RealNames Service Agreement - Centraal Corp. and AltaVista Co.
REALNAMES SERVICE AGREEMENT
BETWEEN CENTRAAL AND ALTAVISTA
This Agreement regarding RealNames Service (the "AGREEMENT") is entered
into as of April 1, 1999 ("EFFECTIVE DATE") by and between Centraal Corporation,
a Delaware corporation with offices at 2 Circle Star Way, 2nd Floor San Carlos,
CA 94070-1350 ("CENTRAAL") and AltaVista Company, a Delaware corporation with
offices at 529 Bryant Street, Palo Alto, CA, U.S.A. 94301 ("ALTAVISTA").
WHEREAS, Centraal is a provider of "RealNames Service", which allows
users of the Internet to access the World Wide Web sites of RealNames
Subscribers, by using a short key word, trade name or phrase in lieu of a
Uniform Resource Locator ("URL"); and
WHEREAS, ALTAVISTA is a provider of Internet services which allow
Internet users to search the World Wide Web; and
WHEREAS, Centraal and ALTAVISTA desire to offer RealNames Service in
conjunction its World Wide Web search engines on the terms and conditions set
forth below; and
WHEREAS, ALTAVISTA and Centraal desire to supersede all previous
agreements relating to the provision of the RealNames Service on ALTAVISTA's
World Wide Web services.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS.
1.1 "ALTAVISTA PRODUCT" means the ALTAVISTA World Wide Web
services described in EXHIBIT A hereto and other Internet properties of
ALTAVISTA and all corrections, updates, upgrades, patches or other
modifications or additions thereto during the term of this Agreement.
1.2 "ANNUAL NET SUBSCRIPTION FEE" means gross annual
subscription fee less any payments actually paid to third parties who
directly provide services for the RealNames Service (not to exceed thirty
percent (30%) of such annual subscription fee where applicable) and less
taxes, discounts, allowances and adjustments, refunds, and bad debts.
Centraal may set such discounts, or make such allowances and adjustments, or
provide refunds to its customers, as it deems advisable.
1.3 "CENTRAAL COMPETITOR" means as of the Effective Date,
NetWord and Labrador Software and such other competitors as the parties may
mutually agree upon from time to time in writing.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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1.4 "CENTRAAL MATERIALS" means the Software, Documentation,
RealNames Data or Confidential Information disclosed by Centraal and any part
or combination thereof.
1.5 "DOCUMENTATION" means the Centraal documents and
materials described in EXHIBIT A hereto.
1.6 "INTEGRATED PRODUCT" means an ALTAVISTA Product that is
combined with the Software in object code form in order to provide RealNames
Service integrated with the ALTAVISTA Product.
1.7 "LOCALIZATION" and "Localized" means the translation of
English language Centraal Materials described in EXHIBIT A into a non-English
language designated in EXHIBIT A such that a user fluent in such non-English
language would be able to understand and/or operate such Centraal Materials
to the same extent a user fluent in English would be able to understand
and/or operate such Centraal Materials in English.
1.8 "NET PAID ADVERTISING FEES" means gross advertising fees
actually paid to ALTAVISTA less agency or advertising representation from
commissions (or the internal equivalent ALTAVISTA cost to generate gross
revenues not to exceed 30%) and less credits, discounts, taxes, and
technology or content distribution royalty fees where actually paid.
1.9 "NET REALNAMES RESOLUTION FEES" means gross RealNames
Resolution fees less any payments actually paid to third parties who provide
services for the RealNames Service (not to exceed thirty percent (30%) of
such gross RealNames Resolution fees and less taxes, discounts, allowances
and adjustments, refunds, and bad debts. Centraal may set such discounts, or
make such allowances and adjustments, or provide refunds to its customers, as
it deems advisable.
1.10 "PRECISE RESULTS" means when the term searched by a an
Internet user in RealNames Resolution results in an identical match to the
term used by the Internet user.
1.11 "REALNAMES ADDRESS" means the proprietary natural
language address assigned by Centraal to a RealNames Subscriber which can be
translated into a URL address through RealNames Resolution.
1.12 "REALNAMES DATA" means the proprietary address
information database maintained by Centraal relating to RealNames Addresses
for RealNames Subscribers' URLs.
1.13 "REALNAMES ENABLER" means a software extension which is
proprietary to Centraal and which allows Internet users to perform RealNames
Resolutions in the browser.
1.14 "REALNAMES ENABLED RESULTS" means those results in an
Integrated Product which shows the Internet User the results of a RealNames
Resolution. RealNames Enabled Results includes both Precise Results and
Relevant Results.
1.15 "REALNAMES IMPRESSION" means the appearance of a
particular RealNames Subscriber's RealNames Address on RealNames Enabled
Results either as a Precise Result or a Relevant Result.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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1.16 "REALNAMES RESOLUTION" means the process by which a
natural language or other search term that generates a RealNames Impression
may be used by an Internet user to direct the Internet user to the URL of a
RealNames Subscriber.
1.17 "REALNAMES SERVICE" means the provision of a RealNames
Address to a RealNames Subscriber and the provision of RealNames Resolution
services.
1.18 "REALNAMES SUBSCRIBER" means a third party entity with a
World Wide Web page which has entered into a Subscriber Agreement and has
been granted a RealNames Address.
1.19 "RELEVANT RESULTS" means when the term searched by an
Internet user in RealNames Resolution results in a match that is not
identical, but close to, the exact search term used by the Internet user.
1.20 "SOFTWARE" means the Centraal software described in
EXHIBIT A in object code only and any Updates thereto.
1.21 "SUBSCRIBER AGREEMENT" means the Subscriber Agreement
attached as EXHIBIT E hereto which may be amended by Centraal in its sole
discretion.
1.22 "UPDATE" means any correction, update, upgrade, patch or
other modification or addition to the Software supplied by Centraal in its
sole discretion.
2. LICENSE GRANTS.
2.1 LICENSE TO SOFTWARE. Subject to the terms and conditions
of this Agreement, Centraal hereby grants to ALTAVISTA the following licenses:
(a) A non-exclusive, non-transferable license to
display or perform the Software, in object code or binary form only, only as
part of Integrated Products;
(b) A non-exclusive, non-transferable license to use
the Software solely to provide technical support for the Integrated Products;
and
(c) A non-exclusive, non-transferable license to use
and reproduce the Software (in object code form or binary form only) and
Documentation solely for ALTAVISTA's own internal business purposes on
Integrated Products, solely as necessary to exercise the rights granted in
this Section 2.
2.2 LICENSE TO REALNAMES DATA. Subject to the terms and
conditions of this Agreement, Centraal further grants to ALTAVISTA a
non-exclusive license to access, display and transmit portions of the
RealNames Data (as may be provided by Centraal in its sole discretion),
solely as necessary to provide RealNames Service on an Integrated Product in
accordance with this Agreement.
2.3 SUB-LICENSE. ALTAVISTA may sublicense to third parties,
solely in connection with the simultaneous license of an ALTAVISTA Product,
the rights under Sections
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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2.1 and 2.2, pursuant to a written agreement which is at least as protective
of Centraal's intellectual property rights and is consistent with the terms
and conditions of this Agreement, but only with the prior written approval of
Centraal.
2.4 PROPRIETARY NOTICES. On each copy of the Software or
RealNames Data reproduced or displayed, ALTAVISTA shall reproduce all
copyright or other proprietary notices contained on the Software, RealNames
Data or other Centraal Materials.
2.5 OWNERSHIP IN CENTRAAL MATERIALS. As between Centraal and
ALTAVISTA, Centraal will retain all right, title, and interest in the
Centraal Materials and RealNames Data, and all intellectual property rights
therein. ALTAVISTA shall not remove, modify, or obscure any copyright or
other proprietary notices on the Centraal Materials and RealNames Data.
ALTAVISTA shall not, and shall not authorize any third party to (1) create
derivative works of, alter or in any way modify the Centraal Materials or
RealNames Data without the prior written consent of Centraal, (2) translate,
decompile, disassemble, reverse compile, reverse engineer, or decode the
Software or in any other manner reduce the Software to human perceivable
form, or (3) use any Centraal Materials or RealNames Data to construct,
reverse engineer or assemble any database, including without limitation, a
URL database. Centraal hereby reserves all rights not expressly granted to
ALTAVISTA in this Agreement.
3. LOCALIZATION.
3.1 LOCALIZATION. Centraal agrees to provide the Centraal
Materials described in EXHIBIT A in the languages described in EXHIBIT A. In
the event that the parties agree that additional Localization work shall be
performed, the parties shall agree in writing which materials shall be
Localized, which languages and which party shall be responsible for such
Localization. All Localization shall be done at each party's respective
costs, unless agreed otherwise in writing. ALTAVISTA represents and warrants
that all ALTAVISTA employees, agents, contractors or consultants that will be
provided access to Centraal Materials have signed agreements with customary
terms containing confidentiality provisions and assignment of inventions.
ALTAVISTA covenants that during the term of this Agreement, it will continue
to require all ALTAVISTA employees, agents, contractors or consultants which
have access to Centraal Materials to sign an Employee NDA/Invention Agreement
providing for an assignment of intellectual property rights to ALTAVISTA.
3.2 OWNERSHIP OF LOCALIZED CENTRAAL MATERIALS. Centraal
shall own all right, title, and interest in the Localization of the Centraal
Materials regardless of which party shall perform such Localization.
ALTAVISTA hereby irrevocably transfers, conveys and assigns to Centraal in
perpetuity all right, title, and interest in such Localization of the
Centraal Materials, including without limitation all copyrights including the
right to make derivative works and collective works with respect thereto, it
being understood, however, that ALTAVISTA has, and transfers, no rights with
respect to the underlying Centraal Materials. Centraal shall have the
exclusive right to apply for or register copyrights and such other
proprietary protections as it wishes. ALTAVISTA agrees to execute such
documents, render such assistance, and take such other action as Centraal may
reasonably request, at Centraal's expense, to apply for, register, perfect,
confirm, and protect Centraal's rights in the Localization of the Centraal
Materials including (without limitation) an assignment of copyright in the
form
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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attached hereto as EXHIBIT D. Without limiting the foregoing, Centraal shall
have the exclusive right to commercialize, prepare and sell products based
upon, sublicense, prepare derivative works from, or otherwise use or exploit
the Localization of the Centraal Materials.
3.2.1 WAIVER OF MORAL RIGHTS. ALTAVISTA hereby waives
any and all moral rights, including any right to identification of authorship
or limitation on subsequent modification, that ALTAVISTA (or its employees,
agents or consultants) has or may have in any Localization of the Centraal
Materials.
3.2.2 POWER OF ATTORNEY. In the event that Centraal is
unable to secure ALTAVISTA's signature to any document required for any
copyright or other intellectual property application or registration with
respect to any Localization of the Centraal Materials, ALTAVISTA hereby
irrevocably designates and appoints Centraal and its duly authorized officers
and agents as its agents and attorneys-in-fact, to act for and in its behalf
and instead of ALTAVISTA, to execute and file any such application, and to do
all other lawfully permitted acts to further the prosecution and issuance of
intellectual property rights thereon with the same legal force and effect as
if executed by ALTAVISTA. This power of attorney shall be deemed coupled with
an interest and shall be irrevocable.
4. APPOINTMENT AS A PROVIDER OF REALNAMES SERVICE.
4.1 APPOINTMENT AS PROVIDER OF REALNAMES SERVICE. Subject to
the terms and conditions herein, Centraal hereby appoints ALTAVISTA as a
non-exclusive RealNames Service provider, and ALTAVISTA hereby accepts such
appointment. Centraal reserves the right to provide RealNames Service
directly, and to appoint third-parties as providers of RealNames Service.
4.2 PROMOTION OF THE REALNAMES SERVICE. ALTAVISTA shall, at
its own expense and in a manner that it shall determine: (i) promote the use
of the RealNames Service in the ALTAVISTA Products, (ii) provide links from
the ALTAVISTA's World Wide Web site that provide RealNames Service
information and access; and (iii) integrate the ALTAVISTA Product and
RealNames Service in accordance with Section 4.3 below. In no event shall
ALTAVISTA make any representations, guarantees or warranties concerning the
RealNames Service except as expressly authorized by Centraal in writing.
4.3 INTEGRATION OF REALNAMES SERVICE INTO ALTAVISTA PRODUCT.
4.3.1 PRODUCT INTEGRATION. ALTAVISTA shall, at its own
expense (except for Centraal's reasonable technical assistance which shall be
provided at Centraal's expense) integrate the RealNames Service into the
ALTAVISTA Product for use by Internet users who wish to search for a
RealNames Address or subscribe to a RealNames Address. The RealNames Enabled
Results shall be marked with a "RN" superscript to indicate those results
which have RealNames Addresses.
4.3.2 CO-BRANDED PAGES. The parties shall, at their own
expense, develop a World Wide Web page which carries each parties' Trademarks
(as defined in Section 6 below) that display the RealNames Enabled Results
(the "Co-Branded Page") based upon the
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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criteria developed in Section 4.3.2.1 and 4.3.2.2 for the Integrated Product.
ALTAVISTA shall have the option to cease display of the Co-Branded page on
sixty (60) days' prior written notice. ALTAVISTA shall seek to obtain and
maximize advertising or other promotional revenues from the Co-Branded Page
and compensate Centraal in accordance with EXHIBIT B.
4.3.2.1 RANKING AND RELEVANCE. The parties shall
agree in writing to mutually agreeable relevance and ranking criteria for
displaying RealNames Enabled Results on a Co-Branded Page.
4.3.2.2 CO-BRANDED PAGE LOOK AND FEEL. The
parties shall agree in writing to the "look and feel" for the Co-Branded Page
so as to approximate the "look and feel" of similar pages on the ALTAVISTA
Product. Notwithstanding anything herein to the contrary, AltaVista shall
maintain control over all aspects of the "look and feel" of its web sites.
4.4 REALNAMES SUBSCRIPTIONS. Subject to the terms and
conditions of this Agreement, ALTAVISTA shall have the non-exclusive
authority to solicit applications for RealNames Subscriptions by providing a
link to a registration site designated by Centraal in writing. Centraal
reserves the right to directly or indirectly solicit the subscription of
RealNames Addresses.
4.4.1. PRICES AND TERMS OF SALE. Attached as EXHIBIT E
hereto is a copy of Centraal's current Subscriber Agreement and registration
subscription form. Centraal may alter, at will, the Subscriber Agreement,
prices, availability schedules, and other terms and conditions for the
RealNames Service upon written notice to ALTAVISTA. Each order shall be
governed by the prices, Subscriber Agreement, availability schedules, and
other terms and conditions in effect at the time the order is accepted by
Centraal.
4.4.2. ORDERS AND ACCEPTANCE. Orders for RealNames
Address subscriptions solicited by ALTAVISTA shall take place through a
series of HTML registration pages on a Centraal World Wide Web site. All
completed orders for the RealNames Service will be processed by Centraal or
its designee, and Centraal or its designee will perform the subscription
registration, collect the fees for the subscription (where applicable), and
send via electronic mail Centraal's then-current acknowledgements, software
browser plug-ins, or other materials, to the RealNames Subscriber. All orders
solicited by ALTAVISTA are subject to acceptance by Centraal. ALTAVISTA shall
have no authority to make any acceptance or commitments to customers on
behalf of Centraal. Centraal specifically reserves the right to reject any
order or any part thereof for any reason. ALTAVISTA shall have no right to
data or information gathered from RealNames Subscribers by Centraal.
4.5 PROVISION OF REALNAMES RESOLUTION. Subject to the terms
and conditions of this Agreement, Centraal hereby appoints ALTAVISTA as a
non-exclusive provider of RealNames Resolution services on the Integrated
Product, and ALTAVISTA hereby accepts such appointment. Centraal shall
perform RealNames Resolutions for ALTAVISTA, as follows: (a) the Integrated
Products shall include, an input mechanism to prompt the World Wide Web user
for a key word or search term; (b) ALTAVISTA shall cause its computer servers
to determine which key words are appropriate for RealNames Resolutions; (c)
ALTAVISTA shall cause its computer servers to communicate such key words to
the computer servers of Centraal,
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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at an address and according to specifications reasonably required by Central;
(d) Central, upon receipt of such key word, will cause its computer servers
to perform RealNames Resolutions, and will display a list of results of such
RealNames Resolutions that correspond with such key word or search term and
corresponding URLs on the co-branded RealNames Enabled Results page created
pursuant to Section 4.3.2; (e) the RealNames Enabled Results shall be marked
with a "RN" superscript to denote those results which have a RealNames
Address; and (f) should the World Wide Web user click on one of the search
results displayed on the RealNames Enabled Results page that are produced
through the RealNames Resolutions process the Internet user will be directed
to the correct URL through the RealNames Resolvers.
4.6 EXCLUSIVITY. During the term of this Agreement,
ALTAVISTA shall not provide a subscriber based keyword matching system of a
Centraal Competitor.
4.7 SUB-DISTRIBUTORS. ALTAVISTA shall not sub-license or
appoint sub-distributors of its rights and obligations under Section 4
without Centraal's prior written consent.
5. COMPENSATION.
5.1 FEES. Fees will be paid as described in EXHIBIT B.
6. USE OF TRADEMARKS.
6.1 BRANDING. ALTAVISTA shall apply the "RealNames (sm)
enabled" and/or RealNames (sm)" logo (a copy of which is attached as EXHIBIT
F-1) on the Co-Branded page created pursuant to Section 4.3.2, in a manner
agreed upon by the parties. ALTAVISTA shall also include the phase, "-C- 1999
Centraal Corporation. All rights reserved. REALNAMES (sm) is a service mark
of Centraal Corporation" with each use of the Centraal Trademark.
6.2 USE OF CENTRAAL TRADEMARKS.
6.2.1. AUTHORIZED USES. During the term of this
Agreement, ALTAVISTA may state that the Integrated Product includes the
RealNames Service, and may use in its packaging, marketing, promotional and
advertising materials of the Integrated Products such applicable trademarks,
trade names and logos of Centraal (collectively, the "Centraal Trademarks")
in connection therewith, but only as set forth, and in the manner indicated,
on EXHIBIT F-1 or as Centraal may otherwise provide in writing. ALTAVISTA may
also indicate to the public that it is an authorized provider of Centraal's
RealNames Service and advertise such RealNames Service under Centraal's
Trademarks. Before any such use of a Centraal Trademark, ALTAVISTA must
provide to Centraal samples of any such materials, and ALTAVISTA shall not
engage in any use of any Centraal Trademark not approved by Central. If
Centraal does not object within five (5) business days after receipt of such
samples, the materials will be deemed approved. Centraal will not
unreasonably withhold on delay its approval of such materials.
6.2.2. OWNERSHIP BY CENTRAAL. Nothing herein will grant
ALTAVISTA any right, title or interest in Centraal's Trademarks. Any and all
good will arising from ALTAVISTA's use of the Centraal Trademarks will inure
solely to the benefit of Centraal ALTAVISTA shall not assert any claim to the
Centraal Trademarks (or any confusingly similar
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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mark) or such good will. ALTAVISTA shall execute such documents as Centraal
may reasonably request from time to time to record or effectuate Centraal's
ownership of the Centraal Trademarks and related good will. ALTAVISTA shall
not register any Centraal Trademark, or any mark confusingly similar thereto
for any products or services in any jurisdiction. If ALTAVISTA registers or
applies for such registration in any jurisdiction, Centraal may require (in
Centraal's sole discretion) ALTAVISTA to assign (at ALTAVISTA's expense) all
of the rights pertaining to such registration or application to Centraal or
withdraw from all such procedures.
6.2.3. REGISTERED USER AGREEMENTS. To the extent
necessary to properly protect Centraal's rights, ALTAVISTA and Centraal shall
enter into registered user agreements with respect to Centraal's Trademarks
pursuant to applicable trademark law requirements. ALTAVISTA shall be
responsible for proper filing of the registered user agreement with
appropriate government authorities and shall pay all costs or fees associated
with such filing.
6.3 USE OF ALTAVISTA TRADEMARKS.
6.3.1. AUTHORIZED USES. During the term of this
Agreement, Centraal may use in its packaging, marketing, promotional and
advertising materials such applicable trademarks, trade names and logos of
ALTAVISTA (collectively, the "ALTAVISTA Trademarks") in connection therewith,
but only as set forth, and in the manner indicated, on EXHIBIT F-2 or as
ALTAVISTA may otherwise provide in writing. Before any such use of a
ALTAVISTA Trademark, Centraal must provide to ALTAVISTA samples of any such
materials, and Centraal shall not engage in any use of any ALTAVISTA
Trademark not approved by ALTAVISTA. If ALTAVISTA does not object within five
(5) business days after receipt of such samples, the materials will be deemed
approved. ALTAVISTA will not unreasonably withhold on delay its approval of
such materials.
6.3.2. OWNERSHIP BY ALTAVISTA. Nothing herein will grant
Centraal any right, title or interest in ALTAVISTA's Trademarks. Any and all
good will arising from Centraal's use of the ALTAVISTA Trademarks will inure
solely to the benefit of ALTAVISTA. Centraal shall not assert any claim to
the ALTAVISTA Trademark (or any confusingly similar mark) or such good will.
Centraal shall execute such documents as ALTAVISTA may reasonably request
from time to time to record or effectuate ALTAVISTA's ownership of the
ALTAVISTA Trademarks and related good will. Centraal shall not register any
ALTAVISTA Trademark, or any mark confusingly similar thereto for any products
or services in any jurisdiction. If Centraal registers or applies for such
registration in any jurisdiction, ALTAVISTA may require (in ALTAVISTA's sole
discretion) Centraal to assign (at Centraal's expense) all of the rights
pertaining to such registration or application to ALTAVISTA or withdraw from
all such procedures.
6.3.3. REGISTERED USER AGREEMENTS. To the extent
necessary to properly protect ALTAVISTA's rights, ALTAVISTA and Centraal
shall enter into registered user agreements with respect to ALTAVISTA's
Trademarks pursuant to applicable trademark law requirements. Centraal shall
be responsible for proper filing of the registered user agreement with
appropriate government authorities and shall pay all costs or fees associated
with such filing.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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7. TRAINING. SUPPORT AND MAINTENANCE.
Centraal's obligations regarding training, support and maintenance for
the RealNames Service; the respective rights and responsibilities of Centraal
and ALTAVISTA for such training, support and maintenance; and any charges to
ALTAVISTA for such training, support or maintenance, are set forth in EXHIBIT
C.
8. TERM AND TERMINATION.
8.1 TERM. This Agreement will commence on the Effective Date
and continue for an initial term which will expire on December 31, 2000,
unless earlier terminated as set forth herein. Thereafter, this Agreement
will be automatically renewed for successive one (1) year terms, unless, at
least sixty (60) days prior to the commencement of an additional one (1) year
term, a party notifies the other party in writing of its intention not to
renew the Agreement. Either party may terminate this agreement for
convenience upon sixty (60) days' written notice to the other party.
8.2 DEFAULT. If either party materially defaults in the
performance of any of its material obligations hereunder and if any such
default is not corrected within sixty (60) days after notice in writing, then
the non-defaulting party, at its option, may, in addition to any other
remedies it may have, thereupon terminate this Agreement by giving written
notice of termination to the defaulting party; provided however, no party
shall be deemed to be in breach of this Agreement, and there shall be no
termination for default, during such time that a party makes diligent efforts
to correct a default which is capable of correction.
8.3 INSOLVENCY. This Agreement may be terminated by either
party, upon written notice: (i) upon the institution by the other party of
insolvency, receivership or bankruptcy proceedings or any other proceedings
for the settlement of its debts, which are not dismissed or otherwise
resolved in its favor within sixty (60) days thereafter, (ii) upon the other
party's making a general assignment for the benefit of creditors, or (iii)
upon the other party's dissolution or ceasing to conduct business in the
ordinary course.
8.4 RETURN OF CENTRAAL MATERIALS. All information and
materials provided or delivered to ALTAVISTA under this Agreement, including
without limitation any source code which may be provided by Centraal, and all
copies or portions of copies and any summaries thereof, shall be promptly
returned to Centraal. Within thirty (30) days after the termination of this
Agreement, ALTAVISTA shall certify in writing that: (1) all such materials
have been returned to Centraal, or (2) all such materials have been destroyed.
8.5 SURVIVAL.
(a) The parties' rights and obligations of Sections 2.4,
2.5, 3.2, 6.2.2, 6.2.3, 6.3.2, 6.3.3, 8.4, 8.5, 9, 10, 11, 12 and 13 will
survive any termination or expiration of this Agreement. In addition, each party
shall be obligated to pay any amounts owing pursuant to Section 5.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(b) Upon expiration or termination of this Agreement,
all of ALTAVISTA's rights and licenses with respect to the Software will
automatically and immediately terminate.
(c) Upon expiration or termination of this Agreement,
ALTAVISTA shall take all reasonable action which is requested by Centraal for
the orderly transfer of RealNames Service from ALTAVISTA to Centraal or its
designee.
8.6 LIMITATION OF LIABILITY UPON TERMINATION. In the event
of termination by either party in accordance with any of the provisions of
this Agreement, neither party will be liable to the other, because of such
termination, for compensation, reimbursement or damages on account of the
loss of prospective profits or anticipated sales or on account of
expenditures, investments, or commitments in connection with the business or
goodwill.
9. INFRINGEMENT INDEMNITY.
9.1 CENTRAAL'S INDEMNITY. Centraal, at its own expense,
shall defend or at its option settle, any claim brought against ALTAVISTA on
the issue of infringement of any copyright, United States patent, trade
secret or trademark of any third party to the extent attributable to the
RealNames Service, provided that ALTAVISTA provides Centraal with: (i) prompt
written notice of such claim, (ii) control over the defense and settlement of
such claim, and (iii) proper and full information and assistance to settle or
defend any such claim. If Centraal believes, in its sole discretion, that it
is likely that ALTAVISTA will be prohibited from exercising its right to use
the RealNames Service as provided under this Agreement, then Centraal may, at
its sole option and expense: (i) procure the right to use the RealNames
Service as provided herein, (ii) replace the RealNames Service with other
non-infringing services with equivalent functionality, (iii) suitably modify
the RealNames Service so that they do not infringe, or (iv)terminate this
Agreement. Notwithstanding the above, Centraal assumes no liability for
infringement claims arising from combination of the RealNames Service with
products or services not provided by Centraal, but not arising from the
RealNames Service standing alone. THE FOREGOING PROVISIONS OF THIS SECTION
9.1 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CENTRAAL, AND THE EXCLUSIVE
REMEDY OF ALTAVISTA, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF
ANY INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
9.2 ALTAVISTA'S INDEMNITY. ALTAVISTA, at its own expense,
shall defend or at its option settle, any claim brought against Centraal on
the issue of infringement of any copyright, United States patent, trade
secret or trademark of any third-party by the Integrated Product (except to
the extent excluded under Section 9.1), provided that Centraal provides
ALTAVISTA with: (i) prompt written notice of such claim, (ii) control over
the defense and settlement of such claim, and (iii) proper and full
information and assistance to settle or defend any such claim. THE FOREGOING
PROVISIONS OF THIS SECTION 9.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF
ALTAVISTA, AND THE EXCLUSIVE REMEDY OF CENTRAAL, WITH RESPECT TO ANY ACTUAL
OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT UNDER THIS
AGREEMENT.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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10. WARRANTY AND DISCLAIMER. EACH PARTY ACKNOWLEDGES AND AGREES
THAT THE SERVICES OF THE OTHER PARTY PROVIDED HEREUNDER ARE BEING PROVIDED
"AS IS, WITH ALL FAULTS," AND THAT NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY
DISCLAIMS, ON ITS OWN BEHALF ON AND BEHALF OF ITS SUPPLIERS AND LICENSORS,
ANY WARRANTIES AS TO THE USEFULNESS, ACCURACY, RELIABILITY OR EFFECTIVENESS
OF SUCH SERVICES OR THAT ANY OF SUCH SERVICES PROVIDED HEREUNDER WILL BE
ERROR FREE, OR THAT DEFECTS HAVE OR WILL BE CORRECTED, OR THAT SUCH SERVICES
WILL MEET THE NEEDS OF SUCH PARTY OR ANY THIRD PARTY. WITHOUT LIMIT THE
FOREGOING, EACH PARTY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY FAILURE, DISRUPTION, DOWNTIME, INCORRECT LINKAGE OR OTHER NON
PERFORMANCE OF EACH OTHER'S SERVICE.
11. LIMITATION OF LIABILITY. CENTRAAL'S LIABILITY ARISING OUT OF
THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CENTRAAL TO ALTAVISTA
PURSUANT TO THIS AGREEMENT. CENTRAAL WILL NOT BE LIABLE FOR LOST PROFITS OR
ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT WHETHER OR NOT
CENTRAAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALTAVISTA
ACKNOWLEDGES THAT COMMISSIONS AGREED UPON BY CENTRAAL AND ALTAVISTA ARE BASED
IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. CONFIDENTIALITY.
12.1 CONFIDENTIAL INFORMATION. The term "Confidential
Information" means any information disclosed by one party to the other
pursuant to this, Agreement that is in written, graphic, machine readable or
other tangible form and is designated "Confidential", "Proprietary" or in
some other manner to indicate its confidential nature. Confidential
Information may also include oral information disclosed by one party to the
other pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and is reduced to
writing by the disclosing party within a reasonable time (not to exceed
thirty (30) days) after its oral disclosure, and such writing is marked in a
manner to indicate its confidential nature and delivered to the receiving
party. Confidential Information shall include (without limitation) any source
code that may be provided by Centraal.
12.2 CONFIDENTIALITY. Each party shall treat as confidential
all Confidential Information of the other party, shall not use such
Confidential Information except to exercise its rights and perform its
obligations under this Agreement herein, and shall not disclose such
Confidential Information to any third party. Without limiting the foregoing,
each of the parties shall use at least the same degree of care it uses to
prevent the disclosure of its own confidential information of like
importance, to prevent the disclosure of Confidential Information of the
other
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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party. Each party shall promptly notify the other party of any actual or
suspected misuse or unauthorized disclosure of the other party's Confidential
Information.
12.3 EXCEPTIONS. Confidential Information excludes
information that: (i) was in the public domain at the time it was disclosed
or has become in the public domain through no fault of the receiving party;
(ii) was known to the receiving party, without restriction, at the time of
disclosure, as demonstrated by files in existence at the time of disclosure;
(iii) is disclosed with the prior written approval of the disclosing party;
(iv) was independently developed by the receiving party without any use of
the Confidential Information; (v) becomes known to the receiving party,
without restriction, from a source other than the disclosing party, without
breach of this Agreement, by the receiving party; or (vi) is disclosed
generally to third parties by the disclosing party without restrictions
similar to those contained in this Agreement. The receiving party may
disclose the other party's Confidential Information to the extent such
disclosure is required by order or requirement of a court, administrative
agency, or other governmental body, but only if the receiving party provides
prompt notice thereof to the disclosing party to enable the disclosing party
to seek a protective order or otherwise prevent or restrict such disclosure.
12.4 CONFIDENTIALITY OF AGREEMENT. Each party may disclose
the existence of this Agreement, but agrees that the terms and conditions of
this Agreement will be treated as Confidential Information; provided,
however, that each party may disclose the terms and conditions of this
Agreement: (i) as required by any court or other governmental body; (ii) as
otherwise required by law; (iii) to legal counsel of the parties; (iv) in
confidence, to accountants, banks, and financing sources and their advisors;
(v) in connection with the enforcement of this Agreement or rights under this
Agreement; or (vi) in confidence, in connection with an actual or proposed
merger, acquisition, or similar transaction. After the Effective Date of this
Agreement, Centraal shall issue a press release announcing this Agreement and
the inclusion of RealNames Service in the ALTAVISTA Product; provided
however, that prior to such press release, Centraal shall submit the press
release to ALTAVISTA for its approval, which shall not be unreasonably
withheld or delayed.
12.5 SOURCE CODE SECURITY. In the event that Centraal
provides source code to ALTAVISTA, ALTAVISTA shall use the source code for
the Software only under carefully controlled conditions at Centraal's
facilities or ALTAVISTA's facilities for the purposes set forth in this
Agreement, and shall inform all employees who are given access to the
Software by ALTAVISTA that the source code of the Software is a confidential
trade secret of Centraal. ALTAVISTA shall restrict access to the Software to
those employees of ALTAVISTA who have agreed to be bound by a confidentiality
obligation substantially in the form of this Section 12, and who have a need
to access the source code to carry out the purposes of this Agreement. Upon
request by Centraal, ALTAVISTA shall provide Centraal with the names of all
individuals who have accessed such materials, and shall take all actions
reasonably required to recover any such materials in the event of loss or
misappropriation, or to otherwise prevent their unauthorized disclosure or
use. ALTAVISTA shall indemnify and hold harmless Centraal for any breach of
such confidentiality obligation or of this Agreement by any of ALTAVISTA's
employees, agents and representatives. Upon conclusion of the Localization in
EXHIBIT A, ALTAVISTA shall return to Centraal, all copies and portions
thereof (in any form) of the Software. Upon Centraal's request, ALTAVISTA
shall promptly certify in writing its compliance with this Section 12.5.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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13. GENERAL.
13.1 INDEMNIFICATION OF CENTRAAL. In addition to the
intellectual property infringement claims provided for under Section 9,
ALTAVISTA shall indemnify and hold Centraal harmless against any liability,
or any litigation cost or expense (including attorneys' fees), arising out of
third party claims against Centraal as a result of ALTAVISTA's use or
distribution of the RealNames Service and Centraal Materials.
13.2 PARTIAL INVALIDITY. If any provision in this Agreement
is found invalid or unenforceable, then the meaning of such provision will be
construed, to the extent feasible, so as to render the provision enforceable,
and if no feasible interpretation would save such provision, it will be
severed from the remainder of this Agreement, which will remain in full force
and effect, and the parties shall negotiate, in good faith, a substitute,
valid and enforceable provision that most nearly effects the parties' intent
in entering into this Agreement.
13.3 INDEPENDENT CONTRACTORS. The parties hereto are
independent contractors. Nothing contained herein will constitute either
party the agent of the other party, or constitute the parties as partners or
joint venturers. ALTAVISTA shall make no representations or warranties on
behalf of Centraal with respect to the Software.
13.4 MODIFICATION. No alteration, amendment, waiver,
cancellation or any other change in any term or condition of this Agreement
will be valid or binding on either party unless the same is mutually agreed
to in writing by both parties.
13.5 WAIVER. The failure of either party to enforce at any
time any of the provisions of this Agreement, or the failure to require at
any time performance by the other party of any of the provisions of this
Agreement, will not be construed to be a waiver of such provisions, or in any
way affect the right of either party to enforce such provision thereafter.
The express waiver by either party of any provision of this Agreement will
not constitute a waiver of any future obligation to comply with such
provision.
13.6 ASSIGNMENT. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that neither party shall assign any of its
rights, obligations, or privileges (by operation of law or otherwise)
hereunder without the prior written consent of the other party.
Notwithstanding the foregoing, either party may assign this Agreement to a
successor in interest (or its equivalent) of all or substantially all of its
relevant assets, whether by sale, merger, or otherwise. In the event that the
ALTAVISTA Product is spun-off as part of a newly formed separate legal
entity, this Agreement shall be promptly and fully assigned to such entity.
Any attempted assignment in violation of this section shall be void.
13.7 NOTICES. Any notice required or permitted to be given by
either party under this Agreement will be in writing and personally delivered
or sent by commercial courier service (e.g., DHL), or by first class airmail
(certified or registered if available), to the other party at its address
below, or such new address as may from time to time be supplied hereunder by
the parties hereto. If mailed, notices will be deemed effective five (5)
working days after deposit, postage prepaid, in the mail:
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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IF TO CENTRAAL:
IF BY COURIER/OVERNIGHT DELIVERY
Centraal Corporation
2 Circle Star Way, 2nd Floor
San Carlos, CA 94070-1350
Attention: J. Michael Arrington, Esq.
General Counsel
IF BY MAIL
Centraal Corporation
P.O. Box 3500
San Carlos, CA 94070-1350
Attention: J. Michael Arrington, Esq.
General Counsel
WITH A REQUIRED COPY TO:
James N. Strawbridge, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto CA 94304
Tel: 650-493-9300
IF TO ALTAVISTA:
ALTAVISTA COMPANY
1825 S. Grant Street, Suite 410
San Mateo; CA; 94402
Tel: (650) 295-2500
Fax: (650) 295-3314
Attention: General Manager
WITH A REQUIRED COPY TO:
ALTAVISTA COMPANY
529 Bryant Street
Palo Alto CA 94301
Attention: Legal Department
13.8 EXPORT REGULATIONS. ALTAVISTA understands and
acknowledges that the Centraal is subject to regulation by agencies of the
United States Government, including, but not limited to, the U.S. Department
of Commerce, which prohibit export or diversion of certain technology to
certain countries. Any obligations of the Centraal to provide services are
subject in all respects to such United States laws and regulations as from
time to time govern the license
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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and delivery of technology and services outside the United States. ALTAVISTA
shall comply with all applicable provisions of U.S. Law, and shall not
export, reexport, transfer, divert or disclose, directly or indirectly,
including via remote access, the Software, any confidential information
contained or embodied in the Software, or any direct product thereof, except
as authorized under the Export Administration Regulations or other United
States laws and regulations governing exports in effect from time to time.
13.9 PAYMENT. Payment must be in U.S. Dollars. All references
to "dollars" or "$" in this Agreement mean United States dollars.
13.10 FORCE MAJEURE. Notwithstanding anything else in this
Agreement, no default, delay or failure to perform on the part of either
party will be considered a breach of this Agreement if such default, delay or
failure to perform is shown to be due to causes beyond reasonable control of
the party charged with a default, including, but not limited to, causes such
as strikes, lockouts or other labor disputes, riots, civil disturbances,
actions or inactions of governmental authorities or suppliers, epidemics,
war, embargoes, severe weather, fire, earthquakes, acts of God or the public
enemy, nuclear disasters, or default of a common carrier. A party seeking to
excuse its performance under this Section 13.10, shall provide notice to the
other party, and shall perform its obligations under this Agreement as soon
as reasonably possible under the circumstances.
13.11 ENTIRE AGREEMENT. The terms and conditions of this
Agreement, including all Exhibits hereto, constitute the entire agreement
between the parties and supersede all previous agreements and understandings,
whether oral or written, between the parties hereto with respect to the
subject matter hereof. Nothing in this Agreement shall be construed to
supersede the terms of any non-disclosure agreement previously entered into
by the Parties.
13.12 LANGUAGE. This Agreement is in the English language
only, which language will be controlling in all respects, and all versions
hereof in any other language will not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this Agreement
must be in the English language. The parties hereto confirm that it is their
wish that this Agreement, as well as other documents relating hereto,
including notices, have been and will be written in the English language only.
13.13 TAXES. All payments by ALTAVISTA must be made free and
clear of, and without reduction for, any withholding taxes. Any such taxes
which are otherwise imposed on payments to Centraal will be the sole
responsibility of ALTAVISTA.
13.14 GOVERNING LAW. The rights and obligations of the parties
under this Agreement will not be governed by the 1980 U.N. Convention on
Contracts for the International Sale of Goods; rather such rights and
obligations shall be governed by and construed under the laws of the State of
California, without reference to its conflict of laws principles.
13.15 APPLICABILITY OF PROVISIONS LIMITING CENTRAAL'S
LIABILITY. The provisions of this Agreement under which the liability of
Centraal is excluded or limited, will not apply to the extent that such
exclusions or limitations arc declared illegal or void under law,
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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unless the illegality or invalidity is cured under such laws by the fact that
the law of the State of California (USA) governs this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
CENTRAAL CORPORATION ALTAVISTA COMPANY
By: /s/Keith Teare By: /s/Greg Memo
---------------------------- -------------------------
Print Name: Keith Teare Print Name: Greg Memo
-------------------- -----------------
Title: CEO Title:
------------------------- ----------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT A
Software and Deliverables
A. CENTRAAL MATERIALS MADE AVAILABLE TO ALTAVISTA:
The following Centraal Materials are to be provided to ALTAVISTA
in a manner and form of Centraal's choosing: (1) Marketing Material, (2)
Resolution Result Page and (3) Software APIs.
The Software API's provided to ALTAVISTA consists of the
following: (1) HTTP APIs for RealNames Resolvers and (2) XML interface
for RealNames Data.
B. ALTAVISTA PRODUCT
The AltaVista Product shall include without limitation the
following, as well as any Updates thereto:
www.altavista.com
www.altavista.de
www.zip2.com
www. shopping.com
C. LOCALIZED CENTRAAL MATERIALS:
All Centraal Materials and RealNames Service shall be provided to
ALTAVISTA in the U.S. English language form unless specified otherwise. In
addition, the following Centraal Materials and RealNames Service shall be
provided by Centraal in a German Localized manner:
Subscriber Agreement, Centraal's privacy policy and additional materials
to be determined in writing by the parties.
Centraal shall notify ALTAVISTA in writing when Localization in
additional languages becomes available. The parties can agree in writing to
update this Exhibit A with such additional Localized languages.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT B
Fees
A. COMPENSATION FOR SUBSCRIPTIONS.
ALTAVISTA's sole compensation under the terms of this Agreement for
solicitation of RealNames Subscribers shall be in accordance with this
Section A. During the term of this Agreement, ALTAVISTA shall receive a
commission which equals [*] of the initial Annual Net Subscription Fees [*]
actually received by Centraal for each paid subscription for a RealNames
Address generated through the co-branded registration pages on the Integrated
Product as provided for under the Agreement("ALTAVISTA Subscription
Commission").
By way of example, Customer X pays a $100 subscription fee, which
there is a tax owing of $10 which has not been paid by Customer X, and which
Centraal must pay a third party provider of RealNames support services [*]
for Customer X. The payment owing to ALTAVISTA for ALTAVISTA Subscription
Commission of Customer X would be [*] of [*] ($100 less $10 (tax) and less
([*] third party payment)), or [*].
The ALTAVISTA Subscription Commission on a given order will be due and
payable once per quarter. Centraal shall submit to ALTAVISTA at
avreport@altavista.com quarterly statements of the commission or annuities
due and payable to ALTAVISTA under the terms of this Section A of EXHIBIT B
within 30 days of the end of each such quarter, and such report shall be
accompanied with payment for such amounts owing in U.S. Dollars.
B. COMPENSATION FOR REALNAMES RESOLUTION.
During the term of this Agreement, ALTAVISTA's sole compensation for
the provision of RealNames Resolution services shall be in accordance with
this Section B. During the term of this Agreement, ALTAVISTA shall receive a
commission which equals [*] of Net RealNames Resolution Fees generated
through an Integrated Product ("ALTAVISTA Resolution Commission). ALTAVISTA
acknowledges and accepts that as of the Effective Date of this Agreement only
a limited number of RealNames Subscribers have agreed to compensate Centraal
on a RealNames Resolution basis.
By way of example, assume that Customer Y pays on a per RealNames
Resolution basis and generates $1000 dollars worth of Real Names Resolutions
during the relevant quarter. Assume also, that 50% of such RealNames
Resolutions took place on an Integrated Product. Further assume that there is
a tax of $100 owing, and Centraal must pay a third party provider of
RealNames support services [*] for Customer Y. The payment owing to ALTAVISTA
for ALTAVISTA Resolution Commission of Customer Y would be [*] of [*] ($500
(50% of the $1000 resolution income) less $100 (tax) and less [*] (third
party payment)), or [*].
The ALTAVISTA Resolution Commission on a given order will be due and
payable once per quarter. Centraal shall submit to ALTAVISTA at
avreport@altavista.com quarterly statements of the commission or annuities
due and payable to ALTAVISTA under the terms of
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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this Section B of EXHIBIT B within 30 days of the end of each such quarter,
and such report shall be accompanied with payment for such amounts owing in
U.S. Dollars.
C. COMPENSATION FROM CO-BRANDED PAGES.
During the term of this Agreement, Centraal's sole compensation for
creation and display of the Co-Branded Pages contemplated under Section 4 of
the Agreement shall be in accordance with this Section C. During the term of
this Agreement, Centraal shall receive a commission which equals [*] of the
Net Paid Advertising Fees (including but not limited to Banner Ads) generated
from such Co-Branded Pages ("Centraal Banner Commission).
By way of example, assume that COMPANY Z accrues a bill of $1000 for
banner advertising during the relevant quarter. Further assume that ALTAVISTA
grants a $100 dollar discount off the bill due to service interruption. The
payment owing to Centraal for Centraal Banner Commission of COMPANY Z would
be [*] of $ 900 ($1000 less $100 refund), or [*].
The Centraal Banner Commission on a given order will be due and
payable once per quarter. ALTAVISTA shall submit to Centraal quarterly
statements of the commission or annuities due and payable to Centraal under
the terms of this Section C of EXHIBIT B within 30 days of the end of each
such quarter, and such report shall be accompanied with payment for such
amounts owing in U.S. Dollars.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT C
TRAINING, SUPPORT AND MAINTENANCE
SUPPORT
During the term of this Agreement, Centraal shall provide a reasonable
amount of telephone, e-mail, or fax back technical support, during Centraal's
normal business hours, to ALTAVISTA's technical staff regarding the operation
and integration of the RealNames Service. ALTAVISTA shall designate one
technical support contact on ALTAVISTA's staff, and Centraal will not be
obligated to provide technical support except pursuant to the request of such
contact; provided, however, that upon written notice to Centraal, ALTAVISTA
may replace such designee. All support will be provided in the U.S. English
language.
MAINTENANCE
During the term of this Agreement, Centraal shall provide all Updates
that are generally released without additional cost to Centraal's other
customers, to ALTAVISTA without such additional cost. Support for previous
Updates Will end six (6) months after the release of the next update. All
maintenance releases will be provided in the U.S. English language.
ORDER ADMINISTRATION
During the term of this Agreement, Centraal or its designee shall be
responsible for the administration of orders for RealNames Subscriptions and
renewals thereof, including billings and collections.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT D
ASSIGNMENT OF COPYRIGHT
For good and valuable consideration, the receipt of which is hereby
acknowledged, ALTAVISTA located at ________________ (hereinafter referred to as
"ASSIGNOR"), hereby grants and assigns to Centraal Corporation ("Centraal"), 2
Circle Star Way, 2nd Floor San Carlos, CA 94070-1350 all right, title and
interest whatsoever, throughout the world, in and under the following
materials:_____________________________________, to have and to hold the same,
unto Centraal, its successors and assigns, for the full duration of all such
rights, and any renewals and extensions thereof.
This assignment is made pursuant to, and is subject to all of the terms
of the Software Localization and Provider Agreement between ASSIGNOR and
Centraal dated April ,1999.
IN WITNESS THEREOF, I have hereunto set hand and seal this ________
day of______________________________, ______.
(Signature)
NAME:
----------------------
TITLE:
----------------------
NAME OF ASSIGNOR:
----------------------
State of )
)S.S.
County of )
Before me this__________ day of __________________________ ,19
________ personally appeared: ___________________________________ to me known
to be the person who is described in and who executed the foregoing
assignment instrument and acknowledged to me that he/she executed the same of
his/her own free will for the purpose therein expressed.
Notary Public or Consular
Officer of the United State of America
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT E
SUBSCRIBER AGREEMENT
CENTRAAL CORPORATION REALNAMES SUBSCRIPTION AGREEMENT
A. INTRODUCTION.
This RealNames Subscription Agreement ("Agreement") is submitted to CENTRAAL
CORPORATION ("CENTRAAL") for the purpose of subscribing to CENTRAAL's
RealNames Service (SM) on the Internet through CENTRAAL's subscription system
also known as the RealNames System (SM). If this Agreement is accepted by
CENTRAAL, and a RealNames (SM) address is allocated in CENTRAAL's Web address
system to the Subscriber ("Subscriber"), Subscriber agrees to be bound by the
terms of this Agreement.
B. FEES AND PAYMENTS.
Subscriber agrees to pay a NON-REFUNDABLE fee of ____________(US$_____) per
year in consideration of each subscribed RealNames address. The payment may
be made payable either directly to "CENTRAAL Corporation," or indirectly to
CENTRAAL through a certified reseller.
This NON-REFUNDABLE fee covers a period of one (1) year for each new
subscription or reservation of a RealNames address. This NON-REFUNDABLE fee
includes any permitted modification(s) to the RealNames address record during
the subscription or reservation. It also covers up to ten thousand (10,000)
uses of the RealNames address per calendar month; CENTRAAL reserves the right
to stop processing uses of the RealNames address after ten thousand (10,000)
uses in a calendar month. Subscribers will be notified by CENTRAAL when a
RealNames address usage exceeds ten thousand (10,000) uses per calendar
month. Subscribers of a RealNames address which usage exceeds ten thousand
(10,000) uses per calendar month will be subject to additional usage fees, at
a rate to be agreed upon by CENTRAAL and Subscriber in advance of such
charges. In the event that CENTRAAL and Subscriber cannot agree on such fees,
Subscriber understands and agrees that CENTRAAL may terminate this Agreement
without liability, including Subscriber's use of any RealNames address.
All payments will be due within thirty (30) days from the date of invoice.
Subscriber understands and agrees that CENTRAAL may cancel Subscriber's
subscription or reservation in the event that any payment is not made when
due.
On the date of expiration, RealNames address subscriptions will be
automatically renewed for the period of one year, unless the Subscriber
notifies CENTRAAL in writing of its intention not to renew the RealNames
subscription. Notification to cancel automatic renewals must be communicated
to CENTRAAL by fax (1-650-858-0454) or email (sales@centraal.com) at least
ten days prior to the RealNames subscription expiration date. Automatic
renewals will be billed at CENTRAAL's then-current annual subscription price.
C. ALLOCATION OF REALNAMES ADDRESSES BY CENTRAAL.
Subscriber agrees that allocation of RealNames addresses by CENTRAAL is
subject to CENTRAAL's discretion. CENTRAAL may at any time, with notice to
Subscriber that is reasonable in the circumstances (including immediate
notice when that is appropriate) reallocate a RealNames address previously or
currently used by Subscriber. Any notice provided to Subscriber will be at
the last address furnished by Subscriber to CENTRAAL. Subscriber understands
that all systems of address with respect to the Internet are subject to
varied and occasionally inconsistent principles, jurisdictions, and claims of
right. Subscriber understands and agrees that CENTRAAL requires absolute
discretion over, the allocation of RealNames addresses in light of the
uncertain and often conflicting principles that are at work in the current
state of the Internet. Subscriber understands and agrees that, because of
CENTRAAL's discretion, CENTRAAL has the absolute right to allocate RealNames
addresses, withdraw them, and reallocate them according to its own judgment
as to what constitutes an optimal service and system. Subscriber further
recognizes that CENTRAAL, with a view to optimizing its RealNames Service and
RealNames Services, may apply standards of decision regarding allocation,
reallocation, or withdrawal of RealNames addresses that evolve or change over
time. If CENTRAAL does
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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not approve any RealNames address requested by Subscriber, or withdraws
approval of, a RealNames address, CENTRAAL will attempt to provide an
alternative RealNames address that is acceptable to both CENTRAAL and
Subscriber. Subscriber accords to CENTRAAL the right to make decisions that
it deems best in each context.
Subscriber understands that CENTRAAL has no dispute resolution, system.
Subscriber also agrees that all goodwill in any RealNames address as an
address in the RealNames Service, and all property rights in any RealNames
address as an address in the RealNames Service, belong exclusively to
CENTRAAL. Subscriber's use of the RealNames Service confers no property,
business, or competition rights upon Subscriber.
D. DISPUTES.
In the event that Subscriber's subscription, reservation, RealNames address,
or any other aspect of the RealNames Services, or any conduct by the
Subscriber results in any challenge, claim, demand, or action to or against
CENTRAAL, Subscriber agrees that CENTRAAL shall have the right to decide in
its sole discretion what actions to take, including without limitation
whether to continue to provide Subscriber's subscription, reservation,
RealNames address, reservation or any other aspect of the RealNames Services
affected by such claim. Subscriber understands and agrees that it has no
vested interest or right in any procedures or rules of dispute resolution.
E. INDEMNITY.
Subscriber agrees to defend and indemnify CENTRAAL, as well as CENTRAAL's
officers, employees, agents, resellers and representatives, against claims,
demands, damages, costs, and liabilities arising from Subscriber's use,
reference to, or advertising of a RealNames address; from the allocation by
CENTRAAL of a RealNames address to Subscriber; and from the Subscriber's
subscription, reservation or use of the RealNames Services or RealNames
Service. Subscriber agrees that the financial obligation of Subscriber to
CENTRAAL pursuant to this indemnity may be incorporated in CENTRAAL's
invoices for services and are due when the invoices are due.
F. BREACH.
Subscriber understands and agrees that its failure to abide by any provision
of this Agreement may be considered by CENTRAL to be a basis for cancellation
of the subscription or reservation, withdrawal of the assigned RealNames
address, and/or cancellation of the subscription or reservation.
G. AGENTS.
Subscriber agrees that if this Agreement is completed by an agent for the
Subscriber, such as an ISP or Administrative Contact/Agent, the Subscriber is
nonetheless bound as a principal by all terms and conditions herein.
H. USAGE STATISTICS.
Subscriber understands and agrees that CENTRAAL has the right to compile
usage statistics and other data regarding use of CENTRAAL's RealNames
Services and to sell and provide any and all such data to third parties.
I. LIMITATION OF LIABILITY.
Subscriber agrees that CENTRAAL, its officers, employees, agents, resellers
and representatives shall have no liability to the Subscriber for any loss
Subscriber may incur in connection with CENTRAAL's processing of this
Agreement, in connection with CENTRAAL's processing of any authorized
modification to the RealNames Service (including without limitation the
RealNames address) during the covered period, as a result of the Subscriber's
ISP's failure to pay either the initial subscription or reservation fee or
renewal fee. Subscriber agrees that in no event shall the maximum liability
of CENTRAAL, officers, employees, agents, resellers and representatives under
this Agreement for any matter exceed and aggregate of five hundred United
States dollars (US $500).
J. NO GUARANTY.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Subscriber agrees that, by subscription or reservation of a RealNames
address, such subscription or reservation does not confer immunity from
objection to either the subscription, reservation or use of the RealNames
address. CENTRAAL DOES NOT WARRANT THAT THE OPERATION OF THE REALNAMES
SERVICE AND/OR ANY REALNAMES ADDRESS WILL BE WITHOUT INTERRUPTION OR ERROR
FREE. CENTRAAL DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT WILL CENTRAL BE LIABLE TO SUBSCRIBER OR ANY
OTHER THIRD PARTY FOR ANY FAILURE, DISRUPTION, DOWNTIME, INCORRECT LINKAGE OR
OTHER NON-PERFORMANCE OF THE REALNAMES SERVICE.
K. RIGHT OF REFUSAL.
CENTRAAL, in its sole discretion, reserves the right to refuse to enter into
an agreement for any Subscriber. Subscriber agrees that the submission of
this Agreement does not obligate CENTRAAL to accept this Agreement.
Subscriber agrees that CENTRAAL shall not be liable for loss or damages that
may result from CENTRAAL's refusal to accept this Agreement.
L. ENTIRETY.
Subscriber agrees that this Agreement comprises the complete and exclusive
agreement between Subscriber and CENTRAAL regarding the subscription or
reservation of Subscriber's RealNames address. This Agreement supersedes all
prior agreements and understandings.
M. GOVERNING LAW.
Subscriber agrees that this Agreement shall be governed in all respects by
and construed in accordance with the laws of the State of California, United
States of America, without regard to conflicts-of-law principles, applicable
to contracts formed in California for services rendered in California. By
submitting this Agreement, Subscriber consents to the exclusive and personal
jurisdiction and venue of the federal and state courts located in the
Northern District of California. This Agreement shall be deemed accepted at
the offices of CENTRAAL in Palo Alto, California, U.S.A.
CENTRAAL CORPORATION REALNAMES SUBSCRIPTION AGREEMENT (0.3)
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT F-1
CENTRAAL TRADEMARKS
[Insert Logo Here]
REALNAMES STANDARDIZED LOGO
Font: OCRB
[Insert Logo Here]
REALNAMES ENABLED LOGO
Font: OCRB
-C-1998 REALNAMES (sm) is a service mark of centraal corporation
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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EXHIBIT F-2
ALTAVISTA Trademarks
--------------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
Confidential Page 26 5/18/99
<PAGE>
May 27, 1999
BY HAND DELIVERY, REGISTERED MAIL, AND FAX
Fax: 650-298-8085
CENTRAAL CORPORATION
Two, Circle Star Way, 2nd Floor
P.O. Box 3500
San Carlos, CA 94070-1350
Re: Internet Services Agreement, dated April 2, 1998, between
Digital Equipment Corp. (a wholly-owned SUBSIDIARY OF
COMPAQ) AND CENTRAAL CORPORATION
Gentlemen:
Compaq Computer Corporation ("Compaq") has entered into a Contribution
and Subscription Agreement with the AltaVista Company, a Delaware corporation
and a wholly-owned subsidiary of Compaq ("AltaVista"), dated as of June 1,
1999, pursuant to which Compaq will contribute certain of its assets into
AltaVista and AltaVista will assume certain liabilities of Compaq. In
connection with such contribution, Compaq desires to assign to AltaVista all
of its rights and obligations under the Internet Services Agreement, dated
April 2, 1998, by and between Digital Equipment Corp. (a wholly-owned
subsidiary of Compaq) and Centraal Corporation (the "Agreement").
Please indicate your consent to Compaq's assignment to AltaVista of
its rights and obligations pursuant to the Agreement by signing the attached
copy of this letter and returning it to the undersigned. In the future,
please direct any notices related to the Agreement to AltaVista Company, VP &
General Manager, 1825 S. Grant Street, Suite 410, San Mateo, California
94402.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Very truly yours,
COMPAQ COMPUTER CORPORATION
By: /S/ Kurt Losert
Name: Kurt Losert
Title: Vice President
Consented to and confirmed as aforesaid:
CENTRAAL CORPORATION
By: /s/ Michael Arrington
Name: Michael Arrington
Title: General Counsel
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
2