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Exhibit 10.31
[LOGO]
NETSCAPE
NETSCAPE COMMUNICATIONS CORPORATION
U.S. ENGLISH-LANGUAGE NET SEARCH PROGRAM
PREMIER PROVIDER SERVICES AGREEMENT
OBJECTIVE: To direct users of a Netscape client software Internet browser
product ("BROWSER") to U.S. English-language Internet search and directory
services.
TERMS AND CONDITIONS:
1. PREMIER PROVIDER. The entity ("PREMIER PROVIDER") named on the signature page
to this agreement ("AGREEMENT") will be a premier search and directory service
for the U.S. English-language HTML page accessible by the public via the
Internet at the Universal Resource Locator ("URL") http://home.netscape.com/
home/internet-search, or such other URL as Netscape may designate from time to
time in writing (the "PAGE"). The Page is part of the collection of U.S.
English-language HTML documents accessible by the public via the Internet at the
URL http://home.netscape.com and/or at such other URL or URL's as Netscape may
designate ("NETSCAPE'S U.S. ENGLISH-LANGUAGE WEB SITE"). The Page may also be
accessed by Internet users of the Netscape-distributed U.S. English-language
version of the Browser [*] by pressing or "clicking" on the Net Search Button,
by visiting the Page by way of a bookmark pre-loaded in certain versions of the
Browser toolbar as described herein, or such other methods as Netscape may
specify from time to time. [*] Notwithstanding the foregoing, Netscape reserves
the right to determine other means whereby users may access pages which provide
Internet search and directory services on Netscape's U.S. English-language Web
Site including, but not limited to, through the use of mirror sites and pointers
based on a user's IP address, and which pages are separate and distinct from the
Page and Default Page described in this Agreement.
2. PREMIER PERIOD. Netscape will maintain the Premier Graphic, as defined below,
on the Page and the Default Page for the following one-year period ("PREMIER
PERIOD"):
From: May 1,1997
Until: April 30,1998
3. SERVICES PROVIDED BY NETSCAPE.
3.1. Premier Graphic. The Premier Provider will supply Netscape with
HTML and/or GIF files, or files of such other format as may be designated from
time to time in writing by Netscape, which conform to the specifications in
Exhibit A ("PREMIER GRAPHIC") which Netscape will place on the Page and Default
Page during the Premier Period. Premier Provider shall retain all right, title
and interest in and to the Premier Graphic (including the copyright ownership
thereof), and Premier Provider hereby grants Netscape a royalty-free worldwide
license, without payment or other charge therefor, to use, display, perform,
reproduce and distribute the Premier Graphic, and such other licenses with
respect to the Premier Graphic necessary to fulfill the intention of this
Agreement. The Premier Graphic shall contain a
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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functional search field and, if available, directory tree. The specifications of
the Premier Graphic and its placement on the Page are set forth on Exhibit A
hereto, and Premier Provider's compliance with the content as well as the
technical, visual and functional specifications set forth in Exhibit A are a
material obligation of Premier Provider under this Agreement. Netscape may, upon
notice to Premier Provider, revise Exhibit A, provided that the Premier Graphics
for each of the participants in this U.S. English-language Net Search Program -
Premier Provider shall remain the largest and most prominent category of search
graphics on the Page, and shall not differ substantially, including, without
limitation, any reduction in the size of the Premier Graphic, from the current
specifications for the Premier Graphics set forth in Exhibit A.
3.2. Stack. Netscape will produce the Page as set forth on Exhibit A.
The Premier Graphic of each of the services appearing in the Premier Provider
category on the Page will appear to be overlapped in a stack (the "STACK"). A
Premier Graphic on the Page will be accessible by the end user by pressing or
"clicking" on a tab (the "TAB") for the relevant Premier Provider's service.
Netscape will produce the Page such that when an end user presses or "clicks"
on hypertext links ("PREMIER LINKS") placed by Premier Provider on the Premier
Graphic, the end user's Browser will access Premier Provider's applicable HTML
pages located at the applicable URL's ("PREMIER URL'S") for such pages on the
collection of English-language HTML documents Premier Provider maintains as its
primary web site whose home page is located at the URL http://www.infoseek.com
("PREMIER PROVIDER'S WEB SITE").
3.3. Rotation. Netscape will rotate the display of (i) Premier Graphics
which will appear on the top of the Stack when the Page is served to an end user
who has not selected a Premier Graphic as a default, as described in Section
3.4, and (ii) the Tab which will appear left-most on the Page. Premier
Provider's Premier Graphic will, (i) subject to the provisions of Section 3.4,
appear on the top of the Stack [*] of the time in which the Page is served up to
end users who have not selected a particular Premier Graphic or selected a
default Premier Graphic when accessing the Page and (ii) appear one hundred
percent (100%) of the time in which the Default Page is served up to end users.
The Tab for Premier Provider's service will appear left-most on the Page [*] of
the time in which the Page is served up to end users. Premier Provider
acknowledges that the above-stated rotation percentages are annualized targets.
Netscape shall use reasonable commercial efforts to serve up the Premier Graphic
and Tab for Premier Provider's service at such rotation frequency [*] throughout
the Premier Period.
3.4. End User Default. Netscape shall produce the Page such that the
end user may select which Premier Graphic, or the premier graphic supplied by
certain marquee providers participating in the Net Search Program, the end user
would prefer to have served on the top of the Stack. If an end user selects a
default Premier Graphic, the Premier Graphic selected by the end user will be
served on top of the Stack when that end user accesses the Page. If an end user
has elected to have a particular Premier Graphic appear on top of the Stack on a
default basis, the other Premier Graphics will not appear on the top of the
Stack unless selected by the end user.
3.5. Alphabetical Listing. Premier Provider will supply Netscape with
text describing Premier Provider's search service ("Alphabetical Text"), which
shall be no more than fifty (50) words in length and which Alphabetical Text
Netscape may edit in Netscape's sole discretion. (The Alphabetical Text together
with Premier Provider's name are collectively referred to herein as the
"ALPHABETICAL LISTING"). During the Premier Period, Netscape will place the
Alphabetical Listing on an HTML page linked to the Page and which linked HTML
page lists Internet search services (the "ALPHA PAGE"). Netscape will produce
the Alpha Page such that when an end user presses or clicks on a link
("ALPHABETICAL LINK") embedded in the Alphabetical Listing, the end user's
Browser will access Premier Provider's applicable HTML page located at the
applicable URL for such page on Premier Provider's Web Site ("ALPHABETICAL
URL"). Premier Provider hereby grants Netscape a worldwide license to use,
display, perform, reproduce and distribute
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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the Alphabetical Listing, Alphabetical Link and Alphabetical URL and such other
licenses with respect to the Alphabetical Listing, Alphabetical Link and
Alphabetical URL necessary to fulfill the intention of this Agreement.
3.6. Page Specifications. The specifications of the Premier Graphic,
the Stack, the Alphabetical Listing and their placement on the Page and Alpha
Page are set forth on Exhibit A hereto; provided however, that Netscape may,
within reasonable limits and upon notice to Premier Provider, (i) change the
location of the Stack on the Page, the Premier Graphic or the Alphabetical
Listing on the Page, the Default Page or Alpha Page, (ii) redesign or
reconfigure the Stack, the Page, the Default Page, the Alpha Page, Netscape's
U.S. English-language Web Site, and/or the manner in which an end user interacts
with any of the pages of Netscape's U.S. English-language Web Site, or (iii)
revise Exhibit A, and Premier Provider shall promptly, and in any event, within
no more than thirty (30) days following receipt of the notice, supply Netscape
with a revised Premier Graphic and Alphabetical Listing which conform to the
specifications of the revised Exhibit A. In the event that Netscape revises
Exhibit A and Premier Provider must supply conforming materials, such conforming
materials shall be received by Netscape and fully functional within five (5)
days (excluding holidays) prior to the revised Premier Graphic, Stack or
Alphabetical Listing being posted on Netscape's U.S. English-language Web Site.
If Netscape has not received such revised and conforming materials within such
five (5) day time period described above, or if the materials supplied by
Premier Provider do not function in accordance with the specifications set by
Netscape, then Netscape shall either (i) post previous versions of Premier
Provider's supplied materials, or (ii) make such changes as necessary to bring
the materials into conformity with the new specifications, until such time as
the specifications of Exhibit A are again revised. The schedule of planned
updates for the Page are set forth in Exhibit E, as such Exhibit E may be
revised from time to time.
3.7. Update of Premier Graphic. Premier Provider may elect to revise or
update its Premier Graphic, provided that such Premier Graphic complies with the
specifications of Exhibit A. Netscape shall provide Premier Provider with a
schedule of material due dates and planned Page updates.
3.8. Emergency Engineering Support. Netscape will provide, free of
charge, up to an aggregate of one (1) hour per month of emergency engineering
support services time per update to help Premier Provider service any newly
revised Premier Graphic(s) so that the Premier Graphic complies with the new
specifications. Netscape will use reasonable commercial efforts promptly to
remedy any material malfunctioning of the tabbing mechanism for the Premier
Graphics, any material misplacement of the Alphabetical Listing or any material
malfunctioning of the Premier Links or Alphabetical Link under the control of
Netscape, provided Premier Provider will fully cooperate with Netscape to remedy
any such material malfunctioning or misplacement, and provided further that
Netscape shall not incur liability for any failure to remedy such material
malfunctioning or misplacement if such remedy is not within the reasonable
control of Netscape. Premier Provider may report malfunctions to Netscape at the
email address srchprod@netscape.com. Notwithstanding the foregoing, Netscape has
no obligation to perform services in connection with malfunctions resulting from
software not supplied by Netscape.
3.9 Default Page. Netscape shall produce the Default Page to include
the Premier Graphic of the Premier Provider when the Default Page is served to
an end user of Netscape Navigator 1.x. Netscape shall also produce the Default
Page such that when an end user presses or "clicks" the Premier links, the end
user's Netscape Navigator 1.x will access Premier Provider's applicable HTML
pages located at the Premier URL's on Premier Provider's Web Site.
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4. ADDITIONAL PREMIER PROVIDER BENEFITS.
4.1. Advertising Services. During the Premier Period, Netscape will
provide Premier Provider (i) with total advertising services valued at the level
set forth in Section 7.1, and (ii) [*] on Netscape's U.S. English-language Web
Site. During the Premier Period, Premier Provider may purchase additional
advertising on Netscape's U.S. English-language Web Site for advertising that
will run during the Premier Period for the service of Premier Provider at a
discount of [*] off Netscape's then standard rates for such advertising. Premier
Provider shall execute Netscape's Sponsorship Agreement, a copy of which is
attached as Exhibit C, with respect to postings of Premier Provider's
advertisement ("PREMIER PROVIDER'S ADVERTISEMENT"). Premier Provider and
Netscape shall mutually agree to the schedule and the placement of Premier
Provider's Advertisement on Netscape's U.S. English-language Web Site. Premier
Provider shall supply Netscape with the graphic files and other materials and
information within the timeframes and as set forth in the specifications of the
applicable Netscape advertising program and as reasonably requested by Netscape
to produce the Premier Provider's Advertisement. Premier Provider's
Advertisement shall not contain any Internet search functionality as such
Premier Provider's Advertisement is served to end users.
4.2. Limit on Premier Providers. Netscape shall limit the number of
companies whose tabs appear on the Stack at any one time to a total of five (5)
entities, including the "Name Me" provider.
4.3. Preset Bookmark. Netscape shall include a graphic HTML link to
Premier Provider's URL ("PREMIER PROVIDER'S BOOKMARK") in the bookmark section
of the Netscape Communicator client software versions 4.x. Premier Provider
hereby acknowledges that Premier Provider's Bookmark, although preset in the
shipping version of the Netscape Communicator 4.x distributed by Netscape, may
be reconfigured, customized or deleted by an end user. Should a user upgrade
their version of the Communicator, the bookmarks which the user has loaded at
the time of the upgrade will be carried forward and installed as part of the
upgraded Communicator software.
4.4. Infoblock. Premier Provider shall be accorded consideration for
the possible inclusion of Premier Provider's service as a default "Infoblock",
or similar opportunity, in Netscape's Constellation client software or
derivative products thereof, subject to terms and conditions as Netscape may
determine in its sole discretion.
5. EXPOSURE GUARANTEE
5.1. Occurrence of Exposures. An exposure ("EXPOSURE") occurs upon the
serving up to an end user of: (i) Premier Provider's Premier Graphic on the top
of the Stack, (ii) Premier Provider's Premier Graphic on the Default Page, (iii)
Premier Provider's Web Site in conjunction with a search query executed by an
end user through entering the search terms in the URL window of the Browser,
(iv) Premier Provider's Web Site as a result of an end user clicking on a link
(excluding Premier Links) to Premier Provider's Web Site on Netscape's U.S.
English-language Web Site, (v) the page on Premier Provider's Web Site linked to
Premier Provider's Bookmark (the "BOOKMARKED PAGE") in conjunction with the
program described in Section 4.3 of this Agreement, (vi) Premier Provider's Web
Site as a result of an end user clicking on or [*] (as defined below), or (vii)
other Premier Provider content as a consequence of an end user accessing a
promotional page on Netscape's U.S. English-language Web Site if the parties
agree that such promotional page traffic shall constitute an Exposure. The
Premier Graphic may be served on the top of the Stack to an end user by the
following means: (i) the Premier Graphic appears as part of the Stack rotation,
as described in Section 3.3, (ii) the Premier Graphic has been set as an end
user's default selection,
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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as described in Section 3.4, and (iii) an end user selects or clicks on the
Premier Graphic tab in the Stack.
5.2. Minimum Guaranteed Exposures. Netscape guarantees a total of [*]
Exposures (such number of Exposures being referred to as the "MINIMUM
GUARANTEED EXPOSURES") during the Premier Period.
5.3 Make-Good. If, at the end of the Premier Period, Premier Provider's
content has not, in the aggregate, received total Exposures equal to or greater
than the Minimum Guaranteed Exposures, and provided that Premier Provider has
complied with its obligations hereunder, Netscape will: (i) [*], or (ii) [*].
6. PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations set forth
herein, Premier Provider shall:
6.1. Netscape Now. Display the "Netscape Now" button [*] 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 Navigator 3.0. Download
Netscape Now!" (or such higher non-beta version as is then available); provided,
[*] Premier Provider 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. On any page on which the Netscape Now button, or a successor
button, is displayed, the Netscape Now button [*]. Premier Provider shall use
reasonable commercial efforts promptly to remedy any misplacement of the
Netscape Now button on its home page or other pages or any malfunctioning of the
button, provided Netscape will fully cooperate with Premier Provider to remedy
any such misplacement or malfunctioning, and provided further that Premier
Provider shall not incur liability for any failure to remedy such misplacement
or malfunctioning if such remedy is not within the reasonable control of Premier
Provider. In the event that Netscape replaces the Netscape Now program with a
successor program, Netscape shall advise Premier Provider and Premier Provider
shall use commercially reasonable efforts to produce the page to conform to such
successor program, provided Premier Provider's obligations under such successor
program shall not be materially increased. Netscape hereby grants Premier
Provider a nonexclusive, nontransferable, nonassignable, nonsublicensable
license to perform and display the Netscape Now button directly in connection
with fulfilling the foregoing obligation. Premier Provider's use of the Netscape
Now button shall be in accordance with Netscape's reasonable policies regarding
advertising and trademark usage as established from time to time by Netscape,
including the guidelines of the Netscape Now Program published on Netscape's
U.S. English-language Web Site. Premier Provider acknowledges that the Netscape
Now button is a proprietary logo of Netscape and contains Netscape's trademarks.
In the event that Netscape determines that Premier Provider's use of the
Netscape Now button is inconsistent
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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with Netscape's quality standards, then Netscape shall have the right to suspend
immediately such use of the Netscape Now button. Premier Provider understands
and agrees that the use of the Netscape Now button in connection with this
Agreement shall not create any right, title or interest in or to the use of the
Netscape Now button or associated trademarks and that all such use and goodwill
associated with the Netscape Now button and associated trademarks will inure to
the benefit of Netscape. Premier Provider agrees not to register or use any
trademark that is similar to the Netscape Now button. Premier Provider further
agrees that it will not use the Netscape Now button in a misleading manner or
otherwise in a manner that could tend to reflect adversely on Netscape or its
products. If Premier Provider fails to honor the commitment set forth in this
Section 6.1 and does not cure such failure within thirty (30) days after receipt
of written notice thereof from Netscape, Netscape shall be relieved of its
obligations described in Section 5.3;
6.2. Server Software. [*] current version of Netscape core Web server
software product (currently comprised of Netscape Enterprise Server and Netscape
FastTrack Server) to maintain Premier Provider's Web Site and, if requested,
provide Netscape of evidence of such use. Netscape will provide Premier Provider
with "Expert-Expert" product support, as described in Exhibit F, free of charge
for any Netscape software deployed by Premier Provider in accordance with this
obligation;
6.3. Site Features. [*] HTML Frames, layers, dynamic HTML pages, Java,
JavaScript or the then current client software technology (or subsequent
features displayable by the Browser, within the beta testing period of the
availability of such features) ("Site Features") for display with those Internet
software clients capable of displaying the Site Features on (i) the Premier
Provider's Web Site, provided that Premier Provider shall use commercially
reasonable efforts to implement the Site Features on Premier Provider's Web Site
in a location and in a fashion as Netscape may agree, and (ii) at least one (1)
HTML page located at each Premier URL (or on an HTML page located further down
the directory tree from the page located at the Premier URL; provided Premier
Provider will use commercially reasonable efforts to implement the Site Features
as high in such directory tree structure as possible), and, where appropriate,
on all other HTML pages of Premier Provider's primary Web site; provided Premier
Provider shall not be required to implement the Site Features on pages of any
secondary Web site of Premier Provider that Premier Provider is required to
construct to satisfy Premier Provider's obligations under any third party
contract. Netscape shall use commercially reasonable efforts to help Premier
Provider implement changes in order to comply with new Site Features;
6.4. Mailto Link. Include on the page served to an end user in
conjunction with the results of the end user's search query a "mailto" link
which users of Premier Provider's service can use to direct questions or help
requests to Premier Provider. Netscape shall also include such a "mailto" link
on the Page. Premier Provider will use reasonable efforts to reply promptly, but
in any event within one (1) week, to any such question or help request; and
6.5. Disabling Devices. [*] For purposes of this Agreement, the term
"Disabling Device" shall mean any means or functionality provided, directly or
indirectly pursuant to an agreement between Premier Provider and a third party
(other than an on-line end user agreement that accompanies such means or
functionality), by Premier Provider which (i) alters or modifies, or enables end
users to alter or modify, the Browser standard user interface or configuration
(other than Browsers that are altered or modified by third parties to
accommodate search functionality and that have been granted the right by
Netscape to make such alterations or modifications), (ii) disables any
functionality of the Browser (other than search functionality of Browsers that
is
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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disabled by third parties that have been granted the right by Netscape to
disable such search functionality), or (iii) modifies the functioning of pages
served from Netscape's U.S. English-language Web Site; provided that a Disabling
Device shall not include any such means or functionality implemented by an end
user prior to the Premier Period.
7. PAYMENT TO NETSCAPE.
7.1. Payment. For the benefits and services provided by Netscape to
Premier Provider for the one (1) year Premier Period, Premier Provider shall pay
Netscape a total of [*] (the "PAYMENT") comprised of the following:
[*]
[*]
[*] 7.2 Timing of Payment. Premier Provider shall pay the Payment as
[*] follows:
[*]
[*] [*] upon the execution of this Agreement;
[*] on or prior to June 30, 1997 [*] to be provided by
Premier Provider to Netscape pursuant to Section 7.7);
[*] on or prior to September 30, 1997 [*] to be provided by
Premier Provider to Netscape pursuant to Section 7.7);
[*] on or prior to December 31, 1997 [*] to be provided by
Premier Provider to Netscape pursuant to Section 7.7); and
[*] on or prior to March 31, 1998 [*] to be provided by
Premier Provider to Netscape pursuant to Section 7.7).
7.3. Overage Payments. If, during the Premier Period, the number of
Premier Provider's Exposures exceeds the number of Minimum Guaranteed Exposures,
Premier Provider shall remit to Netscape additional payments ("OVERAGE
PAYMENTS") equal to [*] received in excess of the Minimum Guaranteed Exposures,
subject to the terms of Section 7.4. Netscape shall invoice Premier Provider on
a quarterly basis for such Overage Payments, Premier Provider shall remit to
Netscape [*] of such Overage Payment (the "Payable Portion") within thirty (30)
days of receipt of such invoice and Premier Provider shall immediately grant to
Netscape a credit, for application against the cost of Netscape's participation
in advertising programs on Premier Provider's Web Site in accordance with
Section 7.7, equal to [*] of such Overage Payment (the "Credit Portion").
7.4. Payment Cap. Notwithstanding the foregoing, the total amount
payable by Premier Provider to Netscape as described in this Section 7 shall not
exceed twelve million five hundred thousand dollars ($12,500,000) (the "PAYMENT
CAP") including all amounts due under Section 7.1 and Section 7.3. The portion
of the Payment Cap payable by Premier Provider to Netscape (other than as a
credit against the cost of Netscape's participation in advertising programs on
Premier Provider's Web Site in accordance with Section 7.7) shall not exceed [*]
and the portion of the Payment Cap payable by Premier Provider in
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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the form of a credit against the cost of Netscape's participation in advertising
programs on Premier Provider's Web Site in accordance with Section 7.7 shall not
exceed [*].
7.5. Interest. Any portion of the Payment or the Overage Payments which
has not been paid to Netscape within the applicable time set forth above shall
bear interest at the lesser of (i) one percent (1%) per month, or (ii) the
maximum amount allowed by law.
7.6. No Taxes. AR payments due hereunder are exclusive of any
applicable taxes. Premier Provider 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 Premier
Provider is required by law to make any deduction or to withhold from any sum
payable to Netscape by Premier Provider hereunder, (i) Premier Provider 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, and (ii) the sum payable by Premier Provider upon
which the deduction or withholding is based shall be increased to the extent
necessary to ensure that, after such deduction or withholding, Netscape receives
and retains, free from liability for such deduction or withholding, a net amount
equal to the amount Netscape would have received and retained in the absence of
such required deduction or withholding.
7.7. Credit against Payment and Credit Portion of Overage Payments.
Netscape and Premier Provider shall discuss in good faith, and mutually agree as
to, Netscape's participation in advertising programs on Premier Provider's Web
Site, including, without limitation, the schedule and placement of Netscape's
advertisements on Premier Provider's Web Site. Premier Provider shall provide
Netscape with a credit equal to the sum of [*]. The amount of each portion, if
any, of the Payment that shall be provided by Premier Provider to Netscape in
the form of a credit pursuant to this Section 7.7 is set forth opposite such
portion of the Payment in Section 7.2. The total credit provided by Premier
Provider to Netscape pursuant to this Section 7.7 shall be applied against the
cost of Netscape's participation in advertising programs on Premier Provider's
Web Site at the rates for such advertising services as set forth on Premier
Provider's advertising rate card.
8. USAGE REPORTS.
8.1. Provide Usage Reports. Netscape and Premier Provider will each
provide the other, via email to the email address set forth below, with usage
reports ("USAGE REPORTS"), in a form capable of audit, containing the
information and in the format set forth in Exhibit B hereto. The Usage Reports
shall cover each one-month time period of the Premier Period, and the parties
shall use reasonable commercial efforts to deliver the Usage Reports within
thirty (30) days following the end of each month. If, due to technical problems,
a party is unable to provide any portion of a Usage Report in any given month,
the previous month's Usage Report data will be substituted as a proxy for the
unavailable data. The parties may, by mutual written agreement, alter the
content and format of the Usage Reports. Each party shall have the right to
retain a U.S. Nationally prominent independent auditor (other than such party's
independent auditor(s)) or other mutually agreeable independent auditor to whom
the other party shall allow reasonable access to its applicable books of account
and other records relating to the Usage Reports solely to determine the accuracy
of such Usage Reports. The information disclosed by either party to such auditor
in the course of performing such audit will be kept confidential by the auditor
and such auditor shall not be entitled to disclose any such information to any
other party, including, without limitation, the other party; provided, that such
auditor shall, without disclosing any such information, be entitled to inform
such other party as to whether the Usage Reports are accurate. Neither party may
request such audits more than once in any consecutive calendar quarter nor
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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review records more than twelve (12) months old. Access to the other party's
documentation shall be during such other party's regular business hours upon at
least ten (10) days prior written notice and may be conditioned upon the auditor
executing a confidentiality agreement in a form reasonably acceptable to such
other party relating to the auditor's performance of an audit hereunder.
8.2. No Liability. NETSCAPE AND PREMIER PROVIDER WILL USE REASONABLE
COMMERCIAL EFFORTS TO ENSURE THE TIMELY DELIVERY, ACCURACY AND COMPLETENESS OF
THE USAGE REPORTS, BUT NEITHER PARTY WARRANTS THAT THE USAGE REPORTS WILL
CONFORM TO ANY PUBLISHED NUMBERS AT ANY GIVEN TIME. NEITHER PARTY SHALL BE HELD
LIABLE FOR ANY CLAIMS AS THEY RELATE TO SAID USAGE REPORTS.
9. TERMINATION.
9.1. Term and Termination. This Agreement shall commence as of the date
hereof and, unless sooner terminated pursuant to this Section 9.1, shall
terminate at the end of the Premier Period. Either party may terminate this
Agreement if the other party materially breaches its obligations hereunder and
such breach remains uncured for thirty (30) days following notice to the
breaching party of the breach or as otherwise provided in Section 10.
9.2. Effect of Termination. Except as specifically provided otherwise
in this Agreement, upon termination or expiration of this Agreement, all rights
and obligations hereunder shall cease and each party will promptly and at the
direction of the other party, either return or destroy, and will not take or
use, any items of any nature that belong to the other party and all items
containing or related to Confidential Information of the other party.
Notwithstanding the foregoing, if this Agreement expires or is terminated for
any reason, other than by Premier Provider as a result of Netscape's material
breach, Premier Provider shall remain liable for the value of the payments which
are due or, but for such expiration or termination, would otherwise become due
and payable under the terms of this Agreement. The following provisions shall
survive the expiration or termination of this Agreement for any reason: Section
7.6 (No Taxes), Section 8.2 (No Liability), Section 9.2 (Effect of Termination),
Section 11 (Responsibility), Section 12 (Limitation of Liability), and Section
13 (General). In addition, to the extent that any credit provided by Premier
Provider to Netscape pursuant to Section 7.7 shall not be applied against
advertising services provided by Premier Provider to Netscape during the Premier
Period, Section 7.7 shall survive the expiration or termination of this
Agreement until all such credits shall be applied against such services.
10. RIGHT TO REFUSE. Netscape will have the right to review the contents and
format of the Premier Graphic, the Alphabetical Listing, the Bookmarked Page
and Premier Provider's Advertisement. If Netscape, in its sole discretion, at
any time determines that the Premier Graphic, the Alphabetical Listing, the
Bookmarked Page or Premier Provider's Advertisement contains any material, or
presents any material in a manner that Netscape deems inappropriate for any
reason, Netscape will inform Premier Provider of the reason Netscape has made
such determination and may (i) refuse to include the Premier Graphic or the
Alphabetical Listing in the Page, Default Page or Premier Provider's
Advertisement on Netscape's U.S. English-language Web Site, and/or (ii)
immediately terminate this Agreement if Premier Provider has not revised to
Netscape's reasonable satisfaction the Premier Graphic, the Alphabetical
Listing, the Bookmarked Page or Premier Provider's Advertisement within one (1)
business day after receipt of written notice from Netscape. If Netscape, in its
sole discretion, at any time determines that the Premier Provider's Web Site
contains any material, or presents any material in a manner, that Netscape deems
inappropriate for any reason, Netscape may immediately terminate this Agreement
upon notice to Premier Provider. Netscape reserves the right to refuse to
include in the Page or Default Page any Premier Graphic, or any Alphabetical
Listing in the Alpha Page,
9
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that does not completely conform to the specifications set forth in Exhibit A,
and any Premier Provider's Advertisement that does not completely conform to the
specifications of the applicable advertising program.
11. RESPONSIBILITY. Premier Provider is solely responsible for any legal
liability arising out of or relating to (i) the Premier Graphic, the
Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page and
Premier Provider's Advertisement, and/or (ii) any material to which users can
link through the Premier Graphic, the Alphabetical Listing, Premier Provider's
Bookmark, the Bookmarked Page and Premier Provider's Advertisement. Premier
Provider represents and warrants that it holds the necessary rights to permit
the use of the Premier Graphic, the Alphabetical Listing, the Premier URL, the
Alphabetical URL, the Premier Links, the Alphabetical Link, Premier Provider's
Bookmark, the Bookmarked Page and Premier Provider's Advertisements by Netscape
for the purpose of this Agreement; and that the permitted use, reproduction,
distribution, or transmission of the Premier Graphic, the Alphabetical Listing,
Premier Provider's Bookmark, the Bookmarked Page, Premier Provider's
Advertisements and any material to which users can link through the Premier
Graphic, Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page
and Premier Provider's Advertisements will not violate any criminal laws or any
rights of any third parties, including, but not limited to, infringement or
misappropriation of any copyright, patent, trademark, trade secret, music,
image, or other proprietary or property right, false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity, violation
of any antidiscrimination law or regulation, or any other right of any person or
entity, or otherwise violate any applicable local, state, national or
international law. Premier Provider agrees to indemnify Netscape and to hold
Netscape harmless from any and all liability, loss, damages, claims, or causes
of action, including reasonable legal fees and expenses that may be incurred by
Netscape, arising out of or related to Premier Provider's breach of any of the
foregoing representations and warranties.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY
OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR
ALLEGED DAMAGES ARISING UNDER SECTION 11) WHETHER IN CONTRACT OR TORT OR ANY
OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED THE PAYMENT DUE FROM
PREMIER PROVIDER HEREUNDER.
13. GENERAL.
13.1. Governing Law. This Agreement shall be subject to and governed in
all respects by the statutes and laws of the State of California without regard
to the conflicts of laws principles thereof. The Superior Court of Santa Clara
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.
13.2. Entire Agreement. The parties agree that by signing this
Agreement, the Net Search Program - Premier Provider agreement between the
parties dated March 22, 1996, as amended, (the "1996 Net Search Agreement")
shall terminate on April 30, 1997, and any outstanding rights, duties or
obligations between the parties as described in the 1996 Net Search Agreement
shall be extinguished. Upon termination of the 1996 Net Search Agreement as
provided above, this Agreement shall be the sole recital of the rights, duties
and obligations of the parties with respect to Netscape's U.S. English-language
Web Site and Premier Provider
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participation in the Net Search Program. 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.
13.3. Assignment. Premier Provider may not assign any of its rights or
delegate any of its duties under this Agreement, or otherwise transfer this
Agreement (by merger, operation of law or otherwise) without the prior written
consent of Netscape. Any attempted assignment, delegation or transfer in
derogation hereof shall be null and void.
13.4. Notices. A11 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
nationally-recognized private express courier, and shall be deemed to have been
given on the date of receipt. 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:
Premier Provider:
Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara, CA 95054
Fax: (408) 986-1889
Attn: General Counsel
Netscape:
Netscape Communications Corporation
501 East Middlefield Road
Mountain View, CA 94043
Fax: (415) 528-4123
Attn: General Counsel
13.5. Confidentiality. All disclosures of proprietary and/or
confidential information in connection with this Agreement as well as the
contents of this Agreement shall be governed by the terms of the Mutual
Confidential Disclosure Agreement either entered into previously by the parties
or entered into concurrently with this Agreement, a copy of which is attached
hereto as Exhibit D. The information contained in the Usage Reports provided by
each party hereunder shall be deemed the Proprietary Information of the
disclosing party. Notwithstanding the foregoing, Netscape may, in its sole
discretion, make publicly available client software market share information
contained in the Usage Reports submitted by Premier Provider, provided that
Netscape shall not indicate that Premier Provider is the source of the
information.
13.6. Force Majeure. Neither party will be responsible for any failure
to perform its obligations under this Agreement due to causes beyond its
reasonable control, including but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods or accidents.
13.7. 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.
13.8. 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.
13.9. 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.
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13.10. 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.
13.11. 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.
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
PREMIER PROVIDER:
INFOSEEK CORPORATION
By: /s/ Andrew E. Newton
---------------------------------
Print Name: Andrew E. Newton
-------------------------
Title: VP, General Counsel
------------------------------
Date: March 17, 1997
------------------------------
Premier Provider Address:
2620 Augustine Drive #250
- -------------------------------------
Santa Clara, CA 95254
- -------------------------------------
USA
- -------------------------------------
Attention: General Counsel
--------------------------
Facsimile: 409-986-1889
--------------------------
Email: aen@infoseek.com
------------------------------
NETSCAPE:
NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Jennifer Bailey
---------------------------------
Print Name: Jennifer Bailey
-------------------------
Title: V.P. Electronic Marketing
------------------------------
Date: March 21, 1997
-------------------------------
Netscape Address:
501 East Middlefield Road
Mountain View, California 94043
USA
Attention: General Counsel
Facsimile:___________________________
Email:_______________________________
Attached Exhibits:
Exhibit A: Specifications of the Page
Exhibit B: Usage Reports
Exhibit C: Form of Sponsorship Agreement
Exhibit D: Mutual Confidential Disclosure Agreement
Exhibit E: Schedule of Planned Updates
Exhibit F: Description of Expert-Expert Product Support
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EXHIBIT A
SPECIFICATIONS OF THE PAGE
Site Samplers are available exclusively to Premier and "Marquee" Providers. As
of May 1, 1997, Net Search will support Netscape Navigator versions 2 and 3
(both Macintosh and PC platforms), and Microsoft Internet Explorer 3.0 (PC
only). (See Net Search Sampler Test Specification, External for complete list).
All other browsers will be routed to a simple version of the page which
encourages users to download a more current version of Netscape's browser.
Netscape will spend up to one hour of engineering time per sampler per month to
integrate the Site Samplers into the Net Search page if available. If more
engineering or QA time than is available becomes necessary to fix bugs
discovered, or if the necessary changes to fix any bugs include changes to the
appearance of the sampler, the Site Sampler will be returned for revision. The
specifications are as follows:
- SIZE. All Premier Provider materials should be exactly 468 by 165 pixels.
Design Site Samplers that include text and interactive forms for a default
font size of 12 points. (Be aware, however, that text and forms may resize
on your audience's browsers as they change their default font sizes.) Keep
in mind that the (FONT SIZE=) tag is not implemented in early versions of
web browsers.
Site Samplers will be measured by taking a screen shot on a system
configured as follows: A PC running Windows 95, with the settings
configured for small fonts, and an NEC MultiSync XV17+ (17 inch) monitor.
The screen shot will be taken of Netscape Navigator Gold version 3.1, with
the Proportional Font set at 12pt Times New Roman, and the Fixed Font set
at 10pt Courier New. The measurement will be taken in Paintbrush. Netscape
will provide measurement services", if needed, for companies that don't
have the specified platform configuration.
- HTML QUIRKS. We have found a few less-than-obvious quirks which cause some
browsers to crash, which we thought would be helpful to pass on:
1. (FORM) tags must follow IMMEDIATELY AFTER your sampler's first
(TABLE) tag. Any variation of this whatsoever will cause a
significant number of users to crash.
2. Any empty (TD) tags should be separated by a carriage return.
HTML should read as follows:
(TD)
(/TD)
as opposed to
(TD)(/TD)
3. If text appears without any spacing between words (for
instance, in a sentence as opposed to in a table), any text
that falls closer than 50 pixels to the edge of the Site
Sampler should be tested on a Unix machine. Often, this text
will be cut off on that platform.
4. Interleaving HTML tags will cause several browsers to crash.
Tags should be ordered as follows:
5. (H3)(FONT COLOR="#000055")Text here(/FONT)(/H3) as opposed to
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6. (H3)(FONT COLOR="#000055")Text here(/H3)(/FONT)
- - TABLES. In order to maintain the robustness of the page, please do not
include any more than one nested table, for a total of two tables per
sampler. Any more than one nested table will cause crashes for a
significant number of users. One simple table is ideal, as even one
nested table may cause some implementation problems when integrated
with the Net Search page. If you are nesting a table, please test
carefully.
- - IMAGE MAPS. Only a client-side image map is necessary, since browsers
which don't support client-side maps will not be directed to the main
Net Search page.
- - FILE SIZES. To keep the user's load time low, we request that Premier
Provider files not exceed 20K unless cleared by the Destinations
production manager at destinationsprod@netscape.com.
- - ANIMATED GIFs. Due to the large number of users whose browsers do not
support animated GIFs, and their typically large file size, we are not
implementing animated GIFs at this time.
- - JAVASCRIPT. JavaScript tends to cause older browsers to behave
unpredictably and in many cases crash, and there is delicate technology
in place to implement the Site Sampler functionality. As a result, the
implementation of Java Script in Site Samplers is not an option at this
time.
- - DELIVERY. Content providers should email files to Netscape at
destinationsprod@netscape.com. If you are providing multiple files, you
should place them in a folder labeled with the content provider's name.
For the best possible results, deliver Site Samplers that are already
integrated into a copy of the Net Search page.
- - FILENAMES. It is important that filenames be in the following format:
search_providername.fmt (for example, search_yoohoo.gif,
search_yoohoo.htm). If there are two or more files of a certain format,
filenames should be in the following format: search_providername#.fmt
(for example, search_yoohoo1.gif, search_yoohoo2.gif). When you update
your Site Sampler, continue to increment the number to help avoid
caching issues.
- - FORMAT. All content providers need to provide HTML files that include
the layout for their materials. All HTML should be uppercase. Please
include the TARGET="_top" attribute in all HREF tags. Height and width
tags need to be specified for all images. Graphics files should be in
GIF format; all other formats should be cleared with the Destinations
production manager at destinationsprod@netscape.com.
- - GRAPHICS. By limiting the number of individual graphics (server calls)
in your Site Sampler, you will improve overall page performance and
allow the page to load more quickly. Cropping as close as possible to
the image, leaving no white space around them, will also allow the page
to load more quickly. To minimize dithering and insure that the users
across all platforms see what you expect them to see, we recommend use
of the Netscape Color Palette.
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EXHIBIT B
USAGE REPORTS
Sample report provided by Premier Provider to Netscape each month.
For the week of: 5/1/97 - 5/8/97
[*]
- ---------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
16
Sample report provided by Netscape to Premier Provider each month.
For the month of May, 1997
(1) (2) (3) (4) (5)
Rotated Default Total First User Total
Exposures Exposures Exposures Selected Exposures
(1+2) Exposures (3+4)
May 1 1M 200K 1.2M 400K 1.6M
May 2 1.1M 210K 1.31M 500K 1.81M
...
...
May 3 1.2M 220K 1.42M 600K 2.02M
May 31 1.8M 280K 2.08M 800K 3.08M
Total
A running total of the Exposures will also be included.
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EXHIBIT C
Form of Sponsorship Agreement
[Left Blank]
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EXHIBIT D
Mutual Confidential Disclosure Agreement
[Left blank.]
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EXHIBIT E
SCHEDULE OF PLANNED UPDATES
- - Calendar: The following is the schedule for submitting materials for
the Net Search program during the first two months of the Premier
Period.
FINAL MATERIALS DUE: NET SEARCH PAGE GOES LIVE:
-------------------- --------------------------
May 6,1997 May 12, 1997
May 13,1997 May 19, 1997
May 19,1997 (please note this is a Monday) May 22, 1997
May 27,1997 (please note the 26th is a holiday) June 2, 1997
June 3, 1997 June 9, 1997
June 10, 1997 June 16, 1997
June 17,1997 June 23, 1997
June 24, 1997 June 30, 1997
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EXHIBIT F
DESCRIPTION OF EXPERT-EXPERT PRODUCT SUPPORT
Designed for medium to large organizations
Web businesses
Internet service providers
Large system integrators
Large resellers
Mission-critical level of support for Netscape customers.
- - Priority escalation to expert-level technical support engineer
- - Includes support for complex fault isolation
- - Customers provide front-line (help-desk) support for their installed
base
- - 2 authorized customer contacts included
- - Unlimited incidents
- - 24 x 7 (pager only after hours for P1 issues only)
- - Informational support on selected beta products
- - Technical support bulletins
- - Incident closure reports
4