Exhibit 10.21
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NETCENTER SERVICES AGREEMENT
COVER SHEET
This Netcenter Services Agreement, of which this page is a cover sheet ("Cover
Sheet"), is entered into between Netscape Communications Corporation, a Delaware
corporation and wholly owned subsidiary of America Online, Inc. ("Netscape"),
and Xxxxxxxx.xxx, Inc., a Delaware corporation Participant"), effective as of
the date of Netscape's signature below ("Effective Date").
Brief Description of Service: co-branded service offering on the Netcenter
Business Channel and My Netscape that offers users the ability to perform in-
depth industry research for the following industries: Healthcare,
Pharmaceuticals, Financial Services, Insurance and Telecom.
Territory: North America Netcenter
Local Language: U.S. English
Service Period: 2 years from the Effective Date, except as otherwise extended as
set forth in the Agreement.
Addresses for Notice:
Xxxxxxxx.xxx, Inc. Netscape Communications Corporation
000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx 000 000 Xxxx Xxxxxxxxxxx Xxxx, XX-000
Xxxxxxxxx, MD 21090 Xxxxxxxx Xxxx, XX 00000
XXX XXX
Fax: 000 000-0000 Fax: (000) 000-0000
email: xxxxxxxx@xxxxxxxx.xxx Attn: General Counsel
Attn: Xxxxx Xxxxxxx - CEO
XXXXXXXX.XXX, INC. NETSCAPE COMMUNICATIONS
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxxx
-------------------------------- -------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxx Xxxxxxxx
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Title: CEO Title: Director-Business Affairs
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Date: 6/30/99 Effective Date: 6/30/99
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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NETCENTER SERVICES AGREEMENT
In consideration of the mutual covenants contained herein, the parties agree as
follows:
1. LICENSE GRANT
1.1 Participant License. Participant hereby grants Netscape a non-exclusive,
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worldwide and royalty-free right to store, display, perform, frame, reproduce,
distribute, re- distribute, transmit, re-transmit and otherwise use the: (a)
Service and (b) Licensed Content, including any data, information, content and
other intellectual property included in the Licensed Content within the Netscape
Network or Netscape's "My Netscape" or "Custom Netcenter" programs (or
successors thereof). Each copy of the Licensed Content produced as part of the
Service shall carry appropriate copyright notices which Participant will supply
to Netscape.
2. THE SERVICE
2.1 Description of Service. Participant will provide Netscape with the Licensed
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Content and other technology and services as may be required under this Section
2 and Exhibit A (the "Service") for inclusion in the Netscape Network and as
otherwise set forth in Exhibit A. The Service does not include the Index Pages.
Traffic on all Service Pages and Index Pages shall be considered to be Netscape
traffic. The specifications for the Service are set forth within the mock-ups
and site map, if any, provided as part of Exhibit A.
2.2 Index Pages. The Index Pages will be produced, hosted, served and
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maintained on Netscape's servers. Each such page will include areas for
advertising, content, and sponsorships. Participant will provide to Netscape,
without limitation, the following content for use on the Index Pages: Headline
news feeds for the default settings, as specified by Netscape, and customized
content based on user
selected preferences for the following: Healthcare, Pharmaceuticals, Financial
Services, Telecommunications, and Insurance. Netscape may add additional
sections and services to the Service Index Page from time to time.
2.3 Service Pages. Netscape shall provide the specifications and production
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schedule (if any) for the navigation, templates (including headers and footers),
architecture, and look and feel of the Service Pages in accordance with the
mock-ups and site map provided, if any. Netscape will have complete design and
content approval over all Service Pages and pages within the Service. Netscape
may amend the content required on the Service Pages and/or the mock-ups or site
maps provided as part of Exhibit A from time to time upon reasonable notice to
Participant and, if Participant is unable to provide any such amended content,
then Netscape may supplement the Service accordingly. The Service Pages shall:
(i) be served, produced and managed by Participant, including but not limited to
hiring and managing creative, technical, customer support, and general staff as
needed; (ii) be hosted and maintained solely on Participant's servers; (iii)
have a "Xxxxxxxx.xxx" domain name; (iv) include a field providing search
functionality to Netscape's Net Search link; (v) be co- branded in accordance
with Section 2.4 and (vi) at Netscape's option, include links to third party
content in order to supplement the Service. Notwithstanding Section 2.3(i)-(ii)
above, Participant may have a third party host and maintain the Service Pages,
provided that Participant ensures that such third party agrees to meet all of
the applicable requirements set forth in this Agreement.
2.4 Co-Branding. The Service Pages will be co-branded by Netscape and
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Participant an average of 3 clicks away from the Service Index Page in
accordance with the site map provided as part of Exhibit A.
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The co-branding will be subject to Netscape's Guidelines and will include
Participant's company name and logo. Co-branding will include a "Powered By"
[Participant's logo], so long as the Participant logo conforms to Netcenter
standard design guidelines (eg. Placement in upper right hand side of page,
standard-sized logo, links not hot). Index Pages will not be co-branded.
2.5 Service Implementation. Participant shall provide updated content for the
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Service Pages and the Index Pages in a manner consistent with the descriptions,
if any, set forth in Exhibit A or as Netscape may reasonably require.
Participant may not make any modifications additions or subtractions to the
Service Pages as such Service Pages are described in Exhibit A without
Netscape's written permission. All content supplied by Participant for the
Service will meet Netscape's performance requirements and specifications with
regard to page size, loading speed and speed of access to database driven
content as set forth in Exhibit A. Participant shall be responsible for the
production, technology deployment, content programming, and creation of graphic
user interfaces of the Service, all in accordance with Netscape's Guidelines The
Service shall use substantially the same technology and advantages that
Participant uses in its own proprietary service(s), if any, unless otherwise
mutually agreed by the parties. The Service shall not be disadvantaged or suffer
from inferior production, programming or performance relative to Participant's
similar services, or any similar service that Participant might make available
to, or operate on behalf of, third parties. The Service shall perform
substantially in accordance with the performance standards of its own
proprietary services, including, but not limited to, load time, timeliness of
content, and quality of programming. Participant's obligation to produce the
Service, including production services, technology deployment and content
programming that meets or exceeds standards established by Participant on
Participant's Web Site or services (or any web site or services Participant
manages for any third party) and general industry standards is a material
obligation of Participant under this Agreement.
2.6 Commerce. Participant shall not conduct any merchandising through the
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Service Pages through auctions, clubs, directly or any other method without
Netscape's prior written consent. Prior to entering into negotiations with any
third party regarding merchandising or commerce arrangements through
Participant's Web Site, Participant shall give Netscape written notice of such
desire and, upon request by Netscape, negotiate in good faith with Netscape or
its commerce or marketing participant in the applicable product/service category
regarding a merchandising or commerce arrangement. Any merchandising (including
direct merchandising) permitted hereunder through the Service shall be subject
to (i) the then-current requirements of Netscape's merchant certification
program; (ii) Netscape's standard terms and conditions applicable to its
interactive marketing participants; (iii) prior written approval by Netscape for
all products, services, and other goods to be offered through the Service; and
(iv) Participant will take all reasonable steps necessary to confirm its
promotion and sale of such products, services, and other goods through the
Service to the then- existing technologies identified by Netscape which are
optimized for the Netscape Network.
2.7 Advertising; Commitments.
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(a) Participant shall ensure that Netscape Members accessing the Service
Pages or linking to the Participant Web Site do not receive advertisements,
promotions or links for any entity reasonably construed to be in competition
with the Netscape Network or with Netscape Network software or Products or
otherwise in violation of the applicable Netscape Network then- standard
advertising policies or exclusivity commitments or other contractual preferences
to third parties.
(b) Except for Participant links that sell Participant products and
services (as set forth in Exhibit A), Netscape will design, manage, sell and
serve all sponsorships, ads or other promotional elements or revenue generating
opportunities to be included throughout the Service
2.8 Service Name. The Service name will be as mutually agreed upon by Netscape
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and Participant. Participant shall not independently use the Service name
without Netscape's prior written consent. If
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the Service name includes a co-branding component that is not generic or
descriptive, Participant may not use the Service name with Netscape's name
expunged.
2.9 Technical Support. Participant will provide technical support to Netscape
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to ensure that content is correctly received and displayed by Netscape in
accordance with the priority response times set forth as Exhibit B. Participant
shall 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. Participant shall be solely
responsible for the purchase, implementation, maintenance and support of all
software and hardware required to fulfill its obligations under this Agreement.
In the event Netscape technical support is required, Netscape will provide
technical support to Participant upon Netscape standard terms, conditions and
rates.
3. PAYMENT
For the mutual benefits provided under this Agreement, payments shall be made in
the amount and subject to the terms set forth in Exhibit C.
4. NETCENTER PROGRAM REQUIREMENTS
4.1 User Registration. If end users are required to register to access certain
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features within the Service, the Service's user registration processes will be
integrated with Netscape's "Universal Registration" system and be consistent
with Netscape's then-current privacy policy, each as set forth on Exhibit D.
4.2 Core Services. Participant will integrate Netscape's then-current Core
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Services into the Service. Netscape may modify the Core Services from time to
time and notify Participant of any such changes for the Service.
5. NETSCAPE PRODUCTS AND TECHNOLOGY
5.1 Optimize for Netscape Technology and Services.
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(a) Participant shall ensure that, during the term of the Agreement, the
Netscape search engine will be used within: (i) the home page of Participant's
Web Site; and (ii) any proprietary server software developed by or for
Participant.
(b) In order to optimize the efficiency of the Service, Participant will:
(i) within the Service, ensure compatibility with the client software used by
Netcenter members, especially the latest version of Netscape Communicator client
software; (ii) consider the use of at least one current version of Netscape core
Web server software product to maintain Participant's Web Sites, to be obtained
by Participant pursuant to Netscape's standard licensing terms; (iii) display
the "Netscape Now" button (or successor Netscape marketing button) prominently
on the home page of Participant's Web Site, on the Service Pages, on any page to
which the Service links, 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 online service; (iv) display a prominent button or banner above the
fold on Participant's home page and the Service pages promoting a Netscape
Network property (such property as specified by Netscape) that does not promote
a service or product that competes with Participant services and products; and
(v) use and promote only Netscape client and server software and online services
within the Service.
5.2 Course of Dealing. In consideration of (i) the use of the xxxxxxxx.xxx
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domain name for the Service, and (ii) the treatment of the Service as a
fundamental part of the Netcenter service, until such
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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 agrees to the following:
5.2.1 No Disadvantage. Participant shall not make any content available solely
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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; and
5.2.2 Preference for Netscape Products and Services. Participant shall: Within
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one click away from the Service, (a) use and promote only Netscape client and
server software and online services; and (b) Use reasonable efforts to ensure
that: (i) Participant's marketing and promotional materials; (ii) Any web page
in Participant's Web Site located more than one click away from the Service; and
(iii) Any page within 1 click away from a page described in subparagraph (b)(ii)
of this Section 5.2.2, accord Netscape's products and services a position of
prominence at least as great as the positioning accorded any third-party
Internet client or server software, software provider or online service.
5.3 No Disabling. Participant shall not provide or implement any means or
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functionality that would (i) alter, modify or enable end users to alter or
modify, any Netscape client software, standard user interface or configuration
(collectively, the "Software"), (ii) disable any functionality of the Software
or any other Internet browser software, or (iii) modify the functioning of pages
served from Netscape's Web Site.
5.4 E-Commerce. Participant shall make commercially reasonable efforts to
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integrate, within the Service, any Netscape or AOL standard that integrates a
wallet or other customer supplied commerce information program that can be used
to simplify an e-commerce transaction for an end user.
6. TERM & TERMINATION
6.1. Term. Unless earlier terminated as set forth herein, the initial term of
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this Agreement shall commence on the Effective Date and expire 2 years from the
Effective Date. Netscape shall have the right to extend this Agreement for one
(1) successive period (an "Extension Term"). The Extension Term shall be for
ninety (90) days; and each Extension Term shall be subject to the same terms,
including payment, on a pro-rata basis, as the terms set forth herein. Netscape
shall exercise its option to extend this Agreement by providing Participant with
written notice of such election no later than sixty (60) days prior to the
expiration of the initial term.
6.2 Termination for Breach. Either Party may terminate this Agreement at any
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time in the event of a material breach by the other Party which remains uncured
after thirty (30) days written notice thereof.
6.3 Termination for Bankruptcy/Insolvency. Either Party may terminate this
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Agreement immediately following written notice to the other Party if the other
Party (i) ceases to do business in the normal course, (ii) becomes or is
declared insolvent or bankrupt, (iii) is the subject of any proceeding related
to its liquidation or insolvency (whether voluntary or involuntary) which is not
dismissed within ninety (90) calendar days or (iv) makes an assignment for the
benefit of creditors. 6.4 Site and Content Preparation. Except as otherwise set
forth in Exhibit A, Participant shall achieve Site and Content preparation
within one hundred and twenty (120) days after the Effective Date. "Site and
Content Preparation" shall mean that Participant shall have completed production
of the Service and the Licensed Content in accordance with this Agreement and
completed all other necessary work to prepare the Service and the Licensed
Content and any other related areas or screens to launch on the Netscape Network
as contemplated hereunder. In the event Participant has not achieved Site and
Content Preparation within one hundred and fifty (150) days after the Effective
Date,
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then in addition to any other remedies available, Netscape shall have the right
to terminate this Agreement by giving Participant written notice thereof. If
Participant is delayed in achieving Site and Content Preparation due to a
failure by Netscape to perform its obligations under this Agreement and
Participant notifies Netscape in writing of such failure and the resulting
delay, then the one hundred and twenty (120) day and one hundred and fifty (150)
day periods referenced in this Section shall each be extended by the amount of
time of Participant's delay solely attributable to such failure by Netscape.
6.5 Rights Upon Termination or Expiration. Upon termination or expiration of
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this Agreement, Netscape shall have the right, without any additional payment,
charge or royalty to Participant, to produce versions of the Service that do not
include Participant's proprietary technology, logo or name but that might employ
a graphic user interface or underlying technology that is substantially similar
to the graphic user interface or underlying technology of the Service. In order
to continue to offer a successor to the Service within Netcenter without
interruption, Participant shall promptly deliver to Netscape or its designee
content and information necessary for the Service in a form and manner to be
designated by Netscape. Netscape shall not be liable to Participant in the event
of termination, expiration or failure to agree upon an extension of the term of
this Agreement for compensation, reimbursement or damages on account of the loss
of prospective profits, or anticipated sales, or on account of expenditures,
investments, leases or commitments in connection with the business or goodwill
of Participant.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
NETSCAPE COMMUNICATIONS XXXXXXXX.XXX, INC.
CORPORATION
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Print Name: Xxxx Xxxxxxxx Print Name: Xxxxx X. Xxxxxxx
----------------------- ----------------------
Title: Director -Business Affairs Title: CEO
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Date: 6/30/99 Date: 6/30/99
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Tax ID/EIN#: 00-0000000
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This Agreement includes the following Exhibits:
Exhibit A: The Service
Exhibit B: Priority Response Times
Exhibit C: Payment
Exhibit D: User Registration and Privacy
Exhibit E: Reporting Requirements
Exhibit F: Definitions
Exhibit G: General Terms and Conditions
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EXHIBIT A: THE SERVICE
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Netscape and Participant will provide a co-branded service offering on the
Netcenter Business Channel and that may also be accessed from index pages from
My Netscape or Custom Netcenter that offers users paid for content and
subscription services and free in-depth industry research for the following
industry vertical categories: Healthcare, Pharmaceuticals, Financial Services,
Insurance and Telecom. In addition, Participant will provide a tool
that will allow an end user who is accessing the Service to customize and search
the Licensed Content contained within the Service.
Within the industry verticals, participant will provide:
Wizards for customizing research results as well as standard default settings
for the following industries: . Healthcare
. Pharmaceuticals
. Financial Services
. Telecommunications
. Insurance
Within the wizards, Netscape has the option to choose any of the following
categories: [*]
Participant also agrees to work with Netscape to produce a FAQ: A "Frequently
Asked Question" Section that informs users how to trouble shoot problems and
gives further details to maximize the value of the service and enhance user
experience.
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
7
Participant also agrees to deliver the following to Netscape as part of the
Service:
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Headlines . Participant will post headlines for the Service to a
database outside of its firewall in a format specified by
Netscape. These headlines can be served on My Netscape,
Custom Netcenter and Netcenter Business Channel at
Netscape's discretion. Resulting clicks will drive users
into the Service.
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Content Providers . Participant will code in search engine and open directory
results from companies chosen by Netcenter. The ordering of
these search providers as they appear in the set-up process
will be determined by Netscape. Netscape reserves the right
to hard-code choices, such as its own proprietary search
engine and Open Directory into the user set-up selections
for the service.
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Search Results . Participant will make best efforts to comply with
Netscape's request to hardcode certain search constraints
within the results that are generated by the participant.
These include, but are not limited to date and content
provider. Netscape reserves the right to exclude third party
content providers from appearing in the Service.
. Netscape and Participant agree to a caching and indexing
mechanism that will allow Participant to maximize system
performance and optimize the results for end-user data
delivery without incurring burdensome content royalties for
the Participant. Netscape can specify templates for creating
default settings for user profiles (e.g. not customized) for
industry and company information.
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Content . Participant will provide Netscape with customized industry
wizard templates based upon mutually agreed upon standards
and content.
. Participant will create a streamlined wizard approach for
user personalization and customization based on Netscape
requirements.
. Participant will use best efforts to ensure that links to
articles by current Netcenter participants (e.g. NewsEdge)
will link through directly to such current co-branded pages
already within Netcenter. Participant and Netscape will work
jointly with third party to implement the engineering to
enable this referral.
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Content Display . Participant agrees to mix free and paid-for content within
the service results. Content that requires payment will be
specifically displayed as such.
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EXHIBIT B: PRIORITY RESPONSE TIMES
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Participant shall provide to Netscape support services for the Service
consistent with the following support obligations:
1. OBLIGATIONS
1.1. Error Reporting. Errors may be reported on a 24 hours per day, 365 day per
year basis. During normal business hours, Participant's technical staff shall be
available to receive Error reports directly from end users or Netscape by
telephone. Outside of normal business hours, Errors may be reported by pager,
electronic mail, voice mail, fax or telephonic recording capability. Participant
shall provide Netscape with a pager number for both a primary and secondary
pager which will be carried by appropriate support personnel at all times and to
which Errors may be reported at any time.
1.2. Support Requests. Participant will Respond and use best efforts to correct
or provide a Workaround to Priority 1 and Priority 2 Errors that Netscape or end
users identify, classify and report; and will use reasonable commercial efforts
to Respond to other Errors within the time frames set forth below.
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Priority Title and Notification Status Reports Target
Error Explanation Mechanism & (in Response to Repair
Required Time to Errors) Time
Respond
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1 Fatal Error-- Voice or Pager: Twice Daily 2 days
No useful work 15/30 minutes (7X24) (7X24)
can be done. 7X24 coverage
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2 Severe Impact-- Voice or Pager: Twice Daily 5 days
Functionality 1 hour
disabled. Errors 7X24 coverage
which result in a
lack of application
functionality or
cause intermittent
system failure.
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3 Degraded Voice or Pager: Daily
Operations-- 1 hour (business days) business
Errors causing Email: 8 hours days
malfunction of Business day coverage
non-critical
functions.
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4 Minimal Impact-- Voice or Pager: Weekly Next
Attributes and/or 2 hours (business days) Release
options to Email: 8 hours
ancillary features Business day coverage
do not operate as
stated.
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5 Enhancement Voice: Weekly No
Request. 8 hours (business days) Requirem
business day coverage ent
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EXHIBIT C: PAYMENT
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1. Payment. For placement of the Service within Netcenter pursuant to the terms
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and conditions set forth in this Agreement, Participant will pay Netscape an
amount equal to [*] subject to the payment schedule set forth below.
[*]
2. Taxes. All payment amounts in this Agreement are in U.S. dollars and are
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exclusive of any applicable taxes and shall be made free and clear of without
reduction for, (and Participant shall be responsible for and shall indemnify
Netscape against) any applicable U.S. and foreign, state and local taxes, value
added or sales taxes, withholding taxes, duties or levies and assessments,
howsoever designated or computed, pertaining to the payments under this
Agreement (excluding taxes based upon the net income of Netscape). Participant
shall promptly furnish Netscape with tax receipts evidencing the payment of any
taxes referred to in the preceding sentence. Netscape and Participant shall
cooperate with each other in minimizing any applicable tax and in obtaining any
exemption from or reduced rate of tax available under any applicable law or tax
treaty.
3. Revenue Share.
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(a) Provided that Participant has paid the fees as set forth above in
Section 1 of this Exhibit C, Netscape will pay Participant, within 30 days
following each calendar quarter, 35% of the Net Revenue that Netscape collects
for revenue from banner and advertisements placed on Service Pages during such
calendar quarter.
(b) For revenue that Participant derives from paid for Licensed Content via
links within or from the Service (except for revenue generated from
subscriptions), Participant will pay Netscape, within 30 days following each
calendar quarter, [*] of the Net Revenue generated during such calendar quarter.
(c) For revenue that Participant derives from subscriptions sold via links
within or from the Service, Participant will pay Netscape, within 30 days
following each calendar quarter, [*] of the Net Revenue generated during such
calendar quarter from such subscriptions.
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT D: USER REGISTRATION AND PRIVACY
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I. REGISTRATION PROCESS
To the extent that Participant desires to offer a registration process,
Participant will be responsible for the implementation of the Service
Registration and the integration of the Service and service registration with
Netcenter Registration. The functionality, design, and, integration of the
Service Registration process and Netcenter Registration will be subject to
Netscape's approval, terms and conditions as defined this Agreement. Such
specifications, terms and conditions may be revised by Netscape from time to
time upon 30 days prior notice to Participant. Participant will implement
changes within a 30 day period unless the parties mutually agree otherwise. The
point of entry to the registration area from the Service shall be hosted and
controlled by Netscape unless otherwise determined by Netscape.
II. REGISTRATION FEATURES
The Service Registration area shall be co-branded and have a look and feel that
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 Netscape determines such site access models
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.
III. 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. If Netscape implements a Netcenter
loyalty program, Participant shall also offer end user loyalty selections as
part of the Service Registration process at Netscape's request. Participant
shall deliver to Netscape data collected pursuant to such loyalty programs in a
format and timeframe as mutually agreed to by the parties.
IV. DATA TRANSFER
Participant shall use commercially reasonable efforts to transfer all end user
data collected during the Service Registration process and 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.
V. NETCENTER CONSIDERATIONS
All third party programs 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 pre-populate 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.
VI. USE OF PERSONAL DATA
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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; except that Participant
may supply aggregated data to third parties to the extent that: (a) such data
only relates to demographic information; (b) such data cannot be used by any
third party to solicit Netscape Members; and (c) Netscape's privacy policy must
be adhered to; 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 Netcenter programs to the users. It is a material
obligation of this Agreement that Participant shall adhere to Netscape's then-
current privacy policy, set forth at
xxxx://xxxx.xxxxxxxx.xxx/xxxxx.xxxxxxx/xxxxxxx.xxxx or at such other URL as
Netscape may designate from time to time. The parties will cooperate to create
guidelines for Participant's disclosure of aggregate statistical information
concerning Service's 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 and written
approval from Netscape. 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 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 " Participant will
terminate all 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 the Service Period, Participant will transfer all
End User data to Netscape and destroy all copies of that data.
VII. SOLICITATION OF NETSCAPE MEMBERS
Notwithstanding any other conditions of this Agreement, during the Term and for
the two-year period following the expiration or termination of this Agreement,
neither Participant nor its agents will use the Netscape Network toi) solicit or
participate in the solicitation of Netscape Members when that solicitation is
for the benefit of any entity (including Participant) which could reasonably be
construed to be or become in competition with Netscape or (ii) promote any
services which could reasonably be construed to be in competition with services
available through Netscape including, but not limited to, services available
through the Internet (e.g., an Participant Web Site). Participant may not send
any Netscape Member unsolicited e-mail communications on or through the Netscape
Network without a "Prior Business Relationship." For purposes of this Agreement,
a "Prior Business Relationship" shall mean that the Netscape Member has either
(i) purchased Products from Participant through the Netscape Network or (ii)
voluntarily provided information to Participant through a contest, registration,
or other communication, which included clear and conspicuous notice to the
Netscape Member that the information provided by the Netscape Member could
result in an e-mail being sent to that Netscape Member by Participant or its
agents. A Prior Business Relationship does not exist solely by virtue of a
Netscape Member's visit to the Service (absent the additional elements described
above). In any commercial e-mail communications to Netscape Members that are
otherwise permitted hereunder, Participant will provide the recipient with a
prominent and easy means to "opt-out" of receiving any future commercial e-mail
communications from Participant.
12
EXHIBIT E: USAGE REPORTING REQUIREMENTS
---------------------------------------
Netscape may, from time to time, modify (e.g., replace, add or delete): (a) the
format of the reports required, (b) the frequency of the reports, or (c) the
data required therein, upon reasonable advance notice to Participant.
All of the foregoing usage reports shall be delivered separately for each
Territory.
1. Report Frequency
(a) Reporting frequency within 90 days from the date that the Service is
launched: The report frequency is bi-weekly. The bi-weekly report period is
Thursday to Wednesday, with bi-weekly reports due the following day, Thursday by
noon PST
(b) Reporting frequency 91 days after the date the Service is launched: The
report frequency is weekly. The weekly report period is Thursday to Wednesday,
with weekly reports due the following day, Thursday by noon PST. In addition to
the Weekly Report, daily Page Views exceed [*] per day, then Participant shall
report to Netscape on a daily basis and online, with report period being the
previous day.)
2. Report Delivery
The report shall be emailed to in the Weekly
Report Format. In addition to the Weekly Report: if daily Page Views exceed [*]
per day, then for on-line reporting, Participant shall provide Netscape with a
URL to the Participant's reporting system. The online report system would be
accessible via secure means such as username/password and static IP address to
Netscape related reports only."
3. Report Specifications: The report must cover the following information:
3.1. Breakdown of Total Page Views by day for the entire co-branded site; daily
Total Page Views for each area within the site and, if applicable and if daily
Page Views exceed [*] per day, then the break down of individual Page Views
shall be provided daily in each area.
3.2. Breakdown of registration numbers.
3.3. Breakdown of Visits by day, if online reporting is required.
3.4. Optional: Unique Visitors by day, week and month, if applicable.
4. Participant Information
Participant provides to Netcenter Report Team the following information upon
execution/signature of contract:
- Participant Name
- Participant Contact Name
- Participant phone number and e-mail
- Participant technical contact phone, pager and e-mail
- location of online Participant traffic reports (if applicable)
-> URL location
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
13
-> Login/password
-> Does Netscape need a Static IP address for access
- Channel/directory names
- subchannel/subdirectory names
5. Weekly Report Format
The following example is received weekly by NOON Thursdays via e-mail to:
xxxxxxxxxxx-xxxxxxx@xxxxxxxx.xxx
Subject: Participant Traffic Report for from
through
date,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-
yyyy
Total Page Views, x1,x2,x3,x4,x5,x6,x7
channelname1, y1,y2,y3,y4,y5,y6,y7
channelname2,y1,y2,y3,y4,y5,y6,y7
channelname1:sub-channelname1,z1,z2,z3,z4,z5,z6,z7
channelname1:sub-channelname2,z1,z2,z3,z4,z5,z6,z7
etc....
Definitions
date = mm-dd-yyyy
channelname = an alphanumeric string excluding colons (:), or commas (,). Spaces
are allowed.
subchannelname = an alphanumeric string excluding embedded colons (:), or commas
(,),
separated from a channel by a colon. Spaces are allowed.
x1,x2,x3... = the actual number of Page Views for each date.
y1,y2,y3... = the actual number of channelname Page Views for each date.
z1,z2,z3... = the actual number of sub-channelname Page Views for each date.
Example
Subject: Participant Traffic Report for Classified2000 from 09-03-1998 through
09-09-1998
date,09-03-1998,09-04-1998,09-05-1998,09-06-1998,09-07-1998,08-03-1998,09-09-
1998
Total Page Views,271652,254771,140885,153994,289143,301992,278666
home page,78948,75321,43999,52917,79434,85019,67554
computers,34958,37988,22908,24958,40984,43959,32093
autos,747,857,343,565,867,949,767
computers:apples,2938,5954,4349,3876,7433,8578,7657
computers:pcs,32020,32034,18559,21082,33551,35381,24436 etc...
6. Access Logs
Netscape may require Participant to furnish to Netscape access logs for the
Services on a quarterly basis. If daily Page Views exceed [*] per day, such logs
will be required daily. Access logs will be subject to review or audit by I/Pro
at Netscape's request in addition to the audit requirements set forth in the
Agreement.
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
14
EXHIBIT F: DEFINITIONS
----------------------
DEFINITIONS. The following definitions shall apply to this Agreement:
"Affiliates" means any corporation, participantship, joint venture or other
entity or person controlled, controlling or under common control with Netscape.
For purposes of this definition, the term "control" shall mean the direct or
indirect beneficial ownership of more than nineteen percent (19%) of the voting
interests (representing the right to vote for the election of directors or other
managing authority) in an entity.
"Channel(s)" or "sub-Channel(s)" means one or more of the topic-specific areas
providing content and links on Netcenter, all as determined by Netscape from
time to time, Core Services, e-commerce opportunities or links, and other tools,
resources, and applications pertaining to the specific topic.
"Confidential Information" means any information relating to or disclosed in the
course of negotiating and implementing the Agreement, which is, or should be
reasonably understood to be, confidential or proprietary to the disclosing
Party, including, but not limited to, the content of negotiations between the
Parties, the material terms of this Agreement, information about Netscape
Members, technical processes and formulas, source codes, product designs, sales,
cost and other unpublished financial information, product and business plans,
projections and marketing data. "Confidential Information" shall not include
information (a) already lawfully known to or independently developed at any time
by the receiving Party, (b) disclosed in published materials, (c) generally
known to the public, or (d) lawfully obtained from any third party and not
required to be kept confidential.
"Content" means text, images, video, audio (including, without limitation, music
used in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
"Core Services" mean services and applications that generally apply to all
Netcenter links or channels, as Netscape may amend from time to time. As of the
Effective Date, "Core Services" consist of discussion group, chat,
personalization, personal home page, member directory, email, instant messaging,
white and yellow pages and search features and functions.
"Error" means any instance where Participant-controlled portions of the Service
or Netcenter do not substantially conform to agreed-upon features and
specifications.
"Guidelines" means Netscape's then-current commercial design, operational, and
usage guidelines which Netscape may issue from time to time for the Services and
the Netscape Network.
"Index Page" or "Index Pages" means that certain page or pages on Netcenter that
serves as a gateway from Netcenter to a specific Netcenter service, which
gateway contains a listing, or "index" of all services that are related to a
certain topical link, or "Channel." The Index Pages may consist only of the
Service Index Page, or any index page that may link from Netcenter to the
Channel or sub-Channel.
"Licensed Content" means all Content provided by Participant or its agents to
Netscape or its Affiliates for distribution through the Netscape Network in
connection with the subject matter of this Agreement.
15
"Net Revenue" means gross revenue less reasonable expenses, including, without
limitation, sales commissions, agency fees, bad debt, refunds, rebates,
makegoods or other reasonable costs directly associated in the process of
promoting the Service. For banners and advertising sold directly by Netscape,
the aggregate of such expenses and costs will not exceed [*] of gross revenues
from such banners or advertising. For banners and advertising sold by a third
party, the aggregate of such expenses and costs will not exceed [*] of gross
revenues from such banners or advertising.
"Netcenter" means the U.S. version of the Netscape Netcenter internet based
interactive site marketed under the "Netcenter" brand, without exclusivity
specifically excluding (a) any other Netscape or Netscape Affiliate owned or
operated internet based interactive sites, (b) the international versions of
Netcenter or any similar Netscape or Affiliate service or interactive site; (c)
"Netscape AOL Instant Messenger(TM)," "Netscape Custom Netcenter," Netscape
WebMail, or any similar independent product, service or property which may be
offered by, through or by Netscape; (d) any programming or content area offered
by or through the U.S. version of the Netcenter brand service over which
Netscape does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties), (e) any yellow pages,
white pages, classifieds or other search, directory or review services or
Content offered by or through the U.S. version of the Netcenter brand service,
(f) any property, feature, product or service which Netscape or its Affiliates
may acquire subsequent to the Effective Date and (h) any other version of a
Netscape service which is materially different from Netcenter by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded version of the service or any version distributed
through any other distribution platform or through any platform or device other
than a desktop personal computer.
"Netcenter Registration" means the portion of the registration that is
maintained, hosted, and controlled by Netscape and applies to multiple services
across Netcenter. Netcenter Registration includes the assignment of a user name,
password, and the collection of core Netcenter user profile data including but
not limited to: First name, Last name, Address, City, State, Country, Zip Code,
Email Address and Age. Netscape Registration means any registration that is
maintained, hosted, and controlled by Netscape and applies to Netscape's Web
Site.
"Netscape Member" means authorized users (through Netcenter Registration,
purchase of goods on the Netscape Network, or through other means that Netscape
may reasonably designate from time to time) of the Netscape Network, including
without limitation both registered members and Visitors to Netscape's Web Site.
"Netscape Network" means (i) Netcenter and (ii) any other product or service
owned, operated, distributed, licensed, or authorized to be distributed by or
through Netscape or its Affiliates worldwide through which such party elects to
offer the Licensed Content (which may include, without limitation,
Netscape-related Internet sites, "offline" information browsing products, and
international versions of the Netscape products or Netscape Web sites.
"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 other URL or
locations as Netscape may designate. 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.
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
16
"Page Views" means the units of measurement that represent the number of
requests for a page of content. A page of content is, but is not limited to, a
static page such as an HTML document or a dynamically generated page such as
from a CGI script. Pages containing framesets shall not be counted as Page Views
and only the pages within the frameset containing principle content shall be
counted as Page Views.
"Participant's Web Site" means Participant's primary Local Language Web site,
which is currently accessible by the public via the Internet at the URL
xxxx://xxx.xxxxxxxx.xxx.
"Products" means any product, good or service which Participant offers, sells or
licenses to Netscape Members through (i) the Service and (ii) any web site
linked to Participant's Web Site.
"Respond" means and includes: taking and logging the Error call; in the case of
Priority 1 Errors, providing to the reporting party an action/resolution plan
within four (4) hours of initial call receipt and acknowledgment; and, in cases
of Priority 1 and 2 Errors, making best efforts on a continuing basis to cure
the Error until the Error is cured.
"Service" means the specific area within the Netscape Network, as described in
Exhibit A and Section 2.1 of the Netcenter Services Agreement, which shall be
developed, managed or marketed by Participant pursuant to this Agreement,
including but not limited to the Licensed Content, any functionality or
services, message boards, chat and other Netscape Member- supplied content areas
contained therein (but excluding any site or area outside of Netcenter that is
linked to the Service (through a "pointer" or similar link) in accordance with
the terms and conditions of this Agreement.).
"Service Index Page" means the page, linked to or accessible from Netcenter,
that serves as the first available point of entry for an end user accessing the
Service from Netcenter or the Channel or sub-Channel.
"Service Pages" means all pages of the Service excluding the Index Pages.
"Term" means the period beginning on the Effective Date and ending upon the
expiration or earlier termination of the Agreement.
"Total Page Views" means the sum of all Page Views for all co-branded content
hosted by the Participant.
"Unique Visitors" means the number of different Visitors who access a site
within a specific time period as determined by Netscape. To identify Unique
Users, Web sites need an unique identifier, which may be obtained through some
form of user registration or identification system. The definition of "Unique
Visitors" may be changed by Netscape from time to time upon notice to
Participant.
"Visitor" means an individual who interacts with a web site.
"Visits" means a series of page requests by a Visitor without a specified period
of inactivity (usually 30 consecutive minutes). If a Visitor leaves the site and
comes back within that specified period of inactivity, it is counted as part of
the same Visit.
"Workaround" means a method by which a user of a product can, by making a
limited number of procedural or programming changes in a product, prevent the
occurrence or re- occurrence of an Error. Programming changes include
adjustments to set-up and configurations files or other settings that do not
require recompilation.
17
EXHIBIT G: GENERAL TERMS AND CONDITIONS
---------------------------------------
I. SERVICE PAGES
Contests. Participant shall take all steps necessary to ensure that any contest,
--------
sweepstakes or similar promotion conducted or promoted through the Service (a
"Contest") complies with all applicable laws and regulations. Participant shall
provide Netscape with (i) at least thirty (30) days prior written notice of any
Contest and (ii) upon Netscape's request, an opinion from Participant's counsel
confirming that the Contest complies with all applicable laws and regulations.
Netscape Look and Feel. Participant acknowledges and agrees that Netscape shall
----------------------
own all right, title and interest in and to the look and feel of the Index Pages
and the Service Pages (the "Netscape Look and Feel"). In addition, Netscape
shall retain editorial control over the portions of the Service and Index Pages
which frame the Licensed Content including without limitation the Index Page and
Service Pages (the "Netscape Frames"). Netscape may, at its discretion,
incorporate navigational icons, links and pointers or other Content into such
Netscape Frames.
Management. Participant shall review, delete, edit, create, update and otherwise
----------
manage all Content available on or through the Service, including but not
limited to the Licensed Content and message boards, in a timely and professional
manner and in accordance with the terms of this Agreement, the Guidelines, and
any generally applicable service standards for interactive content providers
published by Netscape. In managing the Service, Participant agrees to refrain
from editing or altering any opinion expressed by an end user within the
Service, except in cases when Participant (i) has a good faith belief that the
Content in question violates an applicable law, regulation, third party right or
portion of Netscape's Terms of Service or (ii) obtains Netscape's prior
approval. Participant shall ensure that the Service is reasonably current and
well-organized, and shall employ all necessary procedures to insure the accuracy
of the Licensed Content. Participant warrants that the Service and the Licensed
Content: (i) will conform to Netscape's Guidelines (ii) will not infringe or
violate any copyright, trademark, U.S. patent or any other third party right,
including without limitation, any music performance or other music related
rights; and (iii) will not contain any Content which violates any applicable law
or regulation. Netscape shall have no obligations with respect to the Content
available on or through the Service, including, but not limited to, any duty to
review or monitor any such Content.
Changes to the Netscape Network. Netscape reserves the right to redesign or
-------------------------------
modify the organization, structure, "look and feel," navigation and other
elements of the Netscape Network, including without limitation, by adding or
deleting channels, subchannels and/or screens. If Netscape eliminates or
modifies an area of the Netscape Network in a manner that substantially modifies
the nature of the distribution required under this Agreement in a material
adverse fashion, Netscape will work with Participant in good faith to provide
Participant with comparable distribution reasonably satisfactory to Participant.
Duty to Inform. Participant shall promptly inform Netscape of any information
--------------
related to the Licensed Content which could reasonably lead to a claim, demand
or liability of or against Netscape and/or its Affiliates by any third party.
Response to Questions/Comments; Customer Service. Participant shall respond
------------------------------------------------
promptly and professionally to questions, comments, complaints and other
reasonable requests regarding the Licensed Content by end users or on request by
Netscape, and shall cooperate and assist Netscape in promptly answering the
same.
18
Classifieds. To the extent Participant desires to implement any classifieds
-----------
listing features through the Service, Participant shall obtain Netscape's prior
written approval. Such approval may be conditioned upon, among other things,
Participant's conformance with any then-applicable service-wide technical or
other standards related to online classifieds.
Statements Through Netscape Network. Participant shall not make, publish, or
-----------------------------------
otherwise communicate through the Netscape Network any deleterious remarks
concerning Netscape or it Affiliates, directors, officers, employees, or agents
(including, without limitation, Netscape's business projects, business
capabilities, performance of duties and services, or financial position) which
remarks are based on the relationship established by this Agreement or
information exchanged hereunder. This section is not intended to limit good
faith editorial statements made by Participant based upon publicly available
information, or information developed by Participant independent of its
relationship with Netscape and its employees and agents.
Launch Date. In the event that any terms contained herein relate to or depend on
-----------
the launch date of the Service or other property contemplated by this Agreement,
then it is the intention of the Parties to record such launch date in a written
instrument signed by both Parties promptly following such launch date; provided
that, in the absence of such a written instrument, the launch date shall be as
reasonably determined by Netscape based on the information available to
Netscape.
Harmful Content. Participant is solely responsible for any liability arising out
---------------
of or relating to (i) the Service and/or (ii) any material to which users can
link through the Service. If Netscape becomes aware that the Service contains
any material that violates any of the terms and conditions of this Agreement or
any Netscape policy, or that Netscape otherwise deems likely to cause Netscape
material harm, then Netscape will inform Participant and may elect not to
include the offending Content or the Service on Netscape's Web Site. Netscape
reserves the right not to include in Netscape's Web Site all or any part of the
Service that does not substantially conform to the terms set forth herein.
II. TRADEMARKS
Trademark License. In designing and implementing Promotional Materials promoting
-----------------
the Service (as defined below) and subject to the other provisions contained
herein, Participant shall be entitled to use the following trade names,
trademarks and service marks of Netscape: Netscape(R), Netcenter(TM), and the
Netscape N and Design logo, and Netscape and its Affiliates shall be entitled to
use the trade names, trademarks and service marks of Participant associated with
the Service (collectively, together with the Netscape marks listed above, the
"Marks"); provided that each Party: (i) does not create a unitary composite xxxx
involving a Xxxx of the other Party without the prior written approval of such
other Party and (ii) displays symbols and notices clearly and sufficiently
indicating the trademark status and ownership of the other Party's Marks in
accordance with Netscape's then current trademark guidelines available at
xxxx://xxxx.xxxxxxxx.xxx/xxxxx_xxxxxxx/xxxxxxxxxx.xxxx and applicable trademark
law and practice.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
------
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party, including registering or attempting to register the
Marks of the Title as a trademark, service xxxx, Internet domain name, trade
name, or any similar trademarks or name, with any domestic or foreign
governmental or quasi-governmental authority which would be likely to cause
confusion with the Marks. Licensee may not register or use the Marks or the
Title or an abbreviation of the Marks of the Title as part of an Internet domain
name.
19
Quality Standards. Each Party agrees that the nature and quality of its products
-----------------
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
Promotional Materials/Press Releases. Each Party will submit to the other Party,
------------------------------------
for its prior written approval, which shall not be unreasonably withheld or
delayed, any marketing, advertising, press releases or other promotional
materials related to the Service and/or referencing the other Party and/or its
trade names, trademarks and service marks (the "Promotional Materials");
provided, however, that, following the initial public announcement of the
business relationship between the Parties in accordance with the approval and
other requirements contained herein, either Party's subsequent factual reference
to the existence of a business relationship between Netscape and Participant,
including, without limitation, the availability of the Service on the Netscape
Network, or use of screen shots of the Service (so long as the Netscape Network
is clearly identified as the source of such screen shots) for promotional
purposes shall not require the approval of the other Party. Once approved, the
Promotional Materials may be used by a Party and its affiliates for the purpose
of promoting the Service and the content contained therein and reused for such
purpose until such approval is withdrawn with reasonable prior notice. In the
event such approval is withdrawn, existing inventories of Promotional Materials
may be depleted.
Infringement Proceedings. Each Party agrees to promptly notify the other Party
------------------------
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Authorization. Each Party represents and warrants to the other Party that: (i)
-------------
such Party has the full corporate right, power and authority to enter into this
Agreement, to grant the licenses granted hereunder and to perform the acts
required of it hereunder; (ii) the execution of this Agreement by such Party,
and the performance by such Party of its obligations and duties hereunder, do
not and will not violate any agreement to which such Party is a party or by
which it is otherwise bound; (iii) when executed and delivered by such Party,
this Agreement will constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms; (iv) such
Party's Promotional Materials, Licensed Content, Products, or Services when used
pursuant to this Agreement, will neither infringe on any copyright, U.S. patent
or any other third party right nor violate any applicable law or regulation and
(v) such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
Insurance. Participant, at its sole cost and expense, shall secure and maintain
---------
adequate insurance coverage as is necessary, as a reasonable prudent
businessperson, for Participant to bear all of its obligations under this
Agreement. Such coverage shall include Worker's Compensation Insurance (or self
insurance, if applicable law permits), Employers Liability Insurance,
Comprehensive Automobile Liability Insurance, Umbrella Liability Insurance,
professional Liability Insurance, and Commercial General Liability Insurance,
and include a waiver of subrogation in Netscape's favor. 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
20
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 and waivers of
subrogation to Netscape within 30 days of the Effective Date. Before any
cancellation or material change in any coverage, Participant shall provide
Netscape with 30 days' advance written notice. Participant's insurance shall be
primary to any other insurance Netscape may have. All insurance shall be written
by companies with a current A.M. Best rating of A-, VI or better.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or its other agents who must have access to
such Confidential Information for such Party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure containing
Confidential Information without the consent of the other Party, to the extent
such disclosure is required by law, rule, regulation or government or court
order. In such event, the disclosing Party will provide at least five (5)
business days prior written notice of such proposed disclosure to the other
Party. Further, in the event such disclosure is required of either Party under
the laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such Party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing body
that such portions and other provisions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Securities and Exchange
Commission or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body.
V. TREATMENT OF CLAIMS
Liability. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, UNDER NO
---------
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OF OR
INABILITY TO USE THE NETSCAPE NETWORK OR ONLINE AREA OR ANY OTHER PROVISION OF
THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE AGGREGATE
AMOUNTS PAYABLE HEREUNDER AS OF THE DATE LIABILITY ACCRUED.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
------------------------
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE NETSCAPE
NETWORK, THE ONLINE AREA OR ANY NETSCAPE PUBLISHING TOOLS, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NETSCAPE SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF THE ONLINE AREA.
21
Indemnity. Either Party will defend, indemnify, save and hold harmless the other
---------
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach of any
duty, representation, or warranty of this Agreement.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. If the Indemnifying Party elects to
defend the Action or does not respond within the requisite ten (10) day period,
the Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the Indemnified
Party shall have the right to participate fully, at its own expense, in the
defense of such Action. If the Indemnifying Party responds within the required
ten (10) day period and elects not to defend such Action, the Indemnified Party
shall be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party shall cooperate, at its own expense, with the
Indemnified Party and its counsel in the defense against such Action and the
Indemnifying Party shall have the right to participate fully, at its own
expense, in the defense of such Action. Any compromise or settlement of an
Action shall require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
Acknowledgment. NETSCAPE AND PARTICIPANT EACH ACKNOWLEDGES THAT THE
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PROVISIONS OF THIS AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED,
VOLUNTARY ALLOCATION BETWEEN THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN)
ASSOCIATED WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER. THE LIMITATIONS
AND DISCLAIMERS RELATED TO WARRANTIES AND LIABILITY CONTAINED IN THIS
AGREEMENT ARE INTENDED TO LIMIT THE CIRCUMSTANCES AND EXTENT OF LIABILITY.
THE PROVISIONS OF THIS SECTION SHALL BE ENFORCEABLE INDEPENDENT OF AND
SEVERABLE FROM ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS
AGREEMENT.
VI. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim, controversy or disagreement (each
a "Dispute") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute within such
timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall have the
final and exclusive right to resolve Disputes arising from any provision of this
Agreement which expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms. If the Management Committee is unable to amicably
resolve the Dispute during the ten (10) day period, then the Management
Committee will consider in good faith the possibility of retaining a third party
mediator to facilitate resolution of the Dispute. In the event the Management
Committee elects not to retain a mediator, the Dispute will be
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subject to the resolution mechanisms described below. "Management Committee"
shall mean a committee made up of a senior executive from each of the Parties
for the purpose of resolving Disputes under this Section and generally
overseeing the relationship between the Parties contemplated by this Agreement.
Neither Party shall seek, nor shall be entitled to seek, binding outside
resolution of the Dispute unless and until the Parties have been unable to
amicably resolve the dispute as set forth in this paragraph (a) and then, only
in compliance with the procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (ii) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages only.
Any award by the arbitrators shall be accompanied by a written opinion setting
forth the findings of fact and conclusions of law relied upon in reaching the
decision. The award rendered by the arbitrators shall be final, binding and
non-appealable, and judgment upon such award may be entered by any court of
competent jurisdiction. The Parties agree that the existence, conduct and
content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the
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parties. Notwithstanding the foregoing, the arbitrators may modify the
allocation of Arbitration Costs and award Attorneys' Fees in those cases where
fairness dictates a different allocation of Arbitration Costs between the
Parties and an award of Attorneys' Fees to the prevailing Party as determined by
the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the Commonwealth of Virginia. Each Party irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims or to
recover damages or other relief in connection with such claims or to enforce a
judgment rendered in an arbitration proceeding.
VII. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete, clear and accurate records
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of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party shall have the right, at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other Party which are directly
related to amounts payable to the Party requesting the audit pursuant to this
Agreement. Any such audit may be conducted after twenty (20) business days prior
written notice, subject to the following. Such audits shall not be made more
frequently than once every twelve months. No such audit of Netscape shall occur
during the period beginning on June 1 and ending October 1. In lieu of providing
access to its Records as described above, a Party shall be entitled to provide
the other Party with a report from an independent certified public accounting
firm confirming the information to be derived from such Records.
Excuse. Neither Party shall be liable for, or be considered in breach of or
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default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
Independent Contractors. The Parties to this Agreement are independent
-----------------------
contractors. Neither Party is an agent, representative or participant of the
other Party. Neither Party shall have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or liability of,
or to otherwise bind, the other Party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or participantship
between the Parties or to impose any liability attributable to such a
relationship upon either Party.
Notice. Any notice, approval, request, authorization, direction or other
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communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered personally to the Party to whom the same is directed; (ii) one
business day after deposit with a commercial overnight carrier, with written
verification of receipt; or (iii) five business days after the mailing date,
whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of Netscape, such notice
will be provided to both the Senior Vice President for Business Affairs, America
Online, Inc. (fax no. 000-000-0000) and the General Counsel, Netscape
Communications Corporation (fax no 000-000-0000), each at the address of
Netscape set forth
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in the first paragraph of this Agreement. In the case of Participant, except as
otherwise specified herein, the notice address shall be the address for
Participant set forth in the first paragraph of this Agreement, with the other
relevant notice information, including the recipient for notice and, as
applicable, such recipient's fax number or Netscape e-mail address, to be as
reasonably identified by Netscape.
No Waiver. The failure of either Party to insist upon or enforce strict
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performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
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each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all of the other party's
Confidential Information.
Survival. Section 6.5 of the Netcenter Services Agreement, Section VI of Exhibit
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D to the Netcenter Services Agreement, and Sections III, IV, V, VI and VII of
this Exhibit G to the Netcenter Services Agreement, shall survive the
completion, expiration, termination or cancellation of this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and supersedes
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any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
Amendment. No change, amendment or modification of any provision of this
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Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
Further Assurances. Each Party shall take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
Assignment. Participant shall not assign this Agreement or any right, interest
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or benefit under this Agreement without the prior written consent of Netscape.
Assumption of this Agreement by any successor to Participant (including, without
limitation, by way of merger or consolidation) shall be subject to Netscape's
prior written approval. Subject to the foregoing, this Agreement shall be fully
binding upon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
Construction; Severability. In the event that any provision of this Agreement
--------------------------
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to a
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Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and
----------------------------
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws
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principles. Each Party irrevocably consents to the exclusive jurisdiction of the
courts of the Commonwealth of Virginia and the federal courts situated in the
Commonwealth of Virginia, in connection with any action to enforce the
provisions of this Agreement, to recover damages or other relief for breach or
default under this Agreement, or otherwise arising under or by reason of this
Agreement.
Export Controls. Both parties shall adhere to all applicable laws, regulations
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and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
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convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
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shall be deemed an original and all of which together shall constitute one and
the same document.
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