NETSCAPE Clause Samples

NETSCAPE. Netscape Communications Corporation's primary Internet-based Interactive Site marketed under the "Netscape Netcenter(TM)" brand [***], specifically excluding (a) the AOL Service, (b) ▇▇▇.▇▇▇, (c) any international versions of such site, (d) "ICQ," "AOL Netfind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My News," "Digital City(TM)," or any similar independent product or service offered by or through such site or any other AOL Interactive Site, (e) any programming or Content area offered by or through such site over which AOL does not exercise complete operational control (including, without limitation, Content areas controlled by other parties and member-created Content areas), (f) any programming or Content area offered by or through the U.S. version of the America Online(R) brand service which was operated, maintained or controlled by the former AOL Studios division (e.g., Electra), (g) any yellow pages, white pages, classifieds or other search, directory or review services or Content offered by or through such site or any other AOL Interactive Site, (h) any property, feature, product or service which AOL or its affiliates may acquire subsequent to the Effective Date and (i) any other version of an AOL or Netscape Communications Corporation Interactive Site which is materially different from Netscape Communications Corporation's primary Internet-based Interactive Site marketed under the "Netscape Netcenter(TM)" brand, by virtue of its branding, distribution, functionality, Content or services, including, without limitation, any co- branded versions and any version primarily distributed through any [***] platform or through any platform or device other than a desktop personal computer (e.g. Custom NetCenters built specifically for third parties). [***]=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.

NETSCAPE. Netscape Communications Corporation, a wholly owned subsidiary of -------- AOL. Post-Term AOL Transaction Revenues. Aggregate amounts generated in connection ---------------------------------- with access to, or products or services provided to any Purchase Pro Post-Term Subscriber who enters the AOL Exchange from the Purchase Pro Exchange, including, without limitation, slotting fees, classified advertising fees, subscription fees, license fees, group buying fees, transaction processing fees, seminar fees, administration fees, transaction fees and revenue shares payable to AOL, but excluding amounts collected for sales or use taxes or duties (if any), actual shipping charges paid to third parties, Advertising Revenues, revenue shares and sales commissions payable by AOL to third parties, and actual costs incurred by AOL in connection with operating the AOL Exchange and providing such products and services plus ten percent of such actual costs. Post-Term AOL Transaction revenues shall not in any event include subscription fees paid to Purchase Pro by Purchase Pro Post-Term Subscribers. Post-Term Purchase Pro Transaction Revenues. Aggregate amounts generated in ------------------------------------------- connection with access to, or products or services provided to any AOL Post-Term Subscriber who enters the Purchase Pro Exchange from the AOL Exchange, including, without limitation, slotting fees, classified advertising fees, subscription fees, license fees, group buying fees, transaction processing fees, seminar fees, administration fees, transaction fees and revenue shares payable to Purchase Pro, but excluding amounts collected for sales or use taxes or duties (if any), actual shipping charges paid to third parties, amounts that would be considered Advertising Revenues if they had been collected by AOL, revenue shares and sales commissions payable by Purchase Pro to third parties, and actual costs incurred by Purchase Pro in connection with operating the Purchase Pro Exchange and providing such products and services plus ten percent of such actual costs. Post-Term Purchase Pro Transaction revenues shall not in any event include subscription fees paid to AOL by AOL Post-Term Subscribers.

NETSCAPE. Plaintiffs downloaded free software from a Netscape website. They subsequently sued arguing that their use of the downloaded software communicated private information about their online activity in violation of federal law. Netscape moved to dismiss the court action and compel arbitration as required by a clause in the License Agreement that Netscape claimed plaintiffs had accepted by downloading the software. The screen containing the download button appeared before any language suggesting a download amounted to agreeing to the license agreement, which itself could only be accessed by scrolling down and moving through a couple of links. The page with the download button did not instruct the viewer to scroll down. The court concluded that the license agreement (with the arbitration clause) was not sufficiently conspicuous to be part of the “offer”. A reasonable person would not realize that they were agreeing to arbitrate any disputes Here, if the terms are not conspicuous (apparent) then those terms are not part of the deal/agreement If it was a hardcopy, then objective standard, not subjective standard that counts – a reasonable person would have read them, so you’re bound [just because you didn’t read it – no excuse, still bound] §211-3: if there is a provision that is ridiculous/onerous won’t be a part of contract if entering into standardized agreement (online) and there’s something there that the company would have reason to know that you wouldn’t agree if you knew it was there then not part of the agreement [can’t sneak in something ridiculous] General rule online license agreements are enforceable even if you did not read it, but here the issue is that the terms weren’t conspicuous