CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked portions
have been omitted from this filing and
have been filed separately with the
Securities and Exchange Commission
EXHIBIT 10.31
WEBCOURIER PROVIDER AGREEMENT
This agreement (the "Agreement") is made and entered into as of October 25,
1999, between Microsoft Corporation ("Microsoft"), with offices at Xxx Xxxxxxxxx
Xxx, Xxxxxxx, XX 00000-0000 and Xxxxxxxx.xxx d/b/a XxxxxXxxxxxxx.xxx (the
"Company"), a Delaware corporation with offices at 000 Xxxxxxxxx Xxxx, Xxxxx
0000, Xxx Xxxxxxxxx, XX 00000. Microsoft and Company agree as follows:
Section 1. Definitions
"Company Logo" means the Company logo(s) and trademark(s) provided
to Microsoft for use in connection with the Service.
"Copy" means a single email delivered to a specific Subscriber
consisting of a reproduction (in whole or in part) of, and/or hypertext link to,
a specific version of the Newsletter.
"IPRs" means trade secrets, patents, copyrights, trademarks, service
marks, trade names, know-how, moral rights, rights of publicity and privacy, and
similar rights of any type under the laws of any governmental authority,
domestic or foreign, including all applications and registrations relating to
any of the foregoing.
"Newsletter" means the publications to be provided by Company to
Microsoft, Copies of which will be distributed to Subscribers via the Service.
"Registration Pages" means those web pages that are displayed to users
of the U.S. English language Hotmail service in a manner to permit such users to
register to receive the Copies and other third party content via the Service, to
be launched on or about October 31, 1999.
"Service" means the WebCourier Service whereby a person registering or
registered for a U.S. English language Hotmail email account may also register
to receive generic third party content via the Hotmail service.
"Subscriber" means a Hotmail account that has consented to receiving
the Newsletter.
Section 2. Microsoft Obligations
2.1 Service. Microsoft will provide Company with placement on the
-------
Registration Page consisting of Company or Newsletter name (at Company option),
will link to the Company Logo and text description of the Newsletter. Company
will be accorded an "Anchor Provider" placement in the Teens/Young Adults
category ("Category"). Microsoft may modify the Registration Pages (including,
without limitation, Category names) from time to time, provided that Company
receives reasonably comparable placement on such revised pages as specified
herein.
2.2 Providers. The Newsletters of not more than one (1) "Premier
---------
Provider" and five (5) "Anchor Providers" may be referenced in the Category.
The "Premier Provider" will receive the most prominent placement in the Category
and each "Anchor Provider" will receive placement in descending order based upon
the level of compensation paid by such "Anchor Provider" to Microsoft to appear
in such category.
2.3 Distribution. Subject to paragraph 3.1, Microsoft will deliver
------------
Copies to Subscribers according to such schedules as mutually agreed upon by
Company and Microsoft. Company may change the schedule pursuant to which the
Copies are distributed to Subscribers by giving Microsoft written notice of the
requested change at least fifteen (15) business days prior to the scheduled
change. Company may not schedule Copies of more than one Newsletter to be
distributed in any twenty-four (24) hour period.
2.4 Promotional Banners. Microsoft will provide Company with a
-------------------
monthly credit of [**] promotional banners to be used in the Hotmail service.
Such promotional credits will be specified for use in particular months, and may
not be transferred to any other month or redeemed for cash. Unused promotional
banner credits will expire at the end of the month specified for use; however,
at Microsoft's discretion, unused promotional banners may be used in the month
following that for which the banners were not used. Company will create and
deliver to Microsoft all promotional banners for review at least ten (10) days
prior to the first run date for such banner as designated by Company. All
promotional
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission.
1
banners shall meet all specifications and submission requirements provided by
Microsoft, and will contain a link to such Hotmail URL as Microsoft may
designate.
2.5 Hotmail Promotion. Microsoft will use reasonable efforts to
-----------------
promote the Newsletter to new and current Hotmail users through Hotmail standard
promotional vehicles.
Section 3. Company Obligations
3.1 Delivery and Specifications. Company will make the Newsletter
---------------------------
available to Microsoft at a specified URL and on a delivery schedule agreed upon
by the parties in writing. The Company Logo, Newsletter text description and the
Newsletters are all subject to specifications and submissions guidelines (as
applicable) established by Microsoft and set forth in Appendix A, as the same
may be modified from time to time by Microsoft upon notice. Company will deliver
the Company Logo and Newsletter text description to Microsoft in the manner
directed by Microsoft. Company acknowledges that time is of the essence in
providing the foregoing to Microsoft, and the Company's failure to meet the
foregoing timing requirements or any applicable specifications may delay or
prevent delivery of Copies hereunder.
3.2 License. Company hereby grants Microsoft a world-wide, non-
-------
exclusive, royalty-free license to:
(a) reproduce, promote, market, distribute, display,
transmit, download, upload and, only for the purpose of enabling
distribution, transmission, downloading and uploading without substantive
change, edit, modify and otherwise use the Newsletter as reasonably
anticipated to fulfill Microsoft's obligations under this Agreement; and
(b) reproduce, display, transmit and otherwise use the Company
Logo and Newsletter text description in connection with (i) providing the
Service and Newsletter to Subscribers, and (ii) marketing and promoting the
Service and Newsletter, provided that (A) Microsoft will use the Company
Logo only in the form provided by the Company and will not modify or alter
the Company Logo and (B) Microsoft will cease any specified use of the
Company Logo upon written notice of the Company. Microsoft acknowledges
that the Company Logo is owned by the Company and will not attempt to
register the Company Logo or take any other action that is inconsistent
with Company's ownership. The use of the Company Logo hereunder will inure
to the sole and exclusive benefit of the Company.
3.3 Limitations. The Newsletter may not contain, promote, market,
-----------
advertise, distribute, offer to distribute, link (either directly or, if with
the knowledge of Company, indirectly) to or otherwise be related to content
that:
(a) is inappropriate, obscene, defamatory, libelous, slanderous,
profane, indecent or unlawful;
(b) infringes or misappropriates third party IPRs;
(c) constitutes "hate speech", whether directed at an individual
or a group, and whether based upon the race, sex, creed, national origin,
religious affiliation, sexual orientation or language of such individual or
group;
(d) promotes or contains viruses, worms, corrupted files, cracks
or other materials that are intended to or may damage or render inoperable
software, hardware or security measures of Microsoft, Subscribers or any
third party;
(e) facilitates or promotes gambling, or the sale or use of
liquor, tobacco products or illicit drugs;
(f) facilitates, promotes or forwards illegal contests, pyramid
schemes or chain letters; or
(g) otherwise restricts or inhibits any person's use or enjoyment
of Hotmail or the Service.
2
The Newsletter may not contain, promote, market, advertise, distribute, or offer
to distribute competing e-mail or newsletter products whether offered by Company
or a third party (e.g., Lycos, Excite and other services designated by
Microsoft), except that Company may link or refer to the registration, contest
and promotional pages of Company or its affiliates. Microsoft may, but is under
no obligation to, review the Newsletter, and may refuse to host or make the
Newsletter available to Subscribers in whole or in part if Microsoft determines
that the Newsletter violates the foregoing limitations or such other reasonable
limitations as Microsoft may adopt from time to time.
3.4 Subscriber Information. All information regarding Subscribers
----------------------
collected through the Service constitutes Confidential Information (as that term
is used in Section 9) of Microsoft, and is subject to the confidentiality
requirements of Section 9. Notwithstanding the foregoing, information obtained
by Company directly from Subscribers will not constitute Confidential
Information of Microsoft and may be used by Company from time to time; provided,
Company does not collect, use or disclose such information in any manner that
identifies the subject as a Subscriber or Hotmail customer.
3.5 Changes to Newsletter. Company will provide Microsoft with thirty
---------------------
(30) days' prior written notice of any material change to the nature or intended
audience of any Newsletter. Microsoft will have the option to (a) permit Company
to remain in the Category, (b) place Company in a different category on the
Registration Pages, or (c) terminate this Agreement with respect to each
Newsletter for which such a change is anticipated or implemented upon written
notice. If Microsoft terminates the Agreement pursuant to this paragraph, within
thirty (30) days of the date of termination, Company will pay Microsoft [**] of
the pro rated Advance for the remainder of the original Term.
Section 4. Consideration
4.1 Advance. Company will prepay Microsoft an advance of the fees set
-------
forth in paragraph 4.2 in an amount equal to [**] (the "Advance"). The Advance
is a non-refundable, guaranteed payment to Microsoft. The Advance will be
rendered to Microsoft in four (4) equal installments on a quarterly basis (i.e.,
every three (3) months during the Term). The first payment hereunder is due on
December 23, 1999. Microsoft will invoice Company for the three (3) remaining
payments approximately thirty (30) days prior to the beginning of each
subsequent quarter, and the Company will pay such invoiced amounts on or before
the first day of each such subsequent quarter. Notwithstanding the foregoing,
upon termination or expiration of this Agreement, other than by Company pursuant
to paragraph 5.2 or Microsoft pursuant to paragraph 5.3, Company will
immediately pay Microsoft any amounts of the Advance not yet paid.
4.2 Fee. As consideration for Microsoft distributing the Newsletters
---
to Subscribers, Company will pay Microsoft [**] per Copy distributed to
Subscribers ("Fee").
4.3 Distribution Adjustment. On a quarterly basis (including, at the
-----------------------
end of the Term), Microsoft will compare the number of Copies actually
distributed hereunder against the Advance paid for such quarter (or the Term).
If the fees incurred pursuant to paragraph 4.2 for the number of Copies actually
distributed during such quarter (or the Term) are greater than the portion of
the Advance paid for such quarter (or the Term), Microsoft will invoice Company
for the difference at the applicable rates noted in paragraph 4.2. If at the end
of the Term the fees (including the Advance) received by Microsoft hereunder
exceed the amount of the fees incurred by Company for distribution of Copies
hereunder, Microsoft will refund the difference to Company; except that in no
event will Microsoft be required to refund or otherwise return to Company any
portion of the Advance. Notwithstanding the foregoing, the maximum aggregate
Advance and Fee payments that Company may incur to Microsoft hereunder will be
[**]. Once and only if the foregoing payment cap is reached by Company, Company
will be relieved of paying any additional amounts pursuant to Section 4.2
hereunder; provided that, for the remainder of the Term, Company may not
increase the average number of Copies delivered by Microsoft to Subscribers
during the period preceding Company attaining such payment cap.
4.4 Invoice and Payment. Within thirty (30) days after the date of an
-------------------
invoice, Company will pay Microsoft all amounts owing pursuant to such invoice
in readily available funds. Amounts not paid when due under this Agreement will
accrue interest at a rate of [**], compounded on a monthly basis. Microsoft
reserves the right to immediately suspend distribution of the Newsletter if
Company fails to make timely payment of any amounts owing hereunder. All
payments of amounts owing to Microsoft will be made at the following location or
such other location designated by Microsoft in writing:
Microsoft Corporation
XX Xxx 0000 - 0000
Xxxxxxxxxxxx XX 00000-0000
4.5 Reports. Microsoft will provide Company with monthly reports
-------
setting forth the number of Subscribers receiving Copies and the total number of
Copies delivered per month.
4.6 Taxes. The fees, advances and other amounts owing to Microsoft
-----
pursuant to this Agreement do not include taxes or other governmental fees.
Company will pay all taxes and other governmental fees arising out of or related
to all
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked portions
have been omitted from this filing and have
been filed separately with the Securities and
Exchange Commission
3
transactions undertaken pursuant to this Agreement, other than taxes on
Microsoft income and revenue, and will provide Microsoft with appropriate
evidence of such payment upon request.
4.7 Audits. Microsoft will maintain during the Term and for at least
------
twelve (12) months thereafter all of its regular books of account relating to
Copies distributed via the Service and amounts owing to Microsoft hereunder. If
Company believes in good faith that Microsoft invoiced Company in excess of
amounts actually owing pursuant to paragraph 4.2, Company will have the right at
Company's sole expense to audit such books of account, subject to the following:
(a) Company will provide Microsoft with at least thirty (30) days' prior written
notice of such audits; (b) audits may occur only during Microsoft's regular
business hours, and at the location where such books of account are maintained
by Microsoft or such other location reasonably specified by Microsoft; (c)
Company will cooperate with Microsoft in good faith to avoid and limit any
disruption of such audits to Microsoft's business and operations; (d) such audit
will be conducted by an independent accounting firm, acceptable to Microsoft and
compensated by Company in a manner that is not affected by the outcome of the
audit (e.g., no contingency fees); (e) the auditors provide Microsoft with all
results and other communications to Company related to the audit at the same
time such auditors provide such communications to Company; (f) audits may not
occur more than once during the Term, may not exceed three (3) consecutive days
and must be completed within twelve (12) months after the end of the Term; (g)
the auditors provide their final conclusions of the audit to Company and
Microsoft simultaneously and within thirty (30) days after the last day of the
audit. Any information disclosed to or otherwise learned by Company or its
auditors in connection with an audit conducted pursuant to this paragraph
constitutes Confidential Information (as the term is used in Section 9) of
Microsoft and subject to the limitations on use set forth in paragraph 9.1.
Section 5. Term and Termination
5.1 Term. This Agreement is binding upon signature and the "Term"
----
will be in effect for a period of [**] commencing October 31, 1999 or the day on
which the Registration Page is made publicly available.
5.2 Termination. Either party may immediately terminate this
-----------
Agreement upon written notice if the other party breaches the Agreement in any
material respect, and the breach remains uncured for a period of ten (10) days
following the breaching party's receipt of written notice of the breach from the
non-breaching party.
5.3 Microsoft Termination. Notwithstanding paragraph 5.1, Microsoft
----------------------
may terminate this Agreement upon thirty (30) days' prior written notice if
Microsoft ceases to offer the Service. In such a case, or if Company terminates
this Agreement under Section 5.2 or Section 5.4, Microsoft will return to
Company a pro rata portion of the Advance actually paid to Microsoft (less any
additional fees incurred by Company hereunder as of the date of termination). If
fees incurred by Company hereunder exceed the amount of the pro rated Advance
actually paid by to Microsoft as of the date of termination, Microsoft will
invoice, and Company will promptly pay, any additional amounts owing hereunder.
5.4 Company Termination. Company may terminate this Agreement upon
--------------------
fifteen (15) days prior written notice to Microsoft after three (3) calendar
months following commencement of the Term if the benchmark of (i) [**]
Subscribers in each calendar month during such period is not achieved or
(ii) [**] Subscribers in the three month period is not achieved. If Microsoft
does not achieve the benchmark set forth above, Microsoft will have fifteen (15)
days to remedy such Subscriber shortfall following Microsoft's receipt of
Company's written termination notice. The parties acknowledge and agree that
they will execute an amendment to this Agreement which sets forth the terms of
the Subscriber shortfall remedy. Upon execution of such amendment, or if
Company has not provided Microsoft written notice of its intent to terminate as
set forth above, Company will forfeit the right to terminate the Agreement as
set forth in this section. In no event will Microsoft be required to refund or
otherwise return to Company any portion of the Advance.
5.5 Survival. This paragraph and Sections 3.5 (Changes to
--------
Newsletter), 4 (Consideration) only to the extent of fees set forth in paragraph
4.2 accrued and payable prior to the date of termination (Representations and
Warranties), 7 (Indemnification), 8 (Limitation of Liability), 9
(Confidentiality), and 10 (General) shall survive any termination of this
Agreement, together with all obligations, rights and causes of action that may
have accrued prior to termination, along with any other provisions that might
reasonably be deemed to survive such termination.
Section 6. Representations and Warranties
6.1 Company. Company represents and warrants that:
-------
(a) Company has the full corporate rights, power and authority to
enter into this Agreement and to perform the acts required of it hereunder;
(b) Company's execution and performance of this Agreement do not
and will not violate any agreement to which Company is a party or by which
Company is otherwise bound, or any applicable law, rule or regulation;
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked portions
have been omitted from this filing and have
been filed separately with the Securities and
Exchange Commission
4
(c) the Newsletter does not and will not violate any third party
IPRs or give rise to any obligation for the payment of any sums to any
third party by Microsoft or Microsoft's successors in interest;
(d) the Newsletter (in whole or in part) does not and will not
violate the limitations set forth in paragraph 3.3;
(e) it will not harvest or otherwise collect through the Service
information about Subscribers, including e-mail addresses, without
Subscribers' express consent;
(f) it will not link the Service or Hotmail to any unsolicited
communication sent to any third party, or otherwise use or mention the
Service or Hotmail in connection with any such unsolicited communication;
and
(g) it has in effect a privacy policy that is available online to
Subscribers and that meets or exceeds the applicable standards of an
industry recognized online privacy organization (e.g., the TRUST.E Program,
BBB OnLine), and it will adhere to the information gathering,
dissemination, privacy protection and other practices specified in such
privacy policy.
6.2 Microsoft: Microsoft represents and warrants to the Company that
----------
has the full corporate rights, power and authority to enter into this Agreement
and to perform the acts required of it hereunder.
6.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE
-------------------
SERVICE, NEWLETTER, HOTMAIL, AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR
ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND WITH
ALL DEFECTS. MICROSOFT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND
CONDITIONS, EXPRESS OR IMPLIED, OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, TITLE, NONINFRINGEMENT, COMPATIBILITY, SECURITY, AND CONDITION
OR OPERATION OF THE FOREGOING. MICROSOFT DOES NOT WARRANT THE CONTINUED OR
UNINTERRUPTED OPERATION OF THE INTERNET, SERVICE, OR HOTMAIL.
6.4 Date Warranty: Each party represents and warrants that the
--------------
information technology, financial, operational, communication and other systems
and processes used by such party in connection with performing its obligations
pursuant to this Agreement will not be interrupted or adversely affected by the
manipulation, processing, comparison, display or calculation of dates from, into
and between the twentieth and twenty-first centuries, including leap years, and
each agrees to cooperate with the other party to promptly remedy any such error.
Section 7. Indemnification
7.1 Company. The Company will indemnify and hold harmless Microsoft
-------
against, and will defend or settle at the Company's expense, any and all
actions, claims, liabilities, losses, damages, costs, expenses, judgments and
penalties, including but not limited to reasonable attorneys' fees, or other
proceeding brought by third parties against Microsoft to the extent based on a
claim that, if true would (a) result from any misrepresentation or breach of
representation or warranty of the Company contained herein, or (b) result from
any breach of any covenant or agreement to be performed by Company hereunder.
7.2 Microsoft. Microsoft will indemnify and hold harmless the Company
---------
against, and will defend or settle at Microsoft's expense, any action actions,
claims, liabilities, losses, damages, costs, expenses, judgments and penalties,
including but not limited to reasonable attorneys' fees, or other proceeding
brought by third parties against Company to the extent based on a claim that, if
true would (a) result from any misrepresentation or breach of representation or
warranty of Microsoft contained herein, or (b) result from any breach of any
covenant or agreement to be performed by Microsoft hereunder.
7.3 Procedure. The party to be indemnified, defended and held
---------
harmless pursuant to paragraph 7.1 or 7.2 will: (a) provide the indemnifying
party with prompt written notice of any such claim, (b) permit the indemnifying
party to assume and control the defense of such action, and (c) not enter into
any settlement or compromise of any such claim without the indemnifying party's
prior written consent (not to be unreasonably withheld). The indemnifying party
will pay any and all costs, damages, and expenses (including but not limited to
reasonable attorneys' fees and costs) awarded against or incurred by the
indemnified party in any such action or proceeding attributable to any such
claim. The indemnified party may also retain counsel at its own expense in
connection with the defense or settlement of any such claim.
Section 8. Limitation of Liability
8.1 Limitation of Remedies. EXCEPT TO THE EXTENT ARISING PURSUANT TO
-----------------------
SECTION 7 OR A BREACH OF SECTION 9, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY
5
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR
OTHERWISE RELATED TO THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE, PROFITS, ACCOUNTS OR LOST BUSINESS, AND WHETHER ARISING IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
8.2 Limitation of Damages. EXCEPT TO THE EXTENT ARISING PURSUANT TO
---------------------
SECTION 7 OR A BREACH OF SECTION 9, UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID AND
OWING TO MICROSOFT HEREUNDER.
Section 9. Confidentiality
The parties acknowledge and agree that the Microsoft Non-Disclosure Agreement
dated as of _________________ ("NDA") entered into by and between the parties
applies to this Agreement as if fully set forth herein and that all of the terms
of this Agreement (including but not limited to its existence) and all
discussions and negotiations related thereto are considered Confidential
Information (as that term is defined in the NDA) of Microsoft under the NDA. If
Company has not executed a NDA, Company agrees to sign the NDA attached hereto
as Exhibit B and return it to Microsoft with this Agreement. Upon termination or
expiration of this Agreement, each party will destroy (or upon the other party's
request return) any and all Confidential Information of the other party in its
possession or control.
Section 10. General.
10.1 Notices. All notices and requests in connection with this
-------
Agreement will be deemed given (a) when personally delivered, (b) when delivered
by facsimile or telex, (c) the next business day following delivery to a
nationally recognized courier service guarantying next-day delivery, or (d) five
(5) business days after being placed in the United States mail, postage prepaid,
certified or registered, return receipt requested, as follows:
Notices to Company: Notices to Microsoft:
------------------ --------------------
Xxxxxxxx.xxx d/b/a XXX.xxx Microsoft Corporation
250 Executive Park, Suite 0000 Xxx Xxxxxxxxx Xxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attn.: Xxxxx Xxxx Attn.: Xxxxx Xxxxxxxx
------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
----------------
Fax: (000) 000-0000 Fax: (000) 000-0000
----------------
Copy to: Copy to:
Xxxxxxxx.xxx, Inc. Microsoft Law & Corporate Affairs
250 Executive Park, Suite 4000 One Microsoft Way
San Francisco, CA 94134 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn.: Legal Department Attn.: Xxxxxxx Xxxxx
or to such other address as the party to receive the notice or request so
designates by at least ten (10) days prior written notice to the other party.
10.2 Independent Contractor. Company is an independent contractor, and
----------------------
nothing in this Agreement will be construed as creating an employer-employee
relationship, partnership, or joint venture between the parties.
10.3 Governing Law. This Agreement will be governed by the laws of the
-------------
State of Washington. Company hereby irrevocably consents to the personal
jurisdiction of, and exclusive venue for any legal proceeding commenced by or on
behalf of Company in, the state and federal courts sitting King County,
Washington, USA. In any suit or action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
10.4 Assignment. Company may not assign, sub-license, transfer,
----------
encumber or otherwise dispose of this Agreement without Microsoft's prior
written approval, except in connection with a merger or sale of substantially
all of Company's assets. Any attempted assignment, sub-license, transfer,
encumbrance or other disposal of this Agreement by Company without Microsoft's
prior written approval will be void and will constitute a material default and
breach of this
6
Agreement. Except as otherwise provided, this Agreement will be binding upon and
inure to the benefit of the parties' successors and lawful assigns.
10.5 Publicity. No press releases, public statements, promotions or
----------
advertising concerning the existence of this Agreement, shall be made or
released in any medium except with the prior written approval of both parties.
10.6 Headings. The section headings used in this Agreement are
--------
intended for convenience only and will not be deemed to affect in any manner the
meaning or intent of this Agreement or any provision hereof.
10.7 Modification. This Agreement may not be modified except by a
------------
written agreement dated subsequent to the date of this Agreement and signed on
behalf of Company and Microsoft by their respective duly authorized
representatives.
10.8 Waiver. No waiver of any breach of this Agreement will constitute
------
a waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by the waiving party.
10.9 Severability. To the extent that any provision of this Agreement
------------
conflicts with governing law or any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (a) such
provision will be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable law, and (b)
the remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect.
10.10 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which taken together will constitute one agreement
10.11 Entire Agreement. Subject to Section 9, this Agreement
----------------
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements or
communications between the parties.
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the date written above.
Microsoft Company
MICROSOFT CORPORATION XXXXXXXX.XXX d/b/a XXXXXXXXXXXXX.XXX
One Microsoft Way 000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000 Xxx Xxxxxxxxx, XX 00000
By /s/ XXXXX XXXXXX
---------------------------- -----------------------------------
(Sign) (Sign)
XXXXX XXXXXX
------------------------------- -----------------------------------
Name (Print) Name (Print)
Director
------------------------------- -----------------------------------
Title Title
11/1/99
------------------------------- -----------------------------------
Date Date
-----------------------------------
Company's Federal Employer ID Number
7
EXHIBIT A
SPECIFICATIONS
A. Specifications for Providers
a. Company logo: 100x 30, 1.5K file size, gif, non-animated, non-
clickable
b. Newsletter description: 215 Latin characters (including spaces)
that briefly describes the newsletter
c. Company name: 20 characters
d. Promotional banners
i. 468x60, 12K file size, gif or jpeg
ii. At Microsoft discretion, Company must include Hotmail
and/or WebCourier logo, making it clear to the user
that the banner is a co-branded banner.
iii. URL determined by Microsoft
iv. Banner must meet standard Microsoft guidelines set
forth in Standard Terms and Conditions
B. Hosting Schedule
a. Company will make the newsletter content available to Microsoft
according to a schedule agreed upon by Microsoft and Company.
b. Company will run newsletter content through an HTML validator
program to catch any errors before posting it for pickup.
c. Company will provide Microsoft with the URL of the newsletter
content for Microsoft pick-up.
d. Company may not alter the newsletter content more than once each
day.
C. Delivery Schedule
a. Microsoft will distribute the Newsletter to Subscribers according
to the schedule agreed upon by Microsoft and Company.
Newsletter Technical Requirements
1. Code must be syntactically correct, and resemble the following;
(HTML)
(BODY)
......
(/BODY)
(/HTML)
Note: Tables are good if you want the page to retain its attributes, but if
any of the above tags are missing, it WILL NOT work. Code that is not clean
will run into problems with WebCourier automated content pickups and page
display.
2. No Relative Links.
The following are examples of relative links
(a href="/hotmail/link.html")
(img src="../../../../hotmail/img.gif")
All links must have full headings similar to these:
(a href="xxxx://xxx.xxxxxxx.xxx/xxxxxxx.xxxx")
(img src="xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxx.xxx")
3. Use NO JavaScript/DHTML.
For security reasons, we do not allow JavaScript or DHTML.
4. We accept only the GET method instead of the POST method in Form tags (i.e.,
(FORM) tags should have "METHOD=GET".
Scripts receiving (FORM) input must accept the "GET" method.
5. Links may NOT open new browser windows.
6. Tags that are opened must be closed.
7. Suggestion: Code for a maximum resolution screen size of 800 x 600. For best
results across all platforms, use a minimum of 600 pixels.
1
8. Setting Background Colors:
If you wish to set a background color, then set it in a table around your
HTML, rather than using body tags. DO NOT USE BODY TAGS. DO NOT USE GLOBAL
STYLE TO SPECIFY COLORS. DO NOT SET A BODY BACKGROUND. Use nested styles
within the table. Anything with body tags will be stripped out or ignored.
Example of what NOT to do:
---
(body bgcolor="#FFFFFF" text="#000000" link="#003366" vlink="#003366"
alink="#003366")
What you can do:
- create CSS classes specific to your content, or
----
- create all styles in-line
9. Variable Subject Lines: (You must inform the Program Manager to turn ON this
feature.)
Subject must be enclosed in the (title)...(/title) tags on same line. 46
character max, including spaces. Subject line must begin with your
newsletter name. (Ex. MSNBC: followed by subject).
10. Content: maximum of 512 characters per line. If it's longer than 512
characters, people using email clients will not be able to retrieve your
WebCourier newsletter.
Server Rules
11. Server Accessibility:
The server on which your HTML resides must be accessible via telnet client.
We will retrieve the HTML by "telnet"ing into the site and using the GET
command to retrieve the material.
telnet xxx.xxxxxxx.xxx 80
Trying 207.82.250.251...
Connected to xxx.xxxxxxx.xxx.
Escape character is '(caret)]'.
GET /hotmail/test.html HTTP/1.0
The server can reside on any port as long as it is not a secure server.
SID's are supported.
12. No Password Protected Pages.
13. Note: Some codes that may work in a browser alone may not be permissible in
WebCourier content.
14. Please run your newsletters through an HTML validator program to catch any
errors before posting it for pickup.
Pickup Rules
15. The URL where the page resides for pickup cannot be changed. If it must be
changed, Hotmail must be notified as far in advance as possible.
16. Content must be ready at the time of pickup. Materials that have not been
changed from the previous pickup will not be delivered.
Subscriber Customer Support:
17. If subscribers have problems with their WebCourier subscription, please have
them send a blank email to xxxxxx@xxxxxxx.xxx. This alias will send the user
------------------
some troubleshooting instructions. If a subscriber continues to have
problems after following the autoresponder directions, there is another
email alias provided for a personal response.
18. Company must maintain WebCourier delivered newsletter content pages, links,
and images for a minimum of six (6) months.
2
EXHIBIT B
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement") is made between MICROSOFT CORPORATION, a
Washington corporation, and Xxxxxxxx.xxx, Inc. (the "Company") and entered into
this ______ day of ________________, 19_____.
In consideration of the mutual promises and covenants contained in this
Agreement, the mutual disclosure of confidential information to each other, the
parties hereto agree as follows:
1. Confidential Information and Confidential Materials
---------------------------------------------------
(a) "Confidential Information" means nonpublic information that Disclosing
Party designates as being confidential or which, under the circumstances
surrounding disclosure ought to be treated as confidential. "Confidential
Information" includes, without limitation, information relating to released or
unreleased Disclosing Party software or hardware products, the marketing or
promotion of any Disclosing Party product, Disclosing Party's business policies
or practices, and information received from others that Disclosing Party is
obligated to treat as confidential. Confidential Information disclosed to
Receiving Party by any Disclosing Party Subsidiary and/or agents is covered by
this Agreement.
(b) Confidential Information shall not include any information that: (i) is
or subsequently becomes publicly available without Receiving Party's breach of
any obligation owed Disclosing Party; (ii) became known to Receiving Party prior
to Disclosing Party's disclosure of such information to Receiving Party; (iii)
became known to Receiving Party from a source other than Disclosing Party other
than by the breach of an obligation of confidentiality owed to Disclosing Party;
or (iv) is independently developed by Receiving Party.
(c) "Confidential Materials" shall mean all tangible materials containing
Confidential Information, including without limitation written or printed
documents and computer disks or tapes, whether machine or user readable.
2. Restrictions
------------
(a) Receiving Party shall not disclose any Confidential Information to
third parties for five (5) years following the date of its disclosure by
Disclosing Party to Receiving Party, except to Receiving Party's consultants as
provided below. However, Receiving Party may disclose Confidential Information
in accordance with judicial or other governmental order, provided Receiving
Party shall give Disclosing Party reasonable notice prior to such disclosure and
shall comply with any applicable protective order or equivalent.
(b) Receiving Party shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own confidential information,
to keep confidential the Confidential Information. Receiving Party may disclose
Confidential Information or Confidential Material only to Receiving Party's
employees or consultants on a need-to-know basis. Receiving Party will have
executed or shall execute appropriate written agreements with its employees and
consultants sufficient to enable it to comply with all the provisions of this
Agreement.
(c) Confidential Information and Confidential Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of Receiving Party's
business relationship with Disclosing Party, and only as otherwise provided
hereunder. Receiving Party agrees to segregate all such Confidential Materials
from the confidential materials of others in order to prevent commingling.
(d) Receiving Party may not reverse engineer, decompile or disassemble any
software disclosed to Receiving Party.
3. Rights and Remedies
-------------------
(a) Receiving Party shall notify Disclosing Party immediately upon
discovery of any unauthorized use or disclosure of Confidential Information
and/or Confidential Materials, or any other breach of this Agreement by
Receiving Party, and will cooperate with Disclosing Party in every reasonable
way to help Disclosing Party regain possession of the Confidential Information
and/or Confidential Materials and prevent its further unauthorized use.
(b) Receiving Party shall return all originals, copies, reproductions and
summaries of Confidential Information or Confidential Materials at Disclosing
Party's request, or at Disclosing Party's option, certify destruction of the
same.
(c) Receiving Party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure of Confidential Information and
that Disclosing Party shall be entitled, without waiving any other rights or
remedies, to such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction.
1
(d) Disclosing Party may visit Receiving Party's premises, with reasonable
prior notice and during normal business hours, to review Receiving Party's
compliance with the terms of this Agreement.
4. Miscellaneous
-------------
(a) All Confidential Information and Confidential Materials are and shall
remain the property of Disclosing Party. By disclosing information to Receiving
Party, Disclosing Party does not grant any express or implied right to Receiving
Party to or under Disclosing Party patents, copyrights, trademarks, or trade
secret information.
(b) If either party provides pre-release software as Confidential
Information or Confidential Materials under this Agreement, such pre-release
software is provided "as is" without warranty of any kind. Receiving Party
agrees that neither Disclosing Party nor its suppliers shall be liable for any
damages whatsoever relating to Receiving Party's use of such pre-release
software.
(c) All software provided to the U.S. Government pursuant to solicitations
issued on or after December 1, 1995 is provided with the commercial rights and
restrictions described elsewhere herein. All software provided to the U.S.
Government pursuant to solicitations issued prior to December 1, 1995 is
provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE
1987) or XXXX, 00 XXX 252.227-7013 (OCT 1988), as applicable. Manufacturer is
Microsoft Corporation/One Microsoft Way/Redmond, WA 98052-6399.
(d) Both parties agree that they do not intend nor will they, directly or
indirectly, export or re-export (i) any Confidential Information or Confidential
Materials, or (ii) any product (or any part thereof), process or service that is
the direct product of the Confidential Information or Materials to (A) any
country that is subject to U.S. export restrictions (currently including, but
not necessarily limited to, Iran, Iraq, Syria, Cuba, North Korea, Libya, the
Federal Republic of Yugoslavia (Serbia and Montenegro) and Sudan), or to any
national of any such country, wherever located, who intends to transmit or
transport the products back to such country; (B) to any end-user who either
party knows or has reason to know will utilize them in the design, development
or production of nuclear, chemical or biological weapons; or (C) to any end-user
who has been prohibited from participating in U.S. export transactions by any
federal agency of the U.S. government.
(e) The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or acquire
products without use of the other party's Confidential Information. Further,
either party shall be free to use for any purpose the residuals resulting from
access to or work with such Confidential Information, provided that such party
shall maintain the confidentiality of the Confidential Information as provided
herein. The term "residuals" means information in non-tangible form, which may
be retained by persons who have had access to the Confidential Information,
including ideas, concepts, know-how or techniques contained therein. Neither
party shall have any obligation to limit or restrict the assignment of such
persons or to pay royalties for any work resulting from the use of residuals.
However, the foregoing shall not be deemed to grant to either party a license
under the other party's copyrights or patents.
(f) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed by
both parties. None of the provisions of this Agreement shall be deemed to have
been waived by any act or acquiescence on the part of Disclosing Party, its
agents, or employees, but only by an instrument in writing signed by an
authorized officer of Disclosing Party. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision(s) or of the same
provision on another occasion.
(g) If either party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees. This Agreement shall be construed and controlled by
the laws of the State of Washington, and both parties further consent to
jurisdiction by the state and federal courts sitting in the State of Washington.
Process may be served on either party by U.S. Mail, postage prepaid, certified
or registered, return receipt requested, or by such other method as is
authorized by the Washington Long Arm Statute.
(h) Subject to the limitations set forth in this Agreement, this Agreement
will inure to the benefit of and be binding upon the parties, their successors
and assigns.
(i) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
(j) All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
2
5. Suggestions and Feedback
------------------------
Either party may from time to time provide suggestions, comments or other
feedback to the other party with respect to Confidential Information provided
originally by the other party (hereinafter "Feedback"). Both parties agree that
all Feedback is and shall be entirely voluntary and shall not, absent separate
agreement, create any confidentiality obligation for the Receiving Party.
However, the Receiving Party shall not disclose the source of any feedback
without the providing party's consent. Feedback shall be clearly designated as
such and, except as otherwise provided herein, each party shall be free to
disclose and use such Feedback as it sees fit, entirely without obligation of
any kind to the other party. The foregoing shall not, however, affect either
party's obligations hereunder with respect to Confidential Information of the
other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Microsoft Company
MICROSOFT CORPORATION XXXXXXXX.XXX d/b/a XXXXXXXXXXXXX.XXX
One Microsoft Way 000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000 Xxx Xxxxxxxxx, XX 00000
By /s/ XXXXX XXXXXX
-------------------------- ---------------------------------
(Sign) (Sign)
XXXXX XXXXXX
----------------------------- ---------------------------------
Name (Print) Name (Print)
Director
----------------------------- ---------------------------------
Title Title
October 25, 1999
----------------------------- ---------------------------------
Date Date
3
