EXHIBIT 10.31
[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
PROMOTION & DISTRIBUTION AGREEMENT
This Promotion & Distribution Agreement (the "Agreement") is entered into and
effective as of September ___, 1996 (the "Effective Date") by and between
MICROSOFT CORPORATION, a Washington corporation located at Xxx Xxxxxxxxx Xxx,
Xxxxxxx, XX 00000 ("Microsoft") and PRODIGY SERVICES CORPORATION, a Delaware
corporation located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000 ("Prodigy").
RECITALS
Microsoft is the owner and/or authorized licensor of the Windows 95 operating
system, as well as of certain Internet-related technology, including "browsing"
software known as the "Internet Explorer" for Windows 95, Windows NT, Windows
3.xx and Apple Macintosh operating systems.
Prodigy is the owner of Prodigy Internet Service, a World Wide Web ("WWW") based
on-line service, which provides WWW and Internet online access for its
subscribers (the "Service").
Microsoft and Prodigy wish to promote access to the Service by including,
integrated into the user interface and as part of Microsoft's distribution of
Windows 95, a software client icon representing the Service.
Prodigy wishes to market, promote and distribute Internet Explorer as its
primary and preferred browser platform for Service.
The parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "Apple Macintosh" means Apple's Macintosh operating system version 7.1, or
later.
1.2 "Changes" means modifications, extensions, translations or other Derivative
Technology of source code created through Modification of software.
1.3 "Client Software" means the operating system platform-specific client
access software used by a subscriber to an Online Service to access such
service.
1.4 "Confidential Information" means: (i) any trade secrets relating to either
party's product plans, designs, costs, prices and names, finances,
marketing plans, business opportunities, personnel, research development or
know-how; and (ii) the specific terms and conditions of this Agreement.
"Confidential Information" shall not include information that: (i) is or
becomes generally known or available by publication, commercial use or
otherwise through no fault of the receiving party; (ii) is known and has
been reduced to tangible form by the receiving party at the time of
disclosure and is not subject to restriction; (iii) is independently
developed or learned by the receiving party; (iv) is lawfully obtained from
a third party that has the right to make such disclosure; or (v) is made
generally available by the disclosing party without restriction on
disclosure.
1.5 "Desktop Folder" means a folder, shortcut, link or other similar iconic
representation entitled "Online Services" and which is accessible to
Windows 95 users on the Windows 95 desktop, as more fully described in
Exhibit A.
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1.6 "Derivative Technology" shall mean: (i) for copyrightable or copyrighted
material, any translation (including localization into foreign languages or
translation into other computer languages), portation, modification,
correction, addition, extension, upgrade, improvement, compilation,
abridgment or other form in which an existing work may be recast,
transformed or adapted; (ii) for patentable or patented material, any
improvement thereon; and (iii) for material which is protected by trade
secret, any new material derived from such existing trade secret material,
including new material which may be protected by copyright, patent and/or
trade secret.
1.7 "End-User" means a third-party customer or potential customer to whom a
copy of a product or service is licensed, sublicensed or otherwise
distributed or transmitted primarily for such customer's or potential
customer's use and not for further sublicense or distribution.
1.8 "Error(s)" means defect(s) in software which prevent it from performing in
accordance with the specifications and/or a Severity Level 1, 2 or 3 error,
as such errors are defined in Exhibit D.
1.9 "Internet Access Service" means a service which primarily provides
electronic access to "open" services such as the Internet and the WWW.
1.10 "Internet Explorer" means current and future versions of (i) Microsoft's
Internet Explorer browser software for each of the Platforms, as released
by Microsoft during the Term and (ii) the Microsoft software clients known
as NetMeeting, Comic Chat, Mail and NewsGroups, all as fully described in
Exhibit B.
1.11 "Online Service" means an electronic information service: providing access
for computer users to "proprietary" content, services, entertainment and/or
other information; providing access to "open" services such as the
Internet, the WWW; and/or providing a combination of the foregoing,
including organization-specific LANs, WANs and Intranets.
1.12 "Modify" means to, edit, format, modify, translate and otherwise create
Derivative Technology of software.
1.13 "Platforms" means Windows 95, Windows NT, Windows 3.xx and Apple Macintosh.
1.14 "Prodigy Sites" means WWW sites developed, managed or controlled by Prodigy
associated with Service.
1.15 "Program Folder" means a folder, shortcut, link or other similar iconic
representation entitled "Online Services" and which is accessible to
Windows 95 users from the "Start/Programs" option on the Windows 95 "Start"
menu, as more fully described in Exhibit A.
1.16 "Service Client Icon" means an icon or menu item, as appropriate, for
installation of and/or access to the Service Client Software, the visual
aspects of which are described in Exhibit A.
1.17 "Service Client Software" means the Client Software for the Service on the
Windows 95 Platform, including setup and installation features, modified to
include the Internet Explorer.
1.18 "Service" means Prodigy's current On-line Service, named "Prodigy Internet
Service," and including any successor versions of the foregoing during the
Term.
1.19 "Term" means the term of the Agreement, the period commencing upon the
Effective Date and continuing until one year after the date that Microsoft
first distributes the Service Client Icon included in the Desktop Folder.
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1.20 "Third Party Browser" means software, for any Platform, designed to view,
render, browse or otherwise interact with the Internet, the WWW and/or
other public networks now existing or hereafter created.
1.21 "Windows 3.xx" means Microsoft's 16-bit operating system version 3.1 or
later, including Windows for Workgroups.
1.22 " Windows 95" means the English language version of Microsoft's Windows 95
operating system, including upgrades and direct successor versions thereof
released by Microsoft during the Term, but not including any version of
Windows NT. "Windows 95" can include both a retail upgrade version which is
upgrade of current operating system technology, as well as an original
equipment manufacturer ("OEM") version which constitutes a full operating
system installation, inclusive of upgrade/replacement code.
1.23 "Windows NT" means Microsoft's 32-bit operating system.
2. LICENSE GRANTS
2.1 License Grant - Service Client Software. During the Term, Prodigy hereby
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grants to Microsoft a nonexclusive, royalty-free, fully paid up, worldwide
right and license:
(a) Object Code. To use, reproduce, license, rent, lease, display, perform
or otherwise distribute, and have reproduced, licensed, rented,
leased, displayed, performed or otherwise distributed, to and by third
parties, object code versions of the Service Client Software solely as
part of or for distribution in conjunction with Windows 95; and to
grant the foregoing rights in the Service Client Software to third
parties, including the right to license such rights to further third
parties; and
(b) Source Code. Solely to the extent expressly permitted by Prodigy in
writing and subject to the restrictions of this Section 2.1, to use,
Modify, reproduce, evaluate and make Changes to the source code of the
Service Client Software solely for purposes of assisting Prodigy with
the testing and integration of Internet Explorer into the Service
Client Software.
The source code of the Service Client Software shall be disclosed only to
those Microsoft employees and independent contractors working on Internet
Explorer or Windows 95 development and having a need to access such source
code for the purposes set forth in Section 2.1(b). In no event shall
Microsoft permit access to such source code by employees or independent
contractors working on the Microsoft Network or by any other employees or
independent contractors at Microsoft. Microsoft will ensure that employees
and independent contractors permitted access to the Service Client Software
source code are under written agreement imposing obligations of
confidentiality with respect to such source code consistent with the terms
and conditions of this Agreement. Access to the Service Client Software
source code shall only be at secure Microsoft facilities where Microsoft
takes steps to protect the security and the confidentiality of such source
code as extensive as it takes to protect its own Confidential Information
of like importance.
2.2 Internet Explorer. Microsoft hereby grants to Prodigy a royalty-free,
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non-exclusive, limited worldwide right and license to (i) use, reproduce,
license, sublicense, display, perform or otherwise distribute (including
electronic distribution via download from the Service or Prodigy Sites),
and have used, reproduced, licensed, sublicensed, displayed, performed or
otherwise distributed, to and by third parties object code versions of
Internet Explorer solely as part of the Service Client Software or for
distribution in conjunction with the Service, and (ii) to grant the
foregoing rights to third parties, including the right to license such
rights to further third parties.
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2.3 Ownership. Except as expressly licensed to Microsoft in Section 2.1,
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Prodigy retains all right, title and interest in and to the Service
Client Software and any Changes to the Service Client Software created by
or for Microsoft. Except as expressly licensed to Prodigy in Section 2.2,
Microsoft retains all right, title and interest in and to Internet
Explorer.
2.4 No Other Rights. Except as expressly granted in this Agreement, Microsoft
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shall have no other rights in the Service Client Software. Except as
expressly granted in this Agreement, Prodigy shall have no other rights
in Internet Explorer. Under no circumstances will anything in this
Agreement be construed as granting to either party, by implication,
estoppel or otherwise, a license to any technology other than that
expressly licensed under this Agreement.
3. PROMOTION OF INTERNET EXPLORER
3.1 Promotion. During the Term and subject to the exceptions set forth in
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Section 3.3, Prodigy shall, with respect to Third Party Browsers, use,
distribute and promote Internet Explorer as its default and primary
browser technology for the Service.
3.2 Further Obligations.
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(a) Download. At Microsoft's option, Prodigy shall provide locations on
the Service and other Prodigy Sites for End Users and Customers to
download (either directly or indirectly via URL link) Internet
Explorer for all Platforms.
(b) Promotion On Prodigy Sites. Prodigy shall design its Prodigy Sites as
premier Internet Explorer sites, including, but not limited to,
taking advantage of Microsoft's ActiveX technology and using new
extensions and improvements available in Internet Explorer on sixty
percent (60%) or more of such sites. Prodigy will choose up to
fifteen (15) separate features from a list (which is provided by
Microsoft and which affords Prodigy reasonable choice) and shall
implement and incorporate such features on the Prodigy Sites, such
features to be placed within the Prodigy Sites at Prodigy's
discretion.
(c) Internet Explorer Logo. Prodigy shall execute a "Designed For
Internet Explorer Logo" license and prominently feature the Internet
Explorer logo on the home page of the Service.
3.3 Exceptions.
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(a) End User Choice. Prodigy is not in any way obligated to prevent the
access to, use or downloading of Third Party Browsers on third party
services and Internet sites, even if accessible through use of
Service. Prodigy may provide links to use and to download Third Party
Browsers on or for use with the Service solely at a single Service
location or Prodigy Site, provided that such locations shall be
substantially minimized (for example, in a list box) and shall not be
presented in a manner which would be contradictory to the spirit of
Section 3.1.
(b) Customer Choice. Where expressly required by a third party
provider, distributor or corporate/organizational account
("Customer") to distribute a Third Party Browser to such Customer,
Prodigy may distribute Third Party Browsers (bundled or not) to and
by the Customer with the Service; provided, however, that Prodigy
shall use all reasonable efforts to minimize the association of
"Prodigy" or any Service brand name in connection with such Third
Party Browser(s). The parties will use all reasonable efforts to
jointly promote Internet Explorer to any such Customer, including
joint meetings of the parties and such Customer.
3.4 Overall Limitation. Notwithstanding any exception under Section 3.3,
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for any Semi-Annual Period, the total Shipment Percentage shall not exceed
fifteen percent (15%). "Semi-Annual Period" means
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each six (6) month period ending June 30 or December 31, during the
Agreement Term. The initial Semi-Annual Period shall commence upon
January 1, 1997. "Shipment Percentage" means a fraction with (i) a
numerator equaling the total number of Third Party Browsers shipped by
Prodigy under Section 3.3(b), and (ii) the denominator equaling the total
number of copies of Service Client Software distributed by or for Prodigy
for the Service.
4. DISTRIBUTION OF SERVICE CLIENT SOFTWARE
4.1 Distribution Obligation. During the Term, Microsoft shall include the
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Service Client Software as part of each retail package and OEM version of
Windows 95, including placement of the Desktop and Folder Icons as
described in Section 4.3, expressly subject to all of the following
conditions:
(a) Latest Version of Internet Explorer. Beginning with version 3.0, for
each new version of Internet Explorer released by Microsoft during
the Term as part of a Windows 95 release, Prodigy must integrate and
incorporate such latest version into the Service Client Software,
provided that Microsoft has supplied such latest version to Prodigy
pursuant to this Agreement.
(b) Pre- and Final Release Code. Microsoft and Prodigy will use all
reasonable efforts to provide to the other alpha and quality beta
versions of Internet Explorer and Service Client Software,
respectively. Such releases will, where possible, be provided within
ninety (90) days of an expected release to manufacture ("RTM") of the
recipient's incorporating code. Such ninety (90) day period is not an
absolute but a guideline, and the parties will use all reasonable
efforts to accommodate and work with the other on their respective
deliveries of code, including frequent and timely code drops in the
latter stages of development before RTM.
(c) International Distribution. To the extent Microsoft distributes
Windows 95 in countries where Prodigy does not offer the Service,
Prodigy must develop a customer referral or notice plan for users
that access the Service Client Software in such countries, and such
plan must be approved by Microsoft.
(d) Support of Service Client Software. Prodigy understands that each new
version of Windows 95 requires extensive testing of the entire base
of code shipped with the product. Consequently, new versions of the
Service Client Software to be distributed with corresponding new
versions of Windows 95 must be delivered and supported by Prodigy in
a timely manner, including: (i) regular alpha and beta code drops
shall be given to Microsoft periodically during development with
Errors corrected in accordance with the severity schedule and
procedures set forth in Exhibit D; (ii) final code shall be delivered
by Prodigy to Microsoft as described in Section 4.1(b); and (iii)
following RTM, Prodigy must correct any Errors in accordance with the
severity schedule in Exhibit D and deliver such corrections to
Microsoft. Prodigy shall use reasonable best efforts to ensure that
the Service Client Software meets Microsoft's performance, quality
and size criteria for applications and components shipped with
Windows 95. In no event shall Microsoft be obligated to include
Service Client Software as part of Windows 95 if the Service Client
Software has any Severity 1 or 2 level Error.
(e) Support. Prodigy shall handle all Service Client Software support
issues including, but not limited to, telephone and e-mail support
for existing and prospective End Users and Customers.
(f) Client Size. The Service Client Software shall not exceed one (1)
megabyte of space, whether on floppy, hard disk or CD-ROM.
(f) Setup and Installation Specifications. The Service Client Software
must meet the setup and installation specifications set forth in
Exhibit C.
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4.2 Localized Versions. Microsoft shall have no obligations under this
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Section 4 with respect to non-English language versions of Windows 95.
Microsoft shall negotiate with Prodigy in good faith regarding inclusion
of the Service Client Software in non-English language versions of
Windows 95.
4.3 Folders.
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(a) Program Folder. For each version of Windows 95 distributed with the
Service Client Software as set forth in this Section 4, Microsoft
shall include the Service Client Icon in the Program Folder. The
Service Client Icon will be clearly visible whenever the Program
Folder menu item is opened to its default setting.
(b) Desktop Folder. For each version of Windows 95 distributed with the
Service Client Software as set forth in this Section 4, Microsoft
shall include the Prodigy Client Icon in the Desktop Folder. The
Prodigy Client Icon will be clearly visible whenever the Desktop
Folder is opened to its default setting. Prodigy understands and
acknowledges that, separate from the Desktop Folder: (i) Microsoft
may have an icon on the Windows 95 desktop that represents a general
Internet sign-up application or wizard; and (ii) Microsoft may
continue to place the icon for the Microsoft Network ("MSN") on the
Windows 95 desktop or otherwise in Microsoft's sole discretion.
4.4 Setup & Placement. Upon setup or installation of Windows 95 with which a
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copy of Service Client Software is distributed:
(a) OEM Version. For the OEM version of Windows 95, the default
installation will place the Desktop Folder containing the Prodigy
Client Icon on the Windows 95 desktop and install the Service Client
Software; and
(b) Retail Version. For a retail full package or upgrade version of
Windows 95: (i) for the default installation, the Service Client
Software and Icon will be installed; (ii) for the portable and
compact installation, the Service Client Software will not be
installed, but the Service Client Icon and a small program provided
by Prodigy for remote installation will be installed in the Desktop
and Program Folders and, if the End User clicks on such icons, the
Service Client Software can be installed by the End User from the
physical media; and (iii) for the custom installation, the Service
Client Software will, by default, be checked to be installed and will
not be installed where an End User affirmatively chooses not to so
install it, in which case the Service Client Icon and accompanying
small program will be installed as set forth in part (ii), above.
4.5 Windows 95 Support. Microsoft shall handle all Windows 95 support issues
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including, but not limited to, telephone and e-mail support for existing
and prospective End Users and Customers.
4.6 XXXX. For versions of Internet Explorer distributed by Prodigy, Prodigy
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may attach Microsoft's End User License Agreement for Internet Explorer to
Prodigy's Service member agreement. Prodigy shall obtain Microsoft's
permission, which permission shall not be unreasonably withheld or
delayed, for any changes to the installation process of Internet Explorer
with Prodigy's installation of the Service Client Software distributed
directly by Prodigy, such as the "suppression" of Microsoft's End User
License Agreement during installation.
5. PUBLICITY
Subject to applicable law, the parties will cooperate with each other on press
releases and similar communications regarding the non-confidential subject
matter of this Agreement, and the content, timing and necessity of all such
communications will be agreed upon in writing by both parties.
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[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
6. THIS SECTION INTENTIONALLY OMITTED.
7. COSTS; CO-MARKETING
7.1 Referral Fees. For each Quarterly Period, Prodigy shall pay to Microsoft
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a referral fee, as set forth in this Section 7.1, for each subscriber
which signs up for the Service via the Desktop Folder or Program Folder
on Windows 95 during the Term.
(a) Calculation. The referral fee in a particular Quarterly Period shall
be calculated as set forth in the chart below.
Referral fee [**]
ActiveX discount/1/ [**]
NT/IIS discount/2/ [**]
FrontPage Extn/3/ [**]
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Discounted fee [**]
1. The referral fee shall be reduced by [**] if Prodigy
implements "ActiveX" control(s) in the Prodigy's home page
for the Service. Prodigy shall notify Microsoft of the
ActiveX controls implemented by the Prodigy.
2. The referral fee shall be reduced by an additional [**] if:
(a) Prodigy uses Microsoft Windows NT and Internet
Information Server as the platform for Prodigy's web site
that hosts the home page, or (b) Prodigy offers Microsoft
Internet Information Server as one of its platforms for Web
Hosting services.
3. The referral fee shall be reduced by an additional [**] if
Prodigy uses Microsoft FrontPage server extensions on
Prodigy's web hosting service.
Prodigy shall pay Microsoft the applicable Referral Fee one-time for
each "Converted Service Member." For purposes of this Section 7.1, a
"Converted Service Member" means a new subscriber to the Service
which subscribed using the Desktop Folder or Program Folder on
Windows 95 that remains a subscriber with the Service for three (3)
consecutive months. Microsoft shall be paid only once for each
Converted Service Member under this Section 7.1(a) regardless of the
duration of his membership in the Service.
(b) Payment. Within thirty (30) days following the end of any Quarterly
Period, Prodigy shall remit to Microsoft the total referral fees due
for the immediately preceding Quarterly Period together with a report
showing the calculation for such fees.
(c) Continuing Referral Fees. Unless this Agreement has been terminated
by Prodigy due to a failure by Microsoft to perform or comply with
this Agreement, Prodigy shall continue to track and pay referral fees
to Microsoft as provided above for subscribers who register for the
Service via the Desktop Folder or Program Folder on Windows 95 for a
period of one (1) year after the end of the Term.
(d) Other Referral Fees. Microsoft acknowledges that Prodigy may pay fees
similar to the above-mentioned Referral Fees to OEMs. This Agreement
shall not be construed as limiting in any way whatsoever Prodigy's
right to make such payments, and such payments shall not be construed
in any way as abridging Prodigy's obligations under this Agreement.
Prodigy will
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not owe Microsoft Referral Fees for subscribers to the Service which
Prodigy obtains other than through the Desktop Folder or the Program
Folder in Windows 95.
7.2 Cost Reimbursement. In the event that the parties mutually agree to have
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the Service Client Software included in the floppy diskette versions of
Windows 95, Prodigy shall reimburse Microsoft for the incremental
out-of-pocket expense, associated with the inclusion of the Service
Client Software in such version of Windows 95, including but not limited
to costs of media, labeling and manufacture and labor costs associated
with package insertion. Such costs shall be reimbursed by Prodigy on a
quarterly basis, after receipt of Microsoft's invoice for such costs,
together with referral fees under Section 7.1.
7.3 Payment Terms. Any fee or reimbursement due under this Agreement shall be
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paid in U.S. dollars.
7.4 Audit.
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(a) Records. During the period during which referral fees continue to be
payable under this Agreement pursuant to Section 7.1(c), and for one
(1) year thereafter, Prodigy agrees to keep all usual and proper
records and books of account and all usual and proper entries
relating to the Shipment Percentage, referral fees, the number of
subscribers calculated under this Agreement and other requirements of
this Section 7.
(b) Audit. In order to verify statements issued by Prodigy and Prodigy's
compliance with the terms of this Agreement, Microsoft may cause an
audit to be made of Prodigy's books and records. Any audit and/or
inspection shall be conducted during regular business hours at
Prodigy's facilities upon reasonable advance notice. Any audit shall
be conducted by an independent certified public accountant of
national stature selected by Microsoft (other than on a contingent
fee basis), subject to the approval of Prodigy, which approval will
not be unreasonably withheld or delayed.
(c) Access. Prodigy agrees to provide Microsoft designated audit team
access to the relevant Prodigy records and facilities.
(d) Adjustment. Prompt adjustment shall be made to compensate for any
errors or omissions disclosed by such audit. Any such audit shall be
paid for by Microsoft unless material discrepancies are disclosed.
"Material" shall mean the under reporting of three percent (3%) or
more of the amount due. If material discrepancies are disclosed,
Prodigy agrees to pay Microsoft for the costs associated with the
audit in addition to the amount of any discrepancy.
(e) Frequency. Microsoft may exercise its right to audit under this
Agreement no more than once in any twelve-month period.
8. MICROSOFT NONEXCLUSIVE
Nothing in this Agreement will be construed as restricting Microsoft's ability
to license, develop, sub-license, manufacture or distribute Internet Explorer
or any other technology, for itself or for any third party, or to include third
party Client Software with Windows 95 generally, or specifically in the Desktop
Folder and/or the Program Folder, or with any other Microsoft product.
9. TRADEMARKS
9.1 Grant by Microsoft. Prodigy is hereby granted a non-exclusive license to
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use the Microsoft trademarks relating to Internet Explorer in the Service
Client Software and Service (to the extent relating to the
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incorporation of Internet Explorer into the Service Client Software and
Service) in any advertising, marketing, technical or other materials
related to Internet Explorer which are distributed, transmitted or
promoted by Prodigy or its distributors in connection with this Agreement.
Such use shall be in accordance with Microsoft's then current trademark
guidelines to be provided and reasonably updated by Microsoft from time to
time. If the trademark guidelines are amended or any Microsoft trademarks
are modified or added, Prodigy shall have the right to deplete or have
depleted existing and contractually committed for inventories of products
and materials which may not be in compliance with the amended guidelines
or modified or added Microsoft trademarks and shall have a reasonable
transition period to implement compliance. When Prodigy uses a Microsoft
trademark, Prodigy shall clearly indicate Microsoft's ownership of the
Microsoft trademark. Prodigy agrees not to register any Microsoft
trademarks without Microsoft's express prior written consent. Microsoft
shall promptly notify Prodigy of any claim of infringement or invalidity
of any Microsoft trademarks or any action or inquiry by any trademark
office or authority questioning the validity, enforceability or
registrability of any such Microsoft trademark in any jurisdiction.
Notwithstanding the foregoing, any fair use by Prodigy of "Microsoft
Internet Explorer" in a truthful context shall not require Microsoft's
advance approval unless such use suggests or implies endorsement by
Microsoft of Prodigy's or any other parties' products or services.
9.2 Grant by Prodigy. Microsoft is hereby granted a non-exclusive license to
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use those Prodigy trademarks relating to the Service in Windows 95 (to the
extent incorporated into the Prodigy Icon or Service Client Software) and
any advertising, marketing, technical or other materials related to the
Service which are distributed, transmitted or promoted by Microsoft or its
distributors in connection with this Agreement. Such use shall be in
accordance with Prodigy's then current trademark guidelines to be provided
and reasonably updated by Prodigy from time to time. If the trademark
guidelines are amended or any Prodigy trademarks are modified or added,
Microsoft and its distributors shall have the right to deplete or have
depleted existing and contractually committed for inventories of products
and materials which may not be in compliance with the amended guidelines
or modified/added Prodigy trademarks and shall have a reasonable
transition period in which to implement compliance. Microsoft shall
clearly indicate Prodigy's ownership of the Prodigy trademarks. Microsoft
agrees not to register any Prodigy trademarks without Prodigy's express
prior written consent. Prodigy shall promptly notify Microsoft of any
claim of infringement or invalidity of any Prodigy trademarks or any
action or inquiry by any trademark office or authority questioning the
validity, enforceability or registrability of any such Prodigy trademark
in any jurisdiction. Nothing herein shall require Microsoft to use any
Prodigy trademark in any manner, except as expressly provided in Section
4.
Notwithstanding the foregoing, any fair use by Microsoft of Prodigy's
trademarks in a truthful context shall not require Prodigy's advance
approval unless such use suggests or implies endorsement by Prodigy of
Microsoft's or any other parties' products or services.
10. CONFIDENTIALITY
10.1 Each party shall protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that such
party uses to protect its own like information. Neither party will use the
other's Confidential Information for purposes other than those necessary
to directly further the purposes of this Agreement. Each party will use
its best efforts not to disclose to third parties the other's Confidential
Information without the prior written consent of the other party. Except
as expressly provided in this Agreement, no ownership or license rights is
granted in any Confidential Information.
10.2 The parties' obligations 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
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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 rightful and good faith 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.
11. WARRANTIES
11.1 Prodigy. Prodigy warrants and represents that:
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(a) It has the full power to enter into this Agreement and make the
license rights set forth herein; and
(b) The Service Client Software, to the best of its knowledge, does not
infringe any copyright, patent, trade secret, or other proprietary
right held by any third party.
11.2 Microsoft. Microsoft warrants and represents that:
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(a) It has the full power to enter into this Agreement and make the
license rights set forth herein; and
(b) The Internet Explorer, to the best of its knowledge, does not
infringe any copyright, patent, trade secret, or other proprietary
right held by any third party.
12. DISCLAIMER OF FURTHER WARRANTIES
12.1 EXCEPT AS EXPRESSLY WARRANTED IN SECTION 11.1, THE SERVICE CLIENT
SOFTWARE AND ICON, PRODIGY TRADEMARKS LICENSED UNDER SECTION 9.2 AND
PRODIGY CONFIDENTIAL INFORMATION ARE PROVIDED TO MICROSOFT "AS IS"
WITHOUT FURTHER WARRANTY OF ANY KIND. PRODIGY DISCLAIMS ALL FURTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NONINFRINGEMENT, WITH RESPECT TO THE SERVICE CLIENT SOFTWARE
AND ICON, PRODIGY TRADEMARKS LICENSED UNDER SECTION 9.2 AND PRODIGY
CONFIDENTIAL INFORMATION.
12.2 EXCEPT AS EXPRESSLY WARRANTED IN SECTION 11.2, INTERNET EXPLORER, THE
MICROSOFT CONFIDENTIAL INFORMATION AND MICROSOFT TRADEMARKS LICENSED
UNDER SECTION 9.1 ARE PROVIDED TO PRODIGY "AS IS" WITHOUT FURTHER
WARRANTY OF ANY KIND. MICROSOFT DISCLAIMS ALL FURTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NONINFRINGEMENT, WITH RESPECT TO INTERNET EXPLORER, THE MICROSOFT
CONFIDENTIAL INFORMATION AND MICROSOFT TRADEMARKS LICENSED UNDER SECTION
9.1.
Confidential & Proprietary Page 10 of 23
Prodigy/Microsoft Internet Explorer
Promotion & Distribution Agreement
13. INDEMNITY
13.1 Indemnity by Prodigy.
(a) Prodigy shall, at its expense and Microsoft's request, defend any
claim or action brought against Microsoft, and Microsoft's
subsidiaries, affiliates, directors, officers, employees, agents and
independent contractors, to the extent it is based upon a claim that
the Service Client Software, Service Client Icon, and/or Prodigy
trademarks licensed under Section 9.2 infringe or violate any patent,
copyright, trademark, trade secret or other proprietary right of a
third party ("Prodigy Claims"), and Prodigy will indemnify and hold
Microsoft harmless from and against any costs, damages and fees
reasonably incurred by Microsoft, including but not limited to fees of
attorneys and other professionals, that are attributable to such
Prodigy Claims. Microsoft shall: (i) provide Prodigy reasonably
prompt notice in writing of any such Prodigy Claims and permit
Prodigy, through counsel mutually acceptable to Microsoft and Prodigy,
to answer and defend such Prodigy Claims; and (ii) provide Prodigy
information, assistance and authority, at Prodigy's expense, to help
Prodigy to defend such Prodigy Claims. Prodigy will not be responsible
for any settlement made by Microsoft without Prodigy's written
permission, which permission will not be unreasonably withheld.
(b) Prodigy may not settle any Prodigy Claim under this Section 13.1 on
Microsoft's behalf without first obtaining Microsoft's written
permission, which permission will not be unreasonably withheld. In
the event Microsoft and Prodigy agree to settle a Prodigy Claim,
Prodigy agrees not to publicize the settlement without first
obtaining Microsoft's written permission, which permission will not
be unreasonably withheld.
(c) Prodigy's obligations under this Section 13.1 shall be Microsoft's
exclusive remedy for any breach of the warranty made by Prodigy
under Section 11.1(b).
13.2 Indemnity by Microsoft.
(a) Microsoft shall, at its expense and Prodigy's request, defend any
claim or action brought against Prodigy, and Prodigy's subsidiaries,
affiliates, directors, officers, employees, agents and independent
contractors, to the extent it is based upon a claim that Internet
Explorer and/or the Microsoft trademarks licensed under Section 9.1
infringe or violate any patent, copyright, trademark, trade secret or
other proprietary right of a third party ("Microsoft Claims"), and
Microsoft will indemnify and hold Prodigy harmless from and against
any costs, damages and fees reasonably incurred by Prodigy, including
but not limited to fees of attorneys and other professionals, that are
attributable to such Microsoft Claims. Prodigy shall: (i) provide
Microsoft reasonably prompt notice in writing of any such Microsoft
Claims and permit Microsoft, through counsel mutually acceptable to
Prodigy and Microsoft, to answer and defend such Microsoft Claims; and
(ii) provide Microsoft information, assistance and authority, at
Microsoft's expense, to help Microsoft to defend such Microsoft
Claims. Microsoft will not be responsible for any settlement made by
Prodigy without Microsoft's written permission, which permission will
not be unreasonably withheld.
(b) Microsoft may not settle any Microsoft Claim under this Section 13.2
on Prodigy's behalf without first obtaining Prodigy's written
permission, which permission will not be unreasonably withheld. In
the event Prodigy and Microsoft agree to settle a Microsoft Claim,
Microsoft agrees not to publicize the settlement without first
obtaining Prodigy's written permission, which permission will not be
unreasonably withheld.
(c) Microsoft's obligations under this Section 13.2 shall be Prodigy's
exclusive remedy for any breach of the warranty made by Microsoft
under Section 11.2(b).
Confidential & Proprietary Page 11 of 23
Prodigy/Microsoft Internet Explorer
Promotion & Distribution Agreement
14. TERMINATION
14.1 Term. This Agreement shall commence upon the Effective Date and continue
----
in full force and effect until the earlier of (i) termination for cause as
set forth in Section 14.2, or (ii) expiration of the Term.
14.2 Termination By Either Party For Cause. Either party may suspend
-------------------------------------
performance and/or terminate this Agreement immediately upon written
notice at any time if:
(a) The other party is in material breach of any material warranty,
term, condition or covenant of this Agreement, other than those
contained in Section 10, and fails to cure that breach within sixty
(60) days after written notice thereof; or
(b) The other party is in material breach of Section 10.
14.3 Effect of Termination.
---------------------
(a) Neither party shall be liable to the other for damages of any sort
resulting solely from terminating this Agreement in accordance with
its terms.
(b) Prior to the expiration of the Term, should this Agreement be
terminated by Microsoft for any reason, Microsoft's license grant
under Section 2.1 shall survive the effective date of such
termination until the later of (i) six (6) months and (ii) the next
full release of Windows 95.
(c) In the event of termination or expiration of this Agreement for any
reason other than Prodigy's material breach of Section 2.2, Prodigy's
license rights under Section 2.2 shall, with respect to the then
current version of Internet Explorer as of the effective date of
termination, survive for a period of six (6) months following the
effective date of termination. In the event of termination of this
Agreement for Prodigy's material breach of Section 2.2, Prodigy's
license rights under Section 2.2 shall survive for a period of sixty
(60) days from the effective date of termination. Any validly granted
licenses to End Users shall survive any termination or expiration of
the Agreement.
14.4 Survival. In the event of termination or expiration of this Agreement for
--------
any reason, Sections 2.3, 2.4, 7.1, 7.4, 10, 11, 12, 13, 15 and 16 shall
survive termination.
15. LIMITATION OF LIABILITIES
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT OR THE USE OF
OR INABILITY TO USE INTERNET EXPLORER, THE SERVICE CLIENT SOFTWARE OR EITHER
PARTY'S CONFIDENTIAL INFORMATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL HAVE NO APPLICATION TO SECTION
10.
16. GENERAL PROVISIONS
16.1 Notices. All notices and requests in connection with this Agreement shall
-------
be deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage
prepaid, certified or registered, return receipt requested, and addressed
as follows:
Confidential & Proprietary Page 12 of 23
Prodigy/Microsoft Internet Explorer
Promotion & Distribution Agreement
To Prodigy: To Microsoft:
Prodigy Services Corporation Microsoft Corporation
---------------------------- ---------------------
000 Xxxxxxxx Xxxxxx Xxx Xxxxxxxxx Xxx
Xxxxx Xxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attention: General Counsel Attention: General Counsel
Phone: (000)000-0000 Phone: (000)000-0000
Fax: (000)000-0000 Fax: (000)000-0000
Copy to: Contract Administration Copy to: Law & Corporate Affairs
Fax: (000)000-0000 Fax: (000)000-0000
or to such other address as a party may designate pursuant to this notice
provision.
16.2 Independent Parties. Nothing in this Agreement shall be construed as
-------------------
creating an employer-employee relationship, a partnership, or a joint
venture between the parties.
16.3 Governing Law. This Agreement shall be governed by the laws of the State
-------------
of Washington as though entered into between Washington residents and to
be performed entirely within the State of Washington, and Prodigy consents
to jurisdiction and venue in the state and federal courts sitting in the
State of Washington.
16.4 Attorneys' Fees. In any action or suit to enforce any right or remedy
---------------
under this Agreement or to interpret any provision of this Agreement, the
prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees.
16.5 Assignment. This Agreement shall be binding upon and inure to the benefit
----------
of each party's respective successors and lawful assigns; provided,
however, that neither party may assign this Agreement, in whole or in
part, without the prior written approval of the other party, which
approval shall not be unreasonably withheld or delayed.
16.6 Construction. If for any reason a court of competent jurisdiction finds
------------
any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder
of this Agreement will continue in full force and effect. Failure by
either party to enforce any provision of this Agreement will not be deemed
a waiver of future enforcement of that or any other provision This
Agreement has been negotiated by the parties and their respective counsel
and will be interpreted fairly in accordance with its terms and without
any strict construction in favor of or against either party.
16.7 Entire Agreement. This Agreement does not constitute an offer by Microsoft
----------------
and it shall not be effective until signed by both parties. This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and merges all prior and contemporaneous
communications. It shall not be modified except by a written agreement
dated subsequent to the date of this Agreement and signed on behalf of
Prodigy and Microsoft by their respective duly authorized representatives.
Confidential & Proprietary Page 13 of 23
Prodigy/Microsoft Internet Explorer
Promotion & Distribution Agreement
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
MICROSOFT CORPORATION PRODIGY SERVICES CORPORATION
[SIGNATURE UNKNOWN] /s/ Xxxx X. XxXxxxx
------------------------------ ------------------------------
By (Sign) By (Sign)
Cameron [UNKNOWN] Xxxx X. XxXxxxx
------------------------------ ------------------------------
Name (Print) Name (Print)
VP Public Network Sales President & CEO
------------------------------ ------------------------------
Title Title
10/7/96 9/18/96
------------------------------ ------------------------------
Date Date
[STAMP OF PRODIGY LEGAL APPEARS HERE]
Confidential & Proprietary Page 14 of 23
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Promotion & Distribution Agreement
EXHIBIT A
FLAGSHIP CLIENT ICON DESCRIPTION;
DESKTOP FOLDER; PROGRAM FOLDER
Service Client Icon:
[picture-to be provided by Prodigy]
Desktop Folder:
1. The Desktop Folder will be inserted on the Windows 95 Desktop at the
following location:
[picture-to be provided by Microsoft]
2. Should Microsoft move the MSN Client Icon from the desktop, Microsoft may
remove the Desktop Folder to the same location.
3. Within the Desktop Folder, the Service Client Icon will be presented in icon
view upon setup.
4. Microsoft shall ensure that all client icons in the Desktop Folder are
presented in the standard manner that icons are presented in a Windows 95
folder. No third party online service icon will be in a better position
than the Prodigy Client Icon in the Desktop Folder.
Program Folder:
[picture-to be provided by Microsoft]
Confidential & Proprietary Page 15 of 23
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Promotion & Distribution Agreement
EXHIBIT B
DESCRIPTION OF
INTERNET EXPLORER VERSION 3.0
I. Internet Explorer version 3.0 Features
--------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Xxx00 Xxx00 Macintosh Feature
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Yes Yes Yes All Internet Explorer 2.0 Features
--------------------------------------------------------------------------------------------------------------------
Yes Yes Yes HTML Frames
--------------------------------------------------------------------------------------------------------------------
Yes Yes 10/96 beta HTML CSS Stylesheets
--------------------------------------------------------------------------------------------------------------------
Yes Yes 10/96 beta Visual Basic Script
--------------------------------------------------------------------------------------------------------------------
Yes Yes 10/96 beta JavaScript
--------------------------------------------------------------------------------------------------------------------
Yes 12/96 12/96 Java
--------------------------------------------------------------------------------------------------------------------
Yes Yes Yes Netscape Plug-Ins
--------------------------------------------------------------------------------------------------------------------
Yes Yes Yes Server Push
--------------------------------------------------------------------------------------------------------------------
Yes Yes Yes GIF Animations
--------------------------------------------------------------------------------------------------------------------
Yes Yes beta HTTP extensions (read-range, file upload, PCT)
--------------------------------------------------------------------------------------------------------------------
Yes Yes 10/96 beta "Intrinsic" Controls -- top "Active X Controls" requested by
ISV's: video, audio, 3-state buttons, tooltips, pop-up menus,
and scrolling text.
--------------------------------------------------------------------------------------------------------------------
Yes Maybe Maybe Active X(TM) Control hosting in HTML
--------------------------------------------------------------------------------------------------------------------
Yes Maybe Maybe Automatic Code Download & Signing
--------------------------------------------------------------------------------------------------------------------
Yes No No Document Object hosting (not available on Win16/Mac platforms)
--------------------------------------------------------------------------------------------------------------------
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Promotion & Distribution Agreement
EXHIBIT C
SETUP AND INSTALLATION SPECIFICATIONS
-------------------------------------
Integrating Online Services Clients into Windows 95 Setup
Contact: Xxxx Xxxx
Windows 95 Program Manager
xxxxxxxx@xxxxxxxxx.xxx
000-000-0000
Revised: 7/16/96
In order to integrate third party online service client software into Windows 95
setup for preinstalled machines, the Client vendor will should provide setup
files that meet the following requirements.
Files needed by Windows 95 Setup
Due to limitations on the number of files that Windows 95 can currently copy, we
need the online service to provide a limited number of files that will be copied
to the destination hard disk during setup. Here are the optional install
techniques:
. Setup "shim" file (xxxSetup.exe) (small) and Kit file (xxxKit.exe) (large)
- The icon in the OLS folders point to the setup shim file (described
below). The kit file is a single, large, compressed, self extracting
archive with all of the individual client software files included. The
primary purpose of the shim file is to execute the xxxKit.exe file if
found and provide alternate behavior if not. It can also handle worldwide
distribution issues, and other pre-setup housekeeping chores. The shim
setup file will be included inside the ".cab" files for all installations,
the Kit files will be located outside of the cab files for CD and pre-
installation purposes.
(This is the preferred installation technique for client software
deliverables.)
. Monolithic self installing exe (xxxSetup.exe) - This is the equivalent of
a single exe file that is downloaded from the Internet to install an
application. The icon just executes the xxxsetup file. The primary
drawback of this technique is lack of error handling for floppy disk SKUs
and other cases where the monolithic setup file is not present. The
monolithic exe file will not be present inside the .cab files.
. Inet Config Wiz signup server files (ISP, .HTM, INS, .ICO) - Online
Providers using the Internet Configuration Wizard to access a dedicated
signup server just need to provide these small ascii text and icon files.
Because these are very small, all of them can be located inside the .cab
files.
Target Location
All client software files will be installed to the c:\Program Files\Online
Services\xxxx folder, where xxxx should be chosen by the online client vendor to
reasonably identify their product. The short file names for this folder during
setup will be c:\progra-1\online-1\xxxx. Shortcuts to these files will be placed
in the "Online Services" folder on the desktop and on the Start/Programs menu by
Windows 95 setup according to vendor requirements.
. Note: Vendor should specify in writing the title of the icons in these
two folders when providing binary file drops.
Confidential & Proprietary Page 17 of 23
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Promotion & Distribution Agreement
Single EXE Setup
The simplest method to implement an add-on online service client with Windows 95
is to create a single self extracting, setup EXE that can be put in the Windows
95 cab files directory that contains all the individual client files. This exe
file will do the bulk of the client file copying and setup.
Setup "Shim" Program The preferred setup technique is to create a small
"xxxsetup" program launched by the icon in the Online Services folders that will
do the following steps:
1. Optional: Query the Locale API or the user to determine if they reside
in a country that has local access for your client software. If not,
provide alternative information and exit.
2. Required: Look for the Single EXE "kit" setup program described above,
in the c:\Program Files\Online Services\xxx folder and execute it
(possibly with appropriate command line switches)
3. Optional: If not found, look for the single EXE "kit" file in the
"c:\windows\options\cabs" directory. This is used for preinstallation
and may contain a copy of your file.
4. Optional: If not found, look for the single EXE "kit" file on the
Windows 95 CD (or on a network sharepoint) in the Windows 95 Setup
directory. The setup directory can be found in
the following registry key:
(HKEY_LOCAL_MACHINE\SOFTWARE\Microsoft\Windows\CurrentVersion\SETUP\
SourcePath) This may involve prompting the user to insert the CD.
Allow the user to cancel if they do not have a CD product or can not
find their CD. This is an important step to work properly with compact
and/or portable installs.
5. Required: If still not found, present the user with a dialog box
indicating that the client software is unavailable, and alternate
courses of action (e.g. 800 number, www web site, etc.)
The Setup Shim program may also create, rename and delete icons, including the
"setup" icon that called it, upon successful completion. It can also do any
other limited housekeeping or pre-setup configuration work before or after any
of the above steps.
Client Software Requirements
. The client software must NOT prompt the user for a certificate, ID or other
means of tracking marketing information (other than the login userid and
password for existing accounts.) If you want to collect information on
specific OEMs, please use the OEMINFO file in the \windows\system directory.
There is no easy or reliable way to distribute these certificate numbers to
OEMs end-users. If an end user does not have a certificate, they will not
sign up for your service. See additional information below about using
OEMINFO file.
. The Client software should (if not already done), eliminate the "setup" icon
from the two online services folders.
. The Client software should install it's own "client" icons ONLY in the two
Online Services folders. It should not automatically put additional copies of
it's own icon on the start menu, on the start/programs menu (or submenus), or
directly on the desktop. It can offer any/all of these additional locations
during setup, but the default should be to not create these supplemental
icons. This provides a consistent end-user experience.
. Client software binaries should be installed to c:\Program Files\Online
Services\XXX, where xxx is based on your client software brand name.
. Client software should not add or remove any system files, except using
standard APIs for this purpose. Specifically, no Windows 95 system files
should be included in the client software deliverables. When integrating with
a Windows 95 release, you should not need to update or replace any system
files.
. Client software setup program should delete the large monolithic exe or kit
file at the successful conclusion of setup, to save hard disk space.
Confidential & Proprietary Page 18 of 23
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Promotion & Distribution Agreement
Support Information
. During setup and/or configuration, your client software should indicate
that all software support for the client software is provided by your
company, and not by Microsoft or the PC manufacturer that supplied your
system.
. Help buttons and icons should also clearly indicate that you provide the
technical support, and how to contact you. This includes any "Help About"
dialog boxes.
Worldwide English Configuration
When your icon/setup program is first run, you will typically ask the user some
configuration questions. The first or second one should be what country they are
in. If you don't have a Point of Presence (telephone number) there, you should
inform the customer and exit gracefully. Microsoft only has one version of
English CD, it gets used worldwide. That means US, Canada, UK, Australia, New
Zealand, India, etc. In addition, the English version of the product is usually
for sale in other countries where there is a localized version available. You
might want to look up the Locale APIs in Win95, they might help out here.
Setup Types
There are four setup types:
. Typical - your monolithic exe will be copied to the hard disk unless
specified otherwise in the contract.
. Compact - minimal hard disk space usage, your exe/kit file will NOT
be copied to the hard disk. If a setup shim exists, it will be
copied.
. Portable - same as compact with some portable-specific utilities.
Large exe/kit files will NOT be copied to the hard disk. If a setup
shim exists, it will be copied.
. Custom - Same as Typical. Custom may offer a checkbox, it will be
pre-checked but can be cleared by the customer, in which case Large
exe/kit files will NOT be copied to the hard disk. If a setup shim
exists, it will be copied.
SKUs
There are four basic OEM products:
. End User "OEM Full CD" - this is the same as the retail end-user
CD, except it will deny upgrading over a Windows 3.1 system. There
are several minor variants to the OEM Full CD but the differences
do not affect the Online Services Clients. These are provided to end
users when they buy a new system. They are also known as "backup
media" because all new PCs come with Windows 95 preinstalled, these
are the backups.
. End User "OEM DMF" Floppy Disks - these are a subset of the end
user CD, they contain less files, typically larger, optional
components such as sound schemes are not present. These are also
provided to end users, as backup media. Very few OEMs actually use
this product, however.
. MSCSD "Diskettes on the hard disk" disks - the OEM ships the
contents of the floppy disks on the hard disk. It is then up to the
end user to use the Microsoft Create System Diskettes tool to make
their own backup media. Because of the sheer number of floppy
disks, and time involved many users choose not to make their backup
media. The collateral material for this SKU includes preprinted
diskette labels for the end user.
. OEM Preinstall ToolKit (OPK) - This is a special CD provided only
to OEMs, which contains specialized tools and instructions for an
OEM to integrate Windows 95 preinstalled into a variety of
manufacturing environments. It is used in conjunction with one of
the end-user backup media options above. It contains the full
contents of the OEM Full CD version of Windows 95, including all
Online Services Clients files.
The first two OEM products above are supplied to Authorized Replicators and
Delivery Service Partners, along with manuals and collateral materials. The Ars
and DSPs then manufacture and sell bulk shrink-wrap prepackaged OEM products to
the OEMs.
Confidential & Proprietary Page 19 of 23
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Promotion & Distribution Agreement
RunOnce Preinstallation Options
This section describes optional implementation practices that can improve the
user experience using your client software. However, the implications of these
options must be clearly understood, including the various OEM manufacturing
scenarios, before implementing these features.
It is possible to do some of the file uncompression, copying and configuration
at the factory or before the user takes specific action by clicking on an Icon.
This step will occur during the "RunOnce" phase of setup. This is when the grey
panel on the left side of the screen has a checklist of steps it is performing,
including items like "Configuring MS-DOS programs, Setting up Time Zone,
Configuring Windows Messaging, Setting up Help, etc." To do this, you need to
have either the setup shim exe or the monolithic setup exe meet meet the
following requirements:
. No UI - no progress bars, no blue backgrounds, no questions, no
stops for any reason, totally silent, all defaults assumed. A
command line switch is acceptable to invoke this option.
. Must be able to be run during "1st Boot - RunOnce". This means that
some system services and hardware may not be fully configured,
including Dial Up Networking. It should be able to find it's files
either in the single file on the hard disk or in a directory on the
CD. You can look in HKEY_LOCAL_MACHINE\SOFTWARE\Microsoft\Windows\
CurrentVersion\SETUP\SourcePath to find the setup UNC or Drive
Letter/directory. (Should your runonce setup not find your files,
it should fail gracefully & silently). Note that you should handle
either UNC path names or drive/directory path names.
. For Minimal Install, we will not call your app, instead it will be
called when the user clicks on your Icons in the online folder. At
this point, your usual UI can run, and ask the user any questions.
You can find some general information on OEM Preinstalling at:
xxxx://xxx.xxxxxxxxx.xxx/xxx00xxx/xxxxxXxx/xxxxxxxx.xxx.
This document is designed for apps that the OEM will merge in their factory, in
our case we're doing it on the CD but the information can still be valuable to
you. Runonce has similar requirements to the non-hardware file copy section.
OEMINFO.INI Info
OEMs are required by the preinstallation toolkit to create a simple ASCII text
INI file in the c:\windows\system directory named OEMINFO.INI. This file will
always contain a section:
[general]
manufacturer=Acme PC Manufacturing
where the manufacturer name is a string entered by the PC manufacturer. It also
can contain additional sections added by the OEM. The manufacturer name is
displayed when you view the System control panel (properties of "My Computer").
This file will only be present on preinstalled machines, it will not be present
on systems that have had the disk formatted and reinstalled from the backup
media. If you want to add additional certificate info for your client to upload,
you can add a section name yourself, with several lines of defined text (you
would replace XXX with a unique identifier based on your client software name):
[XXX]
variable 1=whatever you want
variable 2=whatever you want also
You should properly handle error conditions in the event this file does not
exist, or your private section is not present. At no time should you prompt the
end user for certificate information.
Confidential & Proprietary Page 20 of 23
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Promotion & Distribution Agreement
EXHIBIT D
MAINTENANCE PROBLEM SEVERITY AND RESOLUTIONS
How Microsoft Responds to Problem Reports from Prodigy
------------------------------------------------------
Intent: Microsoft will collect problem reports from Prodigy in a timely
fashion, rank each problem report according to severity of the problem
and the potential number of Prodigy customers impacted, assign a
priority to the problem report, and provide a fixed binary or
workaround in an suitable amount of time.
When Prodigy encounters a problem, Prodigy will submit a problem report via
e-mail to _______________ which includes the following information:
===============================================================================
field description
===============================================================================
title Maximum 60 character long summary of the problem
-------------------------------------------------------------------------------
severity 1: Crashing, causes data loss, breaks major functionality,
or other severe problem.
2: Annoying, contributes to overall instability in this area,
crashes in obscure cases, breaks minor functionality.
3: Minor, doesn't impair functionality, may affect "fit and
finish"
4: Trivial, a feature request, a good case for postponement
(to the next release)
-------------------------------------------------------------------------------
problem Detailed description of problem, in following format:
1. Steps to reproduce problem (down to the keystroke,
typically)
2. Expected behavior (what you thought should have happened)
3. Observed behavior (what happened instead, which you did
not like)
4. Suggested fix (if appropriate, and does not duplicate
expected behavior)
-------------------------------------------------------------------------------
hardware Description of hardware system that problem occurs on (CPU &
speed, video card, modem vs. LAN connection, amount of
RAM, manufacturer, etc.)
-------------------------------------------------------------------------------
software Description of software system (operating system and version,
any special drivers, what other software was active in the
system at the time of the problem, versions of all
software in use, etc.)
-------------------------------------------------------------------------------
version Exact version number of software with problem.
-------------------------------------------------------------------------------
contact Person who originally found the problem. Please include full
name, timezone, e-mail address, and phone numbers (daytime
and evening), so that developer can follow up if necessary
to get additional details.
-------------------------------------------------------------------------------
Microsoft will respond as follows to each problem report, based on the Severity.
Note that, as Microsoft nears a product ship deadline, the criteria for a
"showstopper" problem (must fix before ship) get harder and harder to
meet. Microsoft also reserves the right to reclassify the Severity of a
problem report from Prodigy if it does not meet, in Microsoft's
professional judgment, the Severity classification described above.
===============================================================================
Severity Response
===============================================================================
1 Reply to Prodigy within one (1) business day with an estimate for
when a fix will be available. Make best effort to supply fix
within three (3) business days.
-------------------------------------------------------------------------------
2 Reply to Prodigy within three (3) business days with an estimate
for when (or if) a fix will be available. If Microsoft decides
to fix problem, it will make best effort to supply fix within
three (3) business days but no later than the next release.
-------------------------------------------------------------------------------
3 Reply to Prodigy within ten (10) business days with an estimate for
when (or if) a fix will be available. If Microsoft decides to
fix problem, it will make best effort to supply fix within
twenty (20) business days.
-------------------------------------------------------------------------------
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4 Microsoft will acknowledge receipt of problem report, and keep
Prodigy informed about what build/version of Microsoft software
(if any) will have the fix. Microsoft is under no obligation to
fix this problem, however.
-------------------------------------------------------------------------------
How Prodigy Responds to Problem Reports from Microsoft
------------------------------------------------------
Intent: Prodigy will collect problem reports from Microsoft in a timely fashion,
rank each problem report according to severity of the problem and the
potential number of Microsoft customers impacted. assign a priority to
the problem report, and provide a fixed binary or workaround in an
suitable amount of time.
When Microsoft encounters a problem, Microsoft will submit a problem report via
e-mail to _______________ which includes the following information:
================================================================================
field description
================================================================================
title Maximum 60 character long summary of the problem
--------------------------------------------------------------------------------
severity 1: Crashing, causes data loss, breaks major functionality, or
other severe problem.
2: Annoying, contributes to overall instability in this area,
crashes in obscure cases, breaks minor functionality.
3: Minor, doesn't impair functionality, may affect "fit and
finish"
4: Trivial, a feature request, a good case for postponement (to
the next release)
--------------------------------------------------------------------------------
problem Detailed description of problem, in following format:
1. Steps to reproduce problem (down to the keystroke,
typically)
2. Expected behavior (what you thought should have happened)
3. Observed behavior (what happened instead, which you did not
like)
4. Suggested fix (if appropriate, and does not duplicate
expected behavior)
--------------------------------------------------------------------------------
hardware Description of hardware system that problem occurs on (CPU &
speed, video card, modem vs. LAN connection, amount of RAM,
manufacturer, etc.)
--------------------------------------------------------------------------------
software Description of software system (operating system and version,
any special drivers, what other software was active in the
system at the time of the problem, versions of all software
in use, etc.)
--------------------------------------------------------------------------------
version Exact version number of software with problem.
--------------------------------------------------------------------------------
contact Person who originally found the problem. Please include full
name, timezone, e-mail address, and phone numbers (daytime
and evening), so that developer can follow up if necessary
to get additional details.
--------------------------------------------------------------------------------
Prodigy will respond as follows to each problem report, based on the Severity.
Note that, as Prodigy nears a product ship deadline, the criteria for a
"showstopper" problem (must fix before ship) get harder and harder to
meet. Prodigy also reserves the right to reclassify the Severity of a
problem report from Microsoft if it does not meet, in Prodigy's
professional judgment, the Severity classification described above.
===============================================================================
Severity Response
===============================================================================
l Reply to Microsoft within one (1) business day with an estimate for
when a fix will be available. Make best effort to supply fix
within three (3) business days.
--------------------------------------------------------------------------------
2 Reply to Microsoft within three (3) business days with an estimate for
when (or if) a fix will be available. If Prodigy decides to fix
problem, it will make best effort to supply fix within three (3)
business days but no later than the next release.
--------------------------------------------------------------------------------
3 Reply to Microsoft within ten (10) business days with an estimate for
when (or if) a fix will be available. If Prodigy decides to fix
problem, it will make best effort to supply fix
--------------------------------------------------------------------------------
Confidential & Proprietary Page 22 of 23
Prodigy/Microsoft Internet Explorer
Promotion & Distribution Agreement
within twenty (20) business days.
--------------------------------------------------------------------------------
4 Prodigy will acknowledge receipt of problem report, and keep
Microsoft informed about what build/version of Prodigy software
(if any) will have the fix. Prodigy is under no obligation to fix
this problem, however.
--------------------------------------------------------------------------------
Confidential & Proprietary Page 23 of 23
Con't of # 6249 - 1
AMENDMENT No. l TO THE
PROMOTION & DISTRIBUTION AGREEMENT BETWEEN
PRODIGY SERVICES CORPORATION AND MICROSOFT CORPORATION
This Amendment is made and entered into by and between MICROSOFT CORPORATION
("Microsoft") and PRODIGY SERVICES CORPORATION ("COMPANY") as of Sept. 29,
1997.
RECITALS
The parties have entered into that certain Promotion & Distribution Agreement,
dated September 18, 1996 (the "Agreement"); and
The parties desire to provide for the amendment of the Agreement to include
additional customization features and other terms as described herein;
The parties hereby agree to amend the Agreement as follows:
AMENDMENT
1. Defined terms in this Amendment shall have the same meaning as set forth
in the Agreement, except as otherwise provided in this Amendment. The
following definitions are either replaced or added to the Agreement:
"Active Desktop" means the Channel Client feature of Microsoft's Internet
Explorer version 4.0 software which supports "webcast," "push" or
"broadcasts" of Content via the World Wide Web (the "Web").
"Channel Client" means software that enables an End User to select and
receive Channels in one or more display and/or audio elements, including
software that is: (i) an interactive application (such as a Web browser)
that displays and/or plays Content within an application (or similar)
window or directly upon a operating system desktop; and/or (ii) an
animated and network-interactive screen saver application.
"Additional Company Channel Icon" means an icon or button which has an
identifying logo and/or trademark and an integrated pointer/URL which may
be pre-configured in the Internet Explorer user interface such that an
end user, upon first starting up or using Internet Explorer, will (if
already connected to the Web) be able to link to an associated Channel
which contains Company Content which: (a) an end user must pay a fee to
Company for access, and (b) is not available over the open Internet, or
must be protected behind a firewall such that a password or other
authentication by an end user is required for access.
"Channel Icon" means an icon or button which has an identifying logo
and/or trademark and an integrated pointer/URL which may be
pre-configured in the Internet Explorer user interface such that an end
user, upon first starting up or using Internet Explorer, will (if already
connected to the Web) be able to link to an associated Channel.
"Channel" means an aggregation of Content and advertising (if any) that
is displayed or played, or available to be selected by an end user for
display and/or play, by means of a Channel Client, and which may be
further divided into sub-Channels.
Page l of 6
1E4 Referral Server Amendment
"Content" means data, text, audio, video, graphics, photographs, artwork
and other technology and materials provided for use on Channels or Web
sites.
"IEAK" means a collection of tools which enable an Internet Explorer and
Outlook Express licensee to perform limited customizations to Internet
Explorer and Outlook Express, such customizations being made in
accordance with the instructions in the IEAK, the provisions in Section
2.10 (collectively, the "Instructions"), and including any updates to
the IEAK which may be provided by Microsoft to Company under this
Agreement.
"Platforms" means Windows 3.x (including Windows for Workgroups 3.x),
Windows 95, Windows 98, Windows NT, Apple Macintosh, and UNIX.
2. In addition to the rights described in Section 2.2, Microsoft hereby
grants Company the following:
(a) IEAK. Microsoft grants to Company a nonexclusive, limited worldwide,
----
royalty-free license to customize Internet Explorer version 4.0 and Outlook
Express version 4.x using the IEAK in accordance with the Instructions.
Company acknowledges and agrees that its use of the IEAK to customize
Internet Explorer version 4.0 and Outlook Express version 4.x requires the
rightful receipt from Microsoft of the License Key allocated to Company.
Company agrees that it shall only use the IEAK in accordance with the
Instructions. In the event the capabilities and/or instructions of the IEAK
are in conflict, either by providing more or fewer capabilities than the
customization rights granted in Sections 2(b) of this Amendment, the
customization rights granted in Section 2(b) of this Amendment shall have
precedence.
(b) Permitted Customizations.
------------------------
(a) Channel Customization. For versions 4.0 of Internet Explorer which
support Channels, Company may use the applicable IEAK to perform
the any or all of the following additional customizations with
respect to Channels (as further illustrated in Attachment A-l)
(i) Add a single Company Channel Icon to the topmost
navigation level of the Internet Explorer Channel bar in
the position below the Microsoft Channel Guide Icon.
Said Icon may link either to Company or third party
Channel available through Internet Explorer, provided
that any trade names, trademarks, logos or brands
displayed on the Channel Icon added by Company shall be
limited to Company's xxxx or Company's Internet Product
marks. Company may add multiple "sub-channels" grouped
underneath (at the second navigation level) the Company
Channel Icon on the Internet Explorer Active Desktop
channel bar, where each such sub-channel may be linked
to Company or third-party Content accessible through
Internet Explorer, and where each such sub-channel may
use any branding selected by Company.
(ii) Add multiple Additional Company Channel Icons to the
topmost navigation level of the Internet Explorer Active
Desktop Channel bar in the position below the Company
Channel Icon, where each such Additional Company Channel
must be linked to Company Content which: (a) an end user
must pay a fee to Company for access; and (b) is not
available over the open Internet, or must be protected
behind a firewall such that a password or other
authentication by an end user is required for access.
Company may add multiple "sub-channels" grouped
underneath (at the second navigation level) the
Additional Company Channel Icon(s) on the Internet
Explorer Active Desktop channel bar.
Page 2 of 6
IE4 Referral Server Amendment
In the case where sub-channels are grouped underneath a Company Channel Icon or
an Additional Company Channel Icon, the Company Channel is the only Channel
which is individually recognized by IE; the sub-channels do not operate as
separate Channels by themselves (and cannot be subscribed separately using the
IE4 UI).
(iii) Configure the Company Channel added by Company to be
"subscribed" by default, such that Company Channel Content and
schedule information downloads to the end user's computer
system hard disk automatically when the end user connects to
the Internet and selects the "update" option.
(iv) Delete from the Internet Explorer Active Desktop Channel bar
any pre-configured Channel Icons that are developed or
distributed by companies which compete directly with Company,
where such deleted Channels are to include only: (i)
preconfigured Channels from other Internet access providers,
(ii) pre-configured Channels which are produced by, or
exclusively distributed by, direct competitors of Company, or
company authored content. Company may not delete a
preconfigured Channel Icon that offers Content which is not
directly competitive with Company or Company's Content but that
may nonetheless compete for the end users' attention or
interest with Content offered by Company.
(b) Selection of Pre-Configured Channels. For versions 4.0 of Internet
Explorer which support Channels, Company shall use the IEAK to select
the pre-configured Channels for the specific territory for which each
and every Company-customized version of IE is targeted for
distribution. For example, if Company customizes separate versions of
IE for distribution into territories A and B, Company shall use the
IEAK to select the pre-configured default Channels for territory A for
the version of IE Company creates for territory A, and shall use the
IEAK to select the pre-configured default Channels for territory B for
the version of IE Company creates for territory B. For the purposes of
this paragraph, "territory" shall mean a language/country combination,
such as German/Switzerland or French/Canada.
(c) Internet Explorer Features. For any Channel added by Company pursuant
to Section (a) above, Company agrees to use reasonable commercial
efforts to develop and maintain said Channel such that it demonstrates
the advanced features of Internet Explorer (including Dynamic HTML,
etc.) and meets end user expectations of performance and frequency of
update such that Company's Channel compares favorably, in Company's
reasonable judgment, to Channels offered by other companies in
Company's line of business.
(d) Use of Standard Redistribution Key. For version 4.0 of Internet
Explorer, Company may use the applicable IEAK and the IEAK
Customization Wizard with the "Standard Redistribution" key
capabilities of the Wizard to perform any or all of the following
customizations:
A. DISTRIBUTION PACKAGES
A.l Non-customized Distribution. If Company chooses not to customize
its installations for the Licensed Software, then any
distribution by Company must include the "Full" installation
option offered in the IEAK. In addition, Company may also include
the "Standard" and/or "Minimal" installation options as described
in the Instructions. Company may not exclude any Licensed
Software component from an installation.
Page 3 of 6
IE4 Referral Server Amendment
A.2 Customized Distribution. If Company does choose to customize
its installations of the Licensed Software (i) any distribution
by Company must include either the "Full" or "Standard"
installation and (ii) Company may add its own components and
options to such installation; provided, however, in no event
may Company remove any components of the Licensed Software from
such installation.
B. ACTIVE SETUP CUSTOMIZATION
B.1 Customize title bar and bitmap that appear in Active Setup
installation application.
B.2 Add or customize sites from which Active Setup files are
downloaded.
C. INTERNET EXPLORER AND OUTLOOK EXPRESS CUSTOMIZATION
C.1 Customize Browser title bar (says "Microsoft Internet Explorer"
by default) only to add "provided by Company at the end of the
title.
C.2 Customize tool bar background bit map (watermark) that is
used when not in high color mode.
C.3 Change default search page (default is
xxxx.xxxxxxxxx.xxx/xxxxxx/xxxxxxxx.xxx).
C.4 Change default start page (default is xxxx.xxxxxxxxx.xxx).
C.5 Change help "online support" page (defaults to point to
xxxxxxxxx.xxx).
C.6 Add pre-configured "favorites" entries (default is none).
C.7 Change Favorites hierarchy (with exception of "special
folders" like "Channels")
C.8 Rename and/or customize Links (Todays' Links, Best of the
Web, Todays News, etc.)
C.9 Disable and/or customize first time boot welcome page (after
installation).
C.10 Add customized web pages to support web view functionality in
standard system folders (such as My Computer, Control Panel)
and/or import other folders which will have web view
capabilities as well (up to 10 total).
C.11 Append custom ID to end of generic IE4 user agent string.
C.12 Customize OE info pane.
C.13 Customize both the static and animated logos in Internet
Explorer and Outlook Express.
Page 4 of 6
IE4 Referral Server Amendment
D. ISP CUSTOMIZATION
D.1 Import Profile created by separately purchased Internet
Connection Manager Administration Kit.
D.2 Change bitmap in Connection Manager dialog.
D.3 Pre-set the Proxy Server address.
D.4 Chose signup method (Internet Signup Server or Serverless
Local) and customize required connection information.
D.5 For Outlook Express, set:
. Incoming and outgoing mail servers
. News server
. Add custom LDAP servers
D.6 Add custom ILS server for NetMeeting if applicable.
3. Microsoft shall deliver the IEAK to Company in sufficient time to enable
Company to meet its obligations under that certain Launch Agreement being
executed by the parties on or about the same time as this Amendment. If the
IEAK should provide fewer capabilities than the customization rights
granted in Sections 2(b) of this Amendment, then Microsoft shall provide
Company with an IEAK with capabilities that are consistent with the
customization rights granted in Sections 2(b)."
4. This Amendment shall amend, modify and supersede to the extent of any
inconsistencies, the provisions of the Agreement. Except as expressly
amended by this Amendment, the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to the Agreement as
of the date set forth above. All signed copies of this Amendment to the
Agreement shall be deemed originals. This Amendment does not constitute an
offer by Microsoft. This Amendment shall be effective upon execution on behalf
of Company and Microsoft by their duly authorized representatives.
--------------------------------------------------------------------------------
Microsoft Corporation Company
--------------------------------------------------------------------------------
By: /s/ Xxxxx Xxxxx By: Xxxx Xxxxxx
--------------------------------------------------------------------------------
Name(print): Xxxxx Xxxxx Name (print): /s/ Xxxx Xxxxxx
--------------------------------------------------------------------------------
Title: Director of Marketing Title: SVP, SALES
--------------------------------------------------------------------------------
Date: 10/22/97 Date: 9/26/97
--------------------------------------------------------------------------------
[SEAL APPEARS HERE]
Prodigy Amendment No l to the Promotion Distribution 092397
Microsoft Confidential Page 5 of 6
IE4 Referral Server Amendment
Attachment A-1
Illustration of Channel Bar Navigation Hierarchy & Channel Placement
1. Channel Bar Topmost Navigation Level (visible on Active Desktop) sample
configuration:
---------------
Channel Guide
---------------
Company
Channel
---------------
Additional
Company
Channel(s)
---------------
MSN
---------------
MSNBC
---------------
Disney
---------------
PointCast
---------------
(others)
---------------
The Channel Guide always occupies the first position (at the top of the Channel
Bar). Company Channel may be inserted in the second position (thereby shifting
other Channels down one position). The Company Channel Icon is visible by
default when Active Desktop is first installed. With the exception of adding the
Company Channel, and except as otherwise provided in Section 2(b)(a)(ii) and
Section 2(b)(a)(iv), all pre-configured Channels must remain on the Channel Bar
in the order shipped in the IEAK for each target territory (or country/language
combination). End users are able to add, rearrange, and/or delete any Channels
they wish after installing IE.
2. Channel Bar "sub-Channels" may be configured "under" a topmost level Category
such that when a topmost level Category is clicked, the sub-Channel(s) are
displayed. Sub-Channels are not visible until the Category containing them is
clicked.
Page 6 of 6
