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EXHIBIT 10.27
[NETSCAPE LOGO]
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
NETSCAPE COMMUNICATIONS CORPORATION
WEB SITE SERVICES AGREEMENT
This Services Agreement ("AGREEMENT"), entered into by and between
Netscape Communications Corporation ("NETSCAPE"), a Delaware corporation located
at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, and N2K Inc.
("N2K"), a Pennsylvania corporation with its principal place of business at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 is effective as of the date of execution
by Netscape ("EFFECTIVE DATE").
RECITALS
A. Netscape is in the business of developing, manufacturing, marketing
and distributing Internet-related products and technology, provides
related services, and in connection with its marketing efforts,
maintains World Wide Web sites;
B. N2K is in the business of providing Internet-based retail
opportunities for end users to purchase pre-recorded music and
related products and services; and
C. The parties wish to perform certain activities, and therefore wish to
enter into this Agreement to provide certain services in connection with
the performance of such activities.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, in addition to the capitalized terms
defined elsewhere in this Agreement, the following terms shall have the meanings
set forth below:
"COMMERCE FRONT PAGE" means the HTML page first served to end users
accessing the commerce area of NetCenter, as described in Section 2.2.
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"CONTENT PROVIDER" means an entity which is (i) participating in the
Service by providing content, and (ii) linked to the Service. Entities providing
unbranded content to the Service and entities providing content to the Service
but which are not linked to the Service shall not be deemed Content Providers
for purposes of this Agreement.
[****]
"IMPRESSION" means the serving up to an end user of N2K Promotional
Content as part of an HTML page or layer.
"LAUNCH DATE" means the date on which the Service is fully
functional and accessible to end users, as described in this Agreement.
"LOCAL LANGUAGE" means the language for the Territory as such Local
Language is set forth in Exhibit A.
"MARKETPLACE" means that area within NetCenter which is primarily
designed around offering online shopping opportunities to end users.
"MARKETPLACE FRONT PAGE" means the HTML page first served to end
users accessing the Marketplace area of NetCenter, as described in Section 2.2.
"N2K BRAND SERVICE" means the Internet-related content service
specified as "N2K Brand Service" in Exhibit A.
"N2K PROMOTIONAL CONTENT" means the content supplied by N2K for use
in promotional activities on Netscape's Web Site as such activities are
described in Section 6.
"N2K'S CONTENT" means Content Provider listings and other materials
in the Service, the elements of the Service Front Page supplied and/or managed
by N2K, and the N2K Promotional Content.
"N2K'S WEB SITE" means the primary Local Language Web site which N2K
maintains and which is currently accessible by the public via the Internet at
the URL xxxx://xxx.xxxxxxxxx.xxx.
"NET SEARCH PAGE" means the HTML page currently located at on
Netscape's Web Site at xxxx://xxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxx/xxxxxxxxx-0.xxxx,
which page is the point of access for the Net Search Program.
"NET SEARCH PROGRAM" means the program on Netscape's Web Site for
providing end users with access to search and directory services.
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"NETCENTER FRONT PAGE" means the HTML page first served to end users
accessing NetCenter, as described in Section 2.2.
"NETCENTER" means that area of Netscape's Web Site which offers
online business services and shopping opportunities to end users.
"NETSCAPE'S WEB SITE" means the collection of Local Language HTML
documents targeted at end users in the Territory and accessible by the public
via the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx and/or at such other URL or
URLs as Netscape may designate.
"OTHER MARKETPLACE SERVICE FRONT PAGE" means the HTML page first
served to end users accessing a service within the Marketplace which is included
and featured in the Marketplace at the same hierarchical level as the Service.
"PAYMENT" means the amount specified as "Payment" in Exhibit B.
"SELECTOR LAYER" means the menu style layered interface that
Netscape currently presents to end users who access the home page of Netscape's
Web Site with Netscape Communicator client software, which interface presents a
menu of services and/or sites, as more fully described in Section 2.3.
"SERVICE AD INVENTORY" means the electronic advertising inventory
within the Service. The Service Ad Inventory shall not include any advertising
on the Service Front Page.
"SERVICE FRONT PAGE" means the page on the Internet which is the
initial point of entry for an end user accessing the Service.
"SERVICE NAME" means the name of the Service, if any, and as such
name shall be decided upon the mutual agreement of the parties.
"SERVICE" means the service described in Exhibit C, the operation of
which is further described this Agreement. For purposes of this Agreement, the
Service Front Page shall not be deemed a part of the Service.
"SUBSCRIBER" means an individual, sole proprietorship, partnership,
corporation, or other legal entity that registers for the Service in accordance
with the terms and conditions of this Agreement.
"TERM" means the period specified as "Term" in Exhibit A.
"TERRITORY" means the target geographic area listed in Exhibit A.
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2. SERVICE FEATURES. In addition to the features of the Service as
described in Exhibit C, the Service shall also conform with the following
requirements:
2.1. Location of Service. The Service will reside solely on N2K's servers
but will have a "Xxxxxxxx.xxx" domain name and will be directly linked, within
one click away, to Netscape's Web Site. The parties acknowledge and agree that
all access to the Service shall be deemed to be via Netscape's Web Site, and
therefore shall be Netscape traffic. N2K shall not promote the Service from
another Web site without Netscape's prior written consent.
2.2. NetCenter Front Page and Marketplace.
(a) Netscape shall maintain, as part of Netscape's Web Site, the
NetCenter, a virtual online business-oriented service and shopping
area. Marketplace will be included within NetCenter, and the
NetCenter Front Page shall contain a hyperlink to the Commerce Front
Page which will, in turn, be linked to the Marketplace Front Page.
The category of [****] shall be included in the Marketplace, and the
Service Front Page will be directly linked (within one click away)
to the [****] subheading within the Marketplace section. The
NetCenter Front Page, the Commerce Front Page and the Marketplace
Front Page will: (i) be designed, developed, produced and managed
by Netscape, including but not limited to hiring and managing
creative and technical staff as needed to do so; (ii) hosted and
maintained solely on Netscape's servers; and (iii) have a
"Xxxxxxxx.xxx" domain name (or such other domain name as Netscape
may determine).
(b) Within the Marketplace Front Page, the Service Front Page, any Other
Marketplace Service Front Page, the Service [****]; provided,
however, that nothing contained herein shall preclude other content
providers or services from participating in the Marketplace if they
offer [****]. After the Launch Date, Netscape shall not include any
advertisement for the sale of pre-recorded music delivered on hard
goods or through digital distribution on any page on Netscape's Web
Site on which N2K Promotional Content appears; provided, however,
[****] to the time during which N2K Promotional Content is actually
being published on such location on Netscape's Web Site.
(c) If Netscape creates a [****] topic as a top-level category within an
online service Netscape offers on Netscape's Web Site, [****]
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[****]; provided, however, that nothing contained herein shall
preclude other content providers or services from appearing [****]
within such service as N2K if such third party offers [****].
2.3. Selector Layer. During the Term, Netscape will produce Netscape's Web
Site so that when an end user using the appropriate client software first
accesses the home page of Netscape's Web Site, the end user is presented with
the Selector Layer. The Selector Layer shall include hyperlinks to various sites
and/or services (both within and outside the Netcenter) which will link to the
Service, as described herein, and may in Netscape's discretion include other
features including user configuration and navigation options. Notwithstanding
the foregoing, Netscape reserves the right, in its sole discretion, to (a) alter
the means whereby end users may access services, sites and functionality
(including the right to eliminate the Selector Layer in favor of an alternate
method) or (b) offer additional and/or different means of access to the Service,
services, sites and functionality; provided, however, that N2K's relative
prominence and accessibility after any such revision or reconfiguration shall
not be adversely affected.
2.4. Service Pages. The Service will: (i) be produced and managed by N2K,
including but not limited to hiring and managing creative, technical, customer
support, and general staff as needed to do so; (ii) hosted and maintained solely
on N2K's servers; and (iii) have a "Xxxxxxxx.xxx" domain name (or such other
domain name as Netscape may determine). N2K and Netscape will mutually agree to
the initial design and look and feel of the Service and its Web pages. Netscape
will be responsible for assisting N2K with the navigational and architectural
structure for displaying the contents of the Service's Web pages (i.e., text and
graphical elements). [****].
2.5. Target Market. The Service's primary target market is as
specified as "Target Market" in Exhibit A. The Service will be provided by
N2K only in the Local Language and focused on the Territory, as described in
Exhibit A.
2.6. Name of the Service. The Service Name will be mutually agreed upon by
Xxxxxxxx xxx X0X. X0X shall not independently use the Service Name without
Netscape's prior written consent unless such use occurs in connection with N2K's
advertising sales and promotional efforts on behalf of the Service. The Service
Name shall be displayed on every page of the Service and no other locations
without Netscape's prior written consent except in connection with such
advertising sales and promotional efforts on behalf of the Service. If the
Service Name includes a co-branding component, N2K may not use the corresponding
Service Name with Netscape's name expunged. N2K may not use the Service Name
independent of the Service except as provided for above in this Section 2.6.
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2.7. Design of Service. Every service within NetCenter shall include a
navigational toolbar [****]. Within the Service, such navigational toolbar shall
be co-branded equally by Netscape and N2K. The overall look and feel of the
co-branded toolbar shall be consistent with the look and feel of the other
navigational toolbars within NetCenter. N2K shall be responsible for creating
the graphic user interface including navigation, architecture, look and feel as
well as the tone of the Service, taking into consideration the cultural,
economic and linguistic qualities of the Service's Territory; provided, however,
that Netscape and N2K shall mutually agree to the initial design of the Service
and a phased implementation of features and functionalities to be included in
the Service.
2.8. Design of Service Front Page. The design of the Service Front Page
shall be as set forth in Exhibit C. Notwithstanding anything in this Agreement
to the contrary, Netscape reserves the right to revise the design of and manner
in which an end user accesses the NetCenter Front Page, the Commerce Front Page,
the Marketplace Front Page, the Service Front Page, and pages within the
Service; provided, however, that after any such redesign or reconfiguration,
N2K's relative position within the NetCenter shall not be materially diminished
either in accessibility or prominence.
2.9. Subscriber Registration. If an end user must register with the
Service for any reason, such registration process will comply with the terms and
conditions set forth in Exhibit F. [****] will be subject to the terms and
conditions of Exhibit F.
2.10. Billing. N2K will be responsible for billing for the
Subscribers' use of the Service.
2.11. Customer Support. N2K shall undertake to provide the following
customer support features in the Service: (i) a thirty (30) day money back
guarantee on purchases; (ii) seventy-two (72) hour response to customer
inquiries, on a best commercial efforts basis; (iii) twenty-four (24) hour
notification of order confirmation and estimated delivery time; (iv) a secure
transaction environment (supporting at least SSL 3.0, or the then current
industry standard); (v) programs including [****] and other programs and
features as the parties shall mutually agree.
3. TECHNICAL SUPPORT. During the Term:
3.1. Support Services. N2K 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 misplacement or malfunctioning
of the Service.
3.2. Subscriber Support. N2K shall be responsible for each
Subscriber's maintenance and support requirements in connection with the
Service. In N2K's
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performance of such obligations, the Subscribers shall not be disadvantaged or
suffer from inferior performance relative to the customers of the N2K Brand
Service.
3.3. Content Provider Support. If N2K receives any questions from a
prospective or existing Content Provider relating to specific development or
technical support about Netscape technology, N2K will refer the prospective or
existing Content Provider to the Netscape Developer Program as described on
Netscape's Web Site.
3.4. Responsibility. N2K expressly agrees that N2K shall be solely
responsible for the purchase, implementation, maintenance and support of all
software and hardware required to fulfill its obligations under this
Agreement.
4. REPORTS.
4.1. Weekly Log Reports. [****] The information contained in the report
shall be Netscape's and N2K's Confidential Information, provided, however that
Netscape shall have the right to use the information contained in such reports
in Netscape's private and public reporting of the number of users accessing the
Service and Netscape's Web Site.
4.2. Search Field.
(a) A field providing search functionality will be included on pages
within the Service as the parties shall mutually determine. The
search executed from the search field will initially only cover
content within the Service itself. If an end user is given the
option of expanding the scope of the search to encompass the
World Wide Web, the search engines driving such query shall be
one or more of Netscape's Local Language Net Search Program
search engines, as Netscape shall determine. Netscape reserves
the right to review the financial effect of the search field in
the Service as such search functionality may impact Netscape's
own Net Search Program and require that the Internet-wide search
functionality in the Service be minimized or deleted.
(b) From time to time, N2K shall provide Netscape with a list [****].
Within fifteen (15) days of the end of each month during the Term,
N2K shall provide Netscape with monthly reports detailing the
following information for each day during the month covered in the
report: (i) the number of times the Service's internal search field
as well as each of Netscape's Local Language Search Program search
engines (if included in the Service) [****]; and (ii) [****].
Netscape shall determine the format and the date of submission for
this monthly report. The information contained in each
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report shall be Netscape's and N2K's Confidential Information;
however, Netscape reserves the right to provide the information
contained in a report pertaining to World Wide Web searches, if such
functionality is implemented in the Service, to the Net Search
Program companies.
5. CONTENT PROVIDER PARTICIPATION IN THE SERVICE.
5.1. Application Process. Netscape and N2K shall determine the criteria by
which Content Providers may participate in the Service. N2K will be responsible
for administering the Content Provider application process and serve as the
primary point of contact for companies interested in becoming Content Providers.
Netscape reserves the right to direct N2K not to include any particular Content
Provider that does not meet with the criteria.
5.2. Integrated Community. Netscape and N2K acknowledge that the intent of
the Service is to provide an "integrated community" experience for Netscape
users. Promotion of N2K's Web Site, the N2K Brand Service and Internet-related
services will be minimized to prevent diversion of user traffic from the
Service. Promotion of N2K within the Service will be subject to Netscape's
reasonable approval.
6. PROMOTION OF THE SERVICE IN NETSCAPE'S PRODUCTS.
6.1. Netscape's Promotion of the Service. Netscape shall include a button
for the Service in the Net Search Program on Netscape's Web Site, as such button
is described in Exhibit D. Netscape may also generate Impressions of N2K
Promotional Content through other promotional means including those described in
Exhibit D and which Impressions shall be included in the [****]. The parties may
mutually agree to change the number and/or composition of the [****] and/or
revise Exhibit D from time to time. Unless the parties mutually agree otherwise,
the serving up of a page which includes N2K Promotional Content shall give rise
to only [****].
6.2. Guaranteed Impressions.
(a) During each year beginning on the Launch Date, Netscape shall
provide N2K with One Billion Eight Hundred Million (1,800,000,000)
Guaranteed Impressions featuring N2K Promotional Content (including
promotional elements described in Exhibit D) on Netscape's Web Site;
provided, however, that the number of Guaranteed Impressions shall
be prorated if the Launch Date of the Service is delayed beyond
sixty (60) days after the Effective Date.
(b) Every six (6) months after the Launch Date, the parties will compare
the actual [****] delivered by Netscape during the previous
six-month period with [****] impressions, the prorated [****] for
such six month period. If Netscape has not
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[****] then N2K's Payment otherwise due (as set forth in Exhibit B)
at the end of such six-month period [****] provided, however, that
if in the first six-month period in any year Netscape has [****] for
the first six-month period, such overage shall be carried forward to
the second six-month period and added to the [****] delivered during
such second six-month period.
(c) If, on the first anniversary of the Launch Date, Netscape has not
delivered [****] N2K may terminate this Agreement. Provided that N2K
has complied with its obligations hereunder, Netscape will continue
to place the N2K Promotional Content on Netscape's Web Site [****]
the Term until such time as [****] have been delivered.
(d) The parties may agree from time to time on other promotions which
shall feature N2K content and which may offer N2K [****]. If the
parties mutually agree, such [****] shall count towards [****] at a
mutually agreed upon rate, and the [****] Netscape is obligated to
deliver shall be [****].
7. N2K'S OBLIGATIONS.
7.1. Production, Technology and Content Programming.
(a) N2K shall be responsible for all production and content
programming of the Service. The Service shall use substantially
the same technology and advantages as N2K uses in N2K Brand
Service unless otherwise agreed to by the parties. The Service
shall not be disadvantaged or suffer from inferior production,
programming or performance relative to N2K Brand Service, or any
similar service which N2K might make available to, or operate on
behalf of, third parties. The Service shall perform
substantially up to the same performance standards as N2K Brand
Service, including, but not limited to, load time, timeliness of
content, and quality of programming. N2K shall perform its
duties described herein with substantially the same diligence and
vigor as it employs with respect to its own services and Web
sites and the services and Web sites N2K may operate for third
parties, and N2K shall not favor its own Web sites, or those of
any third party, over any Service.
(b) N2K shall use [****] provided that such use of
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[****] does not unduly burden the performance or production of the
Service, or impose on N2K unreasonable technical, operational or
financial undertakings.
(c) N2K's obligation to produce the Service, including production
services, technology and content programming which meet or exceed
standards established by N2K on its own Web site or services (or the
Web site or services N2K manages for any third party) and general
industry standards, is a material obligation of N2K under this
Agreement.
7.2. Advertising. N2K shall be responsible for all production and
programming of advertisements on the Service Ad Inventory, subject to Netscape's
guidelines for advertising. Commencing on the Effective Date, N2K will manage
and sell all advertising and sponsorships within the Service Ad Inventory, and
N2K will manage the advertising product and services with the same degree of
professionalism N2K exercises with respect to N2K's own Web sites or Web sites
N2K might manage on behalf of any third party. Services which N2K shall provide
include site auditing, traffic analysis, functionality and other advertising
services. N2K may require all advertisers on the Service to execute N2K's then
current form of insertion order. Advertising on the Service Front Page shall be
sold and managed by Netscape, but the revenues generated from such banner
advertising sales shall be included in the calculation of Gross Revenues, as
described in Exhibit B.
7.3. Equivalent Effort. In selling advertising inventory and providing
advertising services hereunder, N2K will carry out such services with
substantially the same diligence and vigor as it employs when selling, managing
or maintaining similar advertising on its own services and Web sites. Without
limiting the foregoing, in the event N2K approaches a prospective advertiser
with spots for one or more of its own services and Web sites as well as for the
Service Ad Inventory, N2K shall not unreasonably favor its own Web site, or the
Web site or services of any third party, over the Service. [****]
7.4. N2K's Content. N2K is solely responsible for any legal liability
arising out of or relating to (i) N2K's Content and/or (ii) [****]. N2K
represents and warrants that it holds the necessary rights to permit the use of
N2K's Content by Netscape for the purpose of this Agreement; and that N2K's
Content and any material [****] will not violate any criminal laws, rights of
any third parties, or any applicable local, state, national or international
laws. If Netscape reasonably determines that N2K's Content or N2K's Web Site
contains any material that Netscape deems likely to cause Netscape material harm
[****] Netscape will inform N2K and direct N2K to remove, or remove the link to,
such material within one (1) business day after receipt of written notice from
Netscape. Netscape reserves the right not to include in the Service any N2K's
Content that does not completely conform to the specifications set forth herein.
If Netscape determines that the Service contains or presents any material that
could reasonably
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constitute an infringement of a third party's rights, [****].
7.5. Netscape Now Program Compliance on N2K's Web Site and the Service.
(a) N2K shall display the "Netscape Now" button [****] on [****] on the
Service [****] on all pages on [****] to the Service if N2K decides
to publish the button in such locations [****] to the Service and
use best efforts to include the following statement (or a statement
designated by Netscape and generally used by Netscape as a successor
to the following statement or in connection with any successor
program to Netscape's Netscape Now program) next to the Netscape Now
button: "This site is best viewed with Netscape Communicator.
Download Netscape Now! N2K will produce the page such that when an
end user presses or clicks on the Netscape Now button (or such other
button used in connection with any successor program to the Netscape
Now program), the end user's Internet client software will access
the applicable HTML page located at a URL supplied by Netscape.
(b) On any page on which the Netscape Now button, or a successor button,
is displayed, N2K shall use [****] efforts to position the button so
that Netscape Now button shall be upper-most, top-most and
left-most, and at least equal in size and prominence to the virtual
button or other text or graphic for any third party Internet client
or server software, online service provider [****] software or
services [****]. N2K shall use reasonable commercial efforts
promptly to remedy any misplacement of the Netscape Now button or
any malfunctioning of the button, provided Netscape will fully
cooperate with N2K to remedy any such misplacement or
malfunctioning, and provided further that N2K shall not incur
liability for any failure to remedy such misplacement or
malfunctioning if such remedy is not within the reasonable control
of N2K. In the event that Netscape replaces the Netscape Now
program with a successor program, Netscape shall advise N2K and N2K
shall produce the page to conform to such successor program,
provided N2K's obligations under such successor program shall not be
materially increased.
(c) Netscape hereby grants N2K a nonexclusive, nontransferable,
nonassignable, nonsublicensable license to perform and display
the Netscape Now button directly in connection with fulfilling
the foregoing obligation. N2K's use of the Netscape Now button
shall be in accordance with Netscape's policies regarding
advertising and trademark usage as established from time to time
by Netscape, including the guidelines of the Netscape Now Program
published on Netscape's U.S. English-language Web Site at the URL
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xxxx://xxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxx/xxxxxxxx_xxx_xxxxxxxxxx.
html, or such other URL as Netscape may designate from time to time.
7.6. Content Provider Compliance. N2K will comply with its obligations as
set forth in Exhibit G, and as such criteria shall be mutually reviewed by
Netscape and N2K. Upon the advice of Netscape, N2K shall notify Content
Providers of their non-compliance. If a Content Provider fails to come into
compliance after receipt of notification, Netscape shall direct N2K to reduce
the listing status of a non-complying Content Provider or remove the Content
Provider from some or all of the Service, as Netscape shall determine.
7.7. Marketing Collateral. N2K will maintain on the Service marketing
collateral for such Service. The collateral will be updated regularly and on
an as-needed basis. The marketing collateral shall be located in an easily
accessible location. Each party shall include a link to the Service's
marketing collateral in an appropriate area of the party's primary web site.
7.8. Service Enrollment Support. N2K shall provide information and
sales support to Content Providers regarding participation in the Service.
8. JOINT ACTIVITIES.
8.1. Press Plans. N2K and Netscape agree to participate in a joint press
announcement regarding the Service which will take place on a mutually agreed
upon date. The parties shall agree to the form and content of the joint press
release. Notwithstanding the foregoing, either party may issue its own press
release, subject to the other party's prior approval of the content within the
release. With respect to major advertising and marketing deal announcements
regarding the Service, Netscape and N2K shall have forty-eight (48) hours to
respond, in writing, to any proposed announcement. In any press announcement
regarding any or all of the Service, both N2K and Netscape's name and logo shall
be included in the press release, and the names and logos shall appear with
equal prominence. Interviews with the press regarding announcement of the
Service shall be coordinated between both Netscape and N2K.
8.2. Research. If N2K conducts any research regarding the Service, such
research results shall be shared with Netscape on a timely basis and subject to
the obligations set forth in Exhibit F. If N2K or Netscape conducts a study on
their respective Web sites, both companies shall include the Service in the
study, as appropriate. N2K will use commercially reasonable efforts (taking into
account budgetary and other factors) to conduct substantially the same level and
as much research and data collection regarding the Service as N2K conducts with
respect to N2K Brand Service.
8.3. Quarterly Reviews of the Service. Netscape and N2K agree to
establish quarterly reviews of the Service to evaluate the success of the
Service and agree to modifications and improvements to the Service.
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8.4. Design Reviews and Ownership. The initial design and user interface
of the Service shall be jointly owned by the parties. Netscape and N2K shall
mutually agree to all major design changes in the Service, including, but not
limited to, significant new artwork or functional changes. As part of the
approval process for significant changes to the Service, the parties shall
determine the ownership rights with respect to newly added features or
functionality. Notwithstanding the foregoing, if either party has contributed to
the Service intellectual property rights owned by that party, the other party
shall be granted a royalty-free, irrevocable, perpetual worldwide license,
without payment or other charge therefor, to use, display, perform, reproduce
and distribute such intellectual property in connection with the Service during
the Term. Copyrighted elements contained in a Service shall be the property of
the copyright owner. Nothing contained herein shall prevent Netscape from
independently developing features or functionality which are similar to the
features and functionality owned by N2K and implemented in the Service, provided
that such independently developed features and functionality do not infringe any
of N2K's intellectual property rights.
8.5. [****] for Netscape Technology. [****]
(a) N2K and Netscape shall mutually establish a timetable whereby,
within a reasonable period of time, N2K shall implement within the
Service a [****] interface including [****] or the then current
client software technology (or subsequent features displayable by an
end user's browser) within the beta testing period of the client
software. Such features shall be [****] within the Service, and the
optimized content shall be fully operational and publicly accessible
at the time of the release of the new Netscape client products.
Netscape shall give N2K advance notice of any new features and
functionalities so that N2K has an opportunity to incorporate in the
Service such features and functionalities as described herein;
(b) N2K agrees to use [****] and, if requested, provide Netscape with
evidence of such use. Such [****] shall be provided to N2K free of
charge;
(c) Within the Service, N2K shall use [****] (unless such use would
impose unreasonable burdens on N2K as N2K shall notify to Netscape)
and N2K shall promote [****]
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[****]. Netscape acknowledges that as of the Effective Date, [****]
and
(d) N2K's course of dealing with respect to other services it may
operate shall be governed by the terms of Section 8.7, below.
8.6. Other Activities. In addition to joint activities set forth in
this Section 8, the parties shall participate in other activities related to
the Service and this Agreement as agreed to by the parties from time to time.
8.7. 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 (where the term "programming interfaces" shall include, without
limitation, all operating system hooks, calls, resources and other facilities
that are used by Microsoft's applications, applets or user 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 and
to the same extent that Microsoft makes use of them, N2K shall not [****] (i) on
all web pages that are located within the Service, (ii) on all web pages that
are [****] to the Service (unless otherwise agreed to by Netscape), and (iii) in
N2K's [****] materials and promotional activities. The foregoing shall not apply
to marketing materials and promotional activities which N2K is [****] N2K will
extend the requirement contained in this subsection to [****] unless its [****]
to such requirement.
9. PAYMENT.
9.1. Payment Amounts. For the benefits and services provided by
Netscape to N2K during the Term, N2K shall remit to Netscape the Payment set
forth in Exhibit B.
9.2. Timing of Payment. N2K shall pay Netscape the Payment in
accordance with the terms set forth in Exhibit B.
9.3. Payment of Revenue Splits. N2K shall pay to Netscape Netscape's
portion of the shared revenues and Netscape shall account to N2K with respect to
shared revenues from advertising undertaken by Netscape, as such revenue sharing
is described in Section 10 and in Exhibit B, within thirty (30) days of the end
of the six-month period in which the revenue is recognized by N2K.
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9.4. Currency, Interest and Taxes. All amounts payable hereunder are
denominated in U.S. Dollars, and all amounts payable to Netscape hereunder shall
be remitted in U.S. Dollars. Any portion of the Payment which has not been paid
to Netscape within the applicable time set forth herein shall bear interest at
the lesser of (i) the prime rate, or (ii) the maximum amount allowed by law. All
payments due hereunder are exclusive of any applicable taxes. N2K 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 N2K is required by law to make any deduction or to
withhold from any sum payable to Netscape by N2K hereunder, N2K shall effect
such deduction or withholding, remit such amounts to the appropriate taxing
authorities and promptly furnish Netscape with tax receipts evidencing the
payments of such amounts.
10. REVENUE SHARING. For all pages in the Service (including banner advertising
on the Service Front Page), the parties will share revenues derived from
advertising, fees paid by Content Providers and other sources of revenue as set
forth in Exhibit B.
11. NO DUPLICATION OF SERVICE. During the Term, and in order to encourage N2K to
focus on developing and maintaining the Service, N2K will not enter into an
agreement for the development and/or operation of any [****] and [****] and
which is an [****] version of [****] or the [****] includes [****] opportunities
for pre-recorded music and music-related products; is co-branded by N2K by
licensing the [****]; and is [****] to the [****]. This section shall not apply
to any OEM or co-branded version of N2K's services which meets all of the
following criteria: (i) does not incorporate the general look and feel created
for the Service, (ii) does not include any components for the Service that the
parties agree to co-develop on an exclusive basis, and (iii) does not include
more than [****] of the core features and functionalities that are actually
implemented in the Service including, with limitation, [****] rooms, [****]
events, [****] opportunities for [****] and related product, [****], special
features about the music industry [****] and reviews.
12. REPORTING AND AUDIT RIGHTS.
12.1 Reporting. Within fifteen (15) days after the end of each month
during the Term: (i) N2K shall provide Netscape with an 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) Netscape shall provide N2K with a report
describing the number of redirects of traffic to the Service from Netscape's Web
Site, the number of [****] and such other tracking information as the parties
shall mutually agree.
12.2. Audit Rights. Each party shall retain complete, clear and accurate
records regarding its activities under this Agreement. Each June and December
during the Term,
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the parties shall review the financial results for the Service and access logs.
Each party shall have the right, upon no less than thirty (30) days prior
written notice to the other party, to cause an independent Certified Public
Accountant to inspect and audit, during the other party's normal business hours
and in such a way as to not cause undue interruption to the other party's
regular business operations, all relevant records of the other party upon which
revenue reports are based and the access logs. The costs of such audit shall be
paid by the auditing party provided, however, that if said inspection shall
reveal an error in excess of ten percent (10%) in monies due to the other party
or an error in excess of ten (10%) in traffic to the Service, the party being
audited shall pay for the audit. The audit rights as described herein shall
continue for two (2) months after the expiration or termination of this
Agreement. Neither party shall not perform audits any more frequently than once
per year; provided, however, that if any such audit reveals an error in excess
of ten percent (10%) as described above, the auditing party may perform
quarterly audits thereafter. Neither party may audit any one statement more than
once.
13. TERM AND TERMINATION.
13.1. Term. Unless earlier terminated pursuant to the provisions of
Section 6.2(c), Section 13.2, Section 16.3 or as described in Exhibit F, this
Agreement shall remain in force for the Term.
13.2. 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 thirty (30)
calendar days after written notice of such default the defaulting party remedies
such default.
13.3. Rights Upon Termination or Expiration. [****] Notwithstanding the
foregoing, if, [****] Netscape has a [****] to take over a successor service to
the Service, Netscape shall [****] of the [****] and N2K shall respond in
writing to Netscape [****] whether or not N2K can at least match the third-party
offer. If, at the end of such [****] period, [****] Netscape shall be under no
further obligation to N2K with respect to a renewal of this Agreement. Netscape
shall have the right, without any additional payment, charge or royalty to N2K,
to produce versions of the Service which do not include N2K's proprietary
technology, logo or name but which might employ a graphic user interface which
is similar to the graphic user interfaces of the Service. In addition to the
right to receive amounts payable at the time of the termination of expiration of
this Agreement, Section 8.4 ("Design Reviews and Ownership"), Section 12.2
("Audit Rights"), Section 13.3 ("Rights Upon Termination or Expiration"),
Section 14 ("Warranties"), Section 15 ("Indemnity") and Section 16 ("General"),
and provisions in Exhibits attached hereto that provide for their survival,
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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.
14. WARRANTIES.
14.1. Title. N2K warrants that (i) it has the right to perform the
services set forth in this Agreement, (ii) such performance does not infringe on
any third parties' proprietary or personal rights, (iii) it owns or licenses all
rights, title and interest in and to the technology underlying the production of
the Service, (iv) Netscape shall not be obligated to pay any fees or royalties
for implementing the Service other than as specifically set forth in this
Agreement, and (v) there are no pending or threatened lawsuits concerning any
aspect of the technology underlying the Service.
14.2. Performance. N2K warrants that the Service will function
substantially in accordance with the specifications set forth in this Agreement
and as the parties may determine from time to time. In any given twenty-four
hour period during the Term, the Service shall have an uptime of at least [****]
with industry standard downtime for maintenance, provided that such downtime not
occur at peak traffic times. N2K shall repair any malfunctions of the Service
within a reasonable period of time (not to exceed [****] days) after notice by
any party of such condition.
14.3. Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE
THE ONLY WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SERVICE.
SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE PARTIES, EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE.
15. INDEMNITY.
15.1. N2K Indemnity. N2K shall indemnify, hold harmless and, at Netscape's
request, defend Netscape from and against any and all claims, liabilities,
losses, damages, expenses and costs (including attorneys' fees and costs)
relating to N2K's management of the Service, N2K's Content and any material to
which users [****] N2K's Content, or other information supplied by N2K, except
to the extent that Netscape is responsible under Section 15.2. N2K 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 N2K in writing of any such claim; (ii) N2K has sole
control of the defense and all related settlement negotiations, and (iii)
Netscape cooperates with N2K, at N2K's expense, in defending or settling such
claim.
15.2. Netscape Indemnity. Netscape shall indemnify, hold harmless and, at
N2K's request, defend N2K in any action brought against N2K to the extent it is
based on a claim that the use by N2K of any content or materials licensed from
or provided by Netscape for use on or included in the Service in accordance with
this Agreement directly
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infringes any valid copyright or trade secret. 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) N2K promptly
notifies Netscape in writing of any such claim; (ii) Netscape has sole control
of the defense and all related settlement negotiations, and (iii) N2K cooperates
with Netscape, at Netscape's expense, in defending or settling such claim.
15.3. Limitation of Liability. IN NO EVENT WILL NETSCAPE BE LIABLE TO N2K
FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO
THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, AND WHETHER OR NOT NETSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
NETSCAPE'S TOTAL LIABILITY TO N2K IN ANY WAY RELATED TO THE SUBJECT MATTER OF
THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED
CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO AND SHALL NOT EXCEED
[****].
16. GENERAL.
16.1. Governing Law. This Agreement shall be subject to and governed in
all respects by the statutes and laws of the State of New York without regard to
the conflicts of laws principles thereof. For any dispute brought by N2K that
arises under or relates to this Agreement, the Superior Court of Santa Xxxxx
County and/or the United States District Court for the Northern District of
California shall have exclusive jurisdiction and venue over all controversies in
connection herewith, and each party hereby consents to such exclusive and
personal jurisdiction and venue. For any dispute brought by Netscape that arises
under or relates to this Agreement, the Supreme Court of New York County and/or
the United States District Court for the Southern District of New York shall
have exclusive jurisdiction and venue over all controversies in connection
herewith, and each party hereby consents to such exclusive and personal
jurisdiction and venue.
16.2. Entire Agreement. This Agreement, including the Exhibits and
attachments referenced on the signature page hereto, constitutes the entire
Agreement and understanding between the parties and integrates all prior
discussions between them related to its subject matter. No modification of any
of the terms of this Agreement shall be valid unless in writing and signed by an
authorized representative of each party.
16.3. Assignment. Subject to the terms below, [****] in connection with
any merger, consolidation, sale of all or substantially all of such party's
assets or any other transaction in which [****] of such party's voting
securities are transferred (such events being collectively referred to as a
"Change in Control"), provided that: [****]
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[****]. With respect to all Change in Control transactions, [****] and Netscape
may object to such assignment pursuant to a Change in Control if (i) Netscape
reasonably believes that the Change in Control will have a material adverse
effect upon the Service, or (ii) as a result in the Change in Control,
Microsoft has the ability to influence the election of a member of N2K's board
of directors. If Netscape objects to the proposed assignment and,
notwithstanding Netscape's objections, N2K proceeds with the Change of Control
event, Netscape shall have the right to terminate this Agreement as its sole
remedy. Any attempted assignment, delegation or transfer in derogation hereof
shall be null and void, and Netscape shall be entitled to terminate this
Agreement [****].
16.4. Notices. All notices required or permitted hereunder shall be given
in writing addressed to the respective parties as set forth below and shall
either be (i) personally delivered, (ii) transmitted by postage prepaid
certified mail, return receipt requested, or (iii) transmitted by
internationally-recognized private express courier, and shall be deemed to have
been given on the date of receipt if delivered personally, or two (2) days after
deposit in mail or 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. The addresses for the parties are as follows:
N2K: Netscape:
N2K Inc. Netscape Communications
00 Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: X.X. Xxxxx, Xx. Vice President Attn: General Counsel
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
16.5. Confidentiality. All disclosures of proprietary and/or confidential
information in connection with this Agreement as well as the contents of this
Agreement, the financial arrangements described in this Agreement, the Content
Providers,
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advertising sales, end user information and research related to the Service
shall be governed by the terms of the Mutual Non-Disclosure Agreement attached
hereto as Exhibit E. The information contained in the reports provided by each
party hereunder shall be deemed the Confidential Information of the disclosing
party. Notwithstanding the foregoing, Netscape may, in its sole discretion, make
publicly available the auditing of traffic results and indicate that N2K is the
source of the information.
16.6. Force Majeure. Neither party will be responsible for any failure to
perform its obligations under this Agreement due to causes beyond its reasonable
control, including but not limited to, acts of nature, war, riot, embargoes,
acts of civil or military authorities, fire, floods or accidents.
16.7. Waiver. The waiver, express or implied, by either party of any
breach of this Agreement by the other party will not waive any subsequent
breach by such party of the same or a different kind.
16.8. Headings. The headings to the Sections and Subsections of this
Agreement are included merely for convenience of reference and shall not
affect the meaning of the language included therein.
16.9. Independent Contractors. The parties acknowledge and agree that they
are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring upon
either party the power of authority to bind the other party in any transaction
with third parties. All sales and other agreements between N2K and its customers
are N2K's exclusive responsibility and shall have no effect on Netscape's
obligations under this Agreement.
16.10. Severability. 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.
16.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto, shall be
deemed to be an original. Notwithstanding the foregoing, the parties shall
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
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N2K: NETSCAPE:
N2K INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------- -----------------------------------
Print Name: Xxxxxxxx X. Xxxxxxx Print Name: Xxxxxxx Xxxxxx
------------------- ---------------------------
Title: Vice Chairman Title: Executive Vice President of Sales
------------------------ and Marketing
---------------------------------
Date: 9/27/97 Date: 9/27/97
------------------------- ----------------------------------
Address: Netscape Address:
00 Xxxxx Xxxxxx 000 Xxxx Xxxxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000, 00xx Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: X.X. Xxxxx, Xx. Vice Attention: General Counsel
President
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attached Exhibits:
Exhibit A: Additional Definitions
Exhibit B: Payment, Payment Schedule and Revenue Sharing
Exhibit C: Service
Exhibit D: Netscape's Promotional Services
Exhibit E: Mutual Non-Disclosure Agreement
Exhibit F: End User Registration
Exhibit G: Content Provider Criteria
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EXHIBIT A
ADDITIONAL DEFINITIONS
N2K Brand Service: N2K's online service for the sale of pre-recorded
music and offering music-related content aggregation as such service is
presently located at xxxx://xxx.xxxxxxxxx.xxx.
Target Market: [****]
Term: Shall be the period of time beginning on the Effective Date
and ending two (2) years after the Launch Date.
Local Language: U.S. English
Territory: U.S.
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EXHIBIT B
PAYMENT, PAYMENT SCHEDULE AND
REVENUE SHARING
Payment: N2K shall pay Netscape the following amounts as the Payment. All
Payment amounts shall be received by Netscape no later than the date payment
is due as set forth below:
1. Payment Amounts.
AMOUNT DATE PAYMENT DUE
$1,000,000 Twelve months after the Launch Date
$1,000,000 Eighteen months after the Launch Date
2. Revenue Sharing.
(a) Gross Revenue. For the purposes of this Exhibit B, "Gross Revenue"
shall mean all revenue relating to the Service, including but not limited to,
revenue from the [****] revenue from advertising on the Service as well as
advertising on the Service Front Page, subscriptions to content through the
Service, pay-per-view access to content through the Service, and sponsorships on
the Service.
(b) Net Revenues. For the purposes of this Exhibit B, "Net Revenues" shall
mean (i) in the case of compact discs and audio music tapes ("Music Products")
[****] of the selling price of Music Products sold; (ii) in the case of
advertising, Gross Revenues from advertising less ad representative fees and
other costs of selling advertising on the Service (provided that such fees and
costs are actual and do not exceed [****] of such advertising sales revenue in
any period), in each case to the extent that such item is actually included in
Gross Revenue and is actually to be paid by N2K, without reimbursement, to a
third party that is not an affiliate of N2K. In no case shall "Net Revenues" be
less than zero. Netscape will provide N2K with a monthly statement of all
advertising revenue booked by Netscape with respect to the Service Front Page
and indicating the applicable share of such advertising revenues to be factored
into the calculation of Net Revenues, as defined herein. N2K shall be entitled
to reduce any amounts payable by N2K to Netscape hereunder by such advertising
net revenue amounts allocable to N2K from Netscape. If revenue-generating
products or services other than [****] and advertising are undertaken by the
parties pursuant to this Agreement, the parties shall mutually agree on a Net
Revenue calculation which shall apply to such product or service and which shall
be included in the calculation of Net Revenues.
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(c) Percentage Splits: Every [****] after the Launch Date, N2K and
Netscape shall calculate the Net Revenues generated by the Service, and N2K and
Netscape shall share Net Revenues generated by the Service in the following
manner:
If the cumulative Net Revenues beginning on the Launch Date are less
than [****], N2K shall pay Netscape [****] of the cumulative Net
Revenues;
If the cumulative Net Revenues beginning on the Launch Date are less
than [****] but greater than [****], N2K shall pay Netscape [****] of
the cumulative Net Revenues;
If the cumulative Net Revenues beginning on the Launch Date are
greater than [****], N2K shall pay Netscape [****] of the cumulative
Net Revenues
Notwithstanding the foregoing, if N2K offers deeply discounted Music Products
such that the Net Revenues generated by the sale of such Music Products is less
than [****] of the selling price of the Music Products, such Net Revenues from
the sale of deeply discounted Music Products shall not be included in the
calculation of Net Revenues to be shared between the parties; provided, however,
that the sale of deeply discounted Music Products shall not account for over
[****] of the total number of units of Music Products sold in any given
six-month period.
(d) Timing and Report. N2K shall deliver to Netscape a report describing
in detail the calculation of Gross Revenues and Net Revenues for each six-month
period, and shall pay to Netscape Netscape's portion of such Net Revenues within
thirty (30) days following the end of the six-month period.
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EXHIBIT C
SERVICE
Description of Service. The primary features and functions of the Service will
provide to end users in the Target Market [****] about the music industry. The
Service will be modeled after, yet differentiated from, the N2K Brand Service.
Notwithstanding the foregoing, N2K shall develop, subject to Netscape's
approval, the concept, look and feel of the Service to attract and retain
members of the Target Market and to be distinct from N2K Brand Service.
Initially, access to and use of the information provided on the Service will be
provided free of charge to end users.
Design of Service Front Page. Netscape shall designate a portion of the Service
Front Page to be used for co-branding the Service and a portion to be used for
banner advertising. The remainder of the Service Front Page shall be allocated
between the parties as follows: (i) at least [****] area ([****] of the [****]
above-the-fold "white space" area) shall be dedicated to content or promotional
collateral for the Service, which content or collateral shall be placed by N2K,
subject to Netscape's prior approval; and (ii) the remainder of such area shall
be dedicated to Netscape's individual use for content or promotional collateral
for other services and products. The Service Front Page shall have a
"xxxxxxxx.xxx" domain name, and traffic to the Service Front Page shall be
counted as Netscape traffic.
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EXHIBIT D
NETSCAPE'S PROMOTIONAL SERVICES
NET SEARCH PROGRAM PROMOTION
- Net Search Page. Within the Net Search Page, Netscape shall include a
prominently positioned button for search functionality provided by N2K.
[****] N2K's button on the Net Search Page shall comply with Netscape's
standard technical specifications for buttons on the Net Search Page.
Netscape reserves the right to redesign and/or reconfigure the Net Search
Page and the technical specifications for any buttons therefor, provided,
however, that N2K's prominence shall not be materially decreased. [****] N2K
shall notify Netscape in writing as to whether N2K wishes to continue N2K's
button placement on the Net Search Program page [****]
OTHER IMPRESSION-GENERATING PROMOTIONS
Netscape may offer to N2K other promotional opportunities in addition to the Net
Search Program, which promotional opportunities will generate Impressions of N2K
Promotional Content and be included in the [****]. Such promotions may include,
but are not limited to:
- Net Search Banner Advertising. On the Net Search Page on Netscape's Web
Xxxx, X0X Promotional Content may be featured in a banner advertisement
position from time to time.
- Netscape Home Page Banner Advertising. On the Home Page on Netscape's Web
Site accessible by end users running Netscape Navigator 3.x, N2K Promotional
Content may be featured in a banner advertisement position from time to time.
- NetCenter Front Page and Marketplace Front Page Promotions. Netscape may
include promotional flash items for the Service on the NetCenter Front Page
and the NetCenter Marketplace Front Page from time to time. Such promotions
may vary depending on the client software being run by the end user.
- Other. The parties may also agree to other promotions for N2K
Promotional Content within Netscape's Web Site.
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EXHIBIT E
MUTUAL NON-DISCLOSURE AGREEMENT
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EXHIBIT F
END USER REGISTRATION
1. Registration Process. [****] Initially, the Service will use N2K Brand
Service's registration back-end database in conjunction with a co-branded
front-end form of registration presented to end users. At the time the end user
is asked to register, the end user will be notified as to what personal data is
required for them to provide, how the personal data will be used and who will
have access to the data. [****] The parties hereto acknowledge that it is their
intent to integrate the Service's user registration processes with Netscape's
"Universal Registration" system when such system becomes available. At such time
as each registration process is transferred to Netscape, Netscape shall use
reasonable commercial efforts to collect the same data from the Service
registration process as was collected by N2K. At such time as Netscape's
"Universal Registration" system is deployed, Netscape will provide to N2K
information about users registering for the Service by means of the "Universal
Registration" system in a format and timeframe to be mutually agreed upon by
Netscape and N2K.
2. Unsubscribe. If at any time an end user elects to "unsubscribe" from
NetCenter, as Netscape shall notify to N2K from time to time, N2K shall no
longer communicate with such end user and shall remove any information about
such end user from N2K's databases.
3. Additional User Information. If N2K collects [****] accessing the Service,
in addition to information supplied by users during the registration process,
[****] in a format and timeframe as the parties shall mutually agree. [****]
such additional information received from N2K [****] and related to an end
user's [****] for any targeted solicitation for a product or service which is
competitive with N2K's products and services.
4. Personal Data Confidential; Ownership. N2K may use information collected
about end users from whatever means ("End User Information") only for internal
marketing purposes, and N2K shall not resell or disclose such End User
Information to any third party; provided, however, that N2K 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 N2K 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 notice
to N2K if N2K has not cured its performance within five (5) days of written
notice from Netscape. End User Information shall be the jointly owned
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Confidential Information of both parties; provided, however that information
collected about end users may be aggregated and such aggregated information
shall not be deemed confidential End User Information.
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EXHIBIT G
CONTENT PROVIDER CRITERIA
To promote the strategic positioning of the Content Providers within the
Service and demonstrate support for Netscape, its services and products, N2K
shall use reasonable commercial efforts to encourage the Content Providers
participating in the Service to comply with the following conditions:
[****]Software. N2K shall use [****] Content Providers to [****] current
version of Netscape [****] product (currently comprised of Netscape [****] to
maintain Content Providers' web sites).
[****] for Netscape Technology. [****] HTML, Frames, layers, absolute
positioning, Java, JavaScript or the then current client software technology
(or subsequent features displayable by an end user's browser) within the beta
testing period of the client software.
Relative Prominence. In the Service, Content Providers will accord Netscape's
products and services a [****] as well as on an [****] basis at least as [****]
as the positioning accorded any third party Internet client or server software,
online service provider or [****] delivery system.
Netscape Now Program Compliance. Content Providers shall display the "Netscape
Now" button [****] of Content Providers [****] on its primary Local Language
Web site, on any page [****] of Content Providers' Local Language Web site, and
use best efforts to include the following statement (or a statement designated
by Netscape and generally used by Netscape as a successor to the following
statement or in connection with any successor program to Netscape's Netscape
Now program) next to the Netscape Now button: "This site is best viewed with
Netscape Communicator. Download Netscape Now!" (or such higher non-beta version
as is then available). On any page on which the Netscape Now button, or a
successor button, is displayed, the Netscape Now button shall be upper-most,
top-most and left-most, and equal to or greater in size and prominence than the
virtual button or other graphic for any third party Internet client or server
software, online service provider or "push" content delivery system. Content
Providers shall comply with the guidelines for the Netscape Now program
published on Netscape's Web Site at xxxx://xxxxxx.xxxxxxxx.xxx/xxxxxxx/xxxxxx/
netscape_now_guidelines.html, or such other URL as Netscape may specify from
time to time.
