
June 2 1.1M 100K 500K 500K 2.3M
June 3 1.2M 200K 600K 500K 2.5M
----
June 31 1.8M 300K 800K 500K 2.4M
Total Premier Provider
Exposures
Aggregate Exposures
for all Premier
Providers
EXHIBIT C
Premier Provider Website Operating Standards
Premier Provider Website. Premier Provider will: (1) be responsible for
------------------------
all communications, hosting, and connectivity costs and expenses associated with
its Website; (2) provide all hardware, software, telecommunications lines, and
other infrastructure necessary to meet traffic demands on its Website from the
Page; (3) design and implement the network between the Page and its Website so
that (a) no single component failure will have a materially adverse impact on
users of the Page seeking to reach the Premier Provider's Website, and (b) no
single server will run at more than 70% average utilization for a 5-minute peak
in a daily period. In this regard, Premier Provider will provide Netscape, upon
request, with a detailed network diagram regarding the network infrastructure
supporting its Website.
Optimization; Speed. Premier Provider will use commercially reasonable
-------------------
efforts to ensure its Website is designed and populated in a manner that
minimizes delays for users of the Page seeking to access it. At a minimum,
Premier Provider will ensure that it initiates data transfers within no more
than fifteen seconds on average. Before the start of the Premier Period,
Premier Provider will permit Netscape to conduct performance and load testing of
its Website (in person or through remote communications), until Netscape is
reasonably satisfied with the results of any such testing.
Technical Problems. Premier Provider agrees to use commercially reasonable
------------------
efforts to address promptly material technical problems over which Premier
Provider exercises control) affecting use by end users of the Page of its
Website (including, without limitation, infrastructure deficiencies producing
user delays). In the event that Premier Provider is unable to resolve such a
problem promptly, Netscape will have the right to reduce or stop the traffic it
provides to Premier Provider until such time as Premier Provider corrects the
problem.
Monitoring. Premier Provider will ensure that the performance and
----------
availability of its Website is monitored on a continuous (24 x 7) basis.
Premier Provider will provide AOL with contact information (including e-mail,
phone, pager and fax information, as applicable, for both during and after
business hours) for Premier Provider's principal business and technical
representatives, for use in cases when issues or problems arise with respect to
its Website.
