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Exhibit 10.7
[NETSCAPE LOGO]
NETSCAPE COMMUNICATIONS CORPORATION
U.S. ENGLISH-LANGUAGE NET SEARCH PROGRAM
DISTINGUISHED PROVIDER SERVICES AGREEMENT
OBJECTIVE: To direct users of a Netscape client software Internet browser
product (including the Netscape Navigator 2.x and subsequent versions of
Netscape client software) ("Browser") to U.S. English-language Internet search
and directory services.
TERMS AND CONDITIONS:
1. DISTINGUISHED PROVIDER. The entity ("Distinguished Provider") named
on the signature page to this agreement ("Agreement") provides a featured
search and directory service for the U.S. English-language HTML page accessible
by the public via the Internet at the Universal Resource Locator ("URL")
xxxx://xxxx-xxxxxxxx.xxx/xxxx/xxxxxxxx-xxxxxx, or such other URL as Netscape
may designate from time to time in writing (the "Page"). The Page is part of
the collection of U.S. English-language HTML documents accessible by the public
via the Internet at the URL xxxx://xxxx.xxxxxxxx.xxx and/or at such other URL
or URL's as Netscape may designate ("Netscape's U.S. English-language Web
Site"). The Page may also be accessed by users of the Netscape-distributed
English-language version of the Browser by pressing or "clicking" on the Net
Search Button, or such other methods as Netscape may specify from time to time.
Notwithstanding the foregoing, Netscape reserves the right to determine other
means whereby users may access pages which provide Internet search and
directory services on Netscape's U.S. English-language Web Site including, but
not limited to, through the use of mirror sites and pointers based on a user's
IP address, and which pages are separate and distinct from the Page described
in this Agreement.
2. DISTINGUISHED PERIOD. Netscape will maintain the Distinguished
Listing (as defined below) on the Page for the following period ("Distinguished
Period"):
From: May 1, 1997
Until: April 30, 1998
The parties may, upon mutual written agreement no less than thirty (30) days
prior to the end of the Distinguished Period, extend the term of this Agreement
for an additional twelve (12) month period upon terms and conditions agreed to
by the parties; provided, however, nothing contained herein shall obligate
either party to agree to extend the term of this Agreement.
3. EXPOSURE ON PAGE.
a. Netscape will list Distinguished Provider's name in the
Distinguished Provider portion of the Page ("Distinguished Listing") (below the
logos of any Premier Provider participating in Netscape's Net Search Program).
Distinguished Provider shall retain all right, title and interest in and to the
Distinguished Listing. The specifications of the Distinguished Listing and its
placement on the Page are set forth on Exhibit A hereto. Netscape may, upon
notice to Distinguished Provider, (i) change the position of the Distinguished
Listing on the Page, (ii) revise Exhibit A, or (iii) redesign or reconfigure
Netscape's U.S. English-language Web Site, the Page and/or the manner in which
an end user interacts with any of the pages of Netscape's
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U.S. English-language Web Site, and Distinguished Provider shall promptly
(and in any event, within no more than one (1) week following receipt of the
notice) supply Netscape with a revised Distinguished Listing which conforms to
the specifications of the revised Exhibit A.
b. Netscape will produce the Page, as set forth on Exhibit A
which Exhibit Netscape may revise from time to time, such that when an end user
presses or "clicks" on the Distinguished Listing, the end user's Browser will
access ("Distinguished Link") Distinguished Provider's applicable HTML page
located at the applicable URL (as supplied by Distinguished Provider) for such
page on Distinguished Provider's Web site ("Distinguished URL"). Distinguished
Provider hereby grants Netscape a royalty-free worldwide license to use,
display, perform, reproduce and distribute the Distinguished Listing.
Distinguished Link and Distinguished URL and such other licenses with respect to
the Distinguished Listing, Distinguished Link and Distinguished URL necessary to
fulfill the intention of this Agreement.
c. Netscape will use reasonable commercial efforts to promptly
remedy any material misplacement of the Distinguished Listing on the Page or
any material malfunctioning of the Distinguished Link under the control of
Netscape, provided Distinguished Provider will fully cooperate with Netscape to
remedy any such material malfunctioning or misplacement, and provided further
that Netscape shall not incur liability for any failure to remedy such material
malfunctioning or misplacement if such remedy is not within the reasonable
control of Netscape.
4. Compensation.
a. For the benefits provided to Distinguished Provider during
the Distinguished Period, Distinguished Provider shall pay Netscape a total of
Three Hundred Sixty Thousand Dollars ($360,000) (the "Payment") as follows:
(1) Thirty Thousand Dollars ($30,000) within thirty
(30) calendar days after full execution of this Agreement;
(2) Thirty Thousand Dollars ($30,000) within thirty
(30) calendar days after the first day of each month during the Distinguished
Period.
b. Any portion of the Payment which has not been paid to
Netscape within the applicable time set forth above shall bear interest at the
lesser of (i) one percent (1%) per month, or (ii) the maximum amount allowed by
law.
5. Additional Distinguished Provider Benefits.
a. Every six (6) months during the Distinguished Period,
Netscape will provide Distinguished Provider [**] on Netscape's U.S.
English-language Web Site, as such services are described on Netscape's current
Rate Card as of the date of this Agreement, (or such advertisement's
equivalent, in Netscape's reasonable discretion) during the Distinguished
Period. The advertising shall begin on a date and at a location designated by
Netscape and end no later than the end of the Distinguished Period; provided
Distinguished Provider supplies Netscape with the graphic files and other
materials and information within the timeframes and as set forth in the
specifications of the applicable Netscape advertising program and as reasonably
requested by Netscape to produce the advertisement. Distinguished Provider
shall enter into Netscape's standard form of advertising agreement, a copy of
which is attached hereto as Exhibit D:
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b. During the Distinguished Period, Distinguished Provider may
purchase additional advertising on Netscape's U.S. English-language Web Site for
advertising that will run during the Distinguished Period for the service of
Distinguished Provider at a discount of[**] off Netscape's then standard rates
for such advertising.
c. Netscape will use reasonable efforts to advise Distinguished
Provider of new Netscape advertising campaigns prior to announcing such new
campaigns on Netscape's U.S. English-language Web site; provided, however,
Netscape shall not incur liability for failure so to advise Distinguished
Provider.
6. DISTINGUISHED PROVIDER OBLIGATIONS. In addition to the other
obligations set forth herein, Distinguished Provider will:
a. Display the "Netscape Now" button prominently above the fold
of either (i) Distinguished Provider's home page on Distinguished Provider's Web
site, or (ii) on all pages linked to the Distinguished URL, and use best efforts
to include the following statement (or a statement designated by Netscape and
generally used by Netscape as a successor to the following statement or in
connection with any successor program to Netscape's Netscape Now program) next
to the Netscape Now button: "This site is best viewed with Netscape Navigator
3.0. Download Netscape Now!" (or such higher non-beta version as is then
available). Distinguished Provider will produce the tape such that when an end
user presses or clicks on the Netscape Now button (or such other button used in
connection with any successor program to the Netscape Now program), the end
user's Internet client software will access the applicable HTML page located at
a URL supplied by Netscape. [**] Distinguished Provider shall use reasonable
commercial efforts promptly to remedy any misplacement of the Netscape Now
button on its home page or other pages or any malfunctioning of the button,
provided Netscape will fully cooperate with Distinguished Provider to remedy any
such misplacement or malfunctioning, and provided further that Distinguished
Provider shall not incur liability for any failure to remedy such misplacement
or malfunctioning if such remedy is not within the reasonable control of
Distinguished Provider. In the event that Netscape replaces the Netscape Now
program with a successor program, Netscape shall advise Distinguished Provider
and Distinguished Provider shall produce the page to conform to such successor
program, provided Distinguished Provider's obligations under such successor
program shall not be materially increased. Netscape hereby grants Distinguished
Provider a nonexclusive, nontransferable, nonassignable, nonsublicensable
license to perform and display the Netscape Now button directly in connection
with fulfilling the foregoing obligation. Distinguished Provider's use of the
Netscape Now button shall be in accordance with Netscape's reasonable policies
regarding advertising and trademark usage as established from time to time by
Netscape, including the guidelines of the Netscape Now Program published on
Netscape's U.S. English-language Web Site. Distinguished Provider acknowledges
that the Netscape Now button is a proprietary logo of Netscape and contains
Netscape's trademarks. In the event that Netscape determines that Distinguished
Provider'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. Distinguished Provider understands and
agrees that the use of the Netscape Now button in connection with this Agreement
shall not create any right, title or interest in or to the use of the Netscape
Now button or associated trademarks and that all such use and goodwill
associated with the Netscape Now button and associated trademarks will inure to
the benefit of Netscape. Distinguished Provider agrees not to register or use
any trademark that is similar to the Netscape Now button.
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Distinguished Provider further agrees that it will not use the Netscape Now
button in a misleading manner or otherwise in a manner that could tend to
reflect adversely on Netscape or its products;
b. Use [**]
c. [**] for display with those Internet software clients capable of
displaying [**] on (i) the [**], provided that Distinguished Provider shall use
reasonable commercial efforts to implement [**] in a location and in a fashion
as Netscape may agree, and (ii) [**] (or on an HTML page located further down
the directory tree from the page located at the Distinguished URL; provided
Distinguished Provider will use reasonable efforts to implement [**] as high in
such directory tree structure as possible), and, where appropriate, on all other
HTML pages of Distinguished Provider's Web site; provided Distinguished Provider
shall not be required [**] on pages of any secondary Web site of Distinguished
Provider that Distinguished Provider is required to construct to satisfy
Distinguished Provider's obligations under any third party contract existing as
of the date of this Agreement. Netscape shall use reasonable commercial efforts
to help Distinguished Provider implement changes in order to comply with new
[**].
d. Include on the page served to an end user in conjunction with the
results of the end user's search query a "mail to" link which users of
Distinguished Provider's service can use to direct questions or help requests to
Distinguished Provider. Distinguished Provider will use reasonable efforts to
reply promptly, but in any event within one (1) week, to any such question or
help request; and
e. Not provide or implement any means or functionally which would (i)
[**] the Browser standard user interface or configuration, (ii) [**] of the
Browser or any other Internet browser software, or (iii) modify the [**] served
from Netscape's U.S. English-language Web Site.
7. USAGE REPORTS. Distinguished Provider will provide Netscape, 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 B hereto. The
Usage Reports shall be delivered [**] during the Distinguished Period. The
parties may, by mutual written agreement, alter the content and format of the
Usage Reports.
8. TERMINATION. Either party may terminate this Agreement if the other
party materially breaches its obligations hereunder and such breach remains
uncured for fifteen (15) days following notice to the breaching party of the
breach or as otherwise provided in Section 9. Either party may terminate this
Agreement for convenience upon ninety (90) days prior written notice to the
other party. Upon any termination or expiration of this Agreement, Netscape
shall immediately cease providing to Distinguished Provider the benefits
described herein, including, without limitation, the benefits described in
Sections 3 and 5 hereof.
9. RIGHT TO REFUSE. Netscape will have the right to review the
contents and format of the HTML page located at the Distinguished URL and the
distinguished Listing. If Netscape, in its
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sole discretion, at any time determines that the HTML page located at the
Distinguished URL or the Distinguished Listing contains any material, or
presents any material in a manner, that Netscape deems inappropriate for any
reason, Netscape will inform Distinguished Provider of the reason Netscape has
made such determination and may (i) refuse to include the Distinguished Listing
in the Page, and/or (ii) immediately terminate this Agreement if Distinguished
Provider has not revised to Netscape's reasonable satisfaction the HTML page
located at the Distinguished URL or the Distinguished Listing within one (1)
business day of written notice from Netscape. If Netscape, in its sole
discretion, at any time determines that the Distinguished Provider's Web site
contains any material, or presents any material in a manner, that Netscape
deems inappropriate for any reason, Netscape may immediately terminate this
Agreement upon notice to Distinguished Provider. Netscape reserves the right to
refuse to include in the Page any Distinguished Listing that does not
completely conform to the specifications set forth in Exhibit A.
10. RESPONSIBILITY FOR DISTINGUISHED LISTING. Distinguished Provider is
solely responsible for any legal liability arising out of or relating to the
Distinguished Listing and/or [**]. Distinguished Provider represents and
warrants that it holds the necessary rights to permit the use of the
Distinguished Listing, Distinguished URL and Distinguished Link by Netscape for
the purpose of this Agreement; and that the permitted use, reproduction,
distribution, or transmission of the Distinguished Listing and any material to
which users can link through the Distinguished Listing 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. Distinguished Provider agrees to indemnify Netscape and to
hold Netscape harmless from any and all liability, loss, damages, claims, or
causes of action, including reasonable legal fees and expenses that may be
incurred by Netscape, arising out of or related to Distinguished Provider's
breach of any of the foregoing representations and warranties.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED
ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER
OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, THE
LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER (EXCEPT FOR
DAMAGES OR ALLEGED DAMAGES ARISING UNDER SECTION 10) WHETHER IN CONTRACT OR
TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED [**]
12. ASSIGNMENT. Distinguished Provider may not assign this Agreement by
operation of law or otherwise, in whole or in part, without Netscape's written
consent. Any attempt to assign this Agreement without such consent will be null
and void.
13. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California without regard to its
conflicts of laws principles.
14. NOTICE. All notices required or permitted hereunder shall be given
in writing addressed to the respective parties as set forth below and shall
either be (i) personally delivered, (ii) transmitted by postage prepaid
certified mail, return receipt requested, or (iii) transmitted by
nationally-recognized private express courier, and shall be deemed to have been
given on the
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date of receipt if delivered personally, or two (2) days after deposit in mail
or express courier. Either party may change its address for purposes hereof by
written notice to the other in accordance with the provisions of this
Subsection. The addresses for the parties are as follows:
Distinguished Provider: Netscape:
ON'Village Communications, Inc. Netscape Communications Corporation
000 X. Xx Xxxxxxx, #206 000 Xxxx Xxxxxxxxxxx Xxxx, XX-000
Xxx Xxxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxx Xxxxxx, CEO Attn: General Counsel
15. Confidentiality. All disclosures of proprietary and/or
confidential information in connection with this Agreement shall be governed by
the terms of the Mutual Confidential Disclosure Agreement either previously
entered into by the parties, or entered into by the parties concurrently with
this Agreement, a copy of which is attached hereto as Exhibit C. The
information contained in the Usage Reports provided hereunder shall be deemed
the Proprietary Information of both parties. Either party may use such
Proprietary Information internally, but shall not disclose such Proprietary
Information to any third party. Notwithstanding the foregoing, (a) information
contained in the Usage Reports which is available to Netscape through other
sources shall not be Distinguished Provider Proprietary Information; and (b)
Netscape may aggregate the information in the Usage Reports with information
from other sources, and the aggregated information shall not be Distinguished
Provider Proprietary Information.
16. No Agency. The parties hereto are independent contractors and
shall have no power or authority to bind the other party or to assume or create
any obligation or responsibility, express or implied, on behalf of the other
party or in the other party's name. This Agreement shall not be construed to
create or imply any partnership, agency, joint venture,or any other form of
legal association between the parties.
17. Entire Agreement. This Agreement together with Exhibits A
through D hereto are the complete and exclusive agreement between the parties
with respect to the subject matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject matter. This
Agreement may only be modified, or any rights under it waived, by a written
document executed by both parties.
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
Distinguished Provider: Netscape:
ON'VILLAGE COMMUNICATIONS, INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ XXXX XXXXXX By: /s/ XXXXXXXX XXXXXX
---------------------------- -------------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxxxxxx Xxxxxx
-------------------- -----------------------
Title: CEO Title: VP of Electronic Mktg.
------------------------- -----------------------------
Date: 5-22-97 Date: 5/5/97
-------------------------- ------------------------------
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Distinguished Provider Address: Netscape Address:
000 X. Xx Xxxxxxx, #000 000 Xxxx Xxxxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx Attention: General Counsel
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Email: xxxx@xxxxxxxxx.xxx Email: xxxxxxxx@xxxxxxxx.xxx
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EXHIBIT A
SPECIFICATIONS OF THE PAGE
ON'Village 942397
Net Search Program -- Distinguished Provider Rev.042397
CONFIDENTIAL and PROPRIETARY [STANDARD]
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[NETSCAPE LOGO]
NETSCAPE NET SEARCH
[PICTURE]
Customize this page
EXCITE INFOSEEK LYCOS YAHOO CUSTOMIZE to work for you. First
choose one of the
following search
services to appear on
"BEST ALL-AROUND SEARCH ENGINE" Washington Post the fifth tab:
[INFOSEEK LOGO] Seek AOL NetFind
HOTBOT
Infoseek International: UK - Japan - Italy - France - Quickseek 3.0
WebCrawler
SITE SAMPLE Got Yahoo! - News Headlines -Sports News/Scores -
Then select one of
Buy a Car Entertainment Games Shopping Headlines the five search
Buy a Home Finance Internet Software Business News services from the
Companies Find E-mail Taxes Stock Quotes Sports News display tabs to open
Computers Find a Job Travel Street Maps Personalize automatically every
time you visit.
[BIG YELLOW LOGO] Yellow Pages Search
I DON'T SHOW MY YAHOO! TO JUST ANYONE.
Click here to take a peek.
MORE SEARCH SERVICES
The following search services use different methods to help you find what
you're looking for.
Check them out.
SEARCH ENGINES WEB GUIDES WHITE & YELLOW TOPIC SPECIFIC
pages
Alta Vista Excite BigBook 100hot Web Sites
AOL NetFind Infoseek Bigfoot Xxxxxx
HOTBOT LookSmart Four11 Electric Library
WebCrawler Lycos GTE Superpages Newsgroups
Yahoo! ON'VILLAGE
Who Where?
Guide to Internet __| International Search __|
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EXHIBIT B
USAGE REPORTS
Sample report provided by Distinguished Provider to Netscape each month.
--------------------------------------------------------------------------------
[**]
ON'Village 942397
Net Search Program -- Distinguished Provider Rev. 042397
CONFIDENTIAL and PROPRIETARY [STANDARD]
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EXHIBIT C
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
WHEREAS, Netscape Communications Corporation ("Netscape") has developed
unique and proprietary computer programs; and
WHEREAS, E. Ventures Inc. D/B/A On'Village Communications ("Company")
and Netscape are entering into a business relationship.
NOW, THEREFORE:
Each party (the "Receiving Party") understands that the other party (the
"Disclosing Party") has disclosed or may disclose information (including,
without limitation, computer programs, code, 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), which to
the extent previously, presently, or subsequently disclosed to the Receiving
Party is hereinafter referred to as "Proprietary Information" of the Disclosing
Party whether disclosed orally, in writing, or otherwise. All Proprietary
Information disclosed in tangible form by the Disclosing Party shall be marked
"confidential" or "proprietary", and all Proprietary Information disclosed
orally or otherwise in intangible form by the Disclosing Party shall be
designated as confidential or proprietary at the time of disclosure and shall be
reduced to writing and delivered to the Receiving Party within thirty (30) days
following the date of disclosure.
In consideration of the parties' discussions and any access the
Receiving Party may have to Proprietary Information of the Disclosing Party, the
Receiving Party hereby agrees as follows:
1. The Receiving Party agrees (i) to hold the Disclosing
Party's Proprietary Information in confidence and to take all reasonably
necessary precautions to protect such Proprietary Information (including,
without limitation, all precautions the Receiving Party employs with respect to
its own confidential materials), (ii) not to divulge any such Proprietary
Information or any information derived therefrom to any third person, (iii) not
to make any use whatsoever at any time to such Proprietary Information except as
provided in the Net Search and Net Directory Program (Distinguished Provider)
Agreement ("Distinguished Agreement") between Netscape and Company dated as of
November 4, 1996 to which this Agreement is attached as an Exhibit, (iv) not to
remove or export any such Proprietary Information from the country of the
Receiving Party, and (v) not to copy or reverse engineer, reverse compile or
attempt to derive the composition or underlying information of any such
Proprietary Information. The Receiving Party shall limit the use of and access
to the Disclosing Party's Proprietary Information to those of the Receiving
Party's employees who need to know such Proprietary Information for the purpose
of such internal evaluation and shall cause such employees to comply with the
obligations set forth herein. The Receiving Party shall treat the Proprietary
Information with at least the same degree of care and protection as it would use
with respect to its own proprietary information. The foregoing obligations shall
survive for a period of three (3) years from the date of disclosure of the
Proprietary Information. Without granting any right or license, the Disclosing
Party agrees that the foregoing shall not apply with respect to information that
(i) is in the public domain and is available at the time of disclosure or which
thereafter enters the public domain and is available, through no improper action
or inaction by the Receiving Party or any affiliate, agent or employee, or (ii)
was in the Receiving Party's possession or known by it prior to receipt from the
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 Proprietary Information, or (v) is
required to be disclosed pursuant to any statutory regulatory authority,
provided the Disclosing Party is given prompt notice of such
Net Search Program - Distinguished Provider [100296/esw]
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requirement and the scope of such disclosure is limited to the extent possible,
or is required to be disclosed by a court order, provided the Disclosing Party
is given prompt notice of such order and provided the opportunity to contest it.
2. Immediately upon a request by the Disclosing Party at any time,
the Receiving Party will turn over to the Disclosing Party all Proprietary
Information of the Disclosing Party and all documents or media containing any
such Proprietary Information and any and all copies or extracts thereof. The
Receiving Party understands that nothing herein requires the disclosure of any
Proprietary Information of the Disclosing Party, which shall be disclosed, if
at all, as required under the Distinguished Agreement or at the option of the
Disclosing Party.
3. Except to the extent required by law, as set forth in this
Agreement or as otherwise mutually agreed to by the parties, neither party
shall disclose the existence or subject matter of the negotiations or business
relationship contemplated by this Agreement, or the content and terms of the
Distinguished Agreement.
4. The Receiving Party acknowledges and agrees that due to the
unique nature of the Disclosing Party's Proprietary Information, there can be
no adequate remedy at law for any breach of its obligations hereunder, 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 threat thereof, the
Disclosing Party shall be entitled to seek appropriate equitable relief in
addition to whatever remedies it might 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. 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.
5. Neither party acquires any intellectual property rights under
this Agreement or any disclosure hereunder, except the limited right to use
such Proprietary Information in accordance with this Agreement. No warranties
of any kind are given with respect to the Proprietary Information disclosed
under this Agreement or any use thereof, except as may be otherwise agreed to
in writing.
6. This Agreement together with the Distinguished Agreement
supersede all prior discussions and writings with respect to the subject matter
hereof and thereof, and constitute the entire agreement between the parties
with respect to the subject matter hereof and thereof. 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 such party and no
failure or delay in enforcing any right will be deemed a waiver.
Company: Netscape:
E. VENTURES, INC. NETSCAPE COMMUNICATIONS
D/DBA COMMUNICATIONS ONVILLAGE CORPORATION
By: /s/ Xxxx Xxxxxx By:
--------------------------- ---------------------------
Print Name: XXXX XXXXXX Print Name:
------------------- -------------------
Title: SUP Title:
------------------------ ------------------------
Date: 11/4/96 Date:
------------------------- -------------------------
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(b) Indemnification. Sponsor shall indemnify and hold Netscape, its
officers agents, directors, employees and distributors harmless from and
against all actions, claims, damages, costs and expenses (including attorney's
fees) arising out of or with respect to: (i) any breach of the foregoing
warranties; or (ii) any other third party claim in connection with Sponsor's
Advertisements.
5. SPONSORSHIP PAYMENTS.
Sponsor shall pay Netscape according to the prices and terms listed in the
Rate Card.
6. CONFIDENTIALITY.
(a) Defined. "Confidential Information" will mean: (i) Advertisements,
prior to publication, (ii) the Usage Statistics, which shall be considered
Netscape's Confidential Information, and (iii) any information designated in
writing by the disclosing party as "confidential" or "proprietary."
(b) Obligations. During the term of this Agreement and for a period of
three years thereafter, neither party will use or disclose any Confidential
Information of the other party except as specifically contemplated herein. The
foregoing retrictions will not apply to information that (i) has been
independently developed by the receiving party, (ii) has become publicly
known through no wrongful act of the receiving party, (iii) has been rightfully
received from a third party authorized to make such disclosure, (iv) has been
approved for release by the disclosing party in writing, or (v) is required to
be disclosed by a competent legal tribunal.
7. LIMITATION ON DAMAGES.
(a) Limitation. IN NO EVENT WILL NETSCAPE BE LIABLE TO SPONSOR FOR ANY
LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
OR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
OF ANY KIND (WHETHER OR NOT FORESEEABLE), WHETHER BASED ON BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF NETSCAPE
IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NETSCAPE'S TOTAL
LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE PAYMENTS RECEIVED BY NETSCAPE
FROM SPONSOR HEREUNDER.
(b) Failure of Essential Purpose. The parties have agreed that the
limitations and exclusions of liability specified in this Agreement will survive
and apply even if any limited remedy specified in this Agreement is found to
have failed of its essential purpose.
(c) Basis of the Bargain. Sponsor acknowledges that Netscape has set
its rates and entered into this Agreement in reliance upon the limitations of
liability and the disclaimers of warranties and damages set forth herein, and
that the same form an essential basis of the bargain between the parties.
8. TERM AND TERMINATION.
(a) Term. The term of this Agreement commences on the Effective Date
and, unless earlier terminated in accordance with this Section 8, will continue
in effect for the period specified in the Advertising Program. This Agreement
may be renewed for additional periods upon the written agreement of the parties
at least ninety (90) days prior to the expiration date; provided, however, that
the advertising rates set for this Agreement in the Rate Card hereto shall not
apply to any renewal period and must be separately agreed to by both of the
parties.
6
Form of [080296/esw]
CONFIDENTIAL [STANDARD]
14
*Confidential Treatment
Requested under 17 C.F.R.
Sections 200.80(b)(4)
200.83 and 230.406
EXHIBIT D
Form of
Cover Sheet and Insertion Order for Advertising Program
--------------------------------------------------------------------------------
Legal name of Sponsor __________________ Sponsor's Agency ______________________
Address of Principal Place of Business Agency Name ___________________________
________________________________________ Agency Address ________________________
City __________ State _____ Zip_____ City _____________ State _____ Zip_____
Phone ___________ Fax __________________ Phone ______________ Fax_______________
E-mail ___________________ E-mail _____________________
If Sponsor is not a corporation, please (Please use Business Contact's
specify form of organization ___________ information for this portion of the
Place of organization __________________ document.)
--------------------------------------------------------------------------------
SUBJECT TO NETSCAPE'S ACCEPTANCE, THIS NETSCAPE COMMUNICATIONS CORPORATION
, OF WHICH THIS PAGE IS A COVER SHEET, ALLOWS YOU TO
PURCHASE ADVERTISING SERVICES FROM NETSCAPE IN THE FORM AND AT THE PRICING SET
FORTH IN THE RATE CARD AND ADVERTISING PROGRAM, AS DEFINED HEREIN. YOU MUST
PROVIDE TO NETSCAPE ADVERTISEMENT CONTENT AND OTHER INFORMATION WHICH CONFORMS
TO THE SPECIFICATIONS OF THE RATE CARD. CAREFULLY REVIEW THE REST OF THIS
AGREEMENT FOR OTHER IMPORTANT TERMS. FAILURE TO COMPLY WITH THIS AGREEMENT MAY
RESULT IN TERMINATION.
SCHEDULING PRICING
---------- -------
Ad Package: __________________________ Net Amount Before Discounts: ____________
Start Date: __________________________ Discounts (Check all that apply):
End Date: ____________________________ Netscape Now (10%)
[ ]
Check One: Frequency (10%)
[ ]
Paid [ ] Barter [ ] Makegood [ ] Other (specify type, % _______________)
[ ]
Net Amount Due: _______________________
BILLING
-------
Check One: Bill to (Sponsor or Agency): __________
PO # included (write here _______) [ ] Acct. Payable Name: ___________________
PO Exemption Form attached [ ] Acct. Payable Phone: __________________
Payment ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____
Jan$ Feb$ Mar$ Apr$ May$ Jun$ Jul$ Aug$ Sep$ Oct$ Nov$ Dec$
PRODUCTION
----------
URL linked to: http:// _______________ (Is it tested?) Y N
Banner: New or Existing (Is it tested?) Y N
Delivered by: Agency or Advertiser Production Name: ____________________
GIF delivered by (what method): ______ Production Phone: ____________________
Notes:
SPONSOR: _____________________________ NETSCAPE COMMUNICATIONS CORPORATION
By: __________________________________ By: ___________________________________
Name: ________________________________ Name: _________________________________
Title: _______________________________ Title: ________________________________
Date: ________________________________ Date of Acceptance: ___________________
Sponsor Contact: _____________________
Phone: _______________________________
Fax: ______________ E-mail: __________
3
Form of [080766/esw]
[STANDARD]
15
*Confidential Treatment
Requested under 17 C.F.R.
Sections 200.80(b)(4)
200.83 and 230.406
NETSCAPE COMMUNICATIONS CORPORATION
(Version 3)
This ("Agreement") is entered into by and between
Netscape Communications Corporation, a Delaware corporation ("Netscape"), with
principal offices at 000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
and the organization ("Sponsor") listed and identified on the cover sheet to
this Agreement ("Cover Sheet") as of the date of acceptance by Netscape
("Effective Date") listed on the Cover Sheet.
WHEREAS, Netscape is engaged in the business of providing Internet products and
services, including advertising services; and
WHEREAS, Sponsor desires to purchase advertising services from Netscape as
specified in this Agreement.
NOW, THEREFORE, the parties agree to the following terms and conditions:
1. Definitions.
(a) "ADVERTISEMENT" means the graphic (GIF) file, or file of such other
format as Netscape may designate from time to time, supplied by Sponsor to be
published by Netscape on Netscape's U.S. English-language Web Site and which
may contain a link to Sponsor's web site or to a web site specified by Sponsor.
(b) "ADVERTISING PROGRAM" means a Sponsor's particular selection and
purchase of advertising space and services for publication of its
Advertisements on Netscape's U.S. English-language Web Site, a copy of which
Advertising Program is included on the Cover Sheet.
(c) "NETSCAPE'S U.S. ENGLISH-LANGUAGE WEB SITE" means a collection of U.S.
English-language HTML documents accessible by the public via the Internet at
the Universal Resource Locator ("URL") xxxx://xxx.xxxxxxxx.xxx, or such other
URL as may be designated from time to time in writing by Netscape.
(d) "RATE CARD" means the information regarding Netscape advertising
services, rates, and technical requirements for Sponsor Submissions for
publication on Netscape's U.S. English-language Web Site, a copy of which Rate
Card is attached hereto.
(e) "SPONSOR SUBMISSION" means all information and items necessary for
Netscape's publication of Sponsor's Advertisements, including initial
Advertising Program information, Advertisements, changes and updates to
Advertisements, and replacement or new Advertisements.
(f) "USAGE STATISTICS" means a set of numbers compiled by Netscape
regarding Netscape User access to a Sponsor's Advertisement and reported on a
periodic basis to Sponsor, for Sponsor's internal business purposes.
(g) "USER" means any individual or client who accesses Netscape's U.S.
English-language Web Site.
2. NETSCAPE SERVICES.
(a) Advertising Services. Netscape will publish Sponsor's
Advertisements on Netscape's U.S. English-language Web Site according to
the level of service selected from the Rate Card and as specified in the
Advertising Program. Sponsor shall retain all right, title and interest in and
to its Advertisements (including the copyright ownership thereof), and Sponsor
4
16
*Confidential Treatment
Requested under 17 C.F.R.
Sections 200.80(b)(4)
200.83 and 230.406
hereby grants Netscape a royalty-free worldwide license, without payment or
other charge therefor, to use, display, perform, reproduce and distribute the
Advertisements, and such other licenses with respect to the Advertisements
necessary to fulfill the intention of this Agreement.
(b) Reports. Netscape will deliver Usage Statistics to Sponsor on a
monthly basis with respect to each of Sponsor's Advertisements.
(c) No Warranty. NETSCAPE WILL PROVIDE REPORTS (INCLUDING USAGE
STATISTICS) ONLY AS A COURTESY TO SPONSOR. NETSCAPE MAKES NO WARRANTY, EXPRESS
OR IMPLIED, AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, ADVERTISING AND
OTHER SERVICES AND ANY REPORTS PROVIDED HEREUNDER OR THEIR ACCURACY, AND
EXPRESSLY DISCLAIMS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND
FITNESS FOR ANY PARTICULAR PURPOSE.
3. SPONSOR SUBMISSIONS.
(a) Submission Deadline. Netscape must receive all Sponsor Submissions
at lease five (5) business days prior to the scheduled date of publication for
each relevant Advertisement ("Submission Deadline").
(b) Late Sponsor Submissions. In the event that Netscape does not
receive a Sponsor Submission prior to the applicable Submission deadline,
Netscape may publish in substitution any prior Advertisement submitted by
Sponsor until such time as Netscape can reasonably begin publication of the
Advertisement requested in the Sponsor Submission. If no such prior
Advertisement is available, Netscape may publish in substitution any material
it deems appropriate, in its sole discretion, until such time as Netscape can
reasonable begin publication of the Advertisement requested in the Sponsor
Submission.
(c) Changes and Cancellations. All changes to and/or cancellations of
Sponsor Submissions must be made in writing with an e-mail copy sent to
xxxxx@xxxxxxxx.xxx, and receive by Netscape prior to the Submission Deadline.
(d) Rejections. Netscape may, in its complete discretion, refuse at any
time for any reason to accept any sponsor Submission and/or to publish any
Advertisement.
4. SPONSOR WARRANTY AND INDEMNIFICATION.
(a) Sponsor Warranty. Sponsor represents and warrants to Netscape:
i. No Infringement. Sponsor's Advertisements do not now, and 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.
ii. No Objectionable Content. Sponsor's Advertisements do not now,
and will not, include any material that is: unlawful, harmful,
fraudulent, threatening, abusive, harassing, defamatory, vulgar,
obscene, profane, hateful, racially, ethnically or otherwise
objectionable, including, without limitation, any material that
encourages conduct that would constitute a criminal offense,
give rise to civil liability, or otherwise violate any
applicable local, state, national or international law.
5
Form of [080296/esw]
CONFIDENTIAL [STANDARD]
17
*Confidential Treatment
Requested under 17 C.F.R.
Sections 200.80(b)(4)
200.83 and 230.406
(b) Termination. In the event of a breach by Sponsor of any of its
obligations hereunder, Netscape may terminate this Agreement immediately upon
written notice to Sponsor. Either party may terminate this Agreement for
convenience, with or without cause, upon thirty (30) days written notice to the
other party.
(c) Effect of Termination.
i. Payment Obligations. If this Agreement is terminated by Sponsor, or
is terminated by Netscape because of a breach by Sponsor, Sponsor
shall remain liable for the value of the payments which are due or,
but for the breach, would otherwise become due and payable under
the terms of this Agreement.
ii. Survival. The following provisions will survive the expiration or
termination of this Agreement for any reason: Section 1
(Definitions), Section 2(c) (No Warranty), Section 4(b)
(Indemnification), Section 6 (Confidentiality), Section 7
(Limitation on Damages), Section 8(c) (Effect of Termination), and
Section 9 (General).
iii. Return of Materials. Upon expiration or termination of this
Agreement for any reason, Sponsor will promptly and at the
direction of Netscape either destroy, or return to Netscape, and
will not take or use, all items of any nature that belong to
Netscape or its Sponsors or other customers and all records (in any
form, format, or medium) containing or relating to Confidential
Information.
9. GENERAL.
(a) Assignment. Sponsor may not assign this Agreement in whole or in
part, by operation of law or otherwise, without Netscape's written consent,
and any attempted assignment of this Agreement without such consent will be null
and void.
(b) Governing Law. The validity, construction and performance of this
Agreement, and the legal relations between the parties to this Agreement, will
be governed by and construed in accordance with the laws of the State of
California, excluding that body of law applicable to conflicts of law. The
Superior Court of Santa Xxxxx County and/or the United States District Court
for the Northern District of California shall have exclusive jurisdiction and
venue over all controversies in connection herewith, and each party hereby
consents to such exclusive and personal jurisdiction.
(c) Force Majeure. Except for the obligation to pay money, neither party
will be liable to the other party for any failure or delay in performance
caused by reasons beyond such party's reasonable control, and such failure or
delay will not constitute a breach of this Agreement.
(d) Notices. Any notices under this Agreement will be sent by confirmed
facsimile, nationally-recognized express delivery service, or certified or
registered mail, return receipt requested, to the address specified below or
such other address as the party specifies in writing. Notice by confirmed
facsimile or express delivery service will be deemed received and effective
upon delivery. Notice by certified or registered mail will be deemed received
and effective five (5) days after dispatch.
(e) Waiver. The waiver of any breach or default of this Agreement will
not constitute a waiver of any subsequent breach or default, and will not act
to amend or negate the rights of the waiving party.
7
Form of [080296/esw]
CONFIDENTIAL [STANDARD]
18
*Confidential Treatment
Requested under 17 C.F.R.
Sections 200.80(b)(4)
200.83 and 230.406
(f) Severability. If one or more of the provisions contained in this
Agreement is determined to be invalid, illegal or unenforceable in any respect
under any applicable statute or rule of law, then such provision will be
considered inoperable to the extent of such invalidity, illegality or
unenforceability, and the remainder of this Agreement will continue in full
force and effect. The parties hereto agree to replace any such invalid, illegal
or unenforceable provision with a new provision that has the most nearly
similar permissible economic and legal effect.
(g) Entire Agreement. This Agreement, including the Rate Card and
Advertising Program, is the complete and exclusive agreement between the
parties with respect to the subject matter hereof, superseding and replacing
any and all prior agreements, communications, and understandings (both written
and verbal) regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by
both parties.
10. AUTHORIZED SIGNATURES.
In order to bind the parties to this Agreement, their duly authorized
representatives have executed the Cover Sheet to this Agreement.
8
Form of [080296/esw]
CONFIDENTIAL [STANDARD]
