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** CERTAIN CONFIDENTIAL
MATERIAL CONTAINED IN THIS
DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
EXHIBIT 10.11
NETCENTER SERVICES AGREEMENT
COVER SHEET
IMPORTANT NOTICE: THIS NETCENTER SERVICES AGREEMENT INCLUDING EXHIBITS HERETO
("AGREEMENT"), OF WHICH THIS PAGE IS A COVER SHEET ("COVER SHEET"), SETS FORTH
THE TERMS AND CONDITIONS FOR PARTICIPANT'S INCLUSION IN NETSCAPE'S NETCENTER.
Description of Service: A web-based email service that provides end users with
the permanence, privacy, and accessibility of a web-based email account. The
primary service will be a free (advertising supported) web-based email service.
The Service will also offer end users with an array of premium web-based email
services and advanced features set forth in Exhibit D hereof.
Participant Brand Service: Net@ddress - a web-based email service offered by
Participant at URL: xxxx://xxx.xxxxxxxxxx.xxx
Territory: North America (US and Canada and Mexico)
Local Language: U.S. English, French Canadian and Spanish
Service Period: 2 years, beginning on the earlier of (i) the Launch Date or
(ii) June 1, 1998.
Addresses for Notice:
Participant: Netscape:
XXX.XXX, Inc. Netscape Communications Corporation
0000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000 000 Xxxx Xxxxxxxxxxx Xxxx, XX: XX-000
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxxxx Xxxx Attn: General Counsel
PARTICIPANT:
XXX.XXX, Inc. NETSCAPE COMMUNICATIONS CORPORATION
a Delaware corporation a Delaware corporation
Signature: /s/ XXXXXXXX X. XXXX Signature: /s/ XXXX XXXXX
------------------------------- -----------------------------------
Name: Xxxxxxxx X. Xxxx Name: Xxxx Xxxxx
------------------------------------ ----------------------------------------
Title: COO Title: EVP of Website Division
----------------------------------- ---------------------------------------
Date: April 17, 1998 Date: 4/17/98
------------------------------------ ----------------------------------------
Attached Exhibits:
Exhibit A: End User Registration
Exhibit B: Payment Terms
Exhibit C: Copy of Mutual Confidential Disclosure Agreement
Exhibit D: Premium Services and Advanced Features
Exhibit E: Best-Of-Breed Service
Exhibit F: Netscape Advertising Guidelines
Exhibit G: IBD Agreement
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SERVICES AGREEMENT
This Agreement entered into by and between Netscape Communications Corporation
("Netscape") and the entity ("Participant") identified on the Cover Sheet is
effective as of this _____ day of _________, 1998 (the "Effective Date").
In consideration of the mutual covenants contained herein, the parties agree as
follows:
1. DEFINITIONS
"ADVANCED FEATURES" means components of the Service that provide value in
excess of the Basic Features to the end user and are offered at no charge to
the end user under this Agreement. The initial Advanced Features are set forth
in Exhibit D, and Best of Breed expectations for Advanced Features are set
forth in Exhibit E.
"BASIC FEATURES" means components of the Service that provide value to the end
user and are offered at no charge to the end user under this Agreement. The
initial Basic Features shall mean the features offered by Participant Brand
Service as of the Effective Date.
"BEST-OF-BREED SERVICE" means the Service having the criteria set forth in
Exhibit E hereto, as amended by mutual written agreement from time to time.
"CONFIDENTIAL INFORMATION" means information deemed to be confidential in
accordance with the terms of the Mutual Confidential Disclosure Agreement
attached hereto as Exhibit C.
"CONTENT PROVIDER" means a company, which is participating in the Service by
providing to such Service content and/or a link to a content-related site.
"END USER INFORMATION" means the end user information as defined in Exhibit A.
"LAUNCH DATE" means the date on which Phase 1 of the Service as set forth in
Exhibit D is fully functional and accessible to end users.
"LOCAL LANGUAGE" means the languages specified on the Cover Sheet.
"MILESTONES" means the targets mutually agreed to by the parties as set forth
in Section 6.1.
"NETCENTER" means that area of Netscape's Web Site, which offers online
business services and shopping opportunities to end users.
"NETCENTER LOGOUT" means the process by which a user completely logs out of
Netcenter. Netscape reserves the right to change the functionality of Netcenter
Logout from time to time as outlined in Exhibit A.
"NETCENTER LOGOUT PAGE" means the page served when a user chooses to log out of
Netcenter; the content and functionality of such page will be determined by
Netscape.
"NETCENTER REGISTRATION" means the portion of the registration that is
maintained, hosted, and controlled by Netcenter and applies to multiple
services across Netcenter. Netcenter Registration includes the assignment of a
username, password, and the collection of core Netcenter user profile data
which may include: First name, Last name, Address, City, State, Country, Zip
Code. Since a Netcenter user's username will also be user's email address,
Netcenter Registration will assign all email addresses as well.
"NETSCAPE'S WEB SITE" means the collection of Local Language HTML documents
targeted at end users in the Territory and currently accessible by the public
via the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx and/or at such
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other URL or locations as Netscape may designate. For purposes of this
Agreement, Netscape's Web Site does not include any future technologies or
future uses of existing technologies which might embody a collection of
documents (other than HTML documents) on the Internet.
"NON AFFILIATED PREMIUM SERVICES" means the premium services offered in the
Service by partners of Netscape's Netcenter other than Participant. These
services are typically offered elsewhere on the Netcenter site and are not
exclusively targeted toward users of the Service.
"PARTICIPANT BRAND SERVICE" means Participant's web-based email service
specified on the Cover Sheet.
"PARTICIPANT'S CONTENT" means Content Provider listings and other information,
materials and/or services supplied by, managed by or under the control of
Participant.
"PARTICIPANT'S WEB SITE" means Participant's primary Local Language web site
and which is accessible by the public via the Internet at the URL
xxxx://xxx.xxxxxxxxxx.xxx. Participant's Web Site shall not mean any other web
site.
"PAYMENT" means the amounts specified in Exhibit B.
"PREMIUM SERVICES" means value added services targeted toward users of the
Service requiring payment of fees therefor. Fees may be monthly service fees,
packaged bundled fees, or direct fees for service used. The initial Premium
Services are set forth in Exhibit D, and Netscape and Participant shall have
the right to amend the Premium Services from time to time by mutual written
agreement.
"SERVICE" means the service described on the Cover Sheet, the operation of
which is the subject of this Agreement.
"SERVICE AD INVENTORY" means the electronic advertising inventory within the
Service and any other advertising inventory which Participant will manage as
described in this Agreement.
"SERVICE FRONT PAGE" means the page on the Internet, which is the initial point
of entry for an end user accessing the Service.
"SERVICE LOGOUT" means the process by which a user ends user's session within
the Service. The functionality of the Service Logout will be specified by
Netscape in accordance with Netcenter Registration guidelines which may change
from time to time as described in Exhibit A upon thirty (30) days notice to
Participant.
"SERVICE LOGOUT PAGE" means the page on the Internet a user is served when user
ends user's session within the Service. Ending a Service session does not
automatically log a user out of Netcenter. Netcenter will maintain control of
the Netcenter Logout process and Netcenter Logout Page described above.
"SERVICE PERIOD" means that period of time beginning on the Launch Date and
ending upon the expiration or termination of this Agreement.
"SERVICE REGISTRATION" means the portion of registration that is specific to
the Service, which collects information pertaining to the Service. The
functionality and design of the Service Registration will be determined
mutually by Netscape and Participant provided that such functionality and
design complies with Netcenter service registration guidelines as described in
Exhibit A. Service Registration cannot include data collected in the general
Netcenter Registration as defined above.
"SPONSORSHIPS" means fees paid for the right to have a listing or some form of
exposure incorporated into the Service.
"TERM" means the period of time beginning on the Effective Date and ending on
the last day of the Service Period.
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"TERRITORY" means the target geographic area listed on the Cover Sheet.
2. SERVICE OVERVIEW
2.1 THE SERVICE. Netscape shall include Netcenter as part of
Netscape's Web Site. The Service will be included within Netcenter. The Service
shall be offered in the Local Language and targeted toward end users in the
Territory. The Service shall be Best-of-Breed Service, modeled after, yet
differentiated from, Participant Brand Service, in accordance with applicable
then current Netscape guidelines therefor. Netscape may revise such guidelines
therefor and the means whereby end users may access the Service, provided that
the prominence of the Service within Netcenter may not be materially reduced.
Netscape and Participant shall mutually agree upon the time frame for
implementing such changes, which time frame shall be no less than 30 days
(unless otherwise agreed by the parties). The Service shall be targeted at
users in North America who desire a free web-based email account on their own
(without a need to share) or a secondary email account for users to handle
their personal emails. During the Term, provided the Service substantially
conforms to the Best-of-Breed Service requirements, Netscape will not launch a
third party web-based email service, which is substantially similar to the
Service, targeted to customers located in the Territory in the Local Language
on Netscape's Web Site.
2.2 SERVICE FRONT PAGE. Netscape shall host the Service Front Page,
unless otherwise agreed by the parties.
2.3 SERVICE PAGES. The Service will: (i) be produced and managed by
Participant; (ii) have a "Xxxxxxxx.xxx" domain name (or such other domain name
as Netscape may determine); and (iii) reside solely on Participant's servers.
All access to the Service shall be deemed to be via Netscape's Web Site, and
therefore shall be Netscape traffic. Every page of the Service shall be
co-branded by Netscape and Participant, and such co-branding shall appear above
the fold. Every page of the Service shall include navigational and branding
elements, which shall appear above the fold and offer end users navigational
controls within Netcenter. Netscape will determine, subject to Participant's
prior approval (which shall not be unreasonably withheld), the design/user
interface, promotions and links in all of the pages of Service, provided that
(i) all pages are consistent with the Netcenter look and feel; (ii) all pages
integrate key aspects of Netcenter navigation and functionality; (iii) branding
on all pages in the Service is consistent with the Netcenter branding scheme;
and (iv) all pages provide links to Netcenter including but not limited to a
Netcenter footer. Trailers (or successors thereto) at the bottom of outbound,
forwarded, POP3, and IMAP messages will also have a link to the Service,
including the full name of the Service. Any additional content for trailers (or
successors thereto) shall be mutually determined by Netscape and Participant.
2.4 PROPRIETARY RIGHTS.
2.4.1 Participant hereby grants Netscape a non-exclusive, royalty
free and fully paid up limited license under Participant's patents,
trademarks, copyrights, and trade secrets, whether presently owned or hereafter
acquired, to make, use, offer for sale, and sell products and services solely
in connection with the Service during the Term. All rights not expressly
granted to Netscape hereunder are reserved by Participant. Participant will
grant Netscape a non-exclusive, perpetual license after the end of the term to
any intellectual property in work product independently developed by
Participant for the Service at a price to be mutually determined in good faith.
Netscape acknowledges and agrees that the foregoing license grant conveys no
ownership interest and that, except for the license grant, Participant retains
all right, title and interest in its patents, trademarks, copyrights and trade
secrets.
2.4.2 Netscape hereby grants Participant a non-exclusive, royalty
free and fully paid up limited license under Netscape's patents, copyrights,
and trade secrets, whether presently owned or hereafter acquired, to make, use,
offer for sale, and sell products and services solely in connection with the
Service during the Term. All rights not expressly granted to Participant
hereunder are reserved by Netscape. Participant acknowledges and
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agrees that the foregoing license grant conveys no ownership interest and that,
except for the license grant, Netscape retains all right, title and interest in
its patents, copyrights and trade secrets.
2.4.3 Participant shall not independently use the Service name
without Netscape's prior written consent unless such use occurs in connection
with Participant's advertising, sales and promotional efforts on behalf of the
Service. If the Service name includes a co-branding component that is not
generic or descriptive, Participant may not use the Service name with the
Netscape name expunged, provided that nothing in this Section is intended to
prevent Participant from using its name or any of its corporate identifiers.
2.4.4 Any intellectual property in work product resulting from
co-development efforts under this Agreement shall be owned by Netscape subject
to a fully paid up, royalty free, perpetual license to Participant to make,
use, offer for sale and sell products and services that incorporate such
intellectual property, provided that Participant shall not make, use, offer for
sale or sell any products incorporating such intellectual property for a period
of 18 months after the termination or expiration of the Agreement (the
"Prohibition"), and such license shall survive termination of this Agreement.
For the purposes of this Agreement, "co-development" shall consist of (a) work,
even if performed solely by Participant, that primarily involves integration of
features and functionality with Netcenter functions and resources (such as the
member directory), unless such work consists of conforming to a published
Netscape API or specification; or (b) all other work where employees of each
party meet the statutory requirements under U.S. patent and copyright law (35
U.S.C. ss.16 and 17 U.S.C. ss.101 and ss.201, respectively) to be deemed
co-inventors or co-authors (including any work product consisting of conforming
to published Netscape APIs or specifications). Participant hereby assigns to
Netscape any and all of its rights, title and interests in any co-developed
work, and shall promptly deliver to Netscape all such co-developed work,
including but not limited to source code and all available documentation
therefor, in a form and manner to be specified by Netscape. Participant shall
cooperate with Netscape at Netscape's expense in perfecting any such rights,
including executing any necessary documentation.
2.4.5 Neither party shall have the right to sublicense any of the
other party's intellectual property, except that each party may sublicense any
intellectual property in work product that has been co-developed subject to
Section 2.4.4 and further provided that Participant complies with the
Prohibition in Section 2.4.4 above.
2.4.6 In the event that third party license fees, royalties, or
other payments are required for any technology in the Service, the parties
agree to negotiate in good faith a mutually acceptable sharing of such third
party payments.
2.4.7 The parties agree that in the event of any alleged
infringement of third party proprietary rights by any component of the Service,
each party shall have the right, in its reasonable judgment, with no liability
to the other party, to suspend or discontinue or cause such suspension or
discontinuance of such allegedly infringing component, including the Service or
a portion thereof, until the alleged infringement claim is resolved.
3. SERVICE IMPLEMENTATION
3.1 PRODUCTION, TECHNOLOGY AND CONTENT DEVELOPMENT. Participant shall
be responsible for developing, producing and implementing the design, user
interface, promotions, links and functionality as determined by Netscape and
approved by Participant pursuant to Section 2.3. The parties agree that the
user interface may change on a fairly regular basis and Participant agrees that
it will respond to such changes within the time frame mutually agreed by the
parties. Participant shall use commercially reasonable efforts to employ
Netscape's technology in the Service, if available, rather than a technology,
which might compete with Netscape products or services, provided that such use
of Netscape's technology does not unduly burden the performance or production
of the Service. If Netscape commercially releases a client-server webmail
solution deemed by Netscape to be optimal for the Service, at Netscape's
request, Participant agrees to use such solution in the Service provided
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that the parties are able to agree on pricing therefor and further provided
that such solution is a "best of breed" solution (i.e., contains all of the
features and functionality of, and is of the same or superior quality to, other
available solutions).
On the Launch Date, the Service will consist of a free web-email service,
including Basic Features, and the Premium Services and Advanced Features
identified under Phase 1 in Exhibit D. Following the Launch Date and with
Netscape's prior approval, Participant will deploy the Premium Services and
Advanced Features identified under Phase 2 and Phase 3 in Exhibit D as set
forth therein, or as otherwise mutually agreed by the parties. Notwithstanding
Exhibit D, nothing in this Agreement obligates Netscape to approve any Advanced
Feature or Premium Service for inclusion in the Service; provided, however that
Netscape will not withhold its approval unreasonably.
3.1.1 Netscape acknowledges and agrees that Participant's pre-existing
obligations to American Express Travel Related Services ("AMEX") requires that
Participant offer AMEX's customers any Advanced Features and Premium Services
available in the Participant Brand Services. Netscape further acknowledges and
agrees that Participant's obligations to AMEX require that Participant provide
AMEX's customers for the OEM service provided by Participant at URL:
xxx.xxxxxxxx.xxx. with at least one unique service or feature to distinguish
such AMEX service from others, provided that Participant does not unreasonably
withhold a service or feature deemed by Netscape to be critical to the Service.
Participant shall cooperate with Netscape to take all possible steps to prevent
any service or feature deemed by Netscape to be critical to the Service from
being excluded from the Service because of such pre-existing commitment. To
ensure Best-of-Breed Service, Participant will use commercially reasonable
efforts to develop or pursue third party relationships to provide new Advanced
Features and Premium Services which Participant will present to Netscape at
least on a quarterly basis. Participant agrees to offer such available new
Advanced Features and Premium Services to Netscape for implementation in the
Service for a period of 60 days (or such longer period if Netscape and
Participant so agree) in advance of offering such available new Advanced
Features and/or Premium Services to any Participant OEM partner other than
AMEX.
3.1.2 Netscape must approve all functionalities, features,
enhancements and premium services before addition to the Service; provided,
however, Netscape will not withhold its approval unreasonably. With the
exception of fax services, Netscape grants Participant the right to provide all
Premium Services in Exhibit D. Netscape and Participant agree to review the
components of the Service to determine whether any functions, features,
enhancements or Premium Services should be added, removed, or replaced
considering changes in the general design or infrastructure of Netcenter,
technical feasibility, both parties' industry experience, cost of the Service
or Netcenter, impact on the Service's or Netcenter's performance, and both
parties' revenue generating opportunities. Participant will use best efforts to
integrate other Netcenter services, Netcenter control functionality, or Non
Affiliated Premium Services into the Service at Netscape's request in order to
provide a more consistent user experience for Netcenter members across the
Netcenter website, provided that these requests do not unreasonably and
materially adversely affect the Participant's costs or revenue generation
opportunities.
3.1.3 Unless otherwise mutually agreed, the parties agree that
promotions and links in the Service shall be allocated as follows:
(a) [**] of total ad banner inventory will be reserved for use at
Netscape's sole discretion to promote other Netcenter services or for
mutually-agreed barter ads of third party partners willing to promote the
Service;
(b) Pop-up ads will be mutually agreed upon, with the initial
allocation of [**] to promote other Netcenter services and [**] to promote
Premium Services, collect additional information, or user surveys;
(c) Advertising on Service Logout Pages will be sold and managed
by Participant;
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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(d) New promotional opportunities will be mutually agreed upon;
and
(e) Advertising portals on the vertical navigational frame on the
left hand side will be mutually agreed upon, with the initial allocation of [**
] for promotions of Premium Services and [ ** ] for advertising revenue
managed by Participant.
3.1.4 Participant will manage, run, and sell slots in a direct
marketing content distribution program to be included in the Service sign-up
process. The direct marketing program will consist of two sections: (a) special
one-time promotions, which are not a subscription to a service or product and
(b) In-Box Direct for web email as it relates to the Service. The parties will
mutually agree on the quantity of (a) and (b). In addition, both (a) and (b)
shall be subject to Netscape's then-current privacy policy and general terms
and conditions of the In-Box Direct agreement, as such agreement may be amended
by Netscape from time to time upon 30 days prior notice to Participant. All use
and collection of End User Information shall be in compliance with Netscape's
privacy policy published at URL:
xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxxx/xxxxxxx.xxxx. With respect to (b), no
sponsors other than In-Box Direct partners may participate therein, and
Participant shall not distribute any ongoing email subscription content other
than In-Box Direct without Netscape's prior approval which approval will not be
unreasonably withheld. Netscape reserves the right to add, free of charge,
Netscape content or mutually selected partner content in the direct marketing
program. Participant will transmit to Netscape all end user data for In-Box
Direct per the format specified in the In-Box Direct agreement. Participant
will use commercially reasonable efforts to perform development work required
to ensure that web email subscription data is in sync with the standard In-Box
Direct program on a real time basis. All end user subscription management will
be handled through the In-Box Direct program unless mutually agreed otherwise.
Participant shall use commercially reasonable efforts to improve the process by
which end users of the Service receive In-Box Direct subscriptions. A link to
In-Box Direct shall be at the end of the sign-up process as well as in the user
interface for the Service. Both parties agree that the integration of In-Box
Direct with the Service may be postponed by mutual agreement.
3.1.5 In addition, unless Best-of-Breed Service is breached, or the
parties mutually agree otherwise, Netscape agrees that:
(a) At the Launch Date, the Service will have a link under the
Community section of the Netcenter homepage of Netscape's Web Site or
equivalent promotion if such page is redesigned;
(b) At the Launch Date, the Service will have a link under the
Community section of Netcenter on the Netcenter index page or equivalent
promotion if such page is redesigned;
(c) At the Launch Date, a listing will be given to the Service on
the Netcenter premium services page. This listing will most likely link to a
page in the Service, which describes the Premium Services. Netscape reserves
the right to change this listing or remove it in the future due to changes in
format or positioning of the Netcenter premium services page, provided that an
equivalent promotion is provided;
(d) Netscape will include a one-time story on the Service in a
Netcenter newsletter;
(e) During the first 2 weeks after the Launch Date, Netscape will
allocate [**] of remnant ad space on Netscape's Web Site, if any, to promote the
Service. For 6 weeks thereafter, Netscape will allocate [**] of remnant ad space
on Netscape's Web Site, if any, to the Service;
(f) Netscape will run JavaScript messages targeted toward
Netcenter and non-Netcenter members to promote the Service on the home page of
Netscape's Web Site during the first 2 weeks after the Launch Date;
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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(g) Within the first 3 months after the Launch Date, Netscape will
also provide one to two weeks of exposure for the Service in the Netscape
newsticker on the home page of Netscape's Web Site as well as flashes on the
corresponding newspage;
(h) Netscape will promote the Service in the Netcenter flash
section of the home page of Netscape's Web Site at least once a week during the
6 weeks after the Launch Date;
(i) Netscape will continue to promote the Service through the
remainder of the Term;
(j) Within 6 months of the Launch Date, and subject to compliance
with all applicable laws relating to Netcenter contests and without Netscape
incurring additional compliance costs for such contests under this subsection,
Netscape will use commercially reasonable efforts to integrate new subscribers
of the Service into such contests in a manner that will incentivize users to
sign up for the Service and/or use the Service;
(k) Netscape will use commercially reasonable efforts to offer a
Netcenter free email button to all In-Box Direct partners for inclusion in
outbound email newsletters at such partners' discretion. The In-Box Direct
program guidelines (which currently require a tag line at the top of the
mailing explaining to users who have mistakenly subscribed to In-Box Direct how
to unsubscribe) will be modified to require the In-Box Direct email messages to
contain language in the tag line to promote the Service;
(l) Within 30 days after the Launch Date, the Service will replace
the current free email program available from In-Box Direct. A link to the
Service will appear on the welcome/what's new page of In-Box Direct. Netscape
reserves the right to discontinue this link if the format of the what's new
page or In-Box Direct changes. In such event, Netscape will replace the link
with another link in an equally prominent position elsewhere in Netcenter. A
link to the Service will also appear on the instructions and user FAQ page of
In-Box Direct. Some level of promotion will be given to the Service on the
thank-you page of the In-Box Direct sign up;
(m) Netscape will promote the Service in pop-up promotions
[ ** ] impressions during the first 6 months following the Launch
Date unless Netscape discontinues pop-ups throughout Netcenter or as otherwise
agreed by the parties;
(n) Within 6 months after the Launch Date, Netscape will include a
button for the Service on the personal toolbar in Netscape Communicator version
4.05, U.S. English language, upon general release on Netscape's Web Site.
Netscape will use commercially reasonable efforts to include an embedded email
message promoting the Service in a future release of the Netscape Communicator,
which message is visible to users after a new email profile is set up. If such
is not commercially reasonable, Netscape will provide an equivalent promotion;
(o) Netscape may promote the Service in other avenues where
possible and appropriate;
(p) Netscape will provide a program manager to work with
Participant to: establish development priorities; specify Advanced Features and
Premium Service offerings; evaluate performance and revenue generating
opportunities; set strategic direction; manage integration of the Service with
other Netcenter services; and develop and implement an advertising and
promotions plan. Netscape will also provide a production resource to assist in
the integration of Participant's email registration with Netcenter as well as
to provide direction on design and user interface functionality at least until
60 days after the Launch Date;
(q) Users registering for Netcenter under Registration 2.0 will
automatically be assigned a Netcenter email address. These users must come to
the Service to "activate" the account by completing
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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the Service Registration. Netscape reserves the right to (i) change this
Service Registration process in future versions of Universal Registration; and
(ii) terminate the automatic assignment of Netcenter email addresses, provided
that Netscape will provide Participant 30 days advance notice of any material
change; and
(r) Notwithstanding the foregoing subsections of this Section
3.1.5, Netscape reserves the unilateral right to change any of these
allocations due to redesign of the home page of the Netscape Web Site or
changes in program allocation methodology provided that such promotions are
replaced with an equivalent promotion elsewhere on Netcenter.
3.1.6 In addition, Participant agrees that:
(a) Participant will dedicate a program manager to overall
program management of the Service. The program manager will be Participant's
central contact person to coordinate activities for Netscape. The program
manager will produce monthly reports/presentations to Netscape with
recommendations on how to improve revenue maximization, service performance,
customer service, and differentiate the Service. The presentation should also
include analyses of performance to date and competitive offerings. The program
manager will write and design content for the what's new page/section of the
Service subject to approval by Netscape. Participant will develop and implement
a Premium Service infrastructure and marketing plan to promote Premium Services
and Advanced Features, including but not limited to a what's new newsletter and
the what's new page. Participant will produce, manage, host and maintain the
Service as Best-of-Breed Service. This includes having sufficient staff and
managing creative, technical, and business staff to produce and operate the
Service as Best-of-Breed Service, including but not limited to advertising
sales/management, engineering, production, design, customer service, and
business development;
(b) Participant will dedicate resources to ensure that the
Service is Best-of-Breed Service, and that the Basic Features, Advanced
Features and Premium Services approved by Netscape are developed and
implemented in a mutually agreed time frame. Participant will also ensure that
Netcenter services, Netcenter functionality, and Non Affiliated Premium
Services as described in Section 3.1.2 are integrated into the Service in a
mutually agreed time frame. Participant will allocate development resources,
which are sufficient to satisfy its obligations under this Agreement.
Participant will dedicate a quality assurance manager to develop, test and
monitor the Service to ensure that the Service is Best-of-Breed Service.
Netscape hereby grants Participant a right and license to use, solely for such
integration, the technology under Netscape's control that is necessary to
integrate any Non Affiliated Premium Service. In the event Netscape chooses a
vendor other than Participant or a Participant partner to provide a particular
Non Affiliated Premium Service, Netscape will pay Participant for the
reasonable cost of integration thereof with the Service provided such cost is
pre-approved by Netscape. The parties will discuss and mutually agree on the
revenue sharing for any Non Affiliated Premium Service as set forth in Exhibit
B. The parties acknowledge that providing a link in the web email interface
does not constitute "integration." "Integration" shall be mutually agreed by
the parties and generally applies to more resource intensive activities on the
part of Participant;
(c) Participant will use commercially reasonable efforts to
support any Netscape initiatives to integrate the Service with current and
future releases of Netscape client software and the Netcenter Web site. If
Participant enters into a Netscape license agreement for the Netscape
Communicator source code and modifies such source code to better integrate the
Service into the Netscape Communicator user interface, Participant shall
promptly deliver such modified source code to Netscape so that Netscape may
promote these modifications or incorporate such changes into a future version
of the Netscape Communicator release by Netscape;
(d) Upon Netscape's request, Participant will, at no additional
charge, commit the resources necessary to work with Netscape to complete a
feasibility/scoping study that looks at web email product improvement in a
long-term co-development of a scaleable full featured web email product. If the
parties agree to move forward following such feasibility study, the parties
agree to conduct further discussions detailing, under separate agreement, the
terms and conditions of the co-development effort therefor;
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(e) Where not prohibited by an agreement in existence as of the
Effective Date between Participant and a third party, Netscape shall receive
more prominent (i.e. larger display, higher on page) promotion and positioning
with respect to any other directly competitive Internet client software
companies or online service companies similarly situated on the page;
(f) Participant will offer to Netscape any functionality,
feature or enhancement integrated into the Participant's Brand Service within a
mutually agreed time frame;
(g) Participant shall be responsible for the operations of the
Basic Features, Advanced Features, Premium Services offerings, allowing end
users to easily configure any Basic Features, Advanced Features, Premium
Service and/or Non Affiliated Premium Services, or manage their email account;
(h) Participant shall promptly respond and resolve any spam
issues on the Service, including but not limited to using commercially
reasonable efforts to block spam; and
(i) Netscape may develop additional Netcenter features and
programs to help promote sales and customer loyalty, and Participant shall
implement such services and features when they are developed, provided such
implementation is reasonable and standard for participants in Netcenter.
3.2 ADVERTISING. Participant shall be responsible for selling
advertising and any other promotions within the Service Ad Inventory, subject
to Netscape's guidelines for advertising attached as Exhibit F. Participant
will consult with Netscape regarding the use of an external advertising sales
force in order to give Netscape the opportunity to assist Participant. If more
than [**] of the total Service Ad Inventory is sold via an external source, the
parties will mutually re-assess the advertising sales strategy. Advertising
services which Participant shall provide include site auditing, traffic
analysis, functionality and other advertising services. Participant will commit
resources to manage the advertising programs and sell the advertising inventory
in accordance with this Section 3.2. Ad management will include innovative
approaches to advertising in order to maximize revenue, track trial program
performances, and respond accordingly in a timely manner. Participant must be
able to serve targeted advertising to users of the Service. Participant shall
track, analyze, and report on ad performance on a monthly basis. Participant
shall design and develop banner ads subject to Netscape's approval, which
approval will not be unreasonably withheld, to promote the Service. The cost of
such promotion will be considered part of the cost of sales in calculating any
revenue sharing under this Agreement. The foregoing applies equally to the
development, management and sales of the direct marketing program described in
Section 3.1.4 above.
3.3 CONTENT PROVIDER PARTICIPATION IN THE SERVICE. Participant shall
determine the guidelines by which Content Providers may participate in the
Service provided such guidelines comply with applicable then current Netscape
guidelines. Participant will be responsible for administering the Content
Provider application and complying with such Netscape guidelines. If a Content
Provider fails to come into compliance after receipt of notification, Netscape
shall direct Participant to reduce or remove the listing of a non-complying
Content Provider.
3.4 TECHNICAL AND CUSTOMER SUPPORT BY PARTICIPANT. During the Term
and at no additional charge, Participant shall provide technical support
services for the Service to Netscape on a timely basis, appoint a technical
contact to whom Netscape may address all technical questions relating to the
Service, and use its best efforts to promptly remedy any material
malfunctioning of the Service in accordance with Best-of-Breed Service.
Participant shall be responsible for the maintenance and support of end users
of the Service in accordance with the Best-of-Breed Service. Participant shall
be solely responsible for the purchase, implementation, maintenance and support
of all software and hardware required to fulfill its obligations under the
Agreement. In addition, Participant shall make commercially reasonable efforts
to support Non Affiliated Premium Services for a mutually agreed fee or other
form of consideration.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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4. END USER REGISTRATION
End users who wish to engage in certain activities in the Service will have to
register with the Service as described in Exhibit A, as such Exhibit may be
revised by Netscape from time to time. The user registration page will be
linked to the Netcenter front page as well as all other appropriate pages in
the Service as Netscape shall determine. Any and all information regarding end
users that is obtained by Participant through, or in connection with, the
Service will be subject to the terms and conditions of Exhibit A.
Participant shall integrate the Service user interface with the Netscape
membership directory. No other directory service shall be included in the
Service Registration Process. The parties may mutually agree to offer users
other directory services in other portions of the Service.
5. NETSCAPE PRODUCTS AND TECHNOLOGY
5.1 OPTIMIZE FOR NETSCAPE TECHNOLOGY. In consideration of Participant
participating as an integral service partner within a core area of Netcenter
and in order to optimize the efficiency of the Service, during the Term:
5.1.1 Within all aspects of the Service, Participant shall use
commercially reasonable efforts to maintain compatibility with the client
software used by Netcenter members;
5.1.2 Subject to Section 3.1, Participant shall consider the use
of at least one current version of Netscape core Web server software product
(currently Netscape Enterprise Server) to maintain Participant's Web Sites;
5.1.3 Where not prohibited by an agreement in existence as of
the Effective Date between Participant and a third party, Participant shall
display the "Netscape Now" button (or any successor button) prominently on the
home page of Participant's Web Site, and on any page on Participant's Web Site
which contains a virtual button or other text or graphic for any third party
Internet client or server software, software provider or online service. On any
page on which the Netscape Now button is displayed, the Netscape Now button
shall be at least equal in size and prominence to the virtual button, text or
graphic for any third party Internet client or server software, software
provider or online service. Netscape hereby grants Participant a nonexclusive
and nontransferable license to perform and display the Netscape Now button
directly in connection with fulfilling the foregoing obligation. Participant's
use of the Netscape Now button shall be in accordance with the guidelines of
the Netscape Now Program currently published at the URL
xxxx://xxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxx/xxxxxxxx_xxx_xxxxxxxxxx.xxxx;
5.1.4 Participant shall ensure that all web pages that are
located in the Service not endorse any third party client or server software or
online service that is directly competitive with Netscape's over Netscape's or
treat the provider of any such competitive software or online service as
preferred by Participant over Netscape, and use commercially reasonable efforts
to ensure that all web pages that are located one click away from any part of
the Service accord Netscape's products and services a position of prominence,
overall as well as on an element by element basis, at least as great as the
positioning accorded any third-party Internet client or server software or
online service; and
5.1.5 Participant's course of dealing with respect to other
services it may operate shall be governed by the terms of Section 5.2.
5.2 COURSE OF DEALING. In consideration of (i) the use of the
xxxxxxxx.xxx domain name for the Service, and (ii)the treatment of the Service
as a fundamental part of the Netcenter service, until such time as Microsoft
fully publicly documents and makes available its operating systems programming
interfaces sufficiently to enable Netscape to make use of all of the facilities
and resources of those operating systems on a basis equal to that of Microsoft,
Participant shall:
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5.2.1 Within Participant's publicly accessible Web sites, other
services (including co-branded and OEM services to the extent Participant can
influence the third parties involved) and marketing materials, accord
Netscape's products and services a position of preference and prominence,
overall as well as on an element by element basis, at least as great as that
accorded any third-party Internet client or server software, software provider
or online service; and
5.2.2 Not make content available solely to users of client
software or services other than Netscape's, or disfavor or disadvantage users
of Netscape client software or services in any way relative to users of other
Internet client software or services.
6. RESEARCH AND REPORTING
6.1 QUARTERLY REVIEWS OF THE SERVICE. Netscape and Participant agree
to establish a committee for quarterly reviews of the Service to evaluate the
success of the Service and agree to modifications and improvements to the
Service. The current Milestones for the Service are set forth below:
6.1.1 BUSINESS/DEVELOPMENT PLAN. Netscape and Participant will
mutually review and develop a quarterly business/development plan for the
Service. Both parties will meet on a regular basis (to be determined by the
parties) to review and prioritize development efforts, track progress against
plan, and map out the implementation and communication of enhancements.
6.1.2 MONTHLY REVIEWS. Netscape and Participant agree to
establish monthly reviews of the Service with the intent to review the
performance and development of the Service and agree to modifications and
improvements to the Service.
6.1.3 TWELVE-MONTH REVIEW. Netscape and Participant agree to
review the business plan after 12 months of operation after the Launch Date for
the purpose of mutually agreeing to revised subscriber and revenue targets.
6.1.4 QUARTERLY REVIEW FOLLOWING YEAR ONE. Netscape and
Participant agree to revise Milestones for future periods during the Term at
each quarterly review of the Service after the first year of the Term. If the
parties cannot mutually agree to revised Milestones, then the Milestones in
place at the time shall remain in effect.
6.1.5 END-OF-TERM REVIEW. Netscape and Participant agree to
review the revised business plan targets three months prior to the end of the
Term for the purpose of (a) discussing the performance of the Service and the
desirability of extending the term of the Agreement, and (b) mutually agreeing
to revised business plan targets for the renewal.
6.2 REPORTING AND USE OF REPORT INFORMATION. (i) On a weekly basis,
Participant shall provide Netscape with a daily user access log report in
common log format describing the total number of hits and page impressions for
each of the pages in the Service, and such other tracking information as the
parties shall mutually agree, and (ii) Within 15 days after the end of each
month during the Term, Netscape shall provide Participant with a report
describing the number of redirects of traffic to the Service from Netscape's
Web Site and such other tracking information as the parties shall mutually
agree. The information contained in the reports shall be deemed the
Confidential Information of both parties, provided, however that (i) Netscape
shall have the right to use the information contained in such reports in
Netscape's private and public reporting of access to the Service or Netscape's
Web Site; and (ii) Participant shall have the right to use the information
contained in such reports solely for Participant's internal uses except as
required for legal, audit or tax purposes unless Netscape otherwise agrees.
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6.3 AUDIT RIGHTS. Participant shall retain complete, clear and
accurate records regarding its activities under this Agreement. Each Netscape
fiscal quarter (as set forth in Section 2 of Exhibit B) during the Term, the
parties shall review the financial results for the Service and access logs.
Netscape shall have the right, upon no less than 15 days' prior written notice
to Participant, to cause an independent Certified Public Accountant to inspect
and audit, during Participant's normal business hours, all relevant records of
Participant upon which Participant's revenue reports are based and the access
logs. Netscape may conduct such audit once per year. The costs of such audit
shall be paid by Netscape, provided, however, that if said inspection shall
reveal an underreporting in excess of [**] in monies due to Netscape by
Participant or an underreporting in excess of [**] in traffic to the Service,
Participant shall pay for the audit plus any underpayment and make adjustments
based on the underreporting of traffic, if applicable. Netscape's audit rights
as described herein shall continue for [** ] after the expiration or
termination of this Agreement.
6.4 PRESS PLANS. Participant and Netscape agree to participate in two
joint press announcements regarding the Service which will take place after
execution of this Agreement and on or around the Launch Date. The parties shall
agree to the form and content of the joint press release. Either party may
issue its own press release, subject to the other party's prior approval of the
content within the release, which approval will not be unreasonably withheld.
With respect to major advertising and marketing deal announcements regarding
the Service, Netscape and Participant shall have 72 business hours to respond,
in writing, to any proposed announcement. In any press announcement regarding
the Service, both Participant's and Netscape's name and logo shall be included
in the press release.
6.5 RESEARCH. If either party conducts any research directly relating
to the Service, such research results shall be shared with the other on a
timely basis. If Participant or Netscape conducts a study on their respective
Web sites, then both parties will include the Service in the study where
appropriate. Participant will conduct substantially the same level and as much
research and data collection regarding the Service as Participant conducts with
respect to the Participant Brand Service.
7. PAYMENT
For the benefits provided to Participant under this Agreement, Participant
shall pay Netscape the Payment in the amount and subject to the terms set forth
in Exhibit B and Netscape shall pay Participant the amounts set forth in
Section 3.1.6 (b).
8. HARMFUL CONTENT
Each party is solely responsible for any liability arising out of or relating
to any content which such party provides or any material which may be accessed
through a link provided by such party ("Content"). Each party represents and
warrants with respect to its content that it holds the necessary rights to
permit the use of such Content by the other party for the purpose of this
Agreement; and that such party's Content and any material to which users can
directly link through such party's Content will not violate any applicable laws
or rights of any third parties of which either party is aware. If either party
is aware that the other party's Content or web site contains any material that
such party deems likely to cause the other party material harm ("Harmful
Content"), such party will inform the party who provided the Harmful Content
and may (i) not include the Harmful Content in the Service, and/or (ii)
terminate this Agreement if the party who provided the Harmful Content has not
revised it to the other party's satisfaction within five business days after
receipt of written notice (as provided in Section 14.3 below) from the other
party. Each party reserves the right not to include in the Service any Harmful
Content.
9. WARRANTIES
9.1 PERFORMANCE. Participant warrants that (i) it has the right to
perform the services set forth in this Agreement, (ii) such performance does
not infringe any third parties' proprietary or personal rights of which it is
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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aware; and (iii) other than as specifically set forth in this Agreement,
Netscape shall not be obligated to pay any fees or royalties for including the
Service in Netcenter. Participant warrants that the Service will function
substantially in accordance with the terms set forth in this Agreement and
Best-of-Breed Service. Netscape warrants that (i) it has the right to perform
the services set forth in this Agreement, (ii) such performance does not
infringe any third parties' proprietary or personal rights of which it is
aware; and (iii) Participant shall not be obligated to pay any fees or
royalties for participating in Netcenter other than as specifically set forth
in this Agreement. Netscape warrants that Netcenter will function substantially
in accordance with the terms set forth in this Agreement. In any given [** ]
period during the Term, Netcenter shall have an uptime of at least [** ] with
industry standard downtime for maintenance, provided that such downtime not
occur at peak traffic times. Netscape shall repair any malfunctions of
Netcenter within a reasonable period of time (not to exceed [** ] after
notice by any party of such condition.
9.2 DISCLAIMER. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE
THE ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SERVICE AND
NETCENTER. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE PARTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SERVICE AND/OR NETCENTER.
10. INDEMNITY
10.1 PARTICIPANT INDEMNITY. Participant shall indemnify, hold
harmless, and defend Netscape from and against any and all claims, liabilities,
losses, damages, expenses and costs (including attorneys' fees and costs)
arising from third party claims arising out of or relating to the Service
(including but not limited to any spam), Participant's Content and any material
to which users can directly link through Participant's Content, other
information supplied or managed by Participant, or the negligence or
intentional wrongdoing of Participant, except to the extent that Netscape is
responsible under Section 10.2. Participant will pay resulting costs, damages
and legal fees finally awarded in such action in a court or in a settlement
which are attributable to such claim provided that: (i) Netscape promptly
notifies Participant in writing of any such claim; (ii) Participant has sole
control of the defense and all related settlement negotiations; and (iii)
Netscape cooperates with Participant, at Participant's expense, in defending or
settling such claim. The foregoing states Participant's sole obligation and
Netscape's sole remedy for third party claims of infringement or
misappropriation.
10.2 NETSCAPE INDEMNITY. Netscape shall indemnify, hold harmless, and
defend Participant from and against any and all claims, liabilities, losses,
damages, expenses and costs (including attorneys' fees and costs) arising from
any third party claims arising out of or relating to any Content provided by
Netscape to Participant for use in the Service, and any material to which users
can directly link through Netscape's Content, other information supplied or
managed by Netscape, or the negligence or intentional wrongdoing of Netscape,
except to the extent that Participant is responsible under Section 10.1.
Netscape will pay resulting costs, damages and legal fees finally awarded in
such action in a court or in a settlement which are attributable to such claim
provided that: (i) Participant promptly notifies Netscape in writing of any
such claim; (ii) Netscape has sole control of the defense and all related
settlement negotiations; and (iii) Participant cooperates with Netscape, at
Netscape's expense, in defending or settling such claim. The foregoing states
Netscape's sole obligation and Participant's sole remedy for third party claims
of infringement or misappropriation.
11. LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY
OBLIGATIONS AS DESCRIBED IN SECTION 14.1, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION
OF ANY KIND
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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WITH RESPECT TO THIS AGREEMENT WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE,
AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER
(EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING UNDER SECTION 14.1) WHETHER IN
CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED,
IN THE AGGREGATE, AN AMOUNT EQUAL TO [** ].
12. TERM AND TERMINATION
12.1 TERM. Unless earlier terminated pursuant to the provisions of
Section 8, Section 12.2 or as described in Exhibit A, this Agreement shall
begin on the Effective Date and, unless otherwise terminated, end on the last
day of the Service Period. [** ] prior to the expiration of the Term, the
parties agree to negotiate in good faith the terms of a one-year renewal of the
Agreement. If no agreement is reached as to the terms of the renewal period,
the Agreement shall expire at the end of the Term.
12.2 TERMINATION FOR CAUSE. Either party shall have the right to
terminate this Agreement upon a material default by the other party of any of
its material obligations under this Agreement, unless within 30 calendar days
after written notice of such default the defaulting party remedies such
default.
12.3 RIGHTS UPON TERMINATION OR EXPIRATION.
12.3.1 Following expiration or termination of the Agreement,
either party may produce, have produced, use and offer the same or similar
services as contained in the Service, provided that neither party uses,
infringes or misappropriates any of the other party's intellectual property to
do so (except for co-developed intellectual property owned by Netscape and
licensed by Netscape to Participant pursuant to Section 2.4.4), and further
provided that only Netscape shall have the right to offer web-based email
services as replacement services to users of the Service as of the expiration
or termination date. Participant may market alternative services to persons who
may be users of the Service as of the termination or expiration date only if
Participant became aware of, or established a relationship with, such person
independently of such person's participation in the Service. Participant shall
not have the right to use, offer or produce any Non Affiliated Premium Service
following termination or expiration of the Agreement unless Participant enters
into an agreement for such right directly with the provider of such Non
Affiliated Premium Service. Netscape shall not have the right to use, offer or
produce any Premium Service following termination or expiration of the
Agreement unless Netscape enters into an agreement for such right directly with
the provider of such Premium Service.
12.3.2 If the Agreement is terminated in accordance with its
terms, or if no agreement is reached as to the terms of the renewal period, at
Netscape's option, Participant shall continue to offer and produce the Service
in accordance with the terms of this Agreement for a period [** ], or
such other mutually agreed period, following the termination or expiration
date; [**
]
Participant agrees that Netscape shall be entitled to seek injunctive relief
such as specific performance in the event Participant fails to comply with this
Section 12.3.2 without submitting such dispute to the dispute resolution
procedures set forth in Section 14.3.
12.3.3 Netscape shall solely own and use all end user data and
information obtained in connection with the Service except that Participant:
(i) shall have the right to aggregate such end user data and information and
use such aggregated data only for Participant's internal use except as required
for legal, audit or tax purposes; and (ii) shall not disclose to any third
party such end user data and information without Netscape's prior written
approval. The parties will cooperate to create guidelines for Participant's
disclosure of aggregate statistical information concerning Service demographics
and use to advertisers. Participant agrees not to market to any end
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
15.
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user email address obtained in connection with the Service. Upon any expiration
or termination of this Agreement, Participant shall promptly deliver to
Netscape any and all such end user data and information in a form and manner to
be specified by Netscape, and shall certify to Netscape that, except for the
copy delivered to Netscape, Participant has destroyed any and all such data and
information in its possession except for data required for Participant's
internal legal, tax and accounting purposes. In addition to the right to
receive amounts payable at the time of the termination or expiration of this
Agreement, Section 2.4 ("Proprietary Rights"), Section 4 ("End User
Registration"), Section 6.3 ("Audit Rights"), Section 8 ("Harmful Content"),
Section 9 ("Warranties"), Section 10 ("Indemnity"), Section 11 ("Limitation of
Liability"), Section 12.3 ("Rights Upon Termination or Expiration"), Section 13
("Right of First Refusal"), Section 14 ("General"), and provisions in Exhibits
attached hereto that provide for their survival, shall survive the termination
or expiration of this Agreement for any reason. Provisions of other Sections
which, by their nature, must remain in effect beyond the termination or
expiration of this Agreement, shall also survive termination or expiration of
this Agreement for any reason.
12.4 TERMINATION FEES. Netscape represents to Participant that it is
entering into this Agreement in reliance on Participant's representations and
agreement to implement the Service as set forth herein. In the event this
Agreement is terminated at any time during the Term by Participant due to
entering into an agreement with [** ] and such termination is not due to
Netscape's failure to cure a material default as set forth in Section 12.2,
Participant shall, within 3 business days after termination of this Agreement,
pay Netscape, by cashier's check or wire transfer, at the option of Netscape, a
termination fee of [** ] ("Netscape Termination Fee") as liquidated
damages. If some or all of the Netscape Termination Fee is not received by
Netscape within said 3-day period, Participant agrees to pay Netscape a late
fee on the unpaid portion the lesser of (a) 1% per month, or (ii) the maximum
rate allowed by law from the date the Termination Fee was required to be paid
until such unpaid portion is paid in full.
13. [** ]
[**
]
14. GENERAL
14.1 CONFIDENTIALITY. All disclosures in connection with this
Agreement as well as the contents of this Agreement and, subject to the terms
of Exhibit A, End User Information, shall be deemed Confidential Information
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
16.
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and governed by the terms of the mutual confidential disclosure agreement
between the parties effective as of December 3, 1997, a copy of which is
attached hereto as Exhibit C
14.2 INSURANCE. Participant, at its sole cost and expense, shall
secure and maintain adequate insurance coverage as is necessary, as a
reasonable prudent business person, for Participant to bear all of its
obligations under this Agreement. Maintenance of the foregoing insurance shall
in no way be interpreted as relieving Participant of any responsibility or
obligation whatsoever and Participant may acquire, at its own expense, such
additional insurance as Participant deems necessary. Participant assumes full
and complete liability for all injuries to, or death of, any person, or for any
damages to property arising from the acts or omissions of Participant.
Participant shall add Netscape as an additional insured under such coverage and
provide copies thereof within 30 days of the Effective Date or within 30 days
after any change in coverage. Participant's insurance shall be primary to any
other insurance Netscape may have.
14.3 DISPUTE RESOLUTION. Any dispute hereunder will be negotiated
between the parties commencing upon written notice from one party to the other.
Settlement discussions and materials will be confidential and inadmissible in
any subsequent proceeding without both parties' consent. If the dispute is not
resolved by negotiation within 45 days following such notice, the parties will
refer the dispute to non-binding mediation conducted by JAMS/EndDispute. The
parties will share the costs of mediation. If the dispute is not resolved after
45 days of mediation, the parties will refer the dispute to binding arbitration
by JAMS/EndDispute. The location of the arbitration will be Santa Xxxxx County,
California in the case of an arbitration which is initiated by Participant, and
Colorado Springs, Colorado in the case of an arbitration which is initiated by
Netscape. The results of any arbitration will be final and non-appeallable,
except that either party may petition any court of competent jurisdiction to
review any decision relating to intellectual property matters (including the
scope of license rights), vacating or modifying erroneous conclusions of law or
findings of fact not supported by substantial evidence. The arbitrator may
fashion any legal or equitable remedies except punitive or exemplary damages,
which both parties waive. The arbitrator will render a written decision, which
may be entered in and enforced by any court of competent jurisdiction, but
which will have no preclusive effect in other matters involving third parties.
The losing party will pay the costs of the arbitration and the reasonable legal
fees and expenses of the prevailing party, as determined by the arbitrator. The
parties will jointly pay arbitration costs pending a final allocation by the
arbitrator. At any point in the dispute resolution process, either party may
seek injunctive relief preserving the status quo pending the outcome of that
process. Except as noted, the parties waive any right to judicial process.
California law, without regard to its conflict-of-law provisions, will govern
this Agreement. The U.S. Arbitration Act and JAMS/EndDispute rules will govern
the arbitration process. Absent fraudulent concealment, neither party may raise
a claim more than 3 years after it arises or any shorter period provided by
applicable statutes of limitations.
14.4 NOTICES. All notices required or permitted hereunder shall be
given in writing in the English language and shall be addressed to the
respective parties as set forth on the Cover Sheet and shall either be (i)
personally delivered or (ii) transmitted by internationally-recognized private
express courier and shall be deemed to have been given on the date of receipt
if delivered personally, or 2 days after deposit with express courier. Either
party may change its address for purposes hereof by written notice to the other
in accordance with the provisions of this Subsection.
14.5 MISCELLANEOUS. (a) Neither party's waiver of a breach or delay
or omission to exercise any right or remedy shall be construed as a waiver of
any subsequent breach or as a waiver of such right or remedy. (b) This
Agreement may be amended only by a writing signed by both parties. (c) [
** ]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
17.
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[
**
] (d) This Agreement creates no agency,
partnership, joint venture, or employment relationship and neither Participant
nor its agents have any authority to bind Netscape in any respect whatsoever.
(e) All rights not expressly granted by one party to the other party hereunder
shall be reserved. (f) The section headings herein are used for convenience
only and shall have no substantive meaning. (g) In the event any provision of
this Agreement is held by a court or other tribunal of competent jurisdiction
to be unenforceable, such provision shall 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. (h) Either party shall be excused from
any delay or failure in performance hereunder, except the payment of
(undisputed) monies, caused by reason of any occurrence or contingency beyond
its reasonable control, including but not limited to, acts of nature. The
obligations and rights of the party so excused shall be extended on a
day-to-day basis for the period of time equal to that of the underlying cause
of the delay. (i) This Agreement, including the Cover Sheet and Exhibits
hereto, constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior and contemporaneous agreements,
and communications, whether oral or written, between the parties relating to
the subject matter of this Agreement and all past courses of dealing or
industry custom. (j) This Agreement is written in the English language only,
which language shall be controlling in all respects. (k) This Agreement may be
executed in counterparts or by facsimile, each of which shall be deemed an
original and all of which together shall constitute one and the same agreement.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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EXHIBIT A
END USER REGISTRATION
REGISTRATION PROCESS. End users who wish to participate in the Service must
subscribe through Netscape's Netcenter Registration and Service Registration.
Participant shall be responsible for the implementation of the Service
Registration and the integration of the Service Registration with Netcenter
Registration. The functionality, design, and, integration of the Service
Registration and Netcenter Registration will be specified by Netscape and
subject to Netscape's terms and conditions as defined in this Agreement. Such
specifications and terms and conditions may be revised by Netscape from time to
time upon 30 days prior notice to the Participant. The participant will
implement the changes within a 30 day period unless mutually agreed to
otherwise. The point of entry to the registration area (Service Front Page)
shall be hosted and controlled by Netscape unless otherwise determined by
Netscape.
REGISTRATION FEATURES. The Service Registration area shall be co-branded and
have a look and feel which is consistent with the implementation of the
registration process in other sections of Netcenter. Participant shall not
launch the Service Registration until Netscape has notified Participant in
writing that Netscape has accepted Participant's implementation. Participant
shall manage site access using Netcenter site access models, as such site
access models shall be determined by Netscape from time to time upon notice to
Participant. Netscape shall transfer to Participant all data necessary to
provide site access to registered Netcenter users. Participant will make
commercially reasonable efforts to implement such changes within a 30 day
period.
DATA COLLECTED BY PARTICIPANT DURING SERVICE REGISTRATION PROCESS. Netscape
will determine the data to be collected in the Service Registration process
considering Participant's recommendations and technical restrictions. Netscape
reserves the right to change such data requirements from time to time.
Participant will make best efforts to implement these changes within 5 working
days unless mutually agreed to otherwise. [
**
]
DATA TRANSFER. Participant shall use commercially reasonable efforts to
transfer all end user data collected during the Service Registration process as
well as data collected by any other means, to Netscape in real time data
transfer, unless otherwise agreed to by the parties. Netscape reserves the
right to request any information collected during the Service Registration to
be supplied in a Netscape specified format and timeframe. If Participant
collects information about users accessing the Service in addition to
information supplied by the users during the registration process, such
information shall be made available to Netscape in a format and timeframe as
the parties shall mutually agree.
NETCENTER CONSIDERATIONS. All third party programs including but not limited to
Premium Services and Non-Affiliated Premium Services participating in the
Service within Netcenter shall register users with Netcenter when the user
completes an order, if such user is not already registered with Netcenter. If a
user is a registered Netcenter member, Participant shall prepopulate relevant
customer data fields in the customer order form based on information in the
Netcenter database or seamlessly pass this information to the third party
provider.
UNSUBSCRIBE. All outbound communications from the Participant to end users
registered for the Service, except special one-time promotions as defined in
Section 3.1.3, must offer the end user the option of "unsubscribing" from the
outbound communication either through the Service or through Netcenter. In
addition, the Participant must offer the end user a central and consistent
interface to "unsubscribe", cancel, renew, or sign up for any Premium Services,
Non-Affiliated Premium Services, and mutually selected advanced features
offered in the Service. This central account management interface must be
mutually designed by the parties. Participant must also offer end users a
streamlined option for "unsubscribing" completely from the Service or
"de-activating" an email account and all associated Premium Services and
Non-affiliated Premium Services.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
19.
20
PERSONAL DATA CONFIDENTIAL; OWNERSHIP. Netscape shall solely own and use all
end user data and information obtained in connection with the Service except
that Participant: (i) shall have the right to aggregate such end user data and
information and use such aggregated data only for Participant's internal use
except as required for legal, audit or tax purposes; (ii) shall not disclose to
any third party such end user data and information without Netscape's prior
written approval; and (iii) may use information collected about the users
during registration or from any other means ("End User Information") only for
the purpose of marketing Premium Services, Non-affiliated Premium Services,
Advanced Features, and Netcenter programs to the users. The parties will
cooperate to create guidelines for Participant's disclosure of aggregate
statistical information concerning Service demographics and use to advertisers.
Participant shall not resell or disclose such End User Information to any third
party; provided however, that Participant may sell or disclose such End User
Information to third parties upon prior notice to and consent from such end
users. If Netscape determines that Participant or third party in contract with
Participant is not complying with the terms of use of personal data published
on Netscape's Web Site at xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxxx/xxxxx.xxxx, or
such other URL as Netscape may determine from time to time Netscape may
terminate this Agreement upon written notice (as provided in Section 13.3) to
Participant if Participant is not in compliance within 5 days of written notice
from Netscape. End User Information shall be owned exclusively by Netscape.
After a given end user has requested to be "unsubscribed" from the Service,
Participant will terminate all Premium Service or Non-Affiliated Premium
Services unless otherwise specified by the user and discontinue any use of the
End User Information associated with the given user. After the termination or
expiration of this Agreement, Participant will transfer all data to Netscape
and destroy all copies as described in Section 12.3.3, other than data required
for Participant's internal legal, tax and accounting purposes.
20.
21
EXHIBIT B
PAYMENT TERMS
1. PAYMENT: Participant shall pay Netscape the following amounts as the
Payment:
1.1 SCHEDULE FOR NET REVENUE SHARING. Except as set forth below
in Sections 1.2 and 1.3, revenue generated by the Service shall be split
between Participant and Netscape according to the schedule below. Time periods
noted below commence with the Launch Date.
-------------------------------------------------------------------------------
Time Period Netscape Split Participant Split
-------------------------------------------------------------------------------
[ ** ** ** ]
-------------------------------------------------------------------------------
[ ** ** ** ]
-------------------------------------------------------------------------------
[ ** ** ** ]
-------------------------------------------------------------------------------
[ ** ** ** ]
-------------------------------------------------------------------------------
DEFINITION OF "NET REVENUE." Net Revenue is defined as total gross revenues,
specifically excluding taxes, from the sum of:
(a) advertising net revenue (gross advertising revenues less
reasonable fees and commissions, including but not limited to internal
commissions, [ ** ];
(b) Sponsorships (gross sponsorship fees less commissions,
including but not limited to internal commissions, [ ** ];
(c) Premium Services; and
(d) special one-time offers net revenue (gross promotional
revenues less reasonable fees and commissions, including but not limited to
internal commissions, [ ** ];
and in the case of each of (a) - (d) above, less mutually agreed deductions
such as bad debt, returns, billing costs and/or cost of sales, provided that
the total combined deductions against such revenue [ ** ].
If it appears that the deductions for the items above [ ** ],
Participant shall consult with Netscape regarding which party should sell to
the advertiser or sponsor in question.
1.2 With respect to revenue from In-Box Direct promotions included
in the Service Registration process, the parties will split such revenue
[ ** ], after subtracting mutually agreed deductions
such as bad debt, returns, and/or cost of sales.
1.3 With respect to Non Affiliated Premium Services, the parties
shall negotiate a revenue sharing agreement prior to integrating such service.
In addition, Netscape shall reimburse Participant for the reasonable cost of
integration relating thereto as set forth under Section 3.1.6(b). The parties
agree that if Participant only includes a link in the Service to the Non
Affiliated Premium Service, Netscape will not pay any costs or share any
revenue with Participant for such Non Affiliated Premium Service. If
Participant does perform integration work as defined in Section 3.1.6(b) for a
Non Affiliated Premium Service (other than for In Box Direct, for which
Netscape shall not pay any integration costs or share revenue), Netscape will
reimburse Participant for reasonable integration costs [
** ]. If Participant performs such
integration work and
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
21.
22
performs other substantial services (such as integrated billing) with respect
to a Non Affiliated premium Service, Netscape will reimburse Participant for
the reasonable costs thereof and the parties will negotiate the revenue-sharing
terms on a case-by-case basis.
1.4 The parties acknowledge that there may be additional revenue
opportunities under this Agreement, and the parties will mutually agree to the
revenue split on a case by case basis.
2. TIMING OF PAYMENT. Within [ ** ] after the end of each Netscape
fiscal quarter during the Term of this Agreement, each paying party
shall deliver to the receiving party a report describing in detail the
calculation of gross revenue actually collected and net revenue
actually collected for such fiscal quarter, and shall pay to the
receiving party such party's portion of such net revenue actually
collected calculated as described above, with no right of set-off. The
Netscape fiscal quarter shall be based on a fiscal year ending October
31.
3. POST-TERM PAYMENTS OF BAD DEBT. After termination or expiration of
this Agreement, each paying party shall pay to the receiving party all
amounts received by the paying party previously charged by the paying
party as "bad debt" ("Bad Debt Payments") and deducted from gross
revenue under Section 1 above to the extent such deducted amounts have
not already been paid to the receiving party. Within 30 days of the
receipt of any Bad Debt Payment, the paying party shall deliver such
payment to the receiving party. This Section shall survive expiration
or termination of this Agreement.
4. CURRENCY AND TAXES. All amounts payable hereunder are denominated in
U.S. Dollars, and all amounts payable hereunder shall be remitted in
U.S. Dollars. Any portion of any payment due which has not been paid
during the applicable time set forth herein shall bear interest at the
lesser of (i) 1% per month or (ii) the maximum rate allowed by law.
All payments due hereunder are exclusive of any applicable taxes. The
collecting party shall be responsible for all applicable national,
state and local taxes, value added or sales taxes, exchange, interest,
banking, collection and other charges and levies and assessments
pertaining to payments other than U.S. taxes based on Netscape's net
income. If the collecting party is required by law to make any
deduction or to withhold from any sum payable to the other party
hereunder, the collecting party shall effect such deduction or
withholding, remit such amounts to the appropriate taxing authorities
and promptly furnish the other party with tax receipts evidencing the
payments of such amounts. For every dollar for revenue sharing under
this Agreement, "collecting party" means the first of Netscape or
Participant to collect such dollar. This Exhibit shall survive
termination or expiration of this Agreement.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
22.
23
EXHIBIT C
SEE ATTACHED MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT EFFECTIVE
DECEMBER 3, 1997
23.
24
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
This Mutual Confidential Disclosure Agreement ("Agreement") is entered into
between Netscape Communications Corporation ("Netscape") and XXX.Xxx
("Company"), and is effective as of the date of execution by Netscape
("Effective Date"). Each party (the "Receiving Party") understands that the
other party (the "Disclosing Party") may disclose certain Confidential
Information (as defined in Section 1 below) under this Agreement. Netscape and
Company agree as follows:
1. DEFINITION. "Confidential Information" shall mean (i) all information
disclosed in tangible form by the Disclosing Party and marked
"confidential" or "proprietary", and (ii) all information disclosed
orally or otherwise in intangible form by the Disclosing Party and
designated as confidential or proprietary at the time of disclosure.
Confidential Information may include, without limitation, computer
programs, code, algorithms, names and expertise of employees and
consultants, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial
and product development plans, forecasts, strategies and information.
2. PURPOSE. The Receiving Party shall use the Confidential Information
only for the following purposes:
a) To evaluate whether to enter into a contemplated business
transaction; and
b) if Netscape and Company enter into such contemplated business
transaction, to fulfill each party's commitments under the
agreement for such business transaction.
3. CONFIDENTIALITY OBLIGATION. The Receiving Party agrees to protect the
Confidential Information by using the same degree of care, but not less
than a reasonable degree of care, to prevent the unauthorized use,
dissemination or publication of the Confidential Information as the
Receiving Party uses to protect its own confidential or proprietary
information of a like nature. The Receiving Party shall limit the use
of and access to the Disclosing Party's Confidential Information to the
Receiving Party's employees or independent contractors who need to know
such Confidential Information for the purposes set forth in Section 2
above and who have entered into binding obligations of confidentiality
substantially similar to the obligations set forth herein.
4. TERM. The Receiving Party's obligations to protect Confidential
Information hereunder shall expire 3 years from the date of each such
disclosure of Confidential Information, except when such Confidential
Information disclosed by the Disclosing Party is source code, in which
case the Receiving Party's obligations to protect such Confidential
Information shall be perpetual.
5. EXCLUSIONS. Confidential Information as defined in Section 1 above
shall not include Confidential Information that: (i) is or becomes a
matter of public knowledge through no fault of the Receiving Party; or
(ii) was in the Receiving Party's possession or known by it prior to
receipt from the Disclosing Party; or (iii) was rightfully disclosed to
the Receiving Party by another person
24.
25
without restriction; or (iv) is independently developed by the
Receiving Party without access to such Confidential Information. The
Receiving Party may disclose Confidential Information pursuant to any
statutory or regulatory authority or court order, provided the
Disclosing Party is given prompt written notice of such requirement and
the scope of such disclosure is limited to the extent possible.
6. INDEPENDENT DEVELOPMENT. The terms of confidentiality under this
Agreement shall not be construed to limit either party's right to
independently develop or acquire products without use of the other
party's Confidential Information. Further, Confidential Information as
defined in Section 1 above shall not include the Residuals resulting
from access to such Confidential Information. The term "Residuals"
means information in intangible form which may be retained in the
unaided memories of Receiving Party's employees or independent
contractors who have had access to the information. An employee's or
contractor's memory will be considered to be unaided if the employee
has not intentionally memorized the Confidential Information for the
purpose of retaining and subsequently using or disclosing it. Neither
party shall have any obligation to limit or restrict the assignment of
such persons or to pay royalties for any work resulting from the use of
Residuals. However, the foregoing shall not be deemed to grant to
either party a license under the other party's copyrights or patents.
7. RETURN OF CONFIDENTIAL INFORMATION. Upon written request by the
Disclosing Party at any time, the Receiving Party shall: (i) turn over
to the Disclosing Party all Confidential Information of the Disclosing
Party, all documents or media containing the Confidential Information,
and any and all copies or extracts thereof, or (ii) destroy the
Confidential Information, and any and all copies or extracts thereof,
and provide the Disclosing Party with written certification of such
destruction signed by an authorized representative of the Receiving
Party.
8. EQUITABLE RELIEF. The Receiving Party acknowledges and agrees that due
to the unique nature of the Disclosing Party's Confidential
Information, there may be no adequate remedy at law for any breach of
its obligations. The Receiving Party further acknowledges that any such
breach may allow the Receiving Party or third parties to unfairly
compete with the Disclosing Party resulting in irreparable harm to the
Disclosing Party and, therefore, that upon any such breach or any
threat thereof, the Disclosing Party shall be entitled to seek
appropriate equitable relief in addition to whatever remedies it may
have at law. The Receiving Party will notify the Disclosing Party in
writing immediately upon the occurrence of any such unauthorized
release or other breach.
9. INTELLECTUAL PROPERTY RIGHTS. Neither party acquires any intellectual
property rights or any other rights under this Agreement or through any
disclosure hereunder, except the limited right to use the Confidential
Information in accordance with this Agreement.
10. WARRANTY. The Confidential Information disclosed under this Agreement
is delivered "AS IS," and all representations or warranties, whether
express or implied, including warranties or conditions for fitness for
a particular purpose, merchantability, title and noninfringement, are
hereby disclaimed.
11. NETSCAPE SUBSIDIARIES. Netscape's wholly owned subsidiaries, by signing
this Agreement on behalf of Netscape and returning a fully executed
original or copy to the Netscape Legal Department, shall be entitled to
disclose Netscape's Confidential Information and receive Company's
Confidential Information on behalf of Netscape under this Agreement,
provided such subsidiaries comply with the terms and conditions of this
Agreement and further provided such disclosures or receipt of
Confidential Information are governed by the terms and conditions of
this Agreement.
25.
26
12. GENERAL. This Agreement supersedes all prior discussions and writings
with respect to the subject matter hereof, and constitutes the entire
agreement between the parties with respect to the subject matter
hereof. No waiver or modification of this Agreement will be binding
upon either party unless made in writing and signed by a duly
authorized representative of each party and no failure or delay in
enforcing any right will be deemed a waiver. The parties understand
that nothing herein requires either party to proceed with any proposed
transaction or relationship in connection with which Confidential
Information may be disclosed. In the event that any of the provisions
of this Agreement shall be held by a court or other tribunal of
competent jurisdiction to be unenforceable, the remaining portions
hereof shall remain in full force and effect. This Agreement shall be
governed by the laws of the State of California without regard to
conflicts of laws provisions thereof and each party submits to the
jurisdiction and venue of any California State or federal court
generally serving the Santa Xxxxx county area with respect to the
subject matter of this Agreement. The headings to the Sections of this
Agreement are included merely for reference and shall not affect the
meaning of the language included therein. This Agreement is written in
the English language only, which language shall be controlling in all
respects. Les parties aux presentes confirment leur volonte que cette
convention de meme que tous les documents y compris tout avis qui s'y
rattache, soient rediges en langue anglaise (translation: "The parties
confirm that this Agreement and all related documentation is and will
be in the English language.") .
NETSCAPE COMMUNICATIONS COMPANY
CORPORATION
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------------- ---------------------------------
Signature Signature
Name: Xxx Xxxxxx Name: Xxxxx X. Xxxxx, Xx.
---------------------------- -------------------------------
Print or Type Print or Type
Title: Grp Prgm Mgr Title: VP, Business Development
---------------------------- ------------------------------
Date: 12/3/97 Date: 12/3/97
Address: Address:
000 Xxxx Xxxxxxxxxxx Xxxx 000 X. Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx Xxxxxxx, XX 00000
26.
27
EXHIBIT D
PREMIUM SERVICES AND ADVANCED FEATURES
Phase 1 (April 30, 1998 Launch Date) will consist of the Basic Features with
selected Advanced Features and Premium Services as described under Phase 1
below and integration from a content perspective into Netcenter indexes, home
page of Netscape's Web Site, and registration.
Phase 2 (not later than [ ** ] will expand the Advanced Features as well as
Premium Services, implement a more integrated solution for the user
name/password issue, and integrate a highlights section of In-Box Direct into
the sign up process for the Service.
Phase 3 (not later than [ ** ] will continue to expand the Advanced Features
as well as Premium Services, completely resolve the site access/user
validation user name/password issue, and integrate the Service more thoroughly
into other Netcenter services.
Both parties acknowledge that the above dates may change due to Universal
Registration integration issues. Advanced Features/Premium Services are still
expected to be available per the dates currently reflected for each phase.
Consequently, if the phase dates are delayed, it is expected that the Advanced
Features/Premium Services would be revised accordingly by mutual agreement.
Notwithstanding the foregoing, the Launch Date shall not be more than [ ** ]
beyond April 30, 1998. If the event the Launch Date fails to occur during said
[ ** ] period and such failure is not as a result of Section 12.4 of the
Agreement, either party shall have the right to terminate this Agreement
immediately with no obligation to either party.
[
**
]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
27.
28
[
**
]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
28.
29
[
**
]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
29.
30
[
**
]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
30.
31
[
**
]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
31.
32
[ ** ]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
32.
33
EXHIBIT E
BEST-OF-BREED SERVICE
[ ** ]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
33.
34
[**]
EXHIBIT F
NETSCAPE ADVERTISING GUIDELINES
Subject to the other terms and conditions of the Agreement, Participant shall
not publish any advertisements or other promotional text and/or graphics
containing content that may be unlawful, inappropriate or otherwise harmful to
Netscape, including but not limited to any advertisement of third party products
and/or services directly competitive with Netscape's software products and
online services or any advertising by mutually agreed competitors. Inappropriate
content shall also include but not be limited to content pertaining to tobacco,
alcohol, gambling, pornography and other adult content.
Netscape has the right to refuse to publish, or direct Participant to refuse to
publish, any advertisement which Netscape deems inappropriate for any reason at
any time (no ads for competitive products).
Netscape has the right to request that any advertisement or other promotional
text and/or graphic be removed from the Service if it is deemed by Netscape to
be inappropriate. Participant will use commercially reasonable efforts to
remove the inappropriate content within a 24 hour period.
Netscape reserves the right to change the Netscape Advertising Guidelines from
time to time provided that notice is given to the Participant within a time
period to be mutually agreed by Netscape and the Participant.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
34.
35
[ ** ]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
35.
36
[**]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
36.
37
EXHIBIT G
SEE ATTACHED IN BOX DIRECT AGREEMENT
1.
38
NETSCAPE IN-BOX DIRECT PROGRAM GUIDELINES AND APPLICATION
YOU MUST SUBMIT AN APPLICATION AND COMPLY WITH THE FOLLOWING GUIDELINES TO BE
ELIGIBLE TO BECOME A PARTICIPANT IN NETSCAPE'S IN-BOX DIRECT PROGRAM. NETSCAPE
WILL NOTIFY YOU OF NETSCAPE'S ACCEPTANCE OF YOUR APPLICATION.
GUIDELINES
I. PROGRAM INPUTS
You will send the In-Box Direct (IBD) program manager an email and hard copy of
all inputs listed below by the push deadline as communicated by the In-Box
Direct program manager. To avoid delay, at the time you submit the inputs, you
should have already tested the inputs to ensure that they have been completed to
the listed specifications. If you are currently participating in the IBD
program, you need to ensure you revise your offerings to comply with the Program
Guidelines as outlined below.
A. NAME OF THE SERVICE
1. The title of the service that you would like to have listed on the IBD page.
B. DESCRIPTION OF THE SERVICE
1. A 30-40 word description to be listed on the IBD page. This description is
subject to Netscape's review, and may be edited by Netscape before posting on
the IBD page.
2. The description must differentiate your service from the service of others
listed on the IBD page.
3. The description must indicate the frequency of the mailings, e.g., daily,
weekly, etc.
4. The description must indicate the languages in which the service is
available.
C. DEDICATED EMAIL ADDRESS
1. You must provide a dedicated email address to which subscriber datafeeds
can be emailed by Netscape on a daily basis. (Only datafeeds from Netscape can
arrive at this address).
2. Your system must be able to receive and process data sent from Netscape
once a day, 7 days a week, between 12 a.m. to 4 a.m. PST
D. EXAMPLE MAILING
1. At an early stage of development of the example mailing, you must review
the content and layout of the example mailing with the program manager. The
program manager must give final approval of the example mailing before it can be
included in the push.
2. Two weeks prior to the push deadline, established by the IBD Program
Manager, you must send the IBD program manager a URL which links to an example
mailing. In addition, you must send the program manager an example mailing
served off of your server as if the program manager had signed up for the
service by the push deadline.
1.
39
3. All mailings must be in HTML; however, the following text must appear in the
header so that an ASCII user who subscribed can view the mailing.
HTML within open and close angle brackets
Welcome to (your title here), a free service of ( your company,
> publication or service name here). If you can read this message,
> but the rest of the email contains strange characters, your email
> program is not capable of reading HTML mail. Use your browser to read
> the complete (your newsletter or publication) online at http://(your
> address here - full URL). However, if you would like to view this
newsletter
> in HTML, you can upgrade to Netscape Navigator version 3.0 or
Netscape
> Communicator version 4.0, both of which can be downloaded from
> xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxx/xxxxxx_xxxxxxxx.xxxx?xxxxxxxxxxxx
4.03
*******************************************************************
-->
4. All mailings must provide two forms of unsubscribe functionality: 1) direct
from the mailing and 2) a link back to In-Box Direct with instructions on how to
unsubscribe. SEE SECTION II.C. for more information.
5. All mailings must include the current IBD branding GIF per Netscape's
specifications.
6. You must place the following tag line at the bottom of each mailing to
In-Box Direct subscribers: "This mailing is best viewed through Netscape
Communicator".
E. WELCOME AND/OR REGISTRATION LETTER (USED TO CUSTOMIZE THE SERVICE)
1. You must send the program manager a URL for your welcome mailing. In
addition, two weeks prior to the push deadline, you must send the program
manager a Welcome Letter served off of your server as if the program manager had
signed up for the service.
2. You do not need to include a separate Welcome Letter if its actual content
will be delivered within forty-eight hours after a user subscribes to the
service. Welcome Letters that are not in English need to include, at a minimum,
a button in English saying, "UNSUBSCRIBE".
3. All mailings must be in HTML; however, the following text must appear in
the header so that an ASCII user who subscribed can unsubscribe
HTML within open and close angle brackets
Welcome to (your title here), a free service of (your company,
> publication or service name here). If you can read this message,
> but the rest of the email contains strange characters, your email
> program is not capable of reading HTML mail. Use your browser to
read
> the complete (your newsletter or publication) online at http:/
/(your
> address here - full URL). However, if you would like to view
this newsletter
> in HTML, you can upgrade to Netscape Navigator version 3.0 or
Netscape
> Communicator version 4.0, both of which can be downloaded from
2.
40
> xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxx/xxxxxx_xxxxxxxx.xxxx?xxxxxxxxxxxx
4.03
******************************************************************
-->
4. If you offer the option of customizing the service, then the Welcome Letter
will also serve as a Registration Letter. The Welcome/Registration letter must
give the user the opportunity to select customized features of the service, such
as language, frequency of delivery, topics of interest, and authors.
o You must have a default for all customized publications so that a subscriber
who fails to take action on the Welcome Letter will at least receive some
content from you.
o You may not ask IBD subscribers any questions in your Welcome/Registration
Letter which would have already been answered in the IBD registration process
and forwarded to you through the Netscape daily datafeeds.
5. All mailings must provide two ways to unsubscribe: 1) direct from the
mailing; and 2) a link back to In-Box Direct with instructions on how to
unsubscribe. SEE SECTION II.C. for more information.
6. All mailings must include the current IBD branding GIF per Netscape's
specifications as well as the Netscape Now button.
7. You must place the following tag line at the bottom of each mailing to In-Box
Direct subscribers: "This mailing is best viewed through Netscape Communicator".
F. GOODBYE/UNSUBSCRIBE MESSAGE
1. You must send the program manager a URL for your Goodbye/Unsubscribe mailing
by the push deadline.
2. The Goodbye/Unsubscribe Message serves as a confirmation to end users that
their cancellation requests have been received and processed. The
Goodbye/Unsubscribe Message must be written in HTML, but have a section in
ASCII.
3. Non-English services must include an unsubscribe confirmation in both English
as well as the language of origin.
4. You must send the Goodbye/Unsubscribe Message to all IBD users who
unsubscribe from your service. This includes users who unsubscribe direct from
the mailing, users who unsubscribe through In-Box Direct, and users who
unsubscribe by sending a special request to IBD feedback (handled by IBD
customer service).
5. You must send Goodbye/Unsubscribe Message within twenty-four hours of
receiving notification from the subscriber or Netscape.
6. It is recommended, although not required, that you include an exit survey as
part of your unsubscribe process or goodbye message. This will enable you to
better understand retention issues and revise your service accordingly. Examples
of unsubscribe surveys are available on request from the program manager.
3.
41
G. SAMPLE PAGE
1. You must send the sample page URL to the program manager by the push
deadline. After the push is executed, all sample pages will be hosted by
Netscape on the Netscape site.
2. It is your responsibility to test thoroughly the sample pages and to verify
compliance with all sample page specifications. You understand that inability to
meet sample page specifications by the push deadline, may result in a delay of
at least one month in the commencement of program participation.
o The Sample Page Checker tool at the following URL will assist you in meeting
these specifications:
XXXX://XXXX.XXXXXXXX.XXX/XXXXXXX/XXX/XXXXXX_XXXXX.XXXX
o Sample pages must be tested on Win95, Windows 3.1, Macintosh, and UNIX. Note
that some sample pages that appear fine on a Macintosh will bleed out of the box
when viewed with Windows 95.
3. The sample page can be no more than three pages. It is suggested that you
use one page to explain the features and benefits of the service and one page to
show the users an example of an actual mailing.
4. The sample page must be sized to fit within 640 x 400 pixels. You must test
the size of the sample on a PC WINDOWS 95 system. The Sample Page Checker URL
will enable you to test the size and verify compliance with the required
dimensions.
5. If multiple pages (maximum 3) are used, all pages must be linked together.
"MORE" and "BACK" links must be implemented. "Back" links ("Back" to the
previous sample page) must be included on all pages, except the first page.
6. A "Return to In-Box Direct" button must be located in the upper right
region of each page. The preferred layout can be seen at The Sample Page Example
which can be accessed from the IN-BOX DIRECT SAMPLE PAGE GUIDELINES page at
XXXX://XXXX.XXXXXXXX.XXX/XXXXXXX/XXX/XXXXXXXXXX.XXXX.
7. On all pages, clicking on either the "Return to In-Box Direct" words or the
In-Box Direct GIF, must close the sample page window and bring the user back to
the In-Box Direct site.
o NOTE: This sample page window operation requires specific JavaScript. The
return button GIF and JavaScript are provided by Netscape. Refer to The Sample
Page Template (XXXX://XXXX.XXXXXXXX.XXX/XXXXXXX/XXX/XXXXXX.XXX) which provides
the necessary HTML, GIF, and JavaScript.
8. The sample page may not contain any of the following: outside links, menu
bar, button bar, location entry field, scroll bars, or a resize handle.
9. Sample page must not exceed 25 kilobytes (this includes the HTML file and
all images).
10. Link color must change from blue to red after execution.
II. SERVICE STANDARDS/ONGOING PROVIDER RESPONSIBILITIES
You will make every reasonable effort to work with Netscape to provide the
highest quality service and experience for the end user.
4.
42
A. HTML MAIL REQUIREMENTS
1. You are responsible for creating and producing a free HTML publication as
approved by the IBD Program Manager, and mailing all content directly to the
subscriber on a regular basis.
2. You must comply to the frequency standards you have established for yourself
and communicated to the subscriber in the description of the service, e.g., if
listed as a daily service in In-Box Direct, mailings must be sent out to
subscribers daily.
3. You must contact the subscribers within forty-eight hours of receiving
subscription information with either a Welcome Letter or an actual mailing.
4. You must contact the subscribers within twenty-four hours of receiving an
unsubscribe request with a written confirmation of the unsubscribe,
5. You must follow the instructions immediately below to insure that the mail
is properly displayed by Netscape Messenger or any other mail clients that read
HTML format mail.
o Include CONTENT-TYPE: TEXT/HTML as the header (first line) of the content to
be delivered. The header must be followed by one blank line.
6. To facilitate user filtering, the subject (header) field of each IBD email
sent by you must begin with a designated prefix (IBD). For example: IBD- People
Daily November 13.
This will enable IBD users to filter for IBD mail and to store such mail in a
separate email folder, thereby reducing the tendency to unsubscribe.
7. All IBD mailings must contain the following components:
o Unsubscribe functionality as defined in the Unsubscribe section in Section
II.c.
o IBD/ Netscape branding as defined in the branding section in Section III.
o IBD indicator in subject field as described above.
8. You must make every reasonable effort to facilitate the collection of user
feedback relative to your service. A hot button or an email address such as,
xxxxxxxx@XX.xxx, must be included on all IBD mailings. Note: Customer feedback
must only be collected if you have the resources to support it.
B. DATABASE / LIST SERVER REQUIREMENTS
1. You are responsible for setting up and managing your own subscriber
database and mailing list from the data provided by Netscape.
2. Your system must be able to receive and process data sent from Netscape
once a day, 7 days a week, between 2:30 a.m. to 6:30 a.m. PST.
o Netscape provides, on a daily basis, a data feed which contains information
to CREATE new subscriptions, DELETE unsubscribes and UPDATE (changes to)
subscriptions. Your system must be able to recognize status codes (e.g., create,
update, delete), and process the record accordingly. Updates must be processed
within twenty-four hours of receipt.
5.
43
o Data is always transmitted on the morning after it is collected. For
example, if today is 12/24/97, the daily feed received by 4 a.m. today, is
12/23/97's registration information. Thus, the subject field will read "IBD
Registration for 12/23/97".
3. You must structure your subscription fulfillment processes such that
duplicate email addresses are automatically caught to prevent subscribers from
receiving multiple copies of a mailing. Duplicates in the name field must be
allowed, because individuals may have the same name or individuals may choose to
subscribe from multiple email addresses, that is, office and personal email
addresses.
4. Your list servers must be configured so that subscribers on the list CANNOT
send to the list. Only you should be able to 1) send to the list, and 2) view
the members of the list.
5. You must also ensure that the reply-to and from fields in the email from
the list server point to appropriate email addresses. For example, the reply-to
might be directed to an alias for whoever is maintaining the list, so that the
maintainer of the list can respond to any queries.
6. Ideally, the list server should send one email out at a time
(personalized). If not, it must load multiple subscriber names into the BCC
field (blind carbon copy), NOT the TO or CC fields.
7. You must build a mechanism to monitor that a daily data feed from Netscape
was received. You must notify Netscape immediately if there are any problems
with the data feed. (Currently, problems can be sent to xxxxxx@xxxxxxxx.xxx with
a copy to xxxx@xxxxxxxx.xxx).
8. You should use a database with send mail capability or a listserve product
to distribute your HTML email. See below for a list of products, outsources, and
prices to find out more information.
o Majordomo - (freeware) at xxxx://xxx.xxxxxxxxxxx.xxx/xxxxxxxxx
o Listserv: xxxx://xxx.xxxxx.xxx
o UNIX send mail command
o Email Publishing, Inc. is an email broadcasting outsourcing service which
has assisted several IBD providers in the past. Email Publishing can set up and
manage the database, develop the sample page, and even create templates for
ongoing HTML mailings. If interested, contact Xxxxxx Xxxxxx, at (000) 000-0000
or xxxxxx@xxxxxxxx.xxx. For a special rate, you must identify yourself as an
In-Box Direct participant.
o The names of several Internet service providers that manage mailing lists
are posted at xxxx://xxx.xxxxxxx.xxx/xxxxxx/xxxxxxx-xxxx-xxxxxxxxx.xxxx
C. "UNSUBSCRIBE" REQUIREMENTS
1. You must support three forms of unsubscribe functionality in every outbound
mailing including the Welcome Letter, with the exception of the unsubscribe
confirmation notice. The first two options must be clearly visible in the HTML
content and communicated to the end user. The last of these options must only be
visible to ASCII users and not HTML readers.
o Option 1: Unsubscribe functionality from the outbound mailing directly to
the you.
6.
44
o Option 2: A link to In-Box Direct along with an explanation of how the user
can unsubscribe by unchecking the box next to the service offering on the
selections page in In-Box Direct. (Note that this link must be separate from the
IBD branding link.)
o Option 3: Instructions for ASCII users regarding how to unsubscribe if they
have signed up for this mailing in error. The instruction message must be placed
after the /Body with open and close angle brackets and prior to close /HTML
with open and close angle brackets.
2. You must act on the Unsubscribe information received from the IBD data
feed, IBD customer service, or directly from your site, by discontinuing the
service to the subscriber, within twenty-four hours of receipt of such request.
3. Below is the wording that must appear at the bottom of each outbound
mailing:
/Body within open and close angle brackets
HTML within open and close angle brackets.
4. You must ask the users to provide their IBD email addresses in option 1.
The correct IBD email address is not always apparent since many users have
multiple addresses, forwarding, company extensions, etc. If you attempt to use
an incorrect email address, the user's request will not be completed and user
satisfaction will suffer.
5. Subscribers must not be required to remember a special username and a
password in order to cancel their subscription. User email address or actual
name should suffice.
6. You must send a Goodbye/Unsubscribe Message to all IBD users who
unsubscribe from your service. This Goodbye/Unsubscribe Message must be sent to
users who unsubscribe directly from the mailing, users who unsubscribe through
In-Box Direct, and users who unsubscribe by sending a special request to IBD
feedback (handled by IBD customer service).
7. You must send this Goodbye/Unsubscribe Message, within twenty-four hours of
receiving notification from the subscriber or Netscape.
8. You will make reasonable efforts to work with Netscape to improve
continually the unsubscribe process/functionality. You must promptly comply with
any new unsubscribe methodology developed by Netscape.
D. PAID SUBSCRIPTION REQUIREMENTS
1. If you wish to offer subscribers a more in-depth paid service related to
the same content as your free service, you may do so provided that you extend
the offer in the regular free mailing, and you make it clear that the subscriber
can continue to receive the free mailing. You must also continue to provide
content which complies with the Participation Guidelines and has been approved
by the IBD Program Manager to subscribers at no charge.
7.
45
2. You cannot ask for credit card information up front or solicit your paid
service by telephone or email unless requested by subscriber.
III. BRANDING AND PROMOTIONS
You understand that the list below represents the minimum marketing requirements
with which you must comply. You will make every reasonable effort to work with
Netscape to carryout marketing efforts beyond those listed below to develop and
implement programs which promote your service as well as the In-Box Direct
program as a whole.
1. You will display the Netscape Now and IBD logos (with a link to Netscape's
Home page and IBD page) on your home pages. If the Internet Explorer logo is
displayed in your content, the Netscape logo must be displayed with at least
equal prominence. The logos must be in place the day your content is pushed to
the IBD site.
o The IBD logo can be obtained from:
XXXX://XXXX.XXXXXXXX.XXX/XXXXXXX/XXX/XXXXXX/XXX_XXXX.XXX
o The IBD logo must link to XXXX://XXXX.XXXXXXXX.XXX/XXX/XXX-XXX/XXX-X.XXX
o The Netscape Now logo can be obtained from the home page of the country
that is most relevant to you. The Netscape Now logo must link to the Netscape
home page of the country that is most relevant to you.
2. You must display the IBD Logo (with a link to Netscape's Home page and IBD
page) on every outbound mailing to In-Box Direct subscribers. In the event that
the IBD logo is updated, you must substitute the new GIF within thirty days of
notification. The IBD Program Manager shall receive a sample of your outbound
mailings containing the IBD and Netscape Now logos. The IBD Program Manager
should receive such sample either prior to or at the same time that the mailing
is sent to IBD subscribers.
o Until the new IBD logo is developed, you must display the mailbox GIF with
the words "To subscribe to other quality publications like this, please go to
Netscape's In-Box Direct page" (with a link to In-Box Direct -
XXXX://XXXX.XXXXXXXX.XXX/XXX/XXX-XXX/XXX-X.XXX).
o You must not alter the GIF or text as provided by Netscape.
3. You must place the following tag line at the bottom of each mailing to
In-Box Direct subscribers: "This mailing is best viewed through Netscape
Communicator".
4. You must send a mailing to your current user-base (or include a feature in
a current mailing) advising your subscribers of your participation in In-Box
Direct and encouraging such subscribers to visit the In-Box Direct website. This
must be done within one month of your signing this agreement. IBD Program
Manager must receive and approve a copy of promotional mailing sent to your
current user base announcing your participation in the In-Box Direct program and
encouraging subscribers to visit the IBD web site. This copy must be provided at
least one week prior to the day of the mailing.
5. During the duration of this Agreement, on your primary Web site you shall
provide a minimum of two days of page impressions per month for a co-branded
banner supporting your service as well as In-Box Direct as a whole. The IBD
Program Manager must be given a schedule of when the page impressions will be on
your site no later than two weeks after signing the agreement. If you do not
offer
8.
46
paid commercial advertising on your site, you must work with the IBD program
manager to design and implement a program of equivalent value.
o Netscape shall provide a template for the banner.
o You can choose to use a non co-branded Netscape In-Box Direct banner if this
is preferable.
6. During the duration of your participation in the In-Box Direct program, if
you offer the same HTML mailing as offered to In-Box Direct subscribers directly
to users on their Web site, you must include a permanent IBD link or include the
IBD half banner in a minimum of twelve of those mailings. The IBD Program
Manager must be given a schedule of your IBD promotional mailings to your HTML
service subscribers not referred by IBD no later than two weeks after signing
the agreement.
IV. FEEDBACK
1. You should make reasonable efforts to provide Netscape with ideas for
improving the In-Box Direct program including identifying any user/provider
issues that come to your attention. Comments should be sent to
XXXxxxxxxxx_xxxxxxxx@xxxxxxxx.xxx
2. You should actively participate in surveys, discussion groups, or ongoing
continuing improvement activities pertaining to In-Box Direct.
3. You should share any tips, tools, best practices developed for IBD with
Netscape and other IBD participants to improve the usefulness and effectiveness
of the In-Box Direct program.
4. You should facilitate the collection of any user feedback relative to your
service. A hot button or an email address such as xxxxxxxx@XX.xxx should be
included on all IBD mailings. Note: Customer feedback should only be collected
if you have the resources to support it.
5. Any trends, or issues with the overall IBD program should be forwarded to
the IBD Program Manager at XXXxxxxxxxx_xxxxxxxx@xxxxxxxx.xxx. Please include any
proposed solutions as well.
6. You have an obligation to notify Netscape of any changes in your In-Box
Direct technical or business contacts as well as company information within five
working days of the change. All changes must be sent to
XXXxxxxxxxx_xxxxxxxx@xxxxxxxx.xxx with "New Contact/Company Information" in the
headline.
9.
47
NETSCAPE IN-BOX DIRECT
PROGRAM TERMS & CONDITIONS
("AGREEMENT")
Upon acceptance by Netscape, this Agreement and the program guidelines
("Guidelines") for the Netscape In-Box Direct Program ("Program") shall govern
your participation in the then-current Program. You understand and agree that
Netscape reserves the right to modify terms, conditions, and policies of the
Program and Guidelines at any time.
1. You have read and agree to provide a service to be included in the Program
which service meets the conditions stated herein and in the Guidelines. You
understand that Netscape, in its sole discretion, may determine whether to
include, or to continue including you, as a participant in the Program.
2. Netscape may, free of charge, use your company's name, trademarks, logos,
description of service, and sample pages in connection with the Program
including after termination of the Program in conjunction with end user
unsubscribing from the program. If you reasonably object to any use of your
intellectual property, you shall notify Netscape, and Netscape will use
commercially reasonable efforts to suspend such use as soon as practicable.
3. Information about the In-Box Direct subscribers, including but not limited
to name and contact information, provided by Netscape to you at any time
("Subscriber Information") is confidential information, as defined below.
Subscriber Information may only be used for the purposes and according to the
terms and conditions contained herein, and subject to Netscape's policy with
respect to personal data as set forth at
xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxxx/xxxxxxx.xxxx or such other URL as Netscape
may specify from time to time. You specifically agree not to:
a. sell, rent, give away, share or otherwise disclose to any third party any
Subscriber Information;
b. send advertisements or other promotional mailings, separate and apart from
the content sent pursuant to the In-Box Direct terms and conditions contained
herein, to any In-Box Direct subscriber unless explicitly and positively
requested by such subscriber and, if requested, only on topic(s) requested by
such subscriber;
c. send mailings beyond the scope of the subjects disclosed in your
description of service or sample pages at the In-Box Direct site;
d. contact any In-Box Direct subscriber in any manner, other than via
electronic mail pursuant to the terms and conditions contained herein, unless
explicitly and positively requested by such subscriber; and
e. send to In-Box Direct subscribers, or target or solicit In-Box Direct
subscribers with, any mailings containing content that may be harmful to
Netscape, including but not limited to any advertisement, link, banner,
promotional piece, or endorsement of third party products and/or services
directly competitive with Netscape's software products and on-line services or
companies which produce any such products and/or services, and any message to
the effect that the content sent to subscriber may best be viewed on such third
party's product(s). The foregoing prohibitions in this Section 3.e are not
intended to restrict in any way: (i) the advertisements contained in any
material which subscribers can view by following one link in the mailings sent
by you; or (ii) the endorsements made by you of such third party's product(s)
which subscribers can view by following two or more links from the mailings sent
by you; provided, however, that such advertisements and endorsements are
included in content sent to all your subscribers; (iii) editorial reviews of
products and services; and (iv) promotions for third party
10.
48
products and/or services which are not competitive with Netscape's software
products and on-line services.
4. You acknowledge that Netscape is not currently charging you a fee to
participate in the In-Box Direct program, but that Netscape reserves the right
to do so at any time in the future.
5. You understand that your participation in the Program begins on the date
Netscape notifies you of your acceptance into the program and continues for a
period of one (1) year unless earlier discontinued or terminated as specified
below, and is automatically renewed for a period of one (1) year unless either
party provides the other party with thirty (30) days prior written notice.
Without limiting the foregoing, you understand that either you or Netscape may
terminate your participation in the Program for convenience at any time upon
thirty (30) days prior written notice. In the event of breach, the non-breaching
party may terminate its participation upon one (1) week prior written notice to
the breaching party, unless the breaching party has remedied all breaches within
such week. Upon termination of your participation in the In-Box Direct program
by you or Netscape for any reason, you may continue using the Subscriber
Information, provided that you:
a. comply with the terms and conditions of Sections 3, 7, 8, 9 and 10 herein
for a period of five (5) years following such termination,
b. continue offering subscribers the ability to unsubscribe according to the
requirements outlined in the Program Guidelines and responding promptly to
cancellation requests made by subscribers directly to you, or to Netscape and
forwarded to you by Netscape, and
c. either destroy and/or return to Netscape within five (5) days any and all
Netscape Confidential Information, excluding any Subscriber Information, in your
possession or control.
6. You acknowledge that Netscape has the right to change the format,
guidelines, and terms and conditions of participation in the Program or to
discontinue the Program at any time by notifying you by electronic mail of such
changes at least thirty (30) days before such changes become effective. You
understand that you have thirty (30) days to notify Netscape in writing of your
acceptance or rejection of such modifications and your intent to continue
participating in the program under the new format, guidelines or terms and
conditions. If Netscape receives no written response within such thirty (30)
days, you acknowledge that you will be deemed to have accepted the new format,
guidelines and/or terms and conditions of participation and must comply with the
same.
7. You understand that you are solely responsible for any legal liability
arising out of the material sent by you to the Netscape In-Box Direct
subscribers. You represent and warrant that you hold, and will continue to hold,
the necessary rights to permit the use of the material submitted by you for
receipt by the In-Box Direct subscribers and that the permitted use, display,
performance, reproduction, distribution, publication, or transmission of the
material will not violate any criminal laws, any rights of any third parties or
any local, state, national or international laws. You agree to indemnify and
hold harmless Netscape from any and all liability, loss, damages, claims, or
causes of action, including reasonable legal fees and expenses that may be
incurred by Netscape, arising out of or relating to the mailings sent by you or
your breach of any of the foregoing representations and warranties.
8. "Netscape Confidential Information" means any and all Subscriber
Information, the financial arrangements described in Section 4 above, any and
all disclosures marked by Netscape as "CONFIDENTIAL" or "PROPRIETARY" or which
you know or should have reason to know are confidential or proprietary, and the
terms and conditions contained herein. You agree to: (a) maintain the
confidentiality and secrecy of the Netscape Confidential Information, and to
cause your employees and
11.
49
agents to maintain the confidentiality and secrecy of such Netscape Confidential
Information; and (b) disclose such Netscape Confidential Information only to
your employees and agents with a need to know for the purposes herein and who
are bound by written agreement to keep such information confidential. You
acknowledge that the unauthorized disclosure or use of Netscape Confidential
Information will cause irreparable harm and significant injury to Netscape that
may be difficult to ascertain. Accordingly, you agree that Netscape will have
the right to seek immediate injunctive relief in addition to any other rights
and remedies Netscape may have.
9. WARRANTY. ANY AND ALL INFORMATION AND SERVICE PROVIDED BY EITHER PARTY
UNDER THESE TERMS AND CONDITIONS, INCLUDING THE SUBSCRIBER INFORMATION AND
NETSCAPE CONFIDENTIAL INFORMATION, IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF
ANY KIND INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. OTHER TERMS AND CONDITIONS. (a) IN NO EVENT SHALL NETSCAPE BE LIABLE FOR
DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY NATURE,
INCLUDING, WITHOUT LIMITATION, LOST BUSINESS PROFITS UNDER THIS AGREEMENT. (b)
This Agreement shall be governed by the laws of the State of California, USA,
without reference to its conflicts of law provisions. (c) Unless otherwise
agreed in writing, all disputes relating to this Agreement (excepting any
dispute relating to intellectual property rights) shall be subject to final and
binding arbitration in Santa Xxxxx County, California, under the auspices of
JAMS/EndDispute, with the losing party paying all costs of arbitration. The
arbitration proceedings and all pleadings and written evidence shall be in
English. Any materials originally in another language shall be submitted with an
English translation. The parties waive any right to appeal under the law of the
forum of the arbitration. (d) This Agreement together with the then-current
Program Guidelines is the entire agreement between you and Netscape relating to
the Program. Any different or additional terms and conditions in any other
document are hereby expressly rejected by Netscape and shall have no force or
effect. (e) The parties hereto confirm that this Agreement and all related
documents shall be in English. (French translation: Les parties aux presentes
confirment leur volonte que cette convention de meme que tous les documents y
compris tout avis qui s'y rattache, soient rediges en langue anglaise.) (f)
Sections 3, 7, 8, 9 and 10 shall survive beyond your participation in the
Program.
Do you agree to the Program Terms and Conditions?
( ) I have read and agree to the Program Terms and Conditions.
( ) I DO NOT agree to the Program Terms and Conditions.
Name:
---------------------------------------------
On behalf of (Company Name):
----------------------
submit application clear application
12.
50
ADDENDUM NO. 1 TO
NETCENTER SERVICES AGREEMENT
NO: 004241
This Addendum No. 1 (the "Addendum") is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Netscape"), and
XXX.XXX, Inc., a Delaware corporation located at 0000 Xxxxx Xxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000 ("Participant") and is effective as of the
date of execution by Netscape ("Effective Date").
WHEREAS, the parties have entered into the Netcenter Services Agreement
effective April 17, 1998 (the "Agreement"); and
WHEREAS, the parties desire to implement a similar Service on certain of
Netscape's international websites by supplementing and modifying the provisions
of the Agreement for purposes of this Addendum.
NOW, THEREFORE, the parties, in consideration of the terms and conditions
herein, agree as follows:
1. Description of Service. The Description of Service, for purposes of
this Addendum, shall include both the Basic Features and Advanced
Features, as well as the following list of Premium Services: forward to
e-mail, extra storage, tagline suppression, virus scanning, email
language translation, greeting cards, POP3, IMAP4 server and ad
suppression. Additional Premium Services may be added by mutual written
agreement of the parties.
2. Territory. For purposes of this Addendum, the Territory shall be the
world, excluding North America and Latin America (which are covered in
the Agreement). Netscape shall notify Participant at least 90 days
prior to the scheduled launch of a localized version of Netcenter in a
new market in the Territory. Participant may choose not to provide the
Service for any markets in the world for which Netscape develops a
localized version of Netcenter by notifying Netscape within 10 calendar
days of receipt of such notice from Netscape. In the event that
Participant fails to respond or chooses not to provide the Service for
such new market, then Netscape may enter into a separate agreement with
a
51
third party provider to provide the Service in such new market.
Participant hereby agrees that it will launch the Service in [
**
]
3. Local Languages. Local Languages, for purposes of this Addendum, shall
include [
** ]
4. Service Period. The Service Period shall be 2 years from the Phase I
Launch Date.
5. Launch Schedule. Participant shall provide the Service for launch in
the Territory according to the following schedule:
------------------------ ----------------------------------------- ---------------------------------------
PHASE: TERRITORIES: LAUNCH DATE:
------------------------ ----------------------------------------- ---------------------------------------
Phase I [ ** ] [ ** ] from the Effective Date
------------------------ ----------------------------------------- ---------------------------------------
Phase II [ ** ] [ ** ] from the Effective Date
------------------------ ----------------------------------------- ---------------------------------------
Phase III [ ** ] [ ** ] from the Effective Date
------------------------ ----------------------------------------- ---------------------------------------
Phase IV [ ** ] [ ** ] from the Effective Date
------------------------ ----------------------------------------- ---------------------------------------
Phase V [ ** ] [ ** ] from the Effective Date
------------------------ ----------------------------------------- ---------------------------------------
6. Project Planning Meeting. The parties agree to meet at Netscape's
offices in Mt. View, CA, on a mutually agreed upon date in the month of
November, 1998, in order to establish project, technology and strategy
guidelines for utilization by both Participant and Netscape during the
development, deployment, maintenance and support of the Service. A
formal written Project Plan ("Project Plan") will be generated by the
parties as a result of such planing meeting and the terms thereof shall
be deemed part of this Addendum.
6.1 The parties will specifically address the following 2 issues,
among others, at the project planning meeting:
(a) Addressing Scheme. The addressing scheme for the
Services will be mutually agreed upon by the parties.
(b) Registration Scheme. The registration scheme for the
Service will be determined by Netscape choosing one
of the following options: (i) the Netscape Universal
Registration scheme; (ii) the XXX.XXX standalone
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
52
registration; or (iii) a mutually agreed upon
registration scheme as may be determined by the
parties during the project planning meeting.
7. Netscape's Web Site. For purposes of this Addendum, the URL described
in the definition of Netscape Web Site in the Agreement shall be
replaced with the URL Xxxxxxxx.xxx/xx
8. Localization. Participant will be responsible for the translation and
localization of the Service into the Local Languages in the Territory.
Participant may engage third parties to actually perform the
translation and localization services.
9. Quality and Timing. For purposes of this Addendum, if the Service does
not substantially meet expected quality or the Launch Date, Netscape
and Participant agree to meet (via conference call or face-to-face)
within 3 business days to resolve the issue. Both parties will make
best efforts to rectify the situation within 30 days. If the quality or
schedule problem is still not resolved within 30 days, Netscape
reserves the right to contract with a third party provider of the
Service.
10. Best of Breed.
10.1 For purposes of this Addendum, the following items shall be in
added to the Best-of-Breed Service description in Exhibit E of
the Agreement:
(a) Feature Releases. All International releases of
features and or production releases will lag no
longer than 45 days from the US releases unless
otherwise agreed to in writing by the parties.
(b) Latency. The latency of the Service for each language
will be [* *] seconds or less for [* *] of the page
views from anywhere within the primary country or
countries that such localized Service serves.
10.2 For purposes of this Addendum, Exhibit E is hereby amended so
that Participant shall only be required to provide telephone
support to end users if other competitive service providers
provide telephone support.
11. INTENTIONALLY OMITTED
12. Payment. For purposes of this Addendum, the Net Revenue generated by
the Service shall be split equally between Participant and Netscape.
13. Net Revenue. For purposes of this Addendum, the Definition of Net
Revenue shall be as follows:
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
53
DEFINITION OF "NET REVENUE." Net Revenue is defined as total gross
revenues, specifically excluding taxes, from the sum of:
(a) advertising and Sponsorships net
revenue (gross advertising revenues and/or Sponsorship fees less
reasonable fees and commissions, including but not limited to internal
commissions for buying and/or selling agencies, not to exceed [* *];
(b) Premium Services; and
(c) special one-time offers net revenue
(gross promotional revenues less reasonable fees and commissions,
including but not limited to internal commissions, not to exceed [* *];
and in the case of each of (a) though (c) above, less mutually agreed
deductions such as bad debt, returns, billing costs and/or cost of
sales, provided that the total combined deductions against such revenue
do not exceed [* *] thereof. If it appears that the deductions for the
items above may exceed the [* *] cap, Participant shall consult with
Netscape regarding which party should sell to the advertiser or sponsor
in question.
14. Payment Schedule:
----------------------------------------------------------------- ----------------- --------------------------
FEES PAYMENT PAYMENT DUE DATE
AMOUNT
----------------------------------------------------------------- ----------------- --------------------------
[* *] [* *] [* *]
----------------------------------------------------------------- ----------------- --------------------------
[* *] [* *]
----------------------------------------------------------------- ----------------- --------------------------
----------------------------------------------------------------- ----------------- --------------------------
[* *] [* *]
----------------------------------------------------------------- ----------------- --------------------------
[* *] [* *]
----------------------------------------------------------------- ----------------- --------------------------
[* *] [* *]
----------------------------------------------------------------- ----------------- --------------------------
[* *] [* *]
----------------------------------------------------------------- ----------------- --------------------------
The Advance Payments Against Future Net Revenues will be credited
against the revenue sharing set forth in paragraph 12 above.
15. Capitalized terms defined in the Agreement shall have the same meaning
in this Addendum as in the Agreement. The modifications and additions
set forth in this Addendum shall apply only to the Territory defined in
the Addendum and do not affect the Territory defined in the Agreement.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
54
16. Except as explicitly modified in this Addendum, all terms, conditions
and provisions of the Agreement shall continue in full force and effect
for purposes of this Addendum.
17. In the event of any inconsistency or conflict between the Agreement and
this Addendum, the terms, conditions and provisions of this Addendum
shall govern and control for purposes of this Addendum only.
18. This Addendum and the Agreement constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter
are superseded by the Agreement and this Addendum.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed
by their duly authorized representatives, effective as of the Effective Date.
NETSCAPE COMMUNICATIONS XXX.XXX, Inc.
CORPORATION
By: /s/ XXXXXX XXXXXX By: /s/ XXXXXX X. XXXXXXX
------------------------------ --------------------------------
Signature Signature
Name: Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxx
---------------------------- -------------------------------
Print or Type Print or Type
Title: SVP Finance Title: VP, Business Development
--------------------------- -------------------------------
Date: 11/2/98 Date: October 31, 1998
---------------------------- -------------------------------
55
AMENDMENT NO. 1 TO
NETCENTER SERVICES AGREEMENT
NO: 004241
This Amendment No. 1 (the "Amendment") is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Netscape"), and
XXX.XXX, Inc., a Delaware corporation, with offices at 0000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000 ("Licensee") and is effective
as of the date of execution by Netscape ("Effective Date").
WHEREAS, the parties have entered into a Netcenter Services Agreement effective
April 17, 1998 (the "Agreement"); and
WHEREAS, the parties wish to modify and supplement the provisions of such
Agreement;
NOW, THEREFORE, the parties, in consideration of the terms and conditions
herein, agree as follows:
1. Local Languages. The Local Languages shall be modified such that
Spanish shall be changed to Mexican Spanish.
2. Territory. The Territory shall be modified such that Mexico shall be
changed to Latin America.
3. Launch Schedule. Participant shall provide the Service for launch in
the Territory according to the following schedule:
--------------------------- ----------------------------------
TERRITORIES: LAUNCH DATE:
--------------------------- ----------------------------------
[ ** ] [ ** ] from the Effective Date
--------------------------- ----------------------------------
[ ** ] [ ** ] from the Effective Date
--------------------------- ----------------------------------
In the event that Netscape develops a new Netcenter site that is
intended to service any countries in Latin America other than Mexico,
then those countries shall be covered for all purposes by Addendum No.
1 to Netcenter Services Agreement between Netscape and Participant of
even date herewith.
4. Capitalized terms defined in the Agreement shall have the same meaning
in this Amendment as in the Agreement.
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
1
56
5. Except as explicitly modified, all terms, conditions and provisions of
the Agreement shall continue in full force and effect.
6. In the event of any inconsistency or conflict between the Agreement and
this Amendment, the terms, conditions and provisions of this Amendment
shall govern and control.
7. This Amendment and the Agreement constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter
are superseded by the Agreement and this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized representatives, effective as of the Effective Date.
NETSCAPE COMMUNICATIONS XXX.XXX, Inc.
CORPORATION
By: /s/ XXXXXX XXXXXX By: /s/ XXXXXX X. XXXXXXX
------------------------------- -------------------------------
Signature Signature
Name: Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxx
----------------------------- -----------------------------
Print or Type Print or Type
Title: SVP Finance Title: VP, Business Development
---------------------------- ----------------------------
Date: 11/2/98 Date: October 31, 1998
----------------------------- -----------------------------
2
57
AMENDMENT NO. 1 TO
NETCENTER SERVICES AGREEMENT
ADDENDUM NO. 1
NO: 004241
This Amendment No. 1 (the "Amendment") is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Netscape"), and
XXX.XXX, Inc., a Delaware corporation, with offices at 0000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("Licensee") and is
effective as of the date of execution by Netscape ("Effective Date").
WHEREAS, the parties have entered into Addendum No. 1 to the Netcenter Services
Agreement effective October 31, 1998 (the "Addendum"); and
WHEREAS, the parties wish to modify and supplement the provisions of such
Addendum;
NOW, THEREFORE, the parties, in consideration of the terms and conditions
herein, agree as follows:
1. Advance Payments Against Future Net Revenues. Section 14 of the
Addendum shall be modified such that the February 1, 1999 payment due
date for advanced payments against future Net Revenues is changed to
February 1, 2000.
2. Capitalized terms defined in the Addendum shall have the same meaning
in this Amendment as in the Addendum.
3. Except as explicitly modified, all terms, conditions and provisions of
the Addendum shall continue in full force and effect.
4. In the event of any inconsistency or conflict between the Addendum and
this Amendment, the terms, conditions and provisions of this Amendment
shall govern and control.
5. This Amendment and the Addendum constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter
are superseded by the Addendum and this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized representatives, effective as of the Effective Date.
NETSCAPE COMMUNICATIONS XXX.XXX, Inc.
CORPORATION
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXX
---------------------------------- --------------------------------
Signature Signature
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
-------------------------------- ------------------------------
Print or Type Print or Type
Title: Senior Vice President, Finance Title: VP, Business Development
------------------------------- -----------------------------
& Corporate Controller
-------------------------------
Date: November 10, 1998 Date: November 2, 1998
------------------------------- ------------------------------
1
58
AMENDMENT NO. 2 TO
NETCENTER SERVICES AGREEMENT
NO: 004241-3
This Amendment No. 2 (the "Amendment") is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Netscape"), and
XXX.XXX, Inc., a Delaware corporation, with offices at 0000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("Licensee") and is
effective as of the date of execution by Netscape ("Effective Date").
WHEREAS, the parties have entered into a Netcenter Services Agreement effective
April 17, 1998, as amended October 31, 1998 (the "Agreement"); and
WHEREAS, the parties wish to modify and supplement the provisions of such
Agreement;
NOW, THEREFORE, the parties, in consideration of the terms and conditions
herein, agree as follows:
1. Service Period. The Service Period for the Territories of [ ** ] and
[ ** ] shall be [ ** ] from the [ ** ] Launch Date.
2. Capitalized terms defined in the Agreement shall have the same meaning
in this Amendment as in the Agreement.
3. Except as explicitly modified, all terms, conditions and provisions of
the Agreement shall continue in full force and effect.
4. In the event of any inconsistency or conflict between the Agreement and
this Amendment, the terms, conditions and provisions of this Amendment
shall govern and control.
5. This Amendment and the Agreement constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter
are superseded by the Agreement and this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized representatives, effective as of the Effective Date.
NETSCAPE COMMUNICATIONS XXX.XXX, Inc.
CORPORATION
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXX
--------------------------------- --------------------------------
Signature Signature
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
------------------------------- ------------------------------
Print or Type Print or Type
Senior Vice President,
Finance & Corporate
Title: Controller Title: VP, Business Development
------------------------------ -----------------------------
Date: 11/10/98 Date: November 2, 1998
------------------------------ ------------------------------
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
