License & Marketing Agreement - Microsoft Corp. and Centraal Corp.
LICENSE & MARKETING AGREEMENT
This LICENSE & MARKETING AGREEMENT (the "Agreement") is entered into and
effective as of June 2, 1999 (the "Effective Date") by and between MICROSOFT
CORPORATION, a Washington corporation located at One Microsoft Way, Redmond,
Washington 98052 and CENTRAAL CORPORATION, a Delaware corporation located at
Two Circle Star Way, San Carlos, California 94070, each a "Party" and
collectively, the "Parties".
RECITALS
WHEREAS, Centraal (i) is the developer and operator of an Internet
service known as the "REALNAMES SERVICE" (defined below), (ii) maintains
associated databases of such relationships which include, without limitation,
directories of the registered words and phrases (each a "REALNAME"), if
appropriate, the URL of the unique Web page associated with each RealName and
related content and/or commentary. Each and every RealName is assigned to the
unique registered user either (i) with a subscription paid by the registrant
to Centraal, whether such subscription is paid as a fixed annual subscription
fee, as a "per resolution" royalty, or as any other form of payment (such a
RealName being referred to herein as a "SUBSCRIBED REALNAME") or (ii) under
certain circumstances, without any compensation paid to Centraal. The
RealNames Service also includes RealNames Extensions (as defined below).
WHEREAS, Microsoft desires to obtain from Centraal the below specified
grant of certain license rights to the Namespace (as defined below) database
solely as necessary to provide the RealNames Service on the Authorized
Microsoft Products (as defined below), as it is updated and enhanced
throughout the term of this Agreement, and Centraal is willing to grant such
rights to Microsoft, on the terms and conditions set forth herein.
NOW THEREFORE, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
1.1 "AFFILIATES" means, with respect to a party, a person or entity
(i) which directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such party, or (ii)
which beneficially owns or holds 20% or more of any class of the voting stock
of such party or (iii) 20% or more of the voting stock (or in the case of a
person or entity which is not a corporation, 20% or more of the equity
interest) of which is beneficially owned or held by such party. The term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a person or
entity, whether through the ownership of voting securities, by contract or
otherwise.
1.2 "AUTHORIZED MICROSOFT PRODUCTS" shall mean MSN Search and the
AutoSearch feature of Microsoft Internet Explorer, as they may exist and/or
evolve from time to time throughout the Term, and such other Microsoft owned
or controlled online properties as the Parties may hereafter agree upon in
writing. For the purposes hereof, "MSN Search" and "AutoSearch" shall mean the
Web-based search engines currently available at http://search.msn.com and
http://auto.search.msn.com, respectively, wherever and however such search
engines may be accessed in whole or in part (including without limitation
through Web sites other than those specifically referenced in this sentence).
1.3 "COMMAND LINE" shall mean the address line of Microsoft's
Internet Explorer v5 (and all future versions thereof) ("IE5"), where a user
may currently enter a unique URL and via AutoSearch be directed directly to
the World Wide Web site associated with such unique URL.
1.4 "DOCUMENTATION" shall mean the materials listed in EXHIBIT A
hereto and any updates thereto provided by Centraal.
[*] 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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1.5 "MICROSOFT" shall mean Microsoft Corporation and any and all
Affiliates of Microsoft.
1.6 "NAMESPACE" shall collectively refer to any and all RealNames
and certain information associated with each of the RealNames such as whether
the RealNames are subscribed or not, the description of the Web Site or Web
page associated with the RealNames, the prefix and rules associated with
RealNames Extensions (if applicable). Without limiting the generality of the
foregoing, the following fields will be included in the Namespace: (1)
Subscribed RealNames sold under various pricing models; (2) other
unsubscribed RealNames incorporated into the database through editorial work
designed to offer a comprehensive Namespace to users; (3) a description of
the Web site or Web page associated with each subscribed and unsubscribed
RealName; (4) the prefix and rules associated with RealNames Extensions; (5)
the MSN ID; (6) subscription status; (7) type of subscription (e.g., free,
flat fee or price-per-resolution ("PPR")); and (8) language.
1.7 "REALNAMES EXTENSION" shall mean a Centraal approved RealName
prefix followed by a rules-based dynamic syntax query to be applied at the
host (subscriber) Web site. The Centraal resolvers will recognize the format
of a RealNames Extension from a user's query, transform the RealNames
Extension into an appropriate query for the host Web site for the RealName
Extension subscriber, and, following such host Web site query, redirect the
World Wide Web user directly to the third party URL appropriate to such
RealNames Extension. By way of example "SEC [Ticker]" would be a RealNames
Extension with SEC serving as the RealName prefix and [Ticker] serving as the
dynamic syntax query that would be processed by the server located at the URL
associated with the SEC RealName. RealNames Extensions may either be with or
without compensation to Centraal. Fees, if charged, may be on a PPR basis (a
"PPR-based RealNames Extension"), on an annual subscription fee basis, or by
another method.
1.8 "REALNAMES RESULT" shall mean the appearance of a particular
RealName as a result of a search query on an Authorized Microsoft Product (or
Command Line query on IE5). A RealNames Result will be a precise match to the
search or Command Line query (a "PRECISE MATCH") or, in the event that there
is no Precise Match, a match or matches which are close to such search or
Command Line query (a "CLOSE MATCH").
1.9 "REALNAMES SERVICE" means Centraal's proprietary Internet
addressing and search service whereby Centraal (i) assigns a particular word
or phrase, in any language, to a unique Web page to assist in and allow Web
navigation to such page using such word or phrase, and (ii) reviews,
approves, and includes such approved word or phrase in the name of the owner
of such Web site in the Namespace, and (iii) resolves a RealName such that an
Internet user's browser is directed to the unique Web page associated with
such RealName.
1.10 "RESOLUTION" shall mean the process by which a search query or
Command Line query that generates a RealNames Result may be used by a user of
an Authorized Microsoft Product to direct such user to the URL associated
with the RealName. A Resolution also occurs when a user inputs a Precise
Match Command Line query and the user is directed to the URL associated with
such RealName. The mere display of a RealNames Result shall not constitute a
Resolution unless the user is directed to the URL associated with the RealName.
1.11 "TERM" shall mean the term of this Agreement, which shall
commence on the Effective Date and continue thereafter for two years, subject
to earlier termination pursuant to Section 11. Following the initial Term,
this Agreement may be renewed for successive one year Terms upon the written
consent of both Parties at least 90 days prior to the end of the then-current
Term.
1.12 "URL" means a unique uniform resource locator address for a
World Wide Web Site, e.g., www.msn.com and www.msn.com/news and
www.carpoint.msn.com are each a URL.
All other capitalized terms shall have the meanings herein assigned to them
herein.
2. USE OF THE NAMESPACE AND SOFTWARE.
[*] 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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2.1 DELIVERY. On the first business day after the Effective Date,
Centraal agrees to deliver to Microsoft (i) one (1) copy of the Namespace,
current as of the Effective Date, in the manner set forth in EXHIBIT A (which
is attached hereto and incorporated herein by this reference) (ii) one copy
of the software described on EXHIBIT A ("SOFTWARE") in object code form; and
(iii) one copy of the Documentation. Each day thereafter, throughout the term
of this Agreement, Centraal will deliver to Microsoft a version of the
Namespace current through the immediately preceding day, in the manner set
forth in EXHIBIT A. Notwithstanding anything to the contrary contained in
this Agreement, Centraal will use reasonable commercial efforts to provide to
Microsoft the Namespace such that it will be possible for Microsoft to
compare search queries and command queries against the then-current Namespace
so as to redirect such queries to Centraal's resolvers.
2.2 DISPLAY OF REALNAMES RESULTS IN SEARCH RESULTS. Microsoft, at
its own expense (except for Centraal's reasonable technical assistance which
shall be provided at Centraal's reasonable expense) may, but is not obligated
to, integrate the RealNames Service with the Authorized Microsoft Products,
such that the Authorized Microsoft Products will access and use the Namespace
to provide and display RealNames Results, in connection with end user
searches and Command Line queries undertaken through the Authorized Microsoft
Products as follows: (a) the Authorized Microsoft Products may include an
input mechanism to prompt the user for a key word or search term; (b)
Microsoft may, but is not obligated to, cause the Authorized Microsoft
Products to determine which key words are appropriate for RealNames
Resolutions based upon the Namespace provided to Microsoft hereunder; (c) to
the extent that Microsoft integrates the RealNames Services, Microsoft shall
cause its computer servers processing such determination to communicate such
key words to the computer servers of Centraal, at an address and according to
specifications reasonably required by Centraal; (d) Centraal, upon receipt of
such key word, will cause its computer servers to perform RealNames
Resolutions, and will communicate to the applicable Authorized Microsoft
Product a list of the RealNames Results that correspond with such key word or
search term and corresponding URLs. Nothing contained in this Agreement will
be deemed to obligate Microsoft to display or use any RealName or the
RealNames Service or to process or present a search string in any particular
manner, except that Microsoft agrees, that if it causes any RealName to be
displayed in any search result using the RealNames Service, then such
RealName will appear with an "RN" superscript. The Parties agree to use good
faith efforts to provide for the reporting of tracking of impressions of
RealNames on the Authorized Microsoft Products, and the provision of such
data to Centraal under mutually acceptable terms. Subject to Section 7, to
the degree that Microsoft elects to integrate the RealNames Service with the
Authorized Microsoft Products, Microsoft will endeavor to implement the
RealNames Service on MSN Search by September 1, 1999 and on AutoSearch by
August 1, 1999.
2.3 PROVISION OF REALNAMES RESOLUTIONS. In the event a user of an
Authorized Microsoft Product clicks on a RealNames Result, as displayed in
Section 2.2 above, or if such user has entered a query that is a Precise
Match on the Command Line and is to be sent to the unique URL associated with
the applicable RealName, Microsoft will direct a query which includes the
RealName associated with such RealNames Result to Centraal's resolvers in a
manner more fully described in EXHIBIT B (or as otherwise agreed in writing
by the parties), and the user of the Authorized Microsoft Product will be
directed to the unique URL associated with such RealName.
2.4 LICENSE. In furtherance of the foregoing, and subject to the
limitations expressly set forth herein, Centraal grants to Microsoft and its
Affiliates (i) a non-exclusive, non transferable license (without the right
to sub-license except as provided below) to access, display and transmit
portions of the Namespace data (as updated periodically as set forth
herein), solely as necessary to provide the RealNames Service on the
Authorized Microsoft Products in accordance with this Agreement; (ii) a
non-exclusive, non-transferable license (without the right to sub-license
except as provided below) to use, display or perform the Software, in object
code or binary code form only, only as part of providing the RealNames
Service on the Authorized Microsoft Products; (iii) a non-exclusive,
non-transferable license (without the right to sub-license except as provided
below) to use the Software solely to provide technical support for the
RealNames Service on the Authorized Microsoft Products; (iv) a non-exclusive,
non-transferable license (without the right to sub-license except as provided
below) to use and reproduce the Software, in object code or binary code form
only, solely for Microsoft's own internal business purposes in providing the
RealNames Service on the Authorized Microsoft Products and solely as
necessary to exercise the rights granted in this Section 2; (v) a
non-exclusive, non-transferable license (without the right to sub-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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except as provided below) to use and reproduce the
Documentation, solely for Microsoft's own internal business purposes in
providing the RealNames Service on the Authorized Microsoft Products and
solely as necessary to exercise the rights granted in this Section 2; and
(vi) a non-exclusive, non-transferable license (without the right to
sub-license except as provided below) to use, reproduce, transmit, and
distribute those portions of the Documentation applicable to the promotion
and marketing of RealNames and the RealNames Service, solely in connection
with Microsoft's promotion and marketing activities contemplated hereunder.
Microsoft may sublicense the foregoing rights in connection with the
distribution of the MSN portal or other services, products, or technologies
that incorporate the Authorized Microsoft Products provided (i) any
sublicenses shall be under terms and restrictions at least as protective of
Centraal's interests as those set forth herein and (ii) Microsoft shall not
be entitled to sublicense its rights to use Namespace database.
2.5 OWNERSHIP IN CENTRAAL MATERIALS. As between Centraal and
Microsoft, Centraal will retain all right, title, and interest in the
Namespace, the Software, the Documentation, other Confidential Information
(as defined in Section 9 below) disclosed by Centraal (collectively,
"CENTRAAL MATERIALS") and all intellectual property rights therein. Microsoft
will not, and will not authorize any third party to translate, disable,
decompile, disassemble, reverse compile, reverse engineer, or decode the
Software or in any other manner reduce the Software to human perceivable
form, except and only to the extent that such activity is expressly permitted
by applicable law notwithstanding this limitation. Microsoft will not, and
will not authorize any third party to (i) create derivative works of, or
alter or ha any way modify the Centraal Materials without the prior written
consent of Centraal, or (ii) use any proprietary Centraal Materials or other
proprietary Namespace data to construct, reverse engineer or assemble any
database or Internet addressing tool, including without limitation, a URL
database, except and only to the extent that such activity is expressly
permitted by applicable law notwithstanding this limitation. Microsoft shall
not export the Namespace outside of the United States without Centraal's
prior written permission, which permission shall not unreasonably be withheld
or delayed, provided that the foregoing shall not be deemed to restrict or
prohibit the ability of Microsoft to allow end users outside the United
States to access or use the Namespace or the RealNames Service via Authorized
Microsoft products. Centraal hereby reserves all rights not expressly granted
to Microsoft in this Agreement. On each copy of the Centraal Materials
reproduced or displayed, Microsoft shall reproduce all copyright or other
proprietary notices contained on Centraal Materials. Microsoft will not
remove, modify, or obscure any copyright or other proprietary notices on the
Centraal Materials.
2.6 MICROSOFT REALNAMES RESOLVED VIA AUTHORIZED MICROSOFT PRODUCTS.
Notwithstanding anything to the contrary contained in this Agreement or any
other agreement between Microsoft and Centraal, during the term of this
Agreement, Microsoft shall not be obligated to pay Centraal any compensation
whatsoever (including without limitation PPR subscription royalties) in
connection with any Resolution of any RealName subscribed by Microsoft, if
such Resolution is generated through a search request submitted through an
Authorized Microsoft Product.
3. MAINTENANCE AND GROWTH OF NAMESPACE. Centraal agrees to use all
commercially reasonable efforts to expand, distribute, and manage and
maintain the Namespace and the RealNames Service. Without limiting the
generality of the foregoing, Centraal will use its commercially reasonable
efforts to: (a) market and distribute the RealNames Service internationally
through a wide variety of sales channels; (b) administer all RealNames
subscriptions (and disputes relating thereto), and assign all RealNames in
compliance with all applicable laws; (c) extend its intellectual property
databases from other database sources (for example, Thomson & Thomson), as
appropriate; (d) maintain at the state-of-the-art level its software and
database tools; (e) expand its language services to localize adjudication
processes; and (f) expand its resolution-based revenue model with major
marketer accounts.
4. TECHNICAL SUPPORT. Throughout the term of this Agreement, Centraal
shall provide, at its expense, reasonable technical and other assistance as
requested by Microsoft to assist Microsoft to use the Namespace in accordance
with this Agreement. Such assistance shall include without limitation a
"walkthrough" of the data schema of the Namespace at Centraal's offices
within thirty (30) clays after the Effective Date. Without limiting the
generality of the foregoing, Centraal will provide reasonable advance warning
of material changes to the Namespace schema and such reasonable technical
support and 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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reasonable assistance necessary to understand those changes such that
Microsoft can continue to receive and use the Namespace throughout the term
of this Agreement and in accordance with the terms and conditions of this
Agreement. Throughout the term of this Agreement Centraal shall respond to
and use commercially reasonable efforts to promptly correct any material
errors in the Centraal Materials.
5. CROSS-MARKETING AND PROMOTION OBLIGATIONS.
5.1 PROMOTION OF THE REALNAMES SERVICE BY MICROSOFT. Throughout
the term of this Agreement, Microsoft will include, or cause to be included,
promotional links to Centraal's Web site for the RealNames Service (presently
located at www.realnames.com) (the "RealNames Site") in various online and
offline Microsoft products (including, by way of example only, MSN and
channels therein (such as the Small Business Channel), Sidewalk, Hotmail and
LinkExchange) in a manner that Microsoft may determine in its sole
discretion. Notwithstanding the above, at a minimum, Microsoft will cause
LinkExchange to promote the RealNames Service as follows:
5.1.1 Pursuant to the terms and conditions of Section 5.2 below,
LinkExchange will include RealNames subscriptions in its Registration
services so that LinkExchange customers looking up, reserving and/or
registering and purchasing domain names will also have the opportunity
to purchase RealNames subscriptions. Specifically, LinkExchange will
promote the registration services with (a) persistent text links on the
LinkExchange front page and all LinkExchange product account control
pages, (b) LinkExchange site and network banner advertising totaling at
least [*] impressions/month, (c) inserts in e-mail to LinkExchange
customers totaling at least [*] million impressions/month. At least [*]
of all LinkExchange registration services promotion will include
promotional reference to the RealNames Service;
5.1.2 LinkExchange will include text links to RealNames
subscriptions from the LinkExchange Premium product promotional, sign-up
and purchase pages and/or confirmations;
5.1.3 LinkExchange will include a promotional reference to the
RealNames Service in promotional email communications LinkExchange sends
to substantial portions of its subscriber base once every six months,
and in "welcome" email messages it sends to new owners of its Catapult
product who are not subscribers to the RealNames Service;
5.1.4 LinkExchange will participate in an introductory trial
promotion involving 60 free days of a subscription to the RealNames
Service (subject to its approval of the details of such promotion, and
subject to the participation of other third parties in such promotional
offer); and
5.1.5 Notwithstanding anything contained in this Section 5.1 to
the contrary, in no event shall LinkExchange be obligated to include any
promotion of the RealNames Service in any Web sites having start pages
co-branded with any third party, or in any LinkExchange products or
services licensed to or distributed by third parties.
Centraal will be solely responsible for creating any and all promotional
materials used by Microsoft pursuant to this Section 5.1, provided that all
aspects (including but not limited to the form, content and technical format
thereof) of any and all such materials displayed or distributed by Microsoft
shall be subject to Microsoft's prior approval, which shall not be unreasonably
withheld.
5.2 REALNAMES SUBSCRIPTIONS. Attached as EXHIBIT C hereto is a copy
of Centraal's current Subscription Agreement and registration subscription
form. Centraal may alter, at will, and from time to time, the Subscription
Agreement, prices, availability schedules, and other terms and conditions for
the subscription and maintenance of RealNames upon written notice to
Microsoft. Each order for the subscription of a RealName will be subject to
and governed by the prices, Subscription Agreement, availability, schedules,
and other terms and conditions in effect at the time the order is accepted by
Centraal. Orders for RealNames subscriptions referred by Microsoft may take
place through a co-branded HTML registration page(s) on a Microsoft World
Wide Web site that is linked to Centraal's subscription service World Wide
Web site via an XML application programming interface (API). All completed
orders for RealNames subscriptions will be processed by Centraal or its
designee, and Centraal or its designee will perform the subscription
registration, collect the fees for the subscription, and send via electronic
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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Centraal's then-current acknowledgements, or other materials, to the
RealNames subscriber. All orders solicited through such Web site are subject
to acceptance by Centraal. Microsoft will 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.
5.3 PROMOTION OF PPR REALNAMES AND PPR-BASED REALNAMES EXTENSION
RESOLUTIONS BY MICROSOFT PERSONNEL.
5.3.1 PROMOTION. Microsoft may, but is not obligated to,
directly promote the sales of PPR RealNames and PPR-based RealNames Extension
Resolutions and may refer sales leads for the same to Centraal. To assist
Microsoft's promotional efforts, Centraal will supply Microsoft with its
standard sales materials in connection with Microsoft's sales efforts
pursuant to this Section 5.3, and Centraal will use reasonable efforts to
complete agreements with Microsoft Referrals subject to Centraal's standard
sales terms and conditions. "MICROSOFT REFERRALS" means those persons or
entities (i) actually contacted by Microsoft for the purpose of soliciting
RealNames subscriptions, (ii) which do not appear on the PPR List (as defined
below), (iii) which are not currently (i.e., as of the date that Microsoft
provides the Microsoft Referral to Centraal) being processed by Centraal or
its designee for RealNames subscriptions or otherwise have a RealName
existing in the Namespace, and (iv) which subsequently sign a Centraal
agreement providing for PPR RealNames or PPR-based RealNames Extension
Resolutions. In the event of a dispute between the parties as to whether a
customer qualifies as a Microsoft Referral the parties shall meet and make
good faith efforts to determine whether such entity qualifies as a Microsoft
Referral. An entity shall be considered a Microsoft Referral with respect to
any additional RealNames acquired by such customer within ninety (90) days
after the actual referral date.
5.3.2 RESTRICTIONS. Each order for the subscription of a
RealNames referred by Microsoft shall be subject to and governed by the
Centraal's then current Subscription Agreement, availability, schedules, and
other terms and conditions in effect at the time the order is accepted by
Centraal. In no event will Microsoft make any representations, guarantees or
warranties concerning the RealNames Service except as expressly authorized by
Centraal in writing. Centraal reserves the right to directly or indirectly
solicit the subscription of RealNames and RealNames Service. In the event
that Centraal provides a list of its PPR, its PPR RealNames and/or PPR based
RealNames Extension Subscribers (the "PPR LIST"), Microsoft shall not use the
PPR List or any information reflected therein for any purpose other than in
furtherance of the activities contemplated in this Section 5.3. The PPR List
shall be deemed the Confidential Information of Centraal pursuant to Section
9 of this Agreement, and in no event shall Microsoft provide the PPR List to
a third party without Centraal's prior written approval
5.4 PROMOTION OF LINKEXCHANGE BY CENTRAAL. Centraal Will promote
LinkExchange's Catapult and Banner Network products as follows:
5.4.1 Centraal will include Link Exchange logo links (subject to
Microsoft's then-current standard link logo policies for such logos) and
promotional text links to one or more LinkExchange Web page(s) (as
designated by LinkExchange) above the fold on the following Web pages of
its RealNames Site: "promotion", "description", "purchase" and "account
control";
5.4.2 Centraal will include a Link Exchange logo link (subject to
Microsoft's then-current standard link logo policies for such logos) to a
Web page designated by LinkExchange above the fold on the default start
page of the RealNames Site; and
5.4.3 Centraal will include a promotional reference to
LinkExchange in Centraal's broadcast email service at least once every
six months, and in "welcome" email messages it sends to new owners of a
RealName who it reasonably believes are not LinkExchange customers.
LinkExchange will be solely responsible for creating any and all promotional
materials used by Centraal pursuant to this Section 5.4, and for supplying to
Centraal the LinkExchange logo to be used as the logo links referred to in
subsections 5.4.1 and 5.4.2, provided that all aspects (including but not
limited to the form, content and technical format thereof) of any and all such
materials displayed or distributed by Centraal shall be subject to Centraal's
prior approval, which shall not be unreasonably withheld.
[*] 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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5.5 PROMOTION OF PASSPORT. Centraal agrees to test, evaluate, and
use, take sign ups for and accept the IDs for Microsoft's proprietary
authentication service ("Passport") on the Centraal web site, and all of
Centraal's existing profiling and authentication mechanisms will also take
sign ups for and accept the IDs for Passport. Centraal shall use Passport in
accordance with the terms of the standard Microsoft Online ID Evaluation
Program Agreement and such further standard terms and conditions that are
offered in addition to or as a replacement for those currently contained in
such agreement.
5.6 BANNER EXCHANGE NETWORK. Centraal shall become and remain a
member of LinkExchange's Banner Exchange Network throughout the term of this
Agreement, in accordance with the standard membership terms and conditions of
the Banner Exchange Network as described at WWW.LINKEXCHANGE.COM. Throughout
the term of this Agreement, Centraal will not participate in any other
program which would reasonably be considered to be similar to or competitive
with LinkExchange's Banner Exchange Network program.
5.7 CLICKTRADE AFFILIATE. Centraal shall become and remain a member
of LinkExchange's ClickTrade Affiliate program throughout the term of this
Agreement, in accordance with the standard membership terms and conditions of
the ClickTrade Affiliate program as described at www.linkexchange.com.
6. REVENUE SHARING.
6.1 REVENUE SHARING ON MICROSOFT SUBSCRIPTIONS
6.1.1 During the term of this Agreement, Centraal will pay to
Microsoft a sliding scale commission, ("COMMISSION") for each paid
subscription for a RealName generated through the co-branded registration
page(s) described in Section 5.2 above ("MICROSOFT SUBSCRIPTION"). The
Commission for Microsoft Subscriptions shall be calculated as follows: [*] in
the case of a first time Microsoft Subscription, by multiplying the initial
Annual Net Subscription Fee (defined below) by the applicable percentage
described in Section 6.1.3 [*]
6.1.3 COMMISSION RATES
(a) During the first year of this Agreement, (i) in the
event there are between [*] and [*] initial Microsoft Subscriptions
paid in such first year, the Commission will be [*] of the Annual Net
Subscription Fee (ii) in the event there are between [*] and [*]
Microsoft Subscriptions paid in such first year, the Commission on those
sales will increase for such Microsoft Subscriptions during such year to
[*] of the Annual Net Subscription Fee (iii) in the event there are more
than [*] Microsoft Subscriptions paid in such first year, the
Commission will increase for such Microsoft Subscriptions during such
first year to [*] of the Annual Net Subscription Fee.
(b) During the second year (and any subsequent years)
of this Agreement, (i) in the event there are between [*] and [*]
initial Microsoft Subscriptions paid in such second or subsequent year,
as the case may be, the Commission will be [*] of the Annual Net
Subscription Fee (ii) in the event there are more between [*] and
[*] initial Microsoft Subscriptions paid in such second or
subsequent year, as the case may be, the Commission will increase for
such Microsoft Subscriptions during such second year to [*] of the
Annual Net Subscription Fee and (iii) in the event there are more than
[*] initial Microsoft Subscriptions paid in such second or
subsequent year, as the case may be, the Commission will increase for
such Microsoft Subscriptions during such second year to [*] of the
Annual Net Subscription Fee.
6.2 COMPENSATION FOR PPR REALNAMES AND PPR-BASED REALNAMES EXTENSIONS
RESOLUTIONS.
6.2.1 During the term of this Agreement, for Resolutions
generated by RealNames (other than RealNames Extensions) on the Authorized
Microsoft Products, Centraal will pay to Microsoft a
[*] 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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commission which equals [*] of Net RealNames Resolution Fees and [*] of Net
Additional Resolution Fees.
6.2.2 During the term of this Agreement, for Resolutions
generated by PPR-based RealNames Extensions only, Centraal will pay to
Microsoft a commission which equals [*] of Net RealNames Resolution Fees and
[*] of Net Additional Resolution Fees.
6.2.3 "Net RealNames Resolution Fees" shall mean gross
RealNames resolution fees actually generated from the Authorized Microsoft
Products (but specifically excludes resolution fees generated from Microsoft
Referrals pursuant to Section 5.3 above), less any payments actually paid or
payable to third parties who provide services for the RealNames Service
(including without limitation payments to Network Solutions, Inc.), 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, in a commercially reasonable manner.
6.2.4 "Net Additional Resolution Fees" shall mean gross
RealNames resolution fees, if any, actually generated from the Authorized
Microsoft Products due to Microsoft Referrals pursuant to Section 5.3 (over
and above Net RealNames Resolution Fees), less any payments actually paid or
payable to third parties who provide services for the RealNames Service
(including without limitation payments to Network Solutions, Inc.), 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, in a commercially reasonable manner.
6.2.5 Microsoft acknowledges and understands that in certain
instances Centraal establishes negotiated caps under its PPR RealNames and
PPR-based RealNames Extension subscriptions, pursuant to which Centraal
derives no additional revenue for the balance of the subscription term after
resolutions for the applicable RealName or RealNames Extension reach the
applicable cap. Any Net Additional Resolution Fees shall not be considered
in determining whether a subscriber has reached a Centraal-negotiated, PPR
based cap.
6.3 Accountings. Centraal shall develop, implement and maintain
the technology required to track Resolutions. Within fifteen (15) days
following the end of each month beginning with the Effective Date, Centraal
will deliver to Microsoft a complete and accurate written report covering
such month, including, the amount payable to Microsoft and sufficient detail
to reasonably calculate the basis for such payment. Concurrently with the
submission of each such written report by Centraal, Centraal shall pay to
Microsoft all amounts then owed to Microsoft pursuant to Sections 6.1 and 6.2.
Each party shall raise any questions or issues regarding the accuracy of such
report (and payments in accordance therewith) within two years following the
submission of such reports or payments. Failure to raise any question or
issue within such two year period, shall be deemed acceptance of such report
and payment.
6.4 Audits. During the period in which Centraal is required to
account to Microsoft pursuant to Section 6.3, and for one year thereafter,
Central agrees to keep all usual and proper entries relating to the
calculation of amounts owed to Microsoft by Centraal hereunder. During the
above-referenced period, Microsoft shall have the right to cause an audit
and/or inspection to be made of the applicable records of Centraal in order
to verify statements issued by Centraal (an "Audit"). Any such Audit shall
be conducted by an independent certified public accountant (other than on a
contingent fee basis) mutually acceptable to the parties (the "Auditor").
Except as specified herein, Microsoft shall be responsible for all costs and
attorney fees related to such Audits. Centraal agrees to provide the Auditor
reasonable access to the relevant records upon reasonable notice and during
regular business hours. Such Audits shall be made no more often than once
every twelve (12) months. If an audit reveals that reports provided by
Centraal are inaccurate in the amount of by ten percent (10%) or more then
the reasonable cost of such Audit shall be paid by Centraal. In the event
that the Audit establishes that Centraal owes additional amounts to
Microsoft, then Centraal shall promptly pay such amounts to Microsoft. In
the event that the Audit establishes that Centraal has overcompensated
Microsoft, then Centraal shall have the right to withhold such amounts from
future payments to Microsoft. The results of such Audits shall be deemed to
be Confidential Information under Section 9.
7. INDEPENDENT DEVELOPMENT
[*] 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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7.1 Nothing in this Agreement will be construed as restricting
Microsoft's ability to acquire, license, develop, manufacture, or distribute
for itself, or have others acquire, license, develop, manufacture, or
distribute for Microsoft similar technology, information or data performing
or having the same or similar functions, features or information, as the
RealNames Service and Namespace in addition to, or in lieu of, the RealNames
Service and Namespace, provided, however, that the foregoing shall not be
deemed to constitute a license or authorization from Centraal for Microsoft
to use or have others use any of the Centraal Materials, Namespace, or
RealNames Service (exclusive of residuals relating to any of the foregoing,
as the term residuals is used in the nondisclosure agreement referenced in
Section 9 below) in connection with such independent licensing, development,
manufacture or distribution under this Section 7.
7.2 Subject to any restrictions of confidentiality with third
parties, Microsoft shall endeavor to provide Centraal with at least thirty
days' notice prior to Microsoft's public distribution or availability of a
service that provides substantially the same functions, features or
information, as the RealNames Service and Namespace ("COMPETING SERVICE") and
such notice shall include the then-current anticipated date of such public
distribution or availability of the Competing Service. Upon the commercial
public distribution or availability of the Competing Service but only for a
period of ten (10) days thereafter, Centraal shall have the right to
terminate this Agreement upon ten (10) days notice to Microsoft.
8. REPRESENTATIONS. WARRANTIES AND INDEMNITY.
8.1 REPRESENTATIONS AND WARRANTIES. Centraal warrants and
represents as of the Effective Date of this Agreement, that:
8.1.1 It has sufficient authority to enter into this
Agreement;
8.1.2 the Centraal Materials, RealNames Results, and any
other materials supplied hereunder by Centraal to Microsoft and/or end users
of the Microsoft Authorized Products do not infringe the copyrights, patents,
trademarks, service marks or any other proprietary right of any third party;
8.1.3 the functionality of the RealNames Services and the
Namespace, the methods used to collect data for and from the RealNames
Service and the Namespace, and the structure, sequence and organization of
the RealNames Service and the Namespace do not infringe the copyrights,
trademarks, patents, service marks, or other proprietary rights of any third
party;
8.1.4 the Centraal Materials and the RealNames Results do
not contain any libelous, materially false, or materially misleading
statements;
8.1.5 the Centraal Materials and the RealNames Service are
in compliance with all applicable laws;
8.1.6 As of the Effective Date Centraal is not aware of any
third party claims concerning the Centraal Materials, RealNames Results, or
RealNames Service which if true, would constitute of violation of the
representations and warranties set forth in subsections 8.1.1 through 8.1.5
above; and
8.1.7 the Centraal Logos (as defined in Section 12 below)
do not infringe or otherwise violate the rights of any third party.
EXCEPT AS SET FORTH IN THIS SECTION 8.1, CENTRAAL MAKES NO ADDITIONAL
WARRANTIES REGARDING THE CENTRAAL MATERIALS OR THE REALNAMES SERVICE, AND
CENTRAAL SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OTHER THAN THOSE SET
FORTH IN SECTION 8.1, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2. INDEMNITY.
[*] 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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8.2.1 INDEMNITY BY CENTRAAL. Centraal will defend, hold
harmless and indemnify Microsoft from and against any loss, claim, liability,
damage, action or cause of action (including, without limitation, reasonable
attorneys' fees) brought against Microsoft by a third party and arising from
or related to any breach by Centraal of any of the warranties set forth in
Section 8.1 above, and any third-party claim which if proven would constitute
such a breach of Section 8.1, provided that Microsoft provides Centraal with:
(i) prompt written notice of such claim, (ii) exclusive control over the
defense and settlement of such claim with counsel acceptable to Microsoft
which acceptance shall not unreasonably be withheld or delayed, and (iii)
proper and full information and assistance to settle or defend any such claim
with counsel acceptable to Microsoft provided that Centraal shall not settle
any claim without Microsoft's prior written approval which approval shall not
be unreasonably withheld or delayed. Microsoft may also engage its own
counsel, at its sole cost and expense, in connection with such claim.
Centraal shall not be responsible for any settlements by Microsoft without
Centraal's prior written approval which approval shall not be unreasonably
withheld or delayed. Notwithstanding the above, Centraal assumes no liability
for infringement claims arising from (i) combination of the RealNames Service
with products or services not provided by Centraal, and not arising from the
RealNames Service standing alone or (ii) using the Centraal Materials in a
manner apart from the implementation or marketing of the RealNames Service as
contemplated herein.
8.2.2 INJUNCTIONS. If Centraal reasonably believes that it is
likely that Microsoft will be enjoined from exercising its right to use the
RealNames Service, Centraal Materials, or Centraal Logos as provided under
this Agreement, then Centraal may, at its sole option and expense: (i)
procure the right to use the RealNames Service, Centraal Materials, or
Centraal Logos as provided under this Agreement, (ii) replace the RealNames
Service, Centraal Materials, or Centraal Logos (subject to Microsoft's
prior-review and approval with such approval not to be unreasonably withheld
or delayed) with other non-infringing services with equivalent functionality
or logos, (iii) suitably modify the RealNames Service, Centraal Materials, or
Centraal Logos so that it does not infringe, or (iv) terminate this Agreement
upon reasonable notice to Microsoft. Centraal shall have no obligation to
indemnify Microsoft for liability incurred by Microsoft for use of the
RealNames Service, Centraal Materials, or Centraal Logos after a reasonable
period of time (at least ten (10) days) following Centraal's notice of
termination pursuant to (iv) above.
8.2.3 THE FOREGOING PROVISIONS OF THIS SECTION 8.2 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF CENTRAAL AND THE EXCLUSIVE REMEDY OF
MICROSOFT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS RELATING TO THE REALNAMES SERVICES OF CENTRAAL
MATERIALS.
9. CONFIDENTIALITY.
9.1 Microsoft and Centraal acknowledge and agree that the terms and
conditions of the Microsoft Corporation Non-Disclosure Agreement dated as of
even date herewith ("NDA"), attached hereto as EXHIBIT E, are incorporated
into this Agreement and that all of the terms of this Agreement and all
discussions and negotiations related thereto are considered Confidential
Information as defined in the NDA. In the event that any of the incorporated
terms of the NDA are inconsistent with or conflict with this Agreement, then
the terms of this Agreement shall control. The terms and conditions of this
Agreement shall be deemed to be Confidential Information under the NDA. In
addition, the PPR list, the Namespace, and any source code provided by
Centraal hereunder shall be deemed to be Confidential Information of Centraal
provided that Microsoft's obligation to maintain the confidentiality of such
materials shall last until such materials (i) are or subsequently become
publicly available without Microsoft's breach of any obligation owed
Centraal; (ii) became known to Microsoft from a source other than Centraal
other than by the breach of an obligation of confidentiality owed to
Centraal; or (iii) are independently developed by Microsoft.
10. LIMITATION OF LIABILITIES. NEITHER PARTY SHALL BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
[*] 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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11. TERMINATION.
11.1 TERMINATION FOR CAUSE. In addition to any other rights and/or
remedies that either Party may have under the circumstances, all of which are
expressly reserved, either Party may terminate this Agreement immediately
upon written notice at any time if:
11.1.1 The other Party is in material breach of any material
warranty, representation, term, condition or covenant of this Agreement,
other than those in Sections 9 or 13.4, and fails to cure that breach within
thirty (30) days after written notice thereof; or
11.1.2 The other Party is in material breach of Section 9 or is
entitled to terminate as provided in Section 13.4 or 13.8; or
11.1.3 Either Party becomes insolvent or makes any assignment
for the benefit of creditors or similar transfer evidencing insolvency; or
suffers or permits the commencement of any form of insolvency or receivership
proceeding; or has any petition under any bankruptcy law filed against it,
which petition is not dismissed within sixty (60) days of such filing; or has
a trustee or receiver appointed for its business or assets or any part
thereof.
11.2 TERMINATION AT WILL. Notwithstanding anything to the contrary
contained herein, either Party will have the right at any point during the
term of this Agreement, in such Party's sole and absolute discretion, to
terminate this Agreement upon ninety (90) days written notice to the other
Party.
11.3 EFFECT OF TERMINATION. In the event of termination or
expiration of this Agreement for any reason, each and every clause which by
its nature is intended to survive the termination of this Agreement,
including without limitation, Sections 1, 2.5, 6.1 (only with respect to
Microsoft Subscriptions sold during the Term), 6.2 (only with respect to
RealNames Resolutions generated during the Term), 6.3, 6.4, 7-10, 11.3, 11.4,
and 13, shall survive such termination or expiration. Neither Party shall be
liable to the other for damages of any sort resulting solely from terminating
this Agreement in accordance with its terms. Upon expiration or termination
of this Agreement, all of Microsoft's rights and licenses with respect to the
Centraal Materials will automatically and immediately terminate.
11.4 RETURN OF CENTRAAL MATERIALS. In the event of termination or
expiration of this Agreement, all information and materials provided or
delivered to Microsoft under this Agreement, including without limitation the
Centraal Materials, and all copies or portions of copies and any summaries
thereof, will be promptly returned to Centraal or, if requested by Centraal
in writing, destroyed. Within thirty (30) days after the termination of this
Agreement, Microsoft will certify in writing that all such materials have
been either returned to Centraal's or destroyed per Centraal's request.
12. USE OF CENTRAAL LOGOS.
12.1 BRANDING. Microsoft will apply the "RealNames (sm) enabled"
and/or "RealNames (sm)" logo (a copy of which is attached as EXHIBIT D-1) on
the co-branded page(s) created pursuant to Section 5.2, in a manner mutually
agreed upon by the parties.
12.2 USE OF CENTRAAL LOGOS.
12.2.1 Central hereby grants to Microsoft a non-exclusive,
non-transferable, personal license to use the Centraal logos attached hereto
as EXHIBIT D-1 (the "Centraal Logos") only in connection with (i) Microsoft's
implementation of the RealNames Services on Authorized Microsoft Products and
the co-branded page(s) referenced created pursuant to Section 5.2 above and
(ii) Microsoft's promotion of the RealNames Service. Except as provided in
this Section 12.2, this Agreement does not grant Microsoft any right, title,
interest, or license in or to any of Centraal Logos names, logos, trade
dress, designs, or other trademarks. Unless otherwise provided herein or
agreed upon by the parties, Microsoft's use shall be mutually approved in
advance.
12.2.2 Microsoft acknowledges, as between Microsoft and
Centraal only, Centraal's sole ownership of the Centraal Logos and worldwide
and all associated goodwill. Microsoft's use of 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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Centraal Logos, as between the parties, shall inure solely to the benefit of
Centraal. Microsoft hereby assign and shall assign in the future to Centraal
all rights they may acquire during the term of this Agreement by operation of
law or otherwise in the Centraal Logos, including all applications or
registrations therefore, along with the goodwill associated therewith.
12.2.3 Microsoft, shall take commercially reasonable steps to
fully correct and remedy any deficiencies in its use of the Centraal Logos
and/or the quality of implementation of the RealNames Service on Authorized
Microsoft Products, upon reasonable notice from Centraal.
12.2.4 Centraal shall have the sole right to and in its sole
discretion may commence, prosecute or defend, and control any action
concerning the Centraal Logos. During the term of this Agreement, Microsoft
shall not contest the validity of, jeopardize, or take any action
inconsistent with, Centraal's rights or goodwill in the Centraal Logos in any
country, including attempted registration of the Centraal Logos or attempted
registration of any mark confusingly similar thereto.
12.2.5 Notwithstanding anything to the contrary, nothing in
this Section 12.2 requires Microsoft to use any of the CentraalLogos.
13. GENERAL
13.1 Notices. All notices and requests in connection with this
Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or IN the United States of America mails,
postage prepaid, certified or registered, return receipt requested, and
addressed as follows:
TO MICROSOFT TO CENTRAAL:
------------ ------------
Microsoft Corporation Centraal Corporation
One Microsoft Way Two Circle Star Way, 2nd Floor
Redmond, WA 98052-6399 San Carlos, CA 94070
Attention: Hyer Bercaw Attention: J. Michael Arrington, Esq.
Telephone: (425) 882-8080 Telephone: (650) 298-5570
Facsimile: (425) 936-7329 Facsimile: (650) 298-8085
With a copy to: Law & Corporate Affairs With a copy to: James Strawbridge Esq.
Wilson Sonsini Goodrich &
Rosati
650 Page Mill Road
Palo Alto, CA 94304
Telephone: (425) 882-8080 Telephone: (650) 493-9300
Facsimile: (425) 936-7409 Facsimile: (650)493-6811
or to such other address as a Party may designate pursuant to this notice
provision.
13.2 NO AGENCY RELATIONSHIP. Nothing in this Agreement shall be
construed as creating an employer-employee relationship, a partnership, or a
joint venture between the Parties.
13.3 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Washington as though entered into between Washington residents
and to be performed entirely within the State of Washington, and Centraal
consents to jurisdiction and venue in the state and federal courts sitting in
King County, the State of Washington. In any action or suit to enforce any
right or remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing Party shall be entitled to recover its costs,
including reasonable attorneys' fees.
13.4 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of each Party's respective successors and lawful assigns;
provided, however, that (1) Centraal may not assign this
[*] 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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Agreement, in whole or in part, or any rights or obligations hereunder,
whether by contract or by operation of law, except in the context of a
material change in Centraal's capital structure, control or ownership
(including by way of an initial public offering of stock), without the
express written consent of Microsoft, and (2) Microsoft may not assign this
Agreement in whole or part, or any rights or obligations hereunder, to any
competitor of Centraal. Any attempted assignment by a party in violation of
this Section 13.4 shall be void and shall allow the other party to
immediately terminate this Agreement.
13.5 CONSTRUCTION. If for any reason a court of competent
jurisdiction finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the Parties, and the
remainder of this Agreement will continue in full force and effect. Failure
by either Party to enforce any provision of this Agreement will not be deemed
a waiver of future enforcement of that or any other provision. This Agreement
has been negotiated by the Parties and their respective counsel and will be
interpreted fairly in accordance with its terms and without any strict
construction in favor of or against either Party. The section headings used
in this Agreement are intended for convenience only and shall not be deemed
to affect in any manner the meaning or intent of this Agreement or any
provision hereof.
13.6 ENTIRE AGREEMENT. This Agreement does not constitute an offer
by Microsoft and it shall not be effective until signed by both Parties. This
Agreement and the NDA constitute the entire agreement between the Parties
with respect to the subject matter hereof and merge all prior and
contemporaneous communications. It shall not be modified except by a written
agreement dated subsequent to the date of this Agreement and signed on behalf
of Centraal and Microsoft by their respective duly authorized
representatives. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of
the same or any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the
waiving Party.
13.7 LEGAL COMPLIANCE. Each party agrees to comply with applicable
laws in the performance of its obligations hereunder. Microsoft 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 Centraal to provide
services are subject in all respects to such United States laws and
regulations as from time to time govern the license and delivery of
technology and services outside the United States. Microsoft will comply with
all applicable laws, and will 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.
13.8 FORCE MAJEURE. If either Party is in material breach of a term
of this Agreement as a result (wholly or in primary part) 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 in actions 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 and which it could not by reasonable diligence have avoided, then
without limiting the other Party's rights in any such event, such other Party
shall have the option, without liability, to suspend their performance for
the duration of any such breach but in no event longer than twenty (20)
consecutive days or thirty (30) days total ("Suspension Period") with respect
to any single or proximately related cause(s), by giving the other Party
written notice thereof detailing the reason and expected duration of such
suspension; provided that during such Suspension Period the non-notifying
Party's obligations (but not its rights) shall also be suspended; and further
provided that if the notifying Party has not cured its material breach by end
of the Suspension Period, the non-notifying Party may immediately upon notice
to the notifying Party terminate this Agreement pursuant to 12.1.2.
In Witness Whereof, the Parties have entered into this Agreement as of the
Effective Date written above.
[*] 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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CENTRAAL CORPORATION MICROSOFT CORPORATION
BY: /s/Edward F. West BY: /s/Matt Kursh
--------------------- ------------------------
Edward F. West MATT KURSH
--------------------- ------------------------
(printed name) (printed name)
Exec VP BUSINESS UNIT MANAGER
--------------------- ------------------------
(title) (title)
Date: June 2, 1999 Date: 6/4/99
------------------- -----------------------
[*] 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
DELIVERY REQUIREMENTS; DESCRIPTION OF SOFTWARE
1. DELIVERY PROCESS
Real Names System Data Format and Delivery Process
Real Names System Data Format
The Real Names System will be presented in the format known to the parties as
"Orbiter" or such other format which is subsequently mutually agreed upon by
the parties. There will be five fields per record:
cn = the common name in its presentation form (also known as a RealName)
dsc = the Web page description
lc = the locale (e.g. "en:US" the US English language)
pm= pricing model ("flt" is flat rate, "ppr" is price per resolution)
ns = namespace ("rn.0" is a paid RealName, "rn.1" is a editorialized
RealName, "rn.2" is a crawled RealName)
Example:
< rn cn="Disney" dsc="The Web Site For Families." lc="en-US" pm="ppr"
ns="rn.0"/ >
Delivery Process
A data file containing the entire RNS (Real Names System) will be delivered
from Centraal Corporation to Microsoft. The data file will conform to the
layout described in the above section called RNS Data Format. Centraal
assumes responsibility for the delivery of this data file, and will manage
the processes around its successful delivery.
Centraal will build this data file every 24 hours, from its primary RNS
database. After the successful completion of the build, Centraal will
compress the file using PKZip. Centraal will FTP the file to a designated,
Microsoft controlled FTP server. The file name inside of the pkzip will be
rn.xml. The ZIP file will be named rn-mmddyy.zip (where mm=month, dd=day,
yy=year is the date when the upload occurs).
It is the responsibility of Microsoft to provide Centraal's primary technical
contact with the hostname, user name and password to enable the upload. The
account should have write capabilities at all times. The desired upload path
should be set to the default login path of the user account supplied. The
user account/machine should have sufficient disk space available to upload a
file size of 150 Megabytes daily.
It is also Microsoft's responsibility to designate a time of day for the file
to be uploaded, and communicate such time to Centraal's primary technical
contact.
In the event that Centraal encounters a problem delivering the data file that
is not surmountable within 1 hour of scheduled delivery time (e.g.
insufficient disk space, machine unreachable, invalid account, etc.), it is
the responsibility of Centraal to contact the Microsoft Technical Point of
Contact within 24 hours of encountering the problem.
In the event that Microsoft encounters a technical problem (e.g. file was not
delivered at the mutually agreed upon time, data file incomplete, etc.), it
is the responsibility of Microsoft to contact the Centraal Technical Point of
Contact within 24 hours of encountering the problem.
Microsoft
Primary Technical Point of Contact:
Name: Bill Bliss
Title: General Manager
[*] 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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Phone: (425) 882-8080
Alternate:
-----------------------
Email: billbl@microsoft.com
Alternate Technical Point of Contact
Name: Eric Berman
Title: Group Program Manager
Phone: (425) 882-8080
Alternate:
-----------------------
Email: ericbe@microsoft.com
Centraal
Technical Point of Contact:
Name: Dave Roletto
Title: Global Operations Network Engineer
Phone: 650-298-5532
Alternate: pager 650-590-8688
Email: dave@centraal.com
Alternate Technical Point of Contact:
Name: Edward Louie
Title: Global Operations Network Engineer
Phone: 650-298-5537
Alternate: pager 650-590-8696
Email: ed@centraal.com
2. DESCRIPTION OF SOFTWARE
Such software subsequently and mutually agreed upon by the parties in writing
for the implementation of the RealNames Service by Microsoft as contemplated
herein.
3. DESCRIPTION OF DOCUMENTATION
Materials useful and necessary to the marketing of RealNames and materials
useful and necessary for technical implementation of the RealNames Services
by Microsoft.
[*] 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
PROCESS FOR GENERATING REALNAMES RESOLUTIONS
EXPLANATION OF REALNAMES RESOLVERS
To the extent that Microsoft implements the RealNames Services in
accordance with the provisions of this Agreement, the provisions of this
EXHIBIT B shall be applicable. If Microsoft does not implement the RealNames
Service, none of the provisions of this Exhibit B shall be applicable.
Microsoft will implement Centraal's resolution process methodology
(the "Ternary Responder") for exact matches. Exact matches will be determined
by comparing the user query to the static and rule based RealNames supplied
by Centraal as part of the periodical RealNames database updates. Centraal
will provide Microsoft with an initial electronic dump of the RealNames
Database and then with an electronic update of the RealNames database. The
RealNames database updates will be periodically propagated to Microsoft live
implementation of the ternary responder.
The RealNames database provided by Centraal will include the following fields:
RealName: The RealName string (e.g. "Internet Explorer 5")
Locale: The language of the Web page (e.g. "en-US")
RealNames link: The resolver URL. This URL points to the RealNames
resolver and embeds the RealName string, provider
identifier and locale information.
RealNames Pricing Model: The type of pricing model for the RealName. The
possible values are PPR (priced per resolution) or
FLT (flat maintenance fee).
RealNames Namespace Code: A namespace identifier code (e.g. "rn.0.s" means
paid for static RealNames "rn.0.r" rule based
RealNames, rn.l" means editorialized RealNames,
"rn.2" means crawled RealNames)
Microsoft will provide a schema specification for serializing and encoding
the RealNames data.
When a user performs a search, Microsoft's implementation of the Ternary
Responder will assess whether there is an exact match in the RealNames
database. If there is, two different cases need to be considered.
The first case occurs in the context of an IE5 auto-search where Microsoft's
implementation will immediately redirect the user to the RealNames URL. In
turn, the RealNames resolver will redirect the user to the URL associated
with the specified RealName. For example, a user types the query string
"Internet Explorer 5" in IE5. "Internet Explorer 5" is an exact match.
Microsoft will redirect the user to RealNames link for "Internet Explorer 5":
http://navigation.realnames.com/Resolver.dll?action=navigation&providerID=
15&realname=internet+explorer+5+&locale=en-US
The second case occurs in the context of a traditional search on MSN. When a
user performs a search query on the search engine, if there is an exact
match, Microsoft will display the RealNames text on the results page. The
RealNames text is made of the RealNames string with the RN superscript, and a
brief description of the RealName. The RealNames string is hyper-linked using
the RealNames link URL. For example, a user types the query string "Internet
Explorer 5" on MSN. "Internet Explorer 5" is an exact match. Thus, MSN
displays the RealNames text that contains the RealNames link. The RealNames
text at the MSN site can be displayed as agreed upon by both Microsoft and
Centraal.
INTERNET EXPLORER 5RN
[*] 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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The RealNames link takes you directly to Internet Explorer 5.
The URL associated with the RealNames link "Internet Explorer 5" that
identifies MSN as the source of the resolutions is:
http://navagation.realnames.com/Resolver.dll?action=navigate&providerID=
101&realname=internet+explorer+5
When the user clicks on the RealNames link for "Internet Explorer 5", a
resolution request is sent to the RealNames resolver located on Centraal
servers. This request embeds the RealName "Internet Explorer 5" as well as a
provider ID that uniquely identifies MSN as the originator for the
resolution. The RealNames resolver located on Centraal server looks up the
URL associated with the RealName address "Internet Explorer 5", logs the
resolution parameters and redirects the user to that URL.
[*] 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
FORM OF SUBSCRIPTION AGREEMENT
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 one hundred United States
dollars (US $100) 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 (1-650-298-8085) 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
[*] 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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regarding allocation, reallocation, or withdrawal of RealNames addresses that
evolve or change over time. If CENTRAAL does 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 CENTRAAL 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.
[*] 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 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.
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 CENTRAAL 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)
-C- 1998 Centraal Corporation
2 Circle Star Way, Second Floor
PO Box 3500
San Carlos, CA 94303-0750
Tel: +1 650 298 8080
Fax: +1 650 298 8085
sales@centraal.com
[*] 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-1
Centraal Trademarks
[LOGO]
RealNames Standardized Logo
Font: OCRB
[LOGO]
RealNames Enabled Logo
Font: OCRB
[*] 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
---------
NONDISCLOSURE AGREEMENT
-----------------------
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
(STANDARD RECIPROCAL)
THIS AGREEMENT (the "Agreement") is made between MICROSOFT CORPORATION,
a Washington corporation, and CENTRAAL CORPORATION ("COMPANY") and entered
into this __________ day of ___________, 1999.
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.
[*] 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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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.
(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) Any software and documentation provided under this Agreement is
provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the
Government is subject to restrictions as set forth in subparagraph (c)(1)(ii)
of The Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer
Software --Restricted Rights at 48 CFR 52.227-19, 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, 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.
[*] 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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(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.
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.
COMPANY: CENTRAAL CORP. MICROSOFT CORPORATION
----------------------------
Address: 2 Circle Star Way By: /s/ Matt Kursh
----------------------------- ---------------------------
San Carlos, California 94070 Name: MATT KURSCH
----------------------------- ------------------------------
By: /s/ Edward F. West Title: BUSINESS UNIT MANAGER
---------------------------------- ------------------------------
Name: Edward F. West Date: 6/4/99
-------------------------------- -------------------------------
Title: EXEC VICE PRESIDENT MS Contact:
------------------------------- -------------------------
Date: June 2, 1999
--------------------------------
[*] 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.
PAGE 25 OF 254