Microsoft Corp. / WebTV Shopping Insertion Order - Microsoft Corp. and RedEnvelope Inc.
MICROSOFT CORPORATION/WEBTV
SHOPPING INSERTION ORDER
ACCOUNT EXECUTIVE: KEVIN WILK
EMAIL: kwilk@microsoft.com
<TABLE>
<S> <C> <C> <C>
-----------------------------------------------------------------------------------------
ADVERTISER: Red Envelope
-----------------------------------------------------------------------------------------
CONTACT: Chas Akers
201 Spear St
San Francisco, CA 94105
(415) 371-9100 x260
cakers@redenvelope.com
-----------------------------------------------------------------------------------------
SITE URL: www.redenvelope.com TERM: July 1, 2000 - June 30, 2001
-----------------------------------------------------------------------------------------
TOTAL FEES: $[*]
($[*])
($[*])
-----------------------------------------------------------------------------------------
</TABLE>
ORDER SUMMARY (SEE ATTACHED SPREADSHEET):
SUBJECT TO APPLICABLE TERMS AND CONDITIONS INCLUDED WITH THIS ORDER.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------
MONTHLY
AD ELEMENTS ORDER TOTAL GUARANTEED FEE TOTAL AD REQUEST
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[*] [*] See attached spreadsheet
----------------------------------------------------------------------------------------------------------
ADDITIONAL PLACEMENTS [*] See attached spreadsheet
[*]
----------------------------------------------------------------------------------------------------------
</TABLE>
* Material has been omitted pursuant
to a request for confidential treatment.
<PAGE>
<TABLE>
----------------------------------------------------------------------------------------------------------
<S> <C> <C>
----------------------------------------------------------------------------------------------------------
[*] $[*] See attached spreadsheet
----------------------------------------------------------------------------------------------------------
</TABLE>
ADDITIONAL TERMS:
EMAIL USERS.
1. MS agrees that Advertiser may apply [*] dollars ($US[*]) from
the MSN Shopping Order confirmation Premier Merchant Agreement
dated October 18, 1999 between the parties toward [*] ([*])
e-mail ad requests in the following newsletters targeted at
MSN users: (i) [*]; and (ii) [*]. Notwithstanding the
foregoing, MS shall be relieved of its obligation to provide
Emails once such Emails have met a metric of [*]: $[*] for the
Term, where [*] (US$[*]) equals sales revenue to Advertiser
and [*] (US$[*]) equals every [*] spent by Advertiser for the
placements set forth herein.
2. The parties will meet during the Term to monitor and manage
the progress of such e-mails and requests.
Click-Through users.
1.
(a) In the event that Advertiser implements its Passport
Wallet Technology (as defined in attached Passport contract) on or
before October 23, 2000, MS will provide a minimum of [*] ([*])
click-through users ("Click-Throughs") to Advertiser during the Term.
Notwithstanding the foregoing, MS shall be relieved of its obligation
to provide Click-Throughs once such Click-Throughs have met a metric of
$[*]: $[*] for the Term, where [*] (US$[*]) equals sales revenue to
Advertiser and $[*] equals every [*] spent by Advertiser for the
placements set forth herein.
(b) In the event that Advertiser does not implement its
Passport Wallet Technology on or before October 23, 2000, MS will
provide a minimum of [*] Click-Throughs to Advertiser during the Term.
Notwithstanding the foregoing, MS shall be relieved of its obligation
to provide Click-Throughs once such Click-Throughs have met a metric of
$[ * ]: $[*] for the Term, where [*] (US$[*]) equals sales revenue to
Advertiser and $[*] equals every [*] spent by Advertiser for the
placements set forth herein.
2. The parties will meet during the Term to monitor and manage
the progress of the Click-Throughs.
3. MS Shall be obligated solely to provide the quarterly
Click-Through totals (each, a "Quarterly CT Benchmark") in
each on-line property set forth in Exhibit A, attached hereto.
In the event that MS determines that the Click-Throughs
derived from the [*] will be insufficient to meet a Quarterly
CT Benchmark, MS may supplement the banners and ads on the [*]
with banners and ads on [*] and [*]; provided, however that
the Click-Throughs from [*] and [*] required to offset a Click
Through on the [*] shall be adjusted to account for the lower
sales conversion ratio attributable to Click-Throughs from [*]
and [*] as compared to Click-Throughs from [*]. The parties
currently estimate that it will take [*] Click-Throughs from a
banner or other ad placed on [*] or [*] to make good on one
missed Click-Through from [*]. [*] Click-Throughs shall be
determined by clicks from all [*]. [*] clicks shall be derived
from [*] and [*] shall originate from small banners and text
ads. If MS fails to deliver at least [*] percent [*] of the
Quarterly CT Benchmark as set forth in Exhibit A, Advertiser
will provide MS with additional Offers or ad creative elements
within thirty (30) days of notification by MS. Thereafter, MS
will provide additional Advertiser approved Microsoft
-2-
* Material has been omitted pursuant
to a request for confidential treatment.
<PAGE>
Passport co-branded ad requests for the Offers in the form of
[*] and [*] for the Offers ("Offer Ad Elements") at no charge
to Advertiser until such Quarterly CT Benchmark is achieved.
During any make-good period, the Offer Ad Element
Click-Throughs shall solely count against the quarter during
which the Quarterly CT Benchmark was not met, and such
make-goods shall be Advertiser's sole remedy for MS' failure
to deliver the Quarterly CT Benchmark. MS's obligation to make
good on its Click-Through obligations shall survive the Term
of this Agreement. Solely during such make-good period,
Advertiser will be relieved of payment for the invoice for
such quarter until the Quarterly CT Benchmark is met.
4. Advertiser will provide MS with promotional offers for MSN
users ("Offers") during the Term. The Offers may include, but not be
limited to, free or reduced shipping, discounts, free gift wrapping,
exclusive product bundles or other compelling offers to increase MSN
user response and Advertiser's sales.
5. MS will provide ad requests and Click-Throughs proportionally
in accordance with the "Holiday Months", and the months of November,
December, February, May and June are designated as such months. If MS
fails to deliver higher Click-Throughs during the Holiday Months or
does not provide the total Click-Throughs by the end of the Term,
Advertiser's sole remedy for such failure will be (i) the extension of
the Term during which MS will provide additional ad requests at no
charge to Advertiser until the Click-Throughs are provided and (ii) the
waiver of Advertiser's payment obligations as described in paragraph 3
above until the Click-Throughs are provided.
MICROSOFT CORPORATION RED ENVELOPE
One Microsoft Way Chas Akers
Redmond, WA 98052-6399 201 Spear St
San Francisco, CA 94105
(415) 371-9100 x260
cakers@redenvelope.com
By (Sign) /s/ Jeff Bernstein By (Sign) /s/ Charles W. Akers
-------------- --------------------
Name (Print) Jeff Bernstein Name (Print) Charles W. Akers
Title: Group Manager Title: Director [ILLEGIBLE]
Date: 9-15-00 Date: 9-6-00
By : /s/ Hilary Billings
---------------------
Name: Hilary Billings
Title: Chairman
Date: 9-6-00
-3-
* Material has been omitted pursuant
to a request for confidential treatment.
<PAGE>
MICROSOFT CORPORATION NON-STANDARD TERMS AND CONDITIONS
MSN SHOPPING CHANNEL
WebTV SERVICE SHOPPING CENTER
1. MATERIAL SPECIFICATIONS: Specifications for the material elements that
Advertiser must include in any link, advertisement or other submission
to Microsoft Corporation ("MS") for MSN Shopping and WebTV Service
Shopping Center ("WebTV") will be distributed to Advertiser. All
submissions to MS for MSN Shopping or WebTV hereunder will comply with
all such applicable elements.
2. ORDERS FOR ADVERTISEMENTS: All orders or other requests for advertising
from an advertiser (whether made by the advertiser directly, or through
an agency) ("Advertiser") are governed by these Standard Terms and
Conditions and the attached Insertion Order (the "IO"). No other
conditions, provisions, or terms of any sort appearing in any writings
or other communications made in connection with such orders, including
without limitation those contained on or accompanying checks or other
forms of payment, shall be binding on MS, whether in conflict with or
in addition to these Standard Terms and Conditions. MS reserves the
right to refuse advertising buys from third parties that require ads to
be served from that third party's servers. Except as otherwise
specified by MS herein, all order provisions regarding positioning of
advertisements shall be treated as requests, which requests shall be
fulfilled at MS' sole discretion.
3. ACCEPTANCE: MS' offer to publish advertisements for Advertiser is made
on these Standard Terms and Conditions and the attached IO, and the
placement or other communication of an order for advertising with MS
shall constitute Advertiser's unconditional acceptance of these
Standard Terms and Conditions; no acceptance shall be effective until
it is received by MS in Redmond, Washington. MS reserves the right not
to publish any advertisement if MS, in its reasonable judgement, finds
the ad would violate third party rights, is libelous, defamatory,
obscene or pornographic or would violate applicable law. In this case,
MS is required to inform Advertiser of the problem and allow Advertiser
the opportunity to submit a revised advertisement. Failure by MS to
publish any requested advertisement pursuant to this Section 3 does not
constitute a breach of contract or otherwise entitle Advertiser to any
legal remedy. Upon acceptance, Advertiser agrees to comply with all
specifications for material elements required for the MSN Shopping
Channel or WebTV as designated by MS. The content of each and every
advertisement is subject to the reasonable approval of MS, in the sole
discretion of MS, and will be subject to such limitations as MS may
reasonably deem appropriate. MS and its network service providers may
elect to cache certain Advertiser pages on MS' servers or other
technologies, and Advertiser hereby consents to such caching for the
Agreement Term and subject to the provisions of this Agreement.
4. FEES:
A. During the Term of this Agreement, Advertiser shall pay MS the
following as itemized on the attached IO: (i) a monthly guaranteed fee
for placement in MSN Shopping or WebTV, in equal monthly installments;
and (ii) for media on WebTV and/or for MSN.com or any of its affiliated
channels in accordance with the fee schedule referenced in the
Insertion Order of this Agreement. The first payment of the foregoing
fees shall be delivered to MS with a signed original of this Agreement.
MS will invoice Advertiser for each subsequent installment, and
Advertiser will pay such invoiced amounts within thirty (30) days after
the date of such invoice. If MS fails to deliver the agreed upon number
of ad requests during the agreed upon period pursuant to subsection (i)
or (ii) above, Advertiser's sole remedy for such failure will be the
extension of the period until the agreed upon number of ad requests (or
other ad requests as the parties may agree) are provided.
B. MS will invoice Advertiser on a monthly basis, in arrears, for
all amounts owing to MS pursuant to Section 4. Advertiser will pay each
MS invoice pursuant to this paragraph within thirty (30) days after the
date of such invoice, in readily available funds. All amounts are
invoiced and payable in United States dollar currency. In addition to
all other available rights and remedies, MS may cancel and remove any
advertisement which is not paid for on a timely basis.
C. The fees, advances and other amounts owing to MS pursuant to
these Standard Terms and Conditions and the attached IO do not include
taxes or other governmental fees. Advertiser will pay all taxes and
other governmental fees arising out of or related to all transactions
undertaken pursuant to this Agreement, other than taxes on MS income
and revenue, and will provide MS with appropriate evidence of such
payment upon request.
5. AUDITS: Upon request, but no more frequently than once in any twelve
(12) month period, MS will provide Advertiser with the most recent
process audit conducted by an independent auditing agency, pursuant to
the then-current and applicable MS requirements.
6. CANCELLATION: On March 1, 2001 or thereafter, either party shall have
the right to terminate these Standard Terms and Conditions and the
attached IO upon sixty (60) days written (email if followed by U.S.
mail no later than the next business day) notice to the other party. If
either MS or Advertiser defaults under this Agreement, the
non-defaulting party will notify the other in writing. If the failure
is not cured within ten (10) business days after written notice is
received by the notified party, the non-
-4-
<PAGE>
defaulting party may, at any time prior to the default being cured,
terminate this Agreement with no further obligation to the notified
party; except for payment of any amount properly due MS pursuant to
Section 4.
7. ADVERTISER REPORTING: Advertiser shall develop, implement and maintain
the technology required to track usage of the Advertiser site by users
linking to the Advertiser site from the MSN Shopping Channel, WebTV
and/or any other MS site, and will provide MS with monthly usage
reports no later than thirty (30) days following the end of each month
of the Term. Such reports shall include traffic from referring URL to
the Advertiser site, number of page views, number of unique users
(unique user information will be provided starting in the month
following the integration of the technology necessary to do so), number
of weekly orders, total revenue and average revenue per order.
8. WARRANTIES: Advertiser warrants, represents and agrees that, during the
Term of this Agreement, all products and/or services offered, sold or
otherwise provided as part of the Advertiser site, and all Product
Images (as defined in Section 11.C below): (a) are made, offered, sold
or otherwise provided in compliance with applicable laws and will not
infringe the copyrights, trademarks, service marks or any other
proprietary, publicity or privacy right of any third party; (b) shall
not be libelous, defamatory, obscene or pornographic; and (c) shall not
violate other civil or criminal laws, including those regulating the
use and distribution of content on the Internet and protection of
personal privacy. Advertiser further warrants, represents and agrees
that: (d) the Advertiser site is controlled and operated by Advertiser
and/or its independent contractors and Advertiser will use commercially
reasonable efforts to ensure that the Advertiser site will be
functional and accessible at all times during the Term of this
Agreement; (e) except as specifically provided for in the IO or as
otherwise agreed to in writing by the parties, Advertiser will not use
in any manner any trade names, trademarks, logos or product names of MS
or its affiliated companies; (f) the Advertiser site and all actions
occurring thereon during the Term of this Agreement are in compliance
with all applicable laws; (g) the information technology, financial,
operational, communication and other systems and processes used by
Advertiser in connection with the Advertiser site shall not be
interrupted or adversely affected by the manipulation, processing,
comparison, display or calculation of dates from, into and between the
twentieth and twenty-first centuries, including leap years; (h)
Advertiser has the power and authority to enter into and perform its
obligations under this Agreement; (i) Advertiser maintains and will
maintain during the Term of this Agreement on Advertiser's site a clear
privacy statement setting forth the information gathering,
dissemination, privacy protection and other practices employed by
Advertiser with respect to information collected by Advertiser from
users, and Advertiser will adhere to all the provisions of such
statement during the Term of this Agreement; and (j) Advertiser will
use reasonable efforts during the Term of this Agreement to implement
secure technology to protect user data for all commercial transactions
following execution of this Agreement.
MS warrants, represents and agrees that: (k) the MSN Shopping Channel
and WebTV are in compliance with all applicable laws, and (I) MS has
the power and authority to enter into and perform its obligations under
this Agreement. Notwithstanding the foregoing, MS will not be
responsible for third party content, products or services offered on
the MSN Shopping Channel, WebTV or any Internet site owned, controlled
or operated by MS or any of its affiliated companies and Advertiser
will not be responsible for third party content, products or services
offered by the MSN Shopping Channel, WebTV, or any Internet site owned,
controlled or operated by MS or on any of its affiliated companies.
THIS SECTION, SECTION 9, AND THE MS INSERTION ORDER FOR THIS CONTRACT
CONTAIN THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY ADVERTISER AND
MS. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY
EXCLUDED AND DECLINED. EACH PARTY DISCLAIMS ANY IMPLIED WARRANTIES,
PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND/OR NON-INFRINGEMENT, WHETHER AS TO THE MSN SHOPPING
CHANNEL, WEBTV, THE ADVERTISER SITE, ANY SERVICES RENDERED BY MS OR
ADVERTISER AND/OR THE TECHNOLOGY DEPLOYED IN CONNECTION THEREWITH.
9. LINKS TO INTERNET SITES: Advertiser warrants and represents to MS that,
during the Term of this Agreement, each Internet site identified by
URLs in advertisements: (a) is controlled by Advertiser and operated by
Advertiser and/or its independent contractors; (b) will use
commercially reasonable efforts to ensure that the Advertiser site will
be functional and accessible at all times; and (c) is in compliance
with all applicable laws and regulations, and suitable in all technical
respects to be linked to from the applicable site containing the
advertisement. MS may refuse to provide links from the [*] or [*] to
any materials on the Advertiser's site, or MS may reject any Advertiser
content that, in MS' reasonable judgment (d) are factually inaccurate,
misleading or deceptive; (e) infringe any third party intellectual
property rights; (f) are libelous, defamatory, obscene or pornographic;
(g) may violate other civil or criminal laws, including those
regulating the use and distribution of content on the Internet and
protection of personal privacy; and/or (h) contain any programs,
application, interfaces or other functions that, given the nature of
the [*] or [*] system and in MS' reasonable judgment would have a
materially adverse effect on the [*] or [*] users' experience. In
determining whether any materials on the Advertiser's site, or whether
any Advertiser content would have a deleterious effect on the [*] or
[*] users' experience, MS shall use standards consistent with those MS
uses to determine quality standards for its other featured partners. MS
may test Advertiser's URLs, and in MS' sole discretion may remove any
URLs at any time that fail to comply with the above requirements.
-5-
* Material has been omitted pursuant to a request for confidential treatment.
<PAGE>
10. REMOVAL OF LINK: If MS receives a claim of infringement concerning the
Advertiser link or advertisement or a claim which alleges a breach of
Section 8, 9, 11.D., 11.E. and/or 11.F, the parties agree that MS may,
in addition to any other remedies provided for herein, immediately
remove the Advertiser link or advertisement from any and all MS
site(s), pending receipt of a non-infringing replacement link or
satisfactory resolution of the claim, and any such removal shall not
constitute a breach of this Agreement. Advertiser must provide a
non-infringing replacement link or advertisement (as applicable), or
resolve the claim to MS' satisfaction, within forty-eight (48) hours of
notification of the precise concern. Following the removal of any link
pursuant to this Section 10, at such time as Advertiser has resolve the
claim to MS's reasonable satisfaction, MS shall reinsert such link or
advertisement. Advertiser's obligation to pay the fees in Section 4, if
any, shall be suspended during any period that MS has removed the
Advertiser link or advertisement from the MSN Shopping Channel or
WebTV, as set forth in this Section. MS shall provide a technical
contact to remedy any technical problems resulting from the improper
insertion of the Advertiser's linking URLs that impact the security of
the Advertiser's site.
-6-
<PAGE>
11. ADVERTISER OBLIGATIONS:
A. Advertiser will make regular updates of all pricing and
inventory information available to MS in a reasonable time interval and
in a format agreed to by the parties;
B. Advertiser will provide MS with thirty (30) days notice if it
intends to modify the format in which it has provided pricing and
inventory information;
C. Advertiser shall provide, to the extent such information
exists, images for the products in its inventory in either gif or jpeg
format ("Product Images"). Advertiser grants MS a non-exclusive,
royalty free right and license to use the Product Images solely in
conjunction with promotion of the Advertiser pursuant to this
Agreement. MS acknowledges that its utilization of the Product Images
will not create in it, nor will it represent it has, any right, title,
or interest in or to such product images or other content contained on
the Advertiser site other than the licenses expressly granted herein;
D. Advertiser shall be solely responsible for customer service
for users linking to the Advertiser site through the MS site(s), for
product support, quality and availability of products and/or services
made available at the Advertiser site, fulfillment of orders and
returns;
E. Advertiser shall ensure that all users of the Advertiser's
site placing an order for product(s) and/or service(s) are timely
advised of the status of such purchase(s) including the timely
confirmation of all orders via electronic mail;
F. Advertiser shall provide electronic mail capabilities between
the user and Advertiser;
G. Advertiser shall use its reasonable efforts optimize the
Advertiser site for WebTV users by providing a "WebTV-friendly
environment" and emphasizing clear page layouts designed for display on
a television set, with a template that conforms to WebTV's website
design guidelines for the size, color and layout of text and graphics;
H. Advertiser will enter into the standard MS Passport Wallet
Service Agreement and MS Passport SDK License and Single Sign-In
Service Agreement promptly following the execution of this Agreement,
Advertiser agrees to deploy such MS Passport services no later than
November 30, 2000; and
I. Advertiser agrees to participate in a case study for MS.
12. INDEMNIFICATION: Each party agrees to indemnify, defend, and hold each
other harmless from any and all actions, causes of action, claims,
demands, costs, liabilities, expenses (including reasonable attorneys'
fees) and damages arising out of or in connection with any claim made
by a third party that, if true, would be (a) a breach by Advertiser of
Sections 11.D., 11.E. and/or 11.F; or (b) a breach by such party of any
representation or warranty set forth in this Agreement. If any action
shall be brought against either party ("Claimant") in respect to any
allegation for which indemnity may be sought from the other party
("Indemnifying Party") pursuant to the provisions of this Section 12,
Claimant shall promptly notify Indemnifying Party in writing,
specifying the nature of the action and the total monetary amount
sought or other such relief as is sought therein. Claimant shall not
settle or otherwise compromise any claim without the written consent of
Indemnifying Party. Claimant shall cooperate with Indemnifying Party at
Indemnifying Party's expense in all reasonable respects in connection
with the defense of any such action. Indemnifying Party may upon
written notice to Claimant undertake to conduct all proceedings or
negotiations in connection therewith, assume the defense thereof, and
if it so undertakes, it shall also undertake all other required steps
or proceedings to settle or defend any such action, including the
employment of counsel that shall be satisfactory to Claimant, and
payment of all expenses. Claimant shall have the right to employ
separate counsel and participate in the defense at Claimant's sole
expense. Indemnifying Party shall reimburse Claimant upon demand for
any payments made or loss suffered by it at any time after the date of
tender, based upon the judgment of any court of competent jurisdiction
or pursuant to a bona fide compromise or settlement of claims, demands,
or actions, in respect to any damages to which the foregoing relates.
13. LIMITATION OF LIABILITY: EXCEPT TO THE EXTENT ARISING PURSUANT TO
SECTION 12 OR A BREACH OF SECTION 14, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR
EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS
TO INFORMATION, AND THE LIKE, INCURRED BY THE OTHER PARTY ARISING OUT
OF THIS AGREEMENT (PROVIDED THAT THIS LIMITATION SHALL NOT LIMIT EITHER
PARTY'S OBLIGATION TO INDEMNIFY THE OTHER PARTY FOR THIRD PARTY CLAIMS
WHICH INCLUDE SUCH DAMAGES), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY OF
ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT IN EXCESS OF
THE TOTAL DOLLAR AMOUNT ACTUALLY RECEIVED BY MS FROM ADVERTISER FOR THE
ADVERTISEMENT(S) AT ISSUE. As a matter of clarity, MS' affiliate, WebTV
Networks, Inc., shall have no liability whatsoever to advertiser.
14. CONFIDENTIALITY: Advertiser acknowledges that it has entered into a MS
Non-Disclosure Agreement dated _____________, and the terms of such
agreement shall be deemed incorporated herein, and further, that all
terms and conditions of this Agreement shall be deemed Confidential
Information as defined therein.
15. PRESS RELEASES: Neither party will issue any press release or make any
public announcement(s) relating in any way whatsoever to this Agreement
or the relationship established by this Agreement without the express
prior written consent of the other party, which consent shall not be
unreasonably withheld, provided that MS may make informational
references to MSN Shopping and/or WebTV Service Shopping Center, and
Advertiser's participation therein in publicity and press releases
without obtaining Advertiser's consent.
-7-
<PAGE>
16. GENERAL PROVISIONS: These terms and conditions are governed by the laws
of the State of Washington, USA. All capitalized terms used herein
shall have the same meaning as in the IO. Advertiser hereby irrevocably
consents to the personal jurisdiction of, and non-exclusive venue for
any legal proceedings or actions undertaken by or on behalf of
Advertiser in, the state and federal courts located in King County,
Washington. The prevailing party in any dispute concerning the subject
matter hereof shall be entitled to recover its reasonable attorney's
fees and costs. The parties agree that this Agreement is deemed to have
been made in the State of Washington, USA. No joint venture,
partnership, employment, or agency relationship exists between
Advertiser and MS. Neither party shall be deemed to have waived or
modified any of these terms and conditions except by a writing signed
by its duly authorized representative. Neither party may assign its
rights hereunder to any third party (other than to a person, firm or
entity controlling, controlled by or under common control with the
assigning party or in connection with a sale of all or substantially
all of assigning party's assets) unless the other party expressly
consents to such assignment in writing, which consent shall not be
unreasonably withheld. Any attempted assignment, sub-license, transfer,
encumbrance or other disposal without such consent shall be void and
shall constitute a material default and breach of this Agreement. If
any provision of these Standard Terms and Conditions is found invalid
or unenforceable pursuant to judicial decree or decision, the remaining
provisions shall remain valid and enforceable, and the unenforceable
provisions shall be deemed modified to the extent necessary to make
them enforceable. Unless specifically stated otherwise, the applicable
territory for the advertising shall be the United States and Canada.
All notices to MS relating to any legal claims or matters must be made
in writing to Microsoft Corporation, One Microsoft Way, Redmond, WA
98052-6399, attn. US Legal Group, Law & Corporate Affairs, attn: Ad
Sales Attorney and will 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 to the party signing this Agreement. This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements or communications. This Agreement shall not
be modified except by a written agreement dated subsequent to the date
of this Agreement and signed on behalf of Advertiser and MS by their
respective duly authorized representatives. This Agreement does not
constitute an offer by MS and it shall not be effective until signed by
both parties. Sections 5 (Audits), 7 (Advertiser Reporting), 8
(Warranties), 10 (Removal of Link), 12 (Indemnification), 13
(Limitation of Liability), 14 (Confidentiality) and 16 (General
Provisions) shall survive any termination of this Agreement and will
remain in full force, together with all rights and causes of action
that may have accrued prior to termination, and any other provisions
that might reasonably be deemed to survive such termination.
-8-
<PAGE>
EXHIBIT A
MSN/REDENVELOPE
PROJECTED SESSIONS TO REDENVELOPE FROM [*]
[*]
[*] TOTAL EMAIL AD REQUESTS
GUARANTEED CLICK THRUS BASED ON A 10/23/00 PASSPORT WALLET IMPLEMENTATION
<TABLE>
<CAPTION>
MONTH [ * ] [ * ] [ * ] TOTALS
<S> <C> <C> <C> <C>
----------------------------------------------
JULY [* [* [*
----------------------------------------------
AUG * * *
----------------------------------------------
SEPT * * *
----------------------------------------------
Q1 Sub * * * [*
----------------------------------------------
OCT * * *
----------------------------------------------
NOV * * *
----------------------------------------------
DEC * * *
----------------------------------------------
Q2 Sub * * * *
----------------------------------------------
JAN * * *
----------------------------------------------
FEB * * *
----------------------------------------------
MAR * * *
----------------------------------------------
Q3 Sub * * * *
----------------------------------------------
APR * * *
----------------------------------------------
MAY * * *
----------------------------------------------
JUNE * * *
----------------------------------------------
Q4 Sub * * * *
----------------------------------------------
GRAND TOTAL *] *] *] *]
----------------------------------------------
</TABLE>
GUARANTEED CLICK THRUS BASED ON A 11/30/00 PASSPORT WALLET IMPLEMENTATION
<TABLE>
<CAPTION>
MONTH [ * ] [ * ] [ * ] TOTALS
<S> <C> <C> <C> <C>
----------------------------------------------
JULY
----------------------------------------------
AUG
----------------------------------------------
SEPT
Q1 Sub [* [* [* [*
----------------------------------------------
OCT
----------------------------------------------
NOV
----------------------------------------------
DEC * * *
----------------------------------------------
Q2 Sub * * * *
----------------------------------------------
JAN * * *
----------------------------------------------
FEB * * *
----------------------------------------------
MAR * * *
----------------------------------------------
Q3 Sub * * * *
----------------------------------------------
APR * * *
----------------------------------------------
MAY * * *
----------------------------------------------
JUNE * * *
----------------------------------------------
Q4 Sub * * * *
----------------------------------------------
GRAND TOTAL *] *] *] *]
----------------------------------------------
</TABLE>
* Material has been omitted pursuant
to a request for confidential treatment.