EXHIBIT 10.18
[LOGO OF NETSCAPE APPEARS HERE]
NETSCAPE COMMUNICATIONS CORPORATION
U.S. ENGLISH LANGUAGE WHITE PAGES DIRECTORY SERVICES AGREEMENT
NETSCAPE/INFOSPACE, INC.
SUMMARY COVER SHEET
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EFFECTIVE DATE: Date of last signature of the Agreement.
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PARTIES:
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InfoSpace: Netscape:
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InfoSpace, Inc. Netscape Communications Corporation
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0000 000xx Xxxxxx XX 000 Xxxx Xxxxxxxxxxx Xxxx, XX-000
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Xxxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
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Fax: (000) 000-0000 Fax: (000) 000-0000
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Attn: Xxxxxx Xxxx Attn: General Counsel
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MINIMUM CLICKS: [*]
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PREPAYMENT: White Pages Service Fee (See Table Below)
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LOCAL LANGUAGE: U.S. English
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BASIC SERVICE (PHASE 1): Commences July 1, 1998
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ADVANCED SERVICES (PHASE 2): Integrated September through November, 1998.
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SERVICE PERIOD: From July 1, 1998 though June 30, 1999
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TERM: From Effective Date through June 30, 1999
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SERVICE SERVICE TRAFFIC COST PER CLICK
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White Pages 0 up to 21.15 million Clicks [*]
Over 21.15 million up to 42.3 million Clicks [*]
Over 42.3 million up to 73.68 million Clicks [*]
Over 73.68 million Clicks [*]
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_________________________________
* Confidential Treatment Requsted.
"[*]" = omitted, confidential, material, which has been separately filed with
the Securities and Exchange Commission pursuant to a request for confidential
treatment.
[LOGO OF NETSCAPE APPEARS HERE]
NETSCAPE COMMUNICATIONS CORPORATION
U.S. ENGLISH LANGUAGE WHITE PAGES DIRECTORY SERVICES AGREEMENT
OBJECTIVE: To create a co-branded, competitive White Pages Internet directory
service (the "SERVICE") that provides Internet browser users with up-to-date
general navigational directory listings.
TERMS AND CONDITIONS:
1. COMPANY. InfoSpace, Inc. ("COMPANY"), named on the signature page to this
agreement ("AGREEMENT"), will provide the Results Pages for any of the U.S.
English-language HTML pages accessible by the public via the Internet at the
Universal Resource Locator ("URL")
xxxx://xxxx.xxxxxxxx.xxx/xxxxxxxxx/xxxxxxxxxx.xxxx and/or such other URLs as
Netscape may designate from time to time in writing. Netscape will provide the
Service front pages which are accessed when the White Pages hyper-link is
clicked. These Service front pages are where the search parameters are defined
and where a user starts a new search with no predefined variables and are
hereinafter referred to as the "JUMP PAGES". The Jump Pages and the Results
Pages are together referred to as the "Service". The Jump Pages are part of the
collection of U.S. English-language HTML documents accessible by the public via
the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx and/or at such other URL(s) as
Netscape may designate ("NETSCAPE'S WEB SITE"). The Jump Pages may also be
accessed by Internet users of the Netscape-distributed U.S. English-language
version browser by pressing or "clicking" on a button or link for the Service in
the toolbar, by way of a bookmark pre-loaded in certain versions of the
applicable browser as described herein, home page, Netscape's Net Search pages,
selected channel pages, the Service pages, 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 the Jump Pages, which
provides the Service on Netscape's Web Site, including, but not limited to, the
use of mirror sites and pointers based on a user's IP address, and which mirror
sites and pointers are separate and distinct from the Jump Pages described in
this Agreement.
2. SERVICE PERIOD. Netscape will provide access to the Service, as described
herein, for the service period identified on the Cover Page ("SERVICE PERIOD").
3. THE SERVICE.
3.1. General.
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(a) The Service. The Service, including Phases I and II, and the
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Jump Pages and Results Pages (together, the "SERVICE PAGES"), are more fully
described in Exhibit A.
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(b) The Jump Pages. Netscape will serve, maintain and promote the
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Jump Pages. The Jump Pages will have such functionality and appearance as
Netscape shall determine[*]. Netscape will produce the Jump Pages so that when
an end user performs a search for people or business information, and clicks on
the search button on the Jump Pages, then the end user's browser will access
"Results Pages" defined below.
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(c) The Results Pages. The Results Pages will be accessible from the
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Jump Page. Company shall serve, maintain and promote the front results page and
all results pages accessible thereby (together, the "RESULTS PAGE(S)").
Netscape must approve the look and feel of the templates of the Results Pages
before they are used in the Service. [*] So that Netscape may evaluate and
approve Results Pages, Company 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 B. Company shall
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retain all right, title and interest in and to the Results Pages (including the
copyright ownership thereof), and Company hereby grants Netscape a royalty-free
worldwide license, without payment or other charge therefor, to use, display,
perform, reproduce and distribute the Results Pages, and such other licenses
with respect to the Results Pages necessary to fulfill the intention of this
Agreement. The specifications of the Results Pages and the placement on the
Jump Pages of the Results Page links are set forth on Exhibit B hereto. Netscape
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shall notify Company of any changes to the specifications set forth in Exhibit
B. Company's compliance with the content as well as the language, technical,
visual and functional specifications of the Results Pages as set forth in
Exhibit B (including, without limitation, the type of information provided on or
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from the Results Pages) are a material obligation of Company under this
Agreement.
3.2 Location. The Results Pages will reside solely on Company's
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servers but will have a "Xxxxxxxx.xxx" domain name and will be directly linked,
within one click away, to Netscape's Web Site. [*] Company shall not promote
any Service from another Web site without Netscape's prior written consent.
Company expressly agrees that Company shall be solely responsible for the
purchase, implementation, maintenance and support of all software and hardware
required to fulfill its obligations under this Agreement.
3.3 Name of the Service. The name of the Service ("SERVICE NAME")
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shall be mutually determined by the parties. Company shall not independently
use the Service Name without Netscape's prior written consent, unless such use
occurs in connection with Company's advertising sales and promotional efforts on
behalf of the Service. Each Service Name shall be displayed on every page of
the corresponding Service and no other locations without Netscape's prior
written consent except in connection with such advertising sales and promotional
efforts on behalf of such Service. Company may not use the corresponding Service
Name with Netscape's name expunged. Company may not use a Service Name
independent of the corresponding Service except as provided for above in this
Section 3.3.
3.4. Design and Specifications of the Service. The design of the Jump
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Pages and the Results Pages will be determined by Netscape. The Results Pages
shall be co-branded by Netscape and Company in accordance with Exhibit B.
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Netscape shall be responsible for creating the design and graphic user interface
specifications including navigation, architecture, look and feel of each Results
Page. In addition, Netscape will specify the functionality and fields of the
Service Pages, including the Results Pages[*]. Netscape may from time to time
alter the design and specifications of the Service Pages[*]. Such
specifications shall include, but not be limited to, those set forth on Exhibit
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B. The specifications of each of the Results Pages, including, without
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limitation, the Results front Page, are set forth on Exhibit B hereto; provided
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however, that Netscape may, upon notice to Company, (i) redesign or reconfigure
the Jump Pages, Netscape's Web Site, and/or the manner in which an end user
interacts with any of the pages of Netscape's Web Site, or (ii) revise Exhibit
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B; and Company shall promptly, and in any event, within no more than [*]
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following receipt of such notice, supply Netscape with a revised Results Page
that conforms to the specifications of the revised Exhibit B
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* Confidential Treatment Requested.
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4. ADDITIONAL BENEFITS.
4.1. Exclusivity. During the Term, and in order to insure that its
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resources, priorities and attention are adequately focused on developing and
maintaining the Service, Netscape will not enter into any similar agreement for
the development and/or operation of any similar cobranded White pages directory
service.
4.2. Pre-loaded Bookmark. During the Service Period, Netscape shall
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include a graphic HTML link for the Service to the Jump Pages ("BOOKMARK") in
the bookmark section of future 4.x versions of the U.S. English-language version
of Netscape Communicator client software. The Bookmark may be reconfigured,
customized or deleted by an end user.
5. CLICK GUARANTEES
5.1. Click. A click ("CLICK") to a Results Page occurs when an end user
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requests information and clicks on a link or button from the Jump Pages directed
to the Results Pages.
5.2. Minimum Guaranteed Clicks. During the Service Period, Netscape
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Guarantees that Company shall receive no fewer than a combined total of [*]
Clicks for White Pages.
5.3. Make-Good. If, at the end of the Service Period, Company's content
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has not, in the aggregate, received total Clicks equal to or greater than the
Minimum Guaranteed Clicks, and provided that Company has complied with its
obligations hereunder, Netscape will, at its discretion: (i) continue to link
the Results Page to the Jump Pages as specified in Section 3 beyond the end of
the Service Period until such time as the Minimum Guaranteed Clicks have been
achieved, or (ii) deliver to Company a program of equivalent value as a remedy
for the shortfall in Clicks. The remedy set forth in this Section 5.3 shall be
Company's sole and exclusive remedy, and Netscape's sole and exclusive
obligation, regarding Netscape's obligation set forth in Section 5.2 in the
event, by the end of the Service Period, the Minimum Guaranteed Clicks have not
been achieved.
6. COMPANY OBLIGATIONS. In addition to the other obligations set forth herein,
Company agrees to the following provisions.
6.1. Netscape Now. If or when Company displays a button or link to
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Microsoft's Internet Explorer, or any derivative or successor browser, then
Company shall, with equal prominence, include the then-current version of the
"Netscape Now" (or equivalent promotional) button in the appropriate place on
the collection of English- language HTML documents Company maintains as its
primary web site ("COMPANY'S WEB SITE"), or on any page linked thereto, and [*]
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 promotional program to Netscape's Netscape Now
program) next to the Netscape Now button: "This site is best viewed with
Netscape Communicator. Download Netscape Now!" Company'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. Company acknowledges that the Netscape Now
button is a proprietary logo of Netscape and contains Netscape's trademarks. In
the event that Netscape determines that Company's use of the Netscape Now button
is inconsistent with Netscape's quality standards, then Netscape shall have the
right to suspend immediately such use of the Netscape Now button. Company
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. Company agrees not to register or use any
trademark that is similar to the
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* Confidential Treatment Requested.
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Netscape Now button. Company further agrees that it will not use the Netscape
Now button in a misleading manner or otherwise in a manner that may reflect
adversely on Netscape or its products.
6.2. Server Software. To showcase the close relationship between Company
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and Netscape and highlight Company's endorsement of Netscape's products, Company
shall consider using at least [*] version of Netscape core Web server software
product (currently comprised of Netscape Enterprise Server and Netscape
FastTrack Server) to maintain a portion of Company's Web Site or operation and,
if requested, provide Netscape with evidence of such use.
6.3. No Disabling. Company shall not provide or implement any means or
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functionality that would (i) disable any functionality of the browser or any
other Internet browser software, (ii) result in a redirection of any traffic
away from Netscape's Netcenter web site, or (iii) modify the functioning of
pages served from Netscape's Web Site. If Company fails to honor the commitment
set forth in this Section 6.3, Netscape will be relieved of its obligations
described in Section 5.3.
6.4. Preference for Netscape Products and Services. Company shall use
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commercially reasonable efforts to accord, in light of the intent of the parties
to highlight their strategic relationship as evidenced by the terms and
conditions of this Agreement, in Company's Web sites as well as Company's
overall marketing efforts, Netscape's products and services a position of
prominence, overall as well as on an element by element basis, at least as great
as the positioning accorded any third-party Internet client software, software
provider, online service or other service provider. Company may use, and is
granted during the term hereof a nontransferable, nonexclusive and restricted
license to use the Netscape name ("Xxxx") in advertising, marketing,
technical, packaging and other materials related to the Service. Use of the Xxxx
shall comply with Netscape's then-current trademark usage guidelines and
corporate signature kit. Company shall clearly indicate Netscape's ownership of
the Xxxx and that the Xxxx is registered. All use of the Xxxx shall inure to
Netscape's benefit. Company shall not register any Netscape trademarks, or
trademarks, trade names or domain names confusingly similar to Netscape
trademarks, trade names or domain names without Netscape's express prior written
consent. Upon Netscape's request from time to time, Company shall provide
Netscape with copies of the promotional materials bearing the Xxxx, and Customer
shall suspend use of the Xxxx if Netscape determines within its sole reasonable
discretion that the use of the Xxxx is improper or damaging to Netscape'
reputation and goodwill. Company further agrees not to use the Xxxx on or in
connection with any products or services that are or could be deemed by
Netscape, in its reasonable judgment, to be obscene, pornographic, disparaging
of Netscape or of its products, or otherwise in poor taste, or that are
themselves unlawful or whose purpose is to encourage unlawful activities by
others; or in connection with products or services or advertisements that are
competitive with Netscape.
7. PAYMENT TO NETSCAPE.
7.1. Payment. Company shall pay Netscape an amount based on cost per
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Click times the number of Clicks. The cost per Click is a variable based on a
designed range of Clicks, as set forth on the table provided in the Cover Sheet.
7.2 Payment Terms. [*]. All amounts payable by Company hereunder are
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payable within thirty (30) days after receipt by Company of the corresponding
invoice submitted by Netscape. Any amount payable hereunder that 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. All amounts payable to Netscape hereunder shall be paid in U.S.
Dollars.
7.3. Taxes.
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* Confidential Treatment Requested.
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(a). Exclusive of Tax. All payments hereunder are exclusive of any
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tax. Company shall pay or reimburse Netscape for all value-added, sales, use,
consumption, property, ad valorem and similar taxes, all customs duties, import
fees or similar charges, stamp duties, license fees and similar costs, and all
other mandatory payments to any government agencies of whatever kind imposed
with respect to products or services provided by Netscape under this Agreement
or with respect to this Agreement except taxes imposed on the net income of
Netscape [*]. If the transaction is exempt from tax, Company shall provide
Netscape with a valid exemption certificate or other evidence of such exemption
in a form acceptable to Netscape. Company shall, at its own expense, use
reasonable efforts to recover refundable or recoverable taxes. Each party shall
cooperate with the other in minimizing applicable tax.
(b). No Withholding. All payments by Company to Netscape pursuant to
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this Agreement shall be made without any withholding or deduction of any
withholding tax or other tax or mandatory payment to government agencies. If
Company is legally required to make any such withholding or deduction from any
payment due to Netscape under this Agreement, the sum payable by Company upon
which such withholding or deduction is based shall be increased to the extent
necessary to ensure that, after such withholding or deduction, Netscape receives
and retains, free from liability for such withholding or deduction, a net amount
equal to the amount Netscape would have received and retained in the absence of
such required withholding or deduction.
(c). Survival of Obligations. Company's obligations under this
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Section shall survive any termination of this Agreement.
7.4. Advertising Revenue. During the Service Period, Netscape will serve
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and will receive [*], and Company will serve and receive [*].
8. USAGE REPORTS.
8.1. Provide Usage Reports. Netscape and Company will each provide the
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other, via email to the email address set forth below, with usage reports
("USAGE REPORTS") containing the information and in the format set forth in
Exhibit C hereto. The Usage Reports shall cover each one-month time period of
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the Service Period, and the parties shall use reasonable commercial efforts to
deliver the Usage Reports within fifteen (15) 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 following data shall be used for each
day for which data is missing: ninety percent (90%) of the usage figures
reported for the same day of the week most recently reported (e.g. if data for
the day seven (7) days prior is available, ninety percent (90%) of the usage
figures for such day; if not available, the data for the day fourteen (14) days
prior, and so on).
8.2. No Liability. NETSCAPE AND COMPANY WILL USE REASONABLE COMMERCIAL
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EFFORTS TO ENSURE THE 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 SUCH USAGE REPORTS.
9. TERMINATION.
9.1. Methods of Termination.
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(a). Term and Termination. This Agreement shall commence as of the
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Effective Date and shall continue through June 30, 1999, unless sooner
terminated as provided in this section.
(b). Termination on Breach. Either party may terminate this Agreement
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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.
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9.2. Effect of Termination. Except as specifically provided otherwise in
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this Agreement, upon the expiration or termination of the Agreement, all rights
and obligations hereunder shall cease (other than Company's payment obligations
hereunder to the extent accrued on or prior to the termination date or as
otherwise provided in this Section 9.2) 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 (as defined in Exhibit D) of
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the other party. Notwithstanding the foregoing, if this Agreement expires or is
terminated for any reason, other than by Company as a result of Netscape's
material breach of the terms of this Agreement or by Netscape for its
convenience pursuant to Section 9.1(c), Company 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 7.3 (Excess Quarterly Clicks), Section 7.5
(Taxes), Section 8.2 (No Liability), Section 9.2 (Effect of Termination),
Section 9.3 (No Compensation), Section 11 (Responsibility), Section 12
(Limitation of Liability), Section 14 (Alternative Dispute Resolution), and
Section 16 (General).
10. RIGHT TO REFUSE.
10.1 Netscape will have the right to review the contents and format of the
Results Pages. If Netscape, in its reasonable discretion, at any time
determines that a Results Page contains any material, or presents any material,
in a manner that Netscape deems inappropriate for any reason [*]. Netscape will
inform Company of the reason Netscape has made such determination and may (i)
refuse to link the Results Page to the Jump Pages on Netscape's Web Sites,
and/or (ii) immediately terminate this Agreement if Company has not revised to
Netscape's reasonable satisfaction a Results Page [*]. If Netscape, in its
reasonable discretion, at any time determines that the Company's Web Site
contains any material, or presents any material, in a manner that Netscape deems
to be obscene, pornographic, disparaging of Netscape or it's products or
services, or is unlawful, or is to encourage unlawful activities by others,
Netscape may immediately terminate this Agreement if Company has not revised to
Netscape's reasonable satisfaction the Company's Web site [*].
10.2 Services and products of any [*] defined below, or services or
companies [*] with any of Netscape's Netcenter "Core Services" (as defined
below), may [*]. For purposes of this Agreement, "Core Services" means services
and applications offered by Netscape limited to services and applications
containing discussion group, chat, personalization, personal home page, member
directory, email, instant messaging, white and yellow pages and search features
of functions, except as set forth below. Any exceptions to this need prior
written consent from Netscape. No [*] defined below, or any company that [*]
Netscape's Netcenter "Core Services" will have [*] without Netscape's prior
written consent. Any branding by the Company must comply with the terms of this
Agreement, including specifications set forth in Exhibit B. [*]. Netscape may
[*] list of Core Services once per quarter upon prior written notice to Company
delivered at the quarterly review pursuant to this section, provided that if
Netscape [*] at a quarterly review (i.e., one that was not previously listed
[*]) who is, at the time [*], Company shall be allowed to complete the term [*].
10.3 Netscape agrees [*] of any of the entities listed on Exhibit E
("Company's Named Entities") attached hereto [*].
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11. RESPONSIBILITY. (a) Company is solely responsible for any liability arising
out of or relating to: (i) the [*]; (ii) any material to which users can link
through any of the foregoing; or (iii) any use of the [*] pursuant to this
Agreement, (collectively, the "Services"). Company represents and warrants that
it holds the necessary rights to permit the use of the Services by Netscape for
the purpose of this Agreement; and that the permitted use, reproduction,
distribution, or transmission of the Services, and any material to which users
can link through the Services 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. Company 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 Company's breach of any of the foregoing
responsibilities.
(b) Netscape shall indemnify, hold harmless and defend Company from and against
any and all claims, liabilities, losses, damages, expenses and costs (including
attorneys' fees and costs) arising out of or relating to any content on the Jump
Pages created by and under the control of Netscape for use by Company in
accordance with this Agreement, except to the extent that Company is responsible
under Section 11 (a). Netscape will pay resulting costs, damages and legal fees
finally awarded in such action in a court or in a settlement which are
attributable to such claim provided that: (i) Company promptly notifies
Netscape in writing of any such claim; (ii) Netscape has sole control of the
defense and all related settlement negotiations, and (iii) Company cooperates
with Netscape, at Netscape's expense, in defending or settling such claim.
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 WHETHER IN
CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED
THE PAYMENT DUE FROM COMPANY HEREUNDER. THE LIMITATIONS IN THIS SECTION DO NOT
APPLY TO SECTION 11 (RESPONSIBILITY) OR SECTION 16.5 (CONFIDENTIALITY).
13. COURSE OF DEALING. In consideration of Company's participation in the
Service Program, until such time as Microsoft fully publicly documents and makes
available its operating systems' programming interfaces sufficiently to enable
Netscape to make use of all of the facilities and resources of those operating
systems on a basis equal to that of Microsoft, Company shall, using commercially
reasonable efforts: (1) Within Company's publicly accessible Web Sites, other
services (including co-branded and OEM services) and marketing materials, accord
Netscape's products and services a position of preference and prominence,
overall as well as on an element by element basis, at least as great as that
accorded any third-party Internet client or server software, software provider
or online service; and (2) Not make content available solely to users of client
software or services other than Netscape's, or disfavor or disadvantage users of
Netscape client software or services in any way relative to users of other
Internet client software or services [*].
14. ALTERNATIVE DISPUTE RESOLUTION. Any dispute hereunder will be negotiated
between the parties commencing upon written notice from one party to the other.
Settlement discussions and materials will be confidential and inadmissible in
any subsequent proceeding without both parties' consent. If the
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dispute is not resolved by negotiation within 45 days following such notice, the
parties will refer the dispute to non-binding mediation conducted by
JAMS/EndDispute in Santa Xxxxx County, California (the "Venue"). The parties
will share the costs of mediation. If the dispute is not resolved after 45 days
of mediation, the parties will refer the dispute to binding arbitration by
JAMS/EndDispute in the Venue. The results of any arbitration will be final and
non-appeallable, except that either party may petition any court of competent
jurisdiction specified in Section 16 to review any decision relating to Netscape
intellectual property matters (including the scope of license rights), vacating
or modifying erroneous conclusions of law or findings of fact not supported by
substantial evidence. The arbitrator may fashion any legal or equitable remedy
except punitive or exemplary damages, which both parties waive. The arbitrator
will render a written decision, which may be entered in and enforced by any
court of competent jurisdiction, but which will have no preclusive effect in
other matters involving third parties. The losing party will pay the costs of
the arbitration and the reasonable legal fees and expenses of the prevailing
party, as determined by the arbitrator. The parties will jointly pay arbitration
costs pending a final allocation by the arbitrator. At any point in the dispute
resolution process, either party may seek injunctive relief preserving the
status quo pending the outcome of that process. Except as noted, the parties
waive any right to judicial process. California law, without regard to its
conflict-of-law provisions, will govern any dispute under this Section 14. The
U.S. Arbitration Act and JAMS/EndDispute rules will govern the arbitration
process. Absent fraudulent concealment, neither party may raise a claim more
than 3 years after it arises or any shorter period provided by applicable
statutes of limitations.
15. INSURANCE. Company, at its sole cost and expense, shall secure and
maintain adequate insurance coverage as is necessary, as a reasonable prudent
businessperson, for Company to bear all of its obligations under this Agreement.
Maintenance of the foregoing insurance shall in no way be interpreted as
relieving Company of any responsibility or obligation whatsoever and Company may
acquire, at its own expense, such additional insurance as Company deems
necessary. Company assumes full and complete liability for all injuries to, or
death of, any person, or for any damages to property arising from the acts or
omissions of Company. Company shall at Netscape's request provide Netscape with
a certificate of insurance demonstrating compliance with this Section 15. Before
any cancellation or material change in any coverage, Company shall provide
Netscape with 30 days' advance written notice. Company's insurance shall be
primary to any other insurance Netscape may have.
16. GENERAL.
16.1. Governing Law. This Agreement shall be subject to and governed in
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all respects by the statutes and laws of the State of California without regard
to the conflicts of laws principles thereof. Except as provided in Section 14,
Netscape reserves the right to invoke the exclusive jurisdiction of the
applicable court in the County of Santa Xxxxx in the State of California, and
each party submits to the jurisdiction of any such court.
16.2. Entire Agreement. This Agreement, including the exhibits and
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attachments referenced on the signature page hereto, constitutes the entire
Agreement and understanding between the parties and integrates all prior
discussions between them related to its subject matter. No modification of any
of the terms of this Agreement shall be valid unless in writing and signed by an
authorized representative of each party.
16.3. Assignment. Company may not assign any of its rights or delegate
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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.
16.4. Notices. All notices required or permitted hereunder shall be given
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in writing addressed to the respective parties as first set forth above on the
cover sheet and shall either be (i) personally delivered or (ii) transmitted by
internationally-recognized private express courier, and shall be deemed to have
been given on the date of receipt if delivered personally, or the day on which
such
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notice is delivered to the recipient as evidenced by the delivery records of
such courier, but in no case later than five (5) days after deposit with such
courier. Either party may change its address for purposes hereof by written
notice to the other in accordance with the provisions of this Subsection.
16.5. 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 Confidential Information of the disclosing party..
16.6. Force Majeure. Neither party will be responsible for any failure to
-------------
perform its obligations under this Agreement due to causes beyond its reasonable
control, including but not limited to, acts of God, war, riot, embargoes, acts
of civil or military authorities, fire, floods or accidents.
16.7. Waiver. The waiver, express or implied, by either party of any
------
breach of this Agreement by the other party will not waive any subsequent breach
by such party of the same or a different kind.
16.8. Headings. The headings to the Sections and Subsections of this
--------
Agreement are included merely for convenience of reference and shall not affect
the meaning of the language included therein.
16.9. Independent Contractors. The parties acknowledge and agree that
-----------------------
they are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring upon
either party the power of authority to bind the other party in any transaction
with third parties.
16.10. Severability. In the event any provision of this Agreement is held
------------
by a court or other tribunal of competent jurisdiction to be unenforceable, such
provision shall be reformed only to the extent necessary to make it enforceable,
and the other provisions of this Agreement will remain in full force and effect.
16.11 Press Release. Company and Netscape agree to participate in a joint
-------------
press release regarding the Service which will take place on a mutually agreed
upon date. The parties shall agree to the form and content of the joint press
release. Either party may issue its own press release , subject to the other
party's prior approval of the content within such press release
16.12. 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.
10
IN WITNESS WHEREOF, the parties have caused duly authorized representatives to
execute this Agreement as of the Effective Date.
INFOSPACE, INC. NETSCAPE COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxxx Xxxxxx
______________________________ ______________________
Print Name: Xxxxxx Xxxx Print Name: Xxxxxx X. Xxxxxx
______________________ _________________________
Title: President & CEO Title: Senior Vice President
___________________________ Finance & Corporate Controller
________________________________
Date: 7/1/98 Date: 7/1/98
___________________________ ____________________
Attached Exhibits:
Exhibit A: Description of the Services: Phases I and II
---------
Exhibit B: Specifications of the Service Pages
---------
Exhibit C: Usage Reports
---------
Exhibit D: Mutual Confidential Disclosure Agreement
---------
Exhibit E: Company's Named Entities
----------
REVIEWED BY
NETSCAPE LEGAL
Initial [illegible}
-------------------
11
EXHIBIT A
DESCRIPTION OF THE SERVICES
[*]
__________________________________
* Confidential Treatment Requested.
12
EXHIBIT B
SPECIFICATIONS OF THE SERVICE PAGES
[*]
__________________________________
* Confidential Treatment Requested.
13
EXHIBIT C
USAGE REPORTS
Sample report provided by Netscape to Company each month.
[*]
__________________________________
* Confidential Treatment Requested.
14
Sample report provided by Netscape to Company each month.
[*]
__________________________________
* Confidential Treatment Requested.
15
EXHIBIT D
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
Attach previously executed document
16
[LOGO OF NETSCAPE APPEARS HERE]
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
This Mutual Confidential Disclosure Agreement ("Agreement") is entered into
between Netscape Communications Corporation ("Netscape") and InfoSpace, Inc.
("Company"), and is effective as of the date of execution by Netscape
("Effective Date"). Each party (the "Receiving Party") understands that the
other party (the "Disclosing Party") may disclose certain Confidential
Information (as defined in Section 1 below) under this Agreement. Netscape and
Company agree as follows:
1. DEFINITION. "Confidential Information" shall mean (i) all information
disclosed in tangible form by the Disclosing Party and marked
"confidential" or "proprietary", (ii) all information on disclosed orally
or otherwise in intangible form by the Disclosing Party and designated as
confidential or proprietary at the time of disclosure, and (iii) the terms
of the U.S. English Language White Pages Directory Services Agreement
entered into between Netscape and Company dated as of July 1st, 1998.
Confidential Information may include, without limitation, computer
programs, codes, algorithms, names and expertise of employees and
consultants, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial and
product development plans, forecasts, strategies and information.
2. PURPOSE. The Receiving Party shall use the Confidential Information only
for the following purposes:
a) to evaluate whether to enter into a contemplated business transaction;
and
b) if Netscape and Company enter into such contemplated business
transaction, to fulfill each party's commitments under the agreement for
such business transaction.
3. CONFIDENTIALITY OBLIGATION. The Receiving Party agrees to protect the
Confidential Information by using the same degree of care, but not less
than a reasonable degree of care, to prevent the unauthorized use,
dissemination or publication of the Confidential Information as the
Receiving Party uses to protect its own confidential or proprietary
information of a like nature. The Receiving Party shall limit the use of
and access to the Disclosing Party's Confidential Information to the
Receiving Party's employees, attorneys, financial advisors or independent
contractors who need to know such Confidential Information for the purpose
set forth in Section 2 above and who have entered into binding obligations
of confidentiality substantially similar to the obligations set forth
herein.
4. TERM. The Receiving Party's obligations to protect Confidential Information
hereunder shall expire 3 years from the date of each such disclosure of
Confidential Information, except when such Confidential Information
disclosed by the Disclosing Party is source code, in which case the
Receiving Party's obligations to protect such Confidential Information
shall be perpetual.
5. EXCLUSIONS. Confidential Information as defined in Section 1 above shall
not include Confidential Information that: (i) is or becomes a matter of
public knowledge through no fault of the Receiving Party; or (ii) was in
the Receiving Party's possession or known by it prior to receipt from he
Disclosing Party; or (iii) was rightfully disclosed to the Receiving Party
by another person without restriction; or (iv) is independently developed
by the Receiving Party without access to such Confidential Information. The
Receiving Party may disclose Confidential Information pursuant to any
statutory or regulatory authority or court order, provided the Disclosing
Party is given prompt written notice of such requirement and the scope of
such disclosure is limited to the extent possible.
6. RETURN OF CONFIDENTIAL INFORMATION. Upon written request by the Disclosing
Party at any time, the Receiving Party shall: (i) turn over to the
Disclosing Party all Confidential Information of the Disclosing Party, all
documents or media containing the Confidential Information, and any and all
copies or extracts thereof, or (ii) destroy the Confidential Information,
and any and all copies or extracts thereof, and provide the Disclosing
Party with written certification of such destruction signed by an
authorized representative of the Receiving Party.
7. EQUITABLE RELIEF. The Receiving Party acknowledges and agrees that due to
the unique nature of the Disclosing Party's Confidential Information, there
may be no adequate remedy at law for any breach of its obligations. The
Receiving Party further acknowledges that any such breach may allow the
Receiving Party or third parties to unfairly compete with the Disclosing
Party resulting in irreparable harm to the Disclosing Party and, therefore,
that upon any such breach or any
1
threat thereof, the Disclosing Party shall be entitled to seek appropriate
equitable relief in addition to whatever remedies it may have at law. The
Receiving Party will notify the Disclosing Party in writing immediately
upon the occurrence of any such unauthorized release or other breach.
8. INTELLECTUAL PROPERTY RIGHTS. Neither party acquires any intellectual
property rights under this Agreement or through any disclosure hereunder,
except the limited right to use such Confidential Information in accordance
with this Agreement.
9. WARRANTY. The Confidential Information disclosed under this Agreement is
delivered "AS IS," and all representations or warranties, whether express
or implied, including warranties or conditions for fitness for a particular
purpose, merchantability, title and noninfringement are hereby disclaimed.
10. NETSCAPE SUBSIDIARIES. Netscape's wholly owned subsidiaries, by signing
this Agreement on behalf of Netscape and returning a fully executed
original or copy to the Netscape Legal Department, shall be entitled to
disclose Netscape's Confidential Information and receive Company's
Confidential Information on behalf of Netscape under this Agreement,
provided such subsidiaries comply with the terms and conditions of this
Agreement and further provided such disclosures or receipt of Confidential
Information are governed by the terms and conditions of this Agreement.
11. EXPORT. Each party agrees that the export of encryption related information
and encryption-enabled software from the United States may be regulated by
US law, and agree to comply with such laws and regulations.
12. GENERAL. This Agreement supersedes all prior discussions and writings with
respect to the subject matter hereof, and constitutes the entire agreement
between the parties with respect to the subject matter hereof. No waiver or
modification of this Agreement will be binding upon either party unless
made in writing and signed by a duly authorized representative of each
party and no failure or delay in enforcing any right will be deemed a
waiver. The parties understand that nothing herein requires either party to
proceed with any proposed transaction or relationship in connection with
which Confidential Information may be disclosed. In the event that any of
the provisions of this Agreement shall be held by a court or other tribunal
of competent jurisdiction to be unenforceable, the remaining portions
hereof shall remain in full force and effect. This Agreement shall be
governed by the laws of the State of California without regard to conflicts
of laws provisions thereof and each party submits to the jurisdiction and
venue of any California State or federal court generally serving the Santa
Xxxxx county area with respect to the subject matter of this Agreement. The
headings to the Sections of this Agreement are included merely for
reference and shall not affect the meaning of the language included
therein. This Agreement is written in the English language only, which
language shall be controlling in all respects. Les parties aux presentes
confirment leur volonte que cette convention de meme que tous les documents
y compris tout avis qui s'y rattache, soient rediges en langue anglaise
(translation: "The parties confirm that this Agreement and all related
documentation is and will be in the English language.")
NETSCAPE COMMUNICATIONS INFOSPACE INC.
CORPORATION
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxx
--------------------------------- -----------------------
Signature Signature
Name: XXXXXX X. XXXXXX Name: XXXXXX XXXX
------------------------------- ---------------------
Print or Type Print or Type
Title: Senior Vice President Title: President & CEO
Finance & Corporate Controller --------------------
------------------------------
Date: 07/01/98 Date: 7/1/98
------------------------------ --------------------
Address: Address:
000 Xxxx Xxxxxxxxxxx Xxxx ----------------------
Xxxxxxxx Xxxx, XX 00000 ----------------------
----------------------
REVIEWED BY
NETSCAPE LEGAL
Initial [ILLEGIBLE]
---------------------
2
EXHIBIT E
LIST OF COMPANY'S NAMED ENTITIES
[*]
__________________________________
* Confidential Treatment Requested.
17
