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EXHIBIT 10.11
[GREET STREET LETTERHEAD]
August 21, 1997
Scott Weiss
Director, Business Development
Hotmail Corporation
1290 Oakmead Parkway, Suite 218
Sunnyvale, CA 94086
AGREEMENT BETWEEN HOTMAIL CORPORATION AND GREET STREET
Dear Scott:
This Agreement is entered into as of August 21, 1997, by and between THE VIRTUAL
MALL, INC., d.b.a. GREET STREET, a California corporation with its principal
office at 123 Townsend Street, San Francisco, California 94107 ("Greet Street")
and HOTMAIL CORPORATION, a California corporation with its principal office at
1290 Oakmead Parkway, Sunnyvale, California 94086, ("Hotmail") concerning Greet
Street's provision of social expression and electronic greeting products and
services to Hotmail's users.
1. Background
Hotmail is the leading Web-based free E-mail service.
Greet Street is the leading provider of online digital greetings and social
expression products (also referred to as Dynamic E-mail). Greet Street's service
allows customers to personalize digital postcards and animated E-greetings(R)
products and have them delivered by E-mail or via the Internet to the
recipient(s) of their choice. Animated E-greetings(R) products are currently
scheduled for launch later this year.
2. Greet Street Responsibilities
Greet Street agrees to undertake the following responsibilities:
a) Store creation
Greet Street will create and host a co-branded Web site (hereafter referred to
as "the Store"). The Store will be based upon Greet Street's current Web site,
but will include the Hotmail logo in the main category frame. Such logo will be
prominently positioned and displayed according to Greet Street's standards for
partner logos. The Store homepage will incorporate more extensive co-branding,
with the Hotmail logo displayed at least as prominently as the Greet Street
logo. Greet Street will provide Hotmail with specifications for any
Hotmail-specific copy or artwork required for inclusion in the Store. It is
anticipated that Hotmail will implement a frame at the top of the Store to allow
for easy return back to. Hotmail.
The Store will offer a wide array of digital greeting products, appropriate for
a broad consumer audience in addition to specific community niches. For the
purposes of rating the content of these
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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products, Greet Street's product database is segmented into categories that
roughly correspond to the commonly accepted G, PG and R ratings of motion
pictures. Greet Street agrees that it will not offer products within the Store
in those categories which Hotmail instructs Greet Street in writing not to
offer.
Hotmail understands that the design and structure of the Store is subject to
modification by Greet Street from time to time. However, Hotmail shall have the
right to review and approve the introduction of new product types that are
materially different from Greet Street's current offerings (Animated Greetings
will be considered part of Greet Street's current offerings. Hotmail will not
withhold such approval so long as the new offering (a) is demonstrably similar
in nature or an enhancement to existing digital greeting products, (b) does not
adversely impact Hotmail's operating resources and (c) does not violate or
conflict with any agreement to which Hotmail is a party or by which the Hotmail
service is bound.
b) Store management
Greet Street will be responsible for all management and operation of the Store,
including, for example, all customer service, content management and product
loading. Greet Street will (a) provide and manage all servers,
telecommunications, facilities maintenance, operations and technical support
related to the delivery of the Store, and (b) provide all technical, support,
sales, administrative and management personnel, facilities, equipment, supplies
and services as are necessary to develop, launch and maintain the Store as
contemplated by this Agreement.
Hotmail will make commercially reasonable efforts to ensure that Greet Street's
products may be received and displayed by users of the Hotmail service.
Greet Street will make commercially reasonable efforts to operate the Store in
compliance with commonly accepted technical performance standards and will make
commercially reasonable efforts to ensure that the technical performance
standards for the Store will meet or exceed the measured performance of Greet
Street's other commercially available Web sites.
c) Technical integration
Hotmail and Greet Street agree to mutually determine a minimum level of
integration between Hotmail's E-mail service and the Store's product ordering
and personalization process. For example, by way of illustration only, Hotmail
may choose to pass Greet Street the E-mail addresses of each user so that Greet
Street may automatically populate the "From" field of Dynamic E-mail products
purchased by that customer.
Greet Street and Hotmail agree to mutually explore further options for
integrating the Store with Hotmail's service.
d) Order tracking
Greet Street's server software will record every purchase that originates from
the Store. This includes purchases from customers who have clicked through to
the Store directly from Hotmail and from those who have "bookmarked" the Store
and returned there to make a purchase independently of Hotmail. Greet Street's
reporting requirements are detailed in Section 7.
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e) Restrictions on usage
Greet Street will implement terms and conditions of sale that are at least as
restrictive as those implemented from time to time by Hotmail in connection with
`spamming' and harassment by users of its Email service, and such terms and
conditions of sale shall specifically prohibit the use of the Store for the
purposes of `spamming' or harassment. Furthermore, Greet Street will make
commercially reasonable efforts to prevent usage of the Store for such purposes
and will reasonably cooperate with Hotmail to respond to any such `spamming' or
harassment that is determined to have originated from the Store.
3. Hotmail Responsibilities
a) Integration of the Store with Hotmail
The Store will be, accessed through each of the main communication areas of
Hotmail, including:
o E-mail Compose page;
o Compose Reply-Mail page;
o Address Book;
o Address QuickList.
In the event that Hotmail introduces additional communication utilities and
areas (for example, "buddy" lists and chat functionality), the parties will
mutually determine whether to link to the Store from these areas. Hotmail will
give reasonable consideration to Greet Street's request for such links but will
not be obligated to include them. Any new areas on the Hotmail site
(www.Hotmail.com) will be covered by Section 5 on exclusivity.
Hotmail agrees that the Store will be accessible with no more than one click
from each of the communication areas listed above and will be clearly and
prominently available to every Hotmail customer during every session in which
the communication areas are accessed:
o Hotmail users will access the Store via a "button" on each of the
communication areas that are hyperlinked to the Store. Such buttons will be
presented in such a manner as to make them appear an integral extension of
the Hotmail service and will be provided with the same level of prominence
as the other integral functions of those areas. For example, the button on
the E-mail Compose page will have the same level of prominence as the
current "E-mail Lookup" button.
o Greet Street and Hotmail will mutually determine the wording and/or
artwork to be placed on these buttons. If, at any time, Hotmail allows or
enables other third parties to display their trademarks and/or trademark
notices on those pages within the Hotmail service containing buttons linking
to the Store, then Hotmail shall enable Greet Street to display its
trademark "E-greetings(R)," and associated trademark notices, provided that
all use of Greet Street's trademarks shall be subject to Greet Street's
trademark usage guidelines and quality control
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standards. Where necessary, Hotmail will provide Greet Street with
specifications for any artwork or copy to be provided by Greet Street.
Greet Street understands that the design and overall structure of the Hotmail
service is subject to modification and that such modification may affect the
placement and size of certain elements of the interface. However, Hotmail agrees
that such modifications will not materially and adversely affect the overall
prominence and accessibility of the buttons and links to the Store.
b) Promotion
Hotmail will make commercially reasonable efforts to promote the use of Greet
Street' services on an on-going basis. Specifically, Hotmail undertakes the
following promotions as no cost to Greet Street:
i. "Welcome" page promotion
Hotmail is planning to introduce a "Welcome" page that will be displayed to
every user immediately after they have logged in to the Hotmail service.
It is currently anticipated that the Welcome page will be available on or before
the Launch Date of the Store. The purpose of the Welcome page is to provide
Hotmail with a premium area on which to communicate with customers and sell
advertising. For the purposes of this Agreement, the "Launch Date" is the
earlier of (a) date upon which the Store is first made publicly accessible from
Hotmail via such links as detailed above and (b) October 1, 1997.
Hotmail agrees to provide Greet Street with a total of [********************] of
promotion on the welcome page with a limited frequency of [*******] impressions
per user per consecutive running promotion. The days of promotion must be used
in increments of at least [**************] each and are limited to [*********]
different runs in total. Only [*************************************] will be
allowed in the first [********************] following the Launch Date, unless
the Welcome page is not available on or before the Launch Date. Such promotion
will be at the same level of prominence offered to most other third parties.
Hotmail will enable `pacing' of such impressions at such time as pacing is
readily available as part of Hotmail's course of normal business operations.
ii. Banner impressions
Hotmail will provide Greet Street with [***********************] banner
impressions each [*****] during the first [**************] following the Launch
Date. For the second [********************] following the Launch Date, Hotmail
will provide Greet Street with monthly advertising impressions equal to [***
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************************************************************] (this royalty is
described in Section 7 - Royalty Payments). By way of example only, if the
advance royalty guarantee payable for the [***************************] were to
equal [********], then Hotmail would provide Greet Street with [***********
***********] free impressions each month.
iii. Targeting of promotion and banner impressions
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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The banner impressions to be provided to Greet Street by Hotmail. as described
above may be used by Greet Street at its discretion, provided that Hotmail is
given reasonable advance notice of Greet Street's requirements and that the
necessary impressions inventory has not already been pre-sold to another third
party. Hotmail further agrees that:
o Greet Street may elect to target advertising impressions to any of the
specific areas of the Hotmail service and demographic splits offered to
other Hotmail advertisers. Hotmail agrees that Greet Street may target at
least [******************] of its free advertising impressions to the E-mail
compose pages.
o After [********] days from the Launch Date, Greet Street may provide Hotmail
with the E-mail addresses of specific Store customers for exposure to
certain advertising and promotion impressions on Hotmail. For example, Greet
Street may elect to compile a list of frequent Store customers, infrequent
Store customers, etc. Greet Street will provide this information to Hotmail
on a timely basis, no more frequently than is mutually deemed acceptable, in
the format specified by Hotmail.
o Greet Street may elect to target promotions and banners to Hotmail users who
have never purchased from the Store.
If any component of Greet Street's marketing activities requires Hotmail's
assistance for implementation, Hotmail will have the option (but not the
obligation) to participate at its discretion. Hotmail will give reasonable
consideration to such participation. Greet Street agrees to share the learning
from any such marketing activities or testing in which Hotmail participates.
iv. Future Promotional Opportunities
If Hotmail creates event or holiday-specific areas within its service (for
example, Christmas promotional area, Valentine's Day promotional area, Mother's
Day promotional area, etc.), then Hotmail and Greet Street shall mutually
determine whether to establish a link to the Store from such areas. Hotmail will
give reasonable consideration to Greet Street's request for such links, but,
will not be obligated to include them
v. Reporting
Hotmail will create a monthly report detailing, for each calendar month
following the Launch Date:
o The number of page views for each promotional banner or button that is
hyperlinked to the Store;
o The number of transfers from each promotional banner or button that is
hyperlinked the Store;
o The total number of active Hotmail users (defined as those who access the
Hotmail service a minimum of once per week during such month);
o The total number of E-mail messages sent by Hotmail customers during such
month.
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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Hotmail will send this report to Greet Street no later than twenty (20) days
after the end of each month during the term of this Agreement following the
Launch Date. Hotmail will make commercially reasonable efforts to provide Greet
Street with page view and other reports on a more timely basis (e.g. daily or
weekly) if the reports are readily available as part of Hotmail's course of
normal business operations.
4. Other Promotional Undertakings
a) Promotional mailing to Hotmail users
Hotmail will work with Greet Street to send one promotional product (for
example, a digital postcard) to the entire Hotmail user base. This promotional
mailing may be divided into no more than [*******] distributions to take place
throughout the term of this Agreement. The first of these distributions shall
occur no later than [***********] after the Launch Date. [**********************
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It is anticipated that the mailing will take the form of a personalized
communication from Hotmail to its users (e.g. "Dear Joe, The Hotmail Staff
wishes you a Happy Holidays) and will serve to promote the use of the Store
through Hotmail.
Greet Street agrees that all marketing to Hotmail users will be conducted
within the bounds of commonly accepted ethical marketing practices. Furthermore,
Greet Street will provide a clear method for Hotmail users within the Store to
opt out of receiving promotional mailings and agrees that any promotional E-mail
sent by Greet Street to Hotmail users will clearly describe how such users may
opt-out of receiving any further E-mail communication from Greet Street.
b) Greet Street advertising commitment
Greet Street agrees to spend no less than [********] to purchase additional
advertising on Hotmail over the term of this Agreement, beyond the free
advertising and promotion to be provided by Hotmail pursuant to Section 3(b)
(Promotion) above. [*********************************************************
****************************************************************] At least
[*******] of the total commitment must be spent within the [**************
******] following the Launch Date and an additional [*******] within the first
[******** ******] following the Launch Date.
5. Exclusivity
The Store represents an important new channel of distribution for Greet Street's
Dynamic E-mail products, and Greet Street is willing to undertake the necessary
investment to develop this distribution channel, conditioned upon Hotmail's
agreement as follows:
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[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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6. Customer Information and Marketing
Greet Street will provide Hotmail, on a quarterly basis, an electronic report
which includes the E- mail addresses of all Hotmail users who have (a) made
purchases or (b) sent free cards in the Store. In addition, after 120 days from
the Launch Date, Greet Street will provide on a quarterly basis Greet Street's
standard aggregate report on all Hotmail user information collected that will
include a card category, purchase volumes by date, average purchase frequency
and a report of other services used (e.g. reminders for Holidays, birthdays
etc.). However, due to privacy considerations, this report will not include the
details of specific customer orders, purchase volumes or order history. Greet
Street will provide Hotmail with such reports on a more timely basis (e.g.,
monthly, weekly or daily), if the reports are readily available as part of Greet
Street's course of normal business operations.
Any personal information collected by Greet Street from Hotmail customers who
purchase from the Store will remain confidential to Greet Street. For example,
by way of illustration only, credit card details, birthdays, details of friends
& relatives and other personal information are provided by customers to the
Store on a confidential basis and will not be provided to Hotmail.
Hotmail warrants that it shall keep all customer information provided by Greet
Street confidential and will not share such information with any third party,
nor sell advertising to any party engaged in the Dynamic E-mail business based
upon such information both during the term of and for [*************] following
the expiration of this agreement. However, Hotmail may, on a confidential basis,
share aggregate information (as described above) provided by Greet Street with
parties who are not engaged in the Dynamic E-mail business.
In addition, Hotmail shall not engage, nor shall it permit or enable any third
party to engage, in direct promotion, advertising or other forms of marketing,
which (i) is based upon the customer information provided to it by Greet Street,
that would be reasonably likely to jeopardize Greet Street's relationships with
its customers, or (ii) includes, mentions or refers to, either directly or
indirectly, Greet Street, or any of Greet Street's other trademarks, without the
prior written approval of Greet Street, which approval will not be withheld
unreasonably.
7. Royalty Payments
[****************]
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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[**************************************************************************
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* ****************************** ********
* ************************** *******
* ***************************** ********]
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b) Royalties
As consideration for the performance by Hotmail of its obligations under this
Agreement, Greet Street will pay a royalty to Hotmail equal to [*************
********************************************************************************
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******************************************************]
Greet Street will provide Hotmail with a monthly report with the following
information:
- - The total number of transfers received from Hotmail and total number of
unique visits to the Store;
- - The total number of completed transactions within the Store;
- - The total gross revenues booked from these completed transactions, and;
- - Such other information as may be necessary to calculate the royalties payable
(or credited against advances paid) to Hotmail under this Agreement.
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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Greet Street will send this report to Hotmail, together with a check payable to
Hotmail for the amount equal to any royalties due on such revenue as specified
above, no later than thirty (30) days after the end of each calendar quarter
following the Launch Date.
Hotmail will have the right, at its own expense, to direct an independent
certified public accounting firm to inspect and audit of all the accounting and
sales books and records of Greet Street that are relevant to gross revenues
booked by Greet Street from the sale of product in the Store; provided that (a)
any such inspection and audit will be conducted during regular business hours
in such a manner as not to interfere with normal business activities; (b) in no
event will audits be made hereunder more frequently than once each calendar
year; (c) if any audit should disclose an underpayment, Greet Street will
immediately pay such amount to Hotmail; and (d) the reasonable fees and expenses
relating to any audit which reveals an underpayment in excess of five percent
(5%) of the amount owing will be borne entirely by Greet Street.
8. Term, Termination and Renewal
This Agreement shall commence on August 21, 1997 and terminate one year after
the termination date.
In the event of any material breach hereof by a party, the other party will have
the right to terminate this Agreement following thirty (30)-days' written notice
and opportunity to cure. Termination will not affect accrued payment
obligations, but no further advance royalty payments shall be due following
termination. In the event Greet Street terminates this Agreement as a result of
an uncured breach by Hotmail, Hotmail shall refund all advances paid to it by
Greet Street, less the amount of royalties, if any, that shall have been
credited or recouped against such amounts as of the effective date of
termination.
If, other than under Title 11 of the United States Code, either party becomes
subject to any voluntary or involuntary insolvency, cession, bankruptcy, or
similar proceedings, then the other party shall have the right to immediately
terminate this Agreement.
At the expiration of this Agreement, Greet Street shall have the right to
notice of, and to bid for a renewal term to this Agreement or for any Dynamic
E-mail or other electronic greetings service transaction that Hotmail offers to
any third party. Hotmail agrees that it will not enter into a binding contract
or commitment with any third party that prevents or otherwise excludes, Greet
Street from bidding for the right to operation such a service on Hotmail.
9. Confidentiality
Both parties shall treat as confidential and proprietary all confidential
information provided by one party to the other in connection with this Agreement
and the party receiving such information shall not use or disclose such
information to any third parties (except to the extent otherwise permitted by
this Agreement) without the prior written consent of the disclosing party,
unless such information is or becomes generally known to the public or is
independently
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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developed or generated by the receiving party by personnel who have no access to
the information disclosed to the receiving party or as otherwise required by
law.
In addition, neither party will reveal the specific financial terms of this
Agreement to a third party, with limited exceptions to allow the party to reveal
such information to its legal and financial advisers, accountants, and actual or
prospective investors and lenders, to permit a party to enforce its rights
hereunder, and otherwise as required by law.
10. Licenses
If at any time, Hotmail grants Greet Street the right to include its trademark
notices within the Hotmail, service as contemplated in Section 3a, then Greet
Street will grant Hotmail an appropriate trademark usage license.
Hotmail hereby grants to Greet Street a nonexclusive, royalty-free, worldwide
license under all of Hotmail's intellectual property rights to use, modify,
reproduce, publicly display, publicly perform, distribute and transmit the
Hotmail trademark and logo in the Store, and connection with the distribution,
marketing and promotion of the Store, subject in each case to compliance with
Hotmail brand guidelines as disclosed to Greet Street in writing from time to
time.
11. Representations and Warranties
Each party represents and warrants to the other party that such party has the
full corporate right, power and authority to enter into this Agreement and to
perform the acts required of it hereunder; and 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, binding obligation or
commitment to which such party is a party or by which it is otherwise bound; and
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, except to the extent that such enforcement
may be subject to applicable federal or state bankruptcy, insolvency,
reorganization, fraudulent conveyance or other laws or court decisions relating
to or affecting the rights of creditors generally, and such enforcement may be
limited by equitable principles of general applicability. In addition, Greet
Street represents and warrants to Hotmail that it is the owner of all right,
title and interest in and to, or is the licensee with the right to use,
reproduce, distribute and sell as contemplated in this Agreement, the Dynamic
Email products to be marketed and sold in the Store, and that the Dynamic Email
products (prior to their modification or customization by Hotmail customers) do
not and will not (x) infringe on or violate any intellectual property right of
any third party or (y) violate any applicable law, regulation or third party
right when used in a manner consistent with this Agreement. In the event that
any party becomes aware of any such infringement (or alleged infringement) or
violation, such party will promptly notify the other party and shall provide all
information relating to such matters as such other party may reasonably request.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, NEITHER PARTY MAKES, AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT,
INCLUDING ANY IMPLIED
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE
OF PERFORMANCE.
UNDER NO CIRCUMSTANCES WILL 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 ANY
PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS.
12. Indemnification
Subject to the limitations set forth below, Greet Street, at its own expense,
will defend, or at its option settle, any claim, suit or proceeding against
Hotmail and pay any final judgment entered or settlement against Hotmail in any
such claim, suit or proceeding, to the extent that such claim, suit or
proceeding is based upon (a) the infringement of any trademark or service mark
rights by the E-greetings trademark or the Greet Street logo; (b) the
infringement or misappropriation of any patent, copyright or trade secret, or
violation of any other third party right, in connection with the operation of
the Store; or (c) any other third party claim arising out of, relating to or
resulting from the operation of the Store, except to the extent such claim
arises out of or results from the negligence or willful misconduct of Hotmail,
including any breach by Hotmail of its obligations under this Agreement. Greet
Street will have no obligation to Hotmail pursuant to this Section 12 unless:
(x) Hotmail gives Greet Street prompt written notice of the claim, suit or
proceeding and cooperates reasonably with Greet Street; and (y) Greet Street is
given the right to control and direct the investigation, preparation, defense
and settlement of the claim, suit or proceeding.
Subject to the limitations set forth below, Hotmail, at its own expense, will
defend, or at its option settle, any claim, suit or proceeding against Greet
Street and pay any final judgment entered or settlement against Greet Street in
any-such claim, suit or proceeding, to the extent that such claim, suit or
proceeding is based upon (a) the infringement of any trademark or service mark
rights by the Hotmail trademark or logo; (b) the infringement or
misappropriation of any patent, copyright or trade secret or the violation of
any other third party right; or (c) any third party claim arising out of,
relating to or resulting from the operation of Hotmail's service (excluding the
Store), except to the extent such claim arises out of or results from the
negligence or willful misconduct of Greet Street including any breach by Greet
Street of its obligations under this Agreement. Hotmail will have no obligation
to Greet Street pursuant to this Section 12 unless: (x) Greet Street gives
Hotmail prompt written notice of the claim, suit or proceeding and cooperates
reasonably with Hotmail; and (y) Hotmail is given the right to control and
direct the investigation, preparation, defense and settlement of the claim, suit
or proceeding.
13. Press Release
Upon the execution of this Agreement the parties will work together to write a
joint press release, describing the relationship created by this Agreement. The
parties agree to collaborate to write additional joint press releases on an
on-going basis.
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
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14. Miscellaneous Provisions
a) Intellectual Property
Except as expressly provided in Section 11 of this Agreement, Greet Street will
acquire no title to or interest in any of Hotmail's copyrights, trademarks or
other intellectual property rights and Hotmail shall acquire no title to or
interest in any of Greet Street's copyrights, trademarks or other intellectual
property rights.
b) Parties not Joint Venturers
This Agreement is intended as a distribution agreement between the parties, and
nothing contained herein shall be construed so as to make the parties partners
or joint venturers or agents of one another.
c) Modifications and Waivers
No waiver or modification of any of the terms of this Agreement shall be valid
unless in writing, signed by both parties. Failure by either party to enforce
any rights under this Agreement shall not be construed as a waiver of such
rights.
d) Invalidity of Separable Provisions
If any provision of this Agreement is for any reason held to be invalid, such
provision shall be enforced to the maximum extent permissible and the remaining
provisions of this Agreement will remain in full force and effect, provided that
the essential purposes of this Agreement may be maintained.
e) Entire Understanding; Amendments
This Agreement contains the entire understanding of the parties with respect to
its subject matter, and supersedes all prior or contemporaneous understandings
and communications between the parties on that subject matter. No provision of
this Agreement may be changed or modified except as provided in a separate
writing, signed by the parties. There are no representations, warranties,
promises, or undertakings between the parties other than those contained in this
Agreement.
f) Choice of Law and Jurisdiction
This Agreement shall be construed and governed in accordance with the laws of
the State of California as applied to contracts made and performed therein,
without reference to its conflict of laws principles. Both parties hereby submit
to jurisdiction in State and Federal Courts in California.
g) Attorneys' Fees
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If any legal action at law or in equity, arbitration or other action or
proceeding is necessary to enforce the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to costs of
suit and to any other relief which that party may be entitled.
h) Force Majeure
Neither party shall be liable for any failure or delay in the performance of
obligations due to force majeure, namely any cause or matter not within its
reasonable control and not reasonably foreseeable by the party. Such a party
shall be entitled to suspend performance of its obligations under this Agreement
to the extent that and for so long as effected by the force majeure.
i) Construction
The captions and section headings of this Agreement are intended for ease of
reference only and shall not be used in the interpretation or construction of
this Agreement. This Agreement shall be construed as a whole, according to its
fair meaning, and not in favor of or against any party. By way of example and
not in limitation, this Agreement shall not be construed in favor of the party
receiving a benefit nor against the party responsible for the drafting of any
particular language in this Agreement.
j) Counterparts
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original but all of which together will constitute one and the same
instrument.
k) Changes over Time
The parties acknowledge that because of the rapid pace of technological change
and evolution in the industries associated with the Internet and software
related thereto, many of the underlying facts and circumstances (including
assumptions regarding the facts and circumstances) that were the basis for the
allocation of various rights and obligations pursuant to this Agreement are
likely to change over time. In drafting this Agreement, the parties have
addressed relevant facts and issues as they exist with current technologies and
today's business models; however, the parties also intend for this Agreement to
remain in force throughout the term as such technologies and business models
change over time, with appropriate modifications to reflect such equitable
adjustments as are required to maintain a substantially comparable allocation of
rights and obligations in light of changed circumstances. The parties do not
intend for this Agreement to be effectively nullified or abrogated because of
changed circumstances, but rather intend that the intent and purpose of this
Agreement be preserved as circumstances change. To such end, the parties agree
that certain provisions regarding the parties' respective rights and obligations
under this Agreement, while drafted to address current circumstances, are also
intended to reflect general principles to be implemented by the parties in a
pragmatic and meaningful way as such circumstances change. Notwithstanding the
foregoing, the provisions of this Section 14(i) shall not apply to those rights
and/or obligations that should not be affected by changes in technology and/or
business models.
13
14
IN WITNESS HEREOF, the parties have executed this Agreement as of the date set
forth above.
Hotmail Corporation The Virtual Mall, Inc.
(d/b/a Greet Street)
By: /s/ Scott Wiseman By: /s/ Paul Lipman
--------------------------------- --------------------------
Paul Lipman,
Its: Director, Business Development Director of Business Development
14
15
ADDENDUM TO AGREEMENT
BETWEEN
HOTMAIL CORPORATION AND GREET STREET
As permitted by section 14e. of the Agreement Between Hotmail Corporation and
Greet Street, that became effective on August 21st, 1997, the parties hereby
agree to amend the Agreement as of August 1, 1998 (Addendum Effective Date) as
follows:
Modifications and Amendments
The following paragraph will be added at the end of Section 3bi:
The current promotion of an "Email greetings" button on Hotmail's "Centerpoint"
page will be deemed (acceptable as a "welcome" page promotion each day of
Centerpoint promotion will count towards Greet Street's aforementioned [*******]
of promotion. This button will remain in effect until October 1998. As of the
effective date of this addendum, Greet will have a total of [*********] Mail-me
banner campaigns consisting of a minimum of [********] impressions per campaign.
The following paragraph will be added at the end of Section 3bii:
Hotmail agrees to bonus Greet Street an additional 1 million banner impressions
per month as of the Addendum Effective Date for the term of the agreement. Greet
Street may elect to accrue these additional impressions and use them all in one
month during the contract term.
Section 4a shall be deleted.
The following paragraph will be added at the end of Section 7a:
Greet Street will make an additional payment to Hotmail in the amount of
[*******] on October 1, 1998.
The following paragraph will be added at the end of Section 8 paragraph 1:
"This Agreement Shall commence on August 21 and terminate one (1) year after the
Launch Date" Shall be modified as follows:
This Agreement shall commence on August 21 and will expire on November 1, 1998.
The agreement will renew automatically on November 1, 1998 for successive thirty
(30) day periods unless one party serves written notice to the other party of
its intention not to renew at least ten (10) days. prior to the end of the
period. The additional renewal periods are subject to the following contractual
modifications:
Substitute Section 7 with:
Greet Street agrees to pay Hotmail a fixed fee of [*******] per month
([*******] for the month of October, as specified above).
[*] - Indicates confidential information that has been
omitted and filed separately with the Securities
and Exchange Commission.
16
IN WITNESS WHEREOF, each of the parties hereto have executed this
Addendum as of the Addendum effective date.
Hotmail Corporation Greet Street
By: /s/ Sabeer Bhatia By: /s/ Paul Lipman
---------------------------------- -------------------------
Name: Sabeer Bhatia Name: Paul Lipman
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Title: GM, Hotmail - MS Title: VP, Consumer Business
--------------------------------- -----------------------
Date: 8/11/98 Date: 8/7/98
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