Co-Marketing Agreement - Netscape Communications Corp.
NETSCAPE COMMUNICATIONS CORPORATION
CO-MARKETING AGREEMENT
This Co-Marketing Agreement ("AGREEMENT"), entered into by and between Netscape
Communications Corporation ("NETSCAPE"), a Delaware corporation located at 501
East Middlefield Road, Mountain View, California 94043, and Yahoo! Inc.
("YAHOO"), a California corporation with its principal place of business at 3400
Central Expressway, Ste. 201, Santa Clara, California 95051, is effective as of
the effective date set forth below ("EFFECTIVE DATE").
RECITALS
A. Netscape is in the business of developing, manufacturing, marketing and
distributing Internet related products and technology and providing
related services, and in connection with its marketing efforts,
maintains a U.S. English language World Wide Web site;
B. Yahoo is in the business of creating Internet-related content including
navigational and directory services; and
C. The parties wish to enter into this Agreement to cooperate in certain
co-marketing activities.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, in addition to the capitalized terms defined
elsewhere in this Agreement, the following terms shall have the meanings set
forth below:
"CHANNEL" means a major content category within the Service (and not as included
in any client software), such as Entertainment, Sports, Business or Personal
Finance, for example, separated from other content in a graphically defined
area.
"CONTENT MODULE" means a single content subject category provided by a Premier
Provider within a Channel or Sub-Channel.
"CONTENT PROVIDER" means a company which is participating in the Service by
providing to the Service content and/or a link to a content-related site.
"CUSTOMIZED FRONT PAGE" means the page on the Internet presented to an end user
who has registered for the Service and configured customized content to be
served up to the end user.
"DEFAULT FRONT PAGE" means the page on the Internet which is the initial point
of entry for an end user accessing the Service but who has not registered with
the Service.
"DESTINATIONS" means that portion of Netscape's Web Site providing content
organized by major categories and including Site Samplers for purposes of
promoting Netscape customer's Web sites.
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"DISTINGUISHED PROVIDER" means a Content Provider which has a secondary listing
relative to a Premier Provider listing, and a smaller, less distinct promotional
element.
"DISTINGUISHED PROVIDER DIRECTORY" means the directory listing of Distinguished
Providers within any Channel or Sub-Channel.
"FRONT PAGE" means a Default Front Page or a Customized Front Page.
"LAUNCH DATE" means the date on which the initial version of the Service is
accessible to end users.
"NETSCAPE RESPONSIBLE ADVERTISING" shall mean the Netscape Legacy Advertising,
described in Section 11.3 and Section 16.1, the Netscape Ad Inventory described
in section 11.3, and the WNWC Advertising sold by Netscape described in section
16.1.
"NETSCAPE'S WEB SITE" the collection of U.S. English-language HTML documents
accessible by the public via the Internet at the URL http://home.netscape.com
and/or at such other URL or URL's as Netscape may designate.
"PAGE VIEW" means the serving up of an HTML page.
"PAYMENT" means Twenty-Five Million Dollars ($25,000,000) as described in
Section 14.1.
"PEOPLE PAGES" means the service which allows users to perform searches to
locate people on the Internet.
"PREMIER PROVIDER" means a Content Provider which has a prominent listing in the
Service, a graphic icon and a graphic promotional element.
"PREMIER PROVIDER DIRECTORY" means the directory listing of Premier Providers
within any Channel or Sub-Channel.
"SERVICE" means the enhanced Web navigation service which organizes the most
useful sites on the World Wide Web as described in, and which is the subject of,
this Agreement. The Service shall not include the What's New Page, the What's
Cool Page and the People Pages.
"SERVICE AD INVENTORY" shall mean the electronic advertising inventory within
the Service, the People Pages, the What's New Page, the What's Cool Page and any
other advertising inventory which Yahoo will manage as described in this
Agreement, subject to the provisions of Section 16. Service Ad Inventory shall
not include any of the Netscape Dedicated Channel as defined in Section 4.4.
"SERVICE NAME" means the name of the Service to be decided upon the mutual
agreement of the parties.
"SITE SAMPLER" means a gif or a dynamically updated text Content Module which
provides appropriate content and links to a Content Provider's Web site.
"SUB-CHANNEL" means a sub-category of a Channel content category, such as Golf,
Football or Skiing relative to a Channel for Sports.
"TERM" means the two (2) year period of this Agreement, subject to the
provisions of Section 20.
"WHAT'S COOL PAGE" means the page on Netscape's Web Site currently located at
the URL http://________________ as such URL may change from time to time and
which describes an edited list of distinctive Web sites.
"WHAT'S NEW PAGE" means the page on Netscape's Web Site currently located at the
URL http://________________ as such URL may change from time to time and which
describes an edited list of new and noteworthy Web sites.
"YELLOW PAGES" means the search and directory service which enables end users to
locate local businesses on the Internet to be included in the Service as
described in Section 7.
2. INTERNET NAVIGATION SERVICE.
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2.1. DESCRIPTION OF THE SERVICE. The Service will be modeled after, yet
differentiated from, Yahoo's "My Yahoo!" personalized Internet navigational
service. The Service shall include Site Samplers, or content-rich graphics
similar to a Site Sampler, and possibly include other content such as third
party reviews. Notwithstanding the foregoing, Yahoo shall develop, subject to
Netscape's reasonable approval, the concept, look and feel of the Service which
is separate and distinct from the My Yahoo! Service. The Service will be offered
free of charge to end users. The parties anticipate that the Service will begin
on or before April 15, 1997. On the Launch Date, the Destinations area will be
removed from Netscape's Web Site and shall cease to exist for the Term of this
Agreement. End users accessing Destinations will be redirected to the Service.
2.2. CUSTOMIZATION. The Service will include a Default Front Page as the
initial point of entry for end users accessing the Service. The Default Front
Page will have a default configuration of content with Channels, Sub-Channels
and banner advertising, as the parties shall mutually agree. Additionally, the
Default Front Page will include a link to a page which will guide end users
through a customization process whereby the end user can customize the Service
by selecting a preferred configuration of content, Channels and Sub-Channels
which will be served to that end user on subsequent visits to the Service. If
an end user elects to customize the content they receive through the Service,
the end user will have to first register with the Service, as such registration
is described in Section 3. Users can change the configuration of their
customized content as often as they like.
2.3. LOCATION OF SERVICE. The Service will reside solely on Yahoo's
servers and Internet connection. The Toolbar button (as described in Section
10.1) and Destination buttons (as described in Section 10.4) shall be hard coded
with a "netscape.com" domain and redirected to a "yahoo.com" domain. The
Default Front Page shall be served under a "netscape.com" domain name. All
other pages of the Service will be served under "yahoo.com" domain name. Yahoo
shall not promote the Service from another Web site without Netscape's prior
written consent.
2.4. TARGET MARKET. The Service's primary target market is the individual
end user who would use the Service for their personal use at home or the office,
and not directly targeted to business-to-business or trade service users. The
Service will be available in U.S. English-language only and will be focused on
the North American market.
2.5. NAME OF THE SERVICE. The Service Name will be mutually agreed upon by
Netscape and Yahoo. Yahoo shall not independently use the Service Name without
Netscape's prior written consent unless such use occurs in connection with
Yahoo's advertising sales and promotional efforts on behalf of the Service. The
Service Name shall be displayed on every page of the Service and no other
locations without Netscape's prior written consent except in connection with
such advertising sales and promotional efforts on behalf of the Service. If the
Service Name includes a co-branding component, Yahoo may not use the Service
Name with Netscape's name expunged. Yahoo may not use the Service Name
independent of the Service except as provided for above in this Section 2.5.
2.6. DESIGN OF SERVICE. The Service shall be co-branded equally by
Netscape and Yahoo. Yahoo shall be responsible for creating the graphic user
interface including navigation, architecture, look and feel as well as the tone
of the Service; provided, however, that Netscape and Yahoo shall mutually agree
to the initial design of the Service.
3. END USER REGISTRATION.
3.1. REGISTRATION PROCESS. End users who wish to customize the Service
will have to register. The user registration page will be linked to the Default
Front Page as well as all other appropriate pages in the Service. Initially,
the Service will use My Yahoo!'s registration back-end database in conjunction
with a co-branded front-end form of registration presented to end users. Such
form of registration shall be substantially similar to Exhibit C. At the time
the end user is asked to register, the end user will be notified as to what
personal data is required for them to provide, how the personal data will be
used and who will have access to the data, as described in Exhibit C. [XXXX].
The parties hereto acknowledge that it is their intent to integrate the
Service's user registration process with Netscape's "Universal
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Registration" system when such system becomes available. At such time as the
registration process is transferred to Netscape, Netscape shall use reasonable
commercial efforts to collect the same data from the Service registration
process as was collected by Yahoo. At such time as Netscape's "Universal
Registration" system is deployed, [XXXX]. Netscape and Yahoo shall use
reasonable commercial efforts to coordinate the prompt transfer of user
information from Netscape to Yahoo at such time as Netscape's "Universal
Registration" system is used in connection with the Service.
3.2. ADDITIONAL USER INFORMATION. [XXXX]
3.3. PERSONAL DATA CONFIDENTIAL. [XXXX]
4. CHANNELS.
4.1. WEB COVERAGE AND PROGRAMMING. The Service will offer users a choice
of the following [XXXX]. Additional Channels may be added upon the mutual
agreement of the parties.
4.2. CHANNEL AND SUB-CHANNEL COMPONENTS. Each Channel and Sub-Channel will
include the following components, as set forth in Exhibit A: [XXXX] The Channel
and Sub-Channel components will initially be pre-configured and presented to an
end user on a default basis as the parties shall mutually agree. Registered
users will be able to customize the content presented to them in a Channel.
4.3. CHANNELS, SUB-CHANNELS AND CONTENT MODULES. The parties shall
mutually agree to the topics and number of Channels. Yahoo will determine the
categories for Sub-Channels within each Channel. Yahoo will provide an
internal, editorial review of Web sites and the content programming within a
Channel, Sub-Channel or Content Module.
4.4. NETSCAPE'S DEDICATED CHANNEL. Netscape reserves the right to have
one (1) dedicated Channel in the Service (the "NETSCAPE DEDICATED CHANNEL"), and
Netscape is responsible for the programming within, and the management of, the
Netscape Dedicated Channel including Sub-Channels, Content Modules and Content
Provider listings; provided, however, that content programming within
Netscape's dedicated Channel shall include no more than [XXXX]. Netscape shall
use reasonable commercial efforts ensure that Netscape's dedicated Channel
conforms with the Service's general look, feel and tone. All content included
within the Netscape Dedicated Channel shall pertain to Netscape's products and
services and those of its strategic business relationships with respect to
Netscape's core businesses. No third party space within the Netscape Dedicated
Channel may be sold. No pages within the Netscape Dedicated Channel shall be
deemed to be part of the Service Ad Inventory for any reason.
4.5. ADDITIONAL NETSCAPE RESERVED INVENTORY. [XXXX]
5. SEARCH FUNCTIONALITY.
5.1. SEARCH FIELD. A field providing search functionality will be included
on pages within the Service as the parties may mutually determine. The search
executed from the search field will initially only cover content within the
Service itself. When the results to a search query are returned, a user will be
given the option of expanding the scope of the search to encompass the World
Wide Web using one of Netscape's Net Search Program premier or marquee search
engines. The user will also be offered the choice of executing another search
limited to the content of the Service. The parties acknowledge that although
Netscape's Net Search Program is listed within the current version of
Destinations, for the purposes of this Agreement, Net Search shall not be
included in Destinations or the Service.
5.2. SEARCH FIELD POSITIONING. The search field shall appear below the
fold, or in such other location as the parties may mutually determine, on any
page in which the search field is listed. Netscape shall approve the search
engine companies which appear as expanded search options as well as the
positioning of the search engine companies on the page served to end users in
conjunction with the end user's search results. Yahoo shall not charge any of
the search engine companies for these listings. Netscape reserves the right to
review the financial effect of the search field in the Service as such search
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functionality may impact Netscape's own Net Search Program and require that the
search functionality in the Service be minimized or deleted.
5.3. MONTHLY SEARCH REPORTS. [XXXX]
Netscape and Yahoo shall determine the format for this monthly report. The
information contained in the report shall be Netscape's and Yahoo's Confidential
Information; however, Netscape reserves the right to provide the information
contained in the report to the Net Search Program companies.
6. CONTENT PROVIDER PARTICIPATION IN THE SERVICE.
6.1. APPLICATION PROCESS. Netscape shall determine the criteria by which
Content Providers may participate in the Service. Yahoo will be responsible for
administering the Content Provider application process and serve as the primary
point of contact for companies interested in becoming Content Providers.
6.2 ORGANIZATION OF CONTENT PROVIDERS. A predetermined number of Content
Providers, as mutually determined by the parties, will appear as Premier
Providers in the Premier Provider Directory portion of the Channel or Sub-
Channel and Distinguished Providers in the Distinguished Provider Directory of
the Channel or Sub-Channel. Netscape and Yahoo shall mutually agree as to the
exact number of Premier Providers and Distinguished Providers in a Channel or
Sub-Channel. The Service shall include promotional areas, such as Site
Samplers, for Premier Providers, as the parties shall mutually agree. On any
page in the Service which includes a Premier Provider Directory and a
Distinguished Provider Directory, the Premier Provider Directory shall be more
prominently displayed. Within any Distinguished Provider Directory, Content
Providers shall be displayed in the following order of decreasing prominence:
Distinguished Providers designated by Netscape;
Useful Content Providers displaying the Netscape Now button; and
Useful Content Providers not displaying the Netscape Now button;
provided, however, that: such Content Providers comply with the criteria
determined by Netscape; Netscape reserves the right to determine the positioning
of [XXXX] Content Provider participating in the Service; and such news provider
shall count against Netscape's Premier Provider Allotment as described in
Section 6.5.
6.3. TRANSITION PERIOD. Netscape shall use reasonable commercial efforts
to assist Yahoo in transitioning Content Providers as participants in the
Service. Within seven (7) days of the Effective Date, Netscape shall notify
Yahoo of companies which Netscape would like to have Yahoo list in the Service
as Premier Providers or Distinguished Providers (the "TRANSITIONAL CONTENT
PROVIDERS"). Until July 1, 1997, such companies shall appear as Premier
Providers or Distinguished Providers in Channels and/or Sub-Channels as Yahoo
shall determine; provided, however, that each such Premier Provider or
Distinguished Provider shall be listed in the Service. In addition to the
Premier Providers and Distinguished Providers designated by Netscape, other
Content Providers may appear in the Premier Provider Directory or Distinguished
Provider Directory, provided that such other Content Providers meet the
selection criteria set forth in Exhibit F as such Exhibit F may be revised from
time to time as set forth in this Agreement, or as otherwise agreed upon by the
parties.
6.4. AFTER THE TRANSITION PERIOD. Beginning on July 1, 1997, Yahoo shall
review and approve companies who want to participate in the Service as Content
Providers. Such approval of Content Providers shall be subject to a company's
complying with Netscape's criteria which criteria shall be revised and
communicated to Yahoo no later than May 1, 1997. Beginning on July 1, 1997,
Premier Providers participating in the Service as a result of having been
transferred by Netscape as described in Section 6.3 shall continue to
participate in the Service provided that such Premier Providers comply with the
requirements for Premier Providers participating in the Service as set forth in
Section 6.5. Netscape reserves the right to refuse to include any Content
Provider which does not meet with Netscape's
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criterion for Content Providers. Yahoo may require all Content Providers
included in the Service to execute an agreement containing Yahoo's then-current
standard terms and conditions pertaining to the appropriate level of Content
Provider (the "STANDARD YAHOO CONTRACT"). Special Content Providers (as defined
Section 6.6, below) shall not be required to sign the Standard Yahoo Contract
if, and only if, such Content Provider's participation in the Service consists
solely of a listing in a directory and no other content. Notwithstanding
anything else in this Agreement, Yahoo may refuse to include any Premier
Provider or Distinguished Provider in the Service who does not execute the
Standard Yahoo Contract, and may refuse to include any Premier Provider,
Distinguished Provider or material, if Yahoo, in its reasonable determination,
deems such inclusion would lead to material injury, damage, or liability to
Yahoo.
6.5. FEE CHARGED TO PREMIER PROVIDERS. [XXXX] a fee to participate in the
Service or to place Content Modules in the Service, upon rates and terms to be
determined by Yahoo with the understanding that Netscape and Yahoo shall
consider each other's advertising plans and packaging; provided, however, that
Netscape may offer Premier Provider placements free of charge to certain Content
Providers as long as such free of charge placements and listings do not exceed
[XXXX] of the available inventory of Premier Provider placements in any given
month ("NETSCAPE PREMIER PROVIDER ALLOTMENT"). Netscape shall not sell slots in
its Netscape Premier Provider Allotment, but shall make such Premier Providers
aware of the value of such slot based on fees Yahoo is then charging for such
slots.
6.6. SPECIAL CONTENT PROVIDERS. Subject to Section 6.4, Yahoo shall
include certain companies as Content Providers in the Service on a free of
charge basis regardless of such company's compliance with Netscape's criteria
(the "SPECIAL CONTENT PROVIDERS"). The list of such companies to be included in
the Service is set forth in Exhibit B. Within thirty (30) days of the Effective
Date, Netscape shall notify Yahoo as to whether such companies shall be listed
as Premier Providers or Distinguished Providers in the Service. All Special
Content Providers shall be counted against Netscape's Premier Provider
Allotment.
6.7. UPDATING OF DISTINGUISHED PROVIDERS AND PREMIER PROVIDERS. On a bi-
weekly basis, Netscape will send to Yahoo a revised list of companies which
Yahoo must include as Premier Providers (on a free of charge basis, subject to
the limits of Netscape's Premier Provider Allotment and subject to space
availability) and Distinguished Providers (provided such Distinguished Providers
comply with Netscape's Content Provider criteria), if additions, deletions or
corrections are needed. Yahoo shall update the list of Premier Providers and
Distinguished Providers appearing in the Service, making the necessary additions
or deletions within ten (10) business days of receipt of such revised list from
Netscape. The parties shall designate a contact person and a process for
managing the updated list.
6.8. INTEGRATED COMMUNITY. Netscape and Yahoo acknowledge that the intent
of the Service is to provide an "integrated community" experience for Netscape
users and not to provide Yahoo with any special prominence in listings relative
to other Content Provider, unless such enhanced presence or positioning is
agreed to by Netscape. Promotion of Yahoo's Web site will be minimized to
prevent diversion of user traffic from the Service. Promotion of Yahoo within
the Service will be subject to Netscape's approval.
6.9. TECHNICAL SUPPORT. If Yahoo receives any questions from a prospective
or existing Content Provider relating to specific development or technical
support (such as how to develop on the Netscape platform), Yahoo will refer the
prospective or existing Content Provider to the Netscape Developer Program as
described on Netscape's Web Site.
7. [XXXX]
8. PEOPLE PAGES. The People Pages will be managed by Yahoo under the Netscape
brand and will include the existing participants in Netscape's White Pages
program unless otherwise agreed to by the parties. The People Pages may be
enhanced or modified upon the mutual agreement of Netscape and Yahoo. [XXXX]
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9. WHAT'S NEW PAGE AND WHAT'S COOL PAGE. Beginning July 1, 1997, Yahoo shall
manage the What's New Page and the What's Cool Page portions of Netscape's Web
Site. Netscape shall have the right to designate up to [XXXX] of the entities
to be included in the What's New Page per week, and Netscape shall nominate
entities for Yahoo's consideration for inclusion in the What's Cool Page.
Netscape shall not charge such entities for such inclusion. The What's New Page
and What's Cool Page will appear under Netscape's brand exclusively; however,
Yahoo will be credited at no less than the level currently granted with
providing the content for the What's New Page and What's Cool Page. The parties
may in the future decide to include the What's New Page and What's Cool Page as
part of the Service.
10. PROMOTION OF THE SERVICE IN NETSCAPE'S PRODUCTS. For as long as Netscape
offers the other products and services described below, Netscape shall promote
the Service during the Term as follows:
10.1. TOOLBAR BUTTON. Netscape shall build a button for the Service which
will appear in the Toolbar section of the Netscape Communicator client software
and in a comparable location in subsequent versions of Netscape's client
software. The name of the button shall be determined by Netscape with
consideration given to Yahoo's preferences. When an end user presses the
button, the end user will be presented with a drop-down menu of headings in the
following order: The Internet (or a name to be mutually agreed to by the
parties), People, Yellow Pages, What's New Page and What's Cool Page or such
other heading names as Netscape may determine; provided, however, that the The
Internet heading, or such other name as may be decided, shall be linked to the
Front Page, and no service similar to the Service shall be granted a button on
the toolbar.
10.2. NETSCAPE'S WEB SITE. The home page of Netscape's Web Site shall
feature a prominent link to the Service in a location and format as Netscape
shall determine.
10.3. PRE-LOADED BOOKMARK. Netscape shall include a pre-loaded bookmark for
the Service in Netscape-distributed versions of the Netscape Communicator client
software and in a comparable location in subsequent versions of Netscape's
client software.
10.4. DESTINATIONS BUTTON. In versions of the Netscape Navigator which
include or refer to a Destinations area of Netscape's Web Site, users selecting
the Destinations location will be redirected to the Front Page of the Service.
10.5. CONSTELLATION. In the Netscape Constellation client software, or
derivative thereof, Netscape shall include a link to the Service which shall be
at least as prominent as any similar service, provided that the Service is
modified to support the appropriate technologies within Constellation or its
derivative. Netscape and Yahoo shall mutually agree to new content changes and
functionality.
10.6. IN-BOX DIRECT. Netscape shall provide the Service with premier
positioning within the In-Box Direct program and sign-up area, as Netscape shall
determine such positioning in its discretion.
10.7. IN-BOX DIRECT FOR SUITESPOT. Netscape shall include in In-Box Direct
for SuiteSpot a premier listing for the Service, as optimized for Enterprise
users, and as Netscape shall determine in its discretion.
11. YAHOO'S OBLIGATIONS.
11.1. PRODUCTION, TECHNOLOGY AND CONTENT PROGRAMMING. Yahoo shall be
responsible for all production and content programming of the Service. The
Service shall use substantially the same technology and advantages as Yahoo uses
in its "My Yahoo!" service, unless otherwise agreed to by the parties. The
Service shall not be disadvantaged or suffer from inferior production,
programming or performance relative to the My Yahoo! service, or any similar
service which Yahoo might make available to, or operate on behalf of, third
parties except with respect to proprietary features owned by, or made
exclusively available to, third parties. Except with respect to the Premier
Providers and Distinguished Providers provided to Yahoo by Netscape hereunder
and except as further constrained by the available pool of Premier Providers and
Distinguished Providers, the Service shall perform substantially up to the same
performance standards as My Yahoo!, including, but not limited to, load time,
timeliness of content,
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and quality of programming. Notwithstanding the foregoing, this Agreement does
not include a license to use the technology and services currently available in
My Yahoo! and licensed by Yahoo from Firefly, Inc. and other third party
technologies which Yahoo is contractually precluded from including in the
Service. Yahoo shall perform its duties described herein with substantially the
same diligence and vigor as it employs with respect to its own services and Web
sites, or the services and Web sites Yahoo may operate for third parties, and
Yahoo shall not favor its own Web sites, or those of any third party, over the
Service. With respect to features and functionalities offered within the
Service, Yahoo shall use reasonable commercial efforts to employ in the Service
Netscape's technology, if available, rather than a technology which might
compete with Netscape products or services, provided that such use of Netscape's
technology does not, in Yahoo's reasonable determination, unduly burden the
performance or production of the Service or unduly tax Yahoo's engineering,
support or production resources. Yahoo's obligation to produce the Service
including production services, technology and content programming which meet or
exceed standards established by Yahoo on its own Web site or services (or the
Web site or services Yahoo manages for any third party) and general industry
standards is a material obligation of Yahoo under this Agreement.
11.2. ADVERTISING. Yahoo shall be responsible for all production and
programming of advertisements on the Service Ad Inventory, subject to Netscape's
guidelines for advertising. Commencing on the Effective Date and except as set
forth in Section 16, Yahoo will manage and sell all advertising and sponsorships
within the Service Ad Inventory, and Yahoo will manage the advertising product
and services with the same degree of professionalism Yahoo exercises with
respect to Yahoo's own Web sites or the Web site Yahoo might manage on behalf of
any third party. Services which Yahoo shall provide include site auditing,
traffic analysis, functionality and other advertising services. Yahoo may
require all advertisers on the Service including the Netscape Responsible
Advertising to execute Yahoo's then current form of insertion order ("IO").
Notwithstanding anything else in this Agreement to the contrary, Yahoo may in
its sole discretion refuse to include any advertising on the Service for any
reason, provided that Yahoo may only refuse to include Netscape Legacy
Advertising, as defined in Section 11.3, if such advertisers refuse to sign the
IO. Netscape Legacy Advertisers who refuse to sign the IO ("REFUSNIKS") shall
nevertheless be included as advertisers in the Service until such advertisers
advertising contracts with Netscape have expired.
11.3. NETSCAPE AD INVENTORY. Yahoo shall honor all contracts for banner
advertising which Netscape has previously committed to post in the Destinations
area of Netscape's Web Site (the "NETSCAPE LEGACY ADVERTISING"). A list of such
outstanding Destinations advertising commitments is attached hereto as Exhibit
D. In any given month, Netscape shall be entitled to offer to third parties up
to [XXXX] of the Service Ad Inventory in that month ("NETSCAPE AD INVENTORY"),
provided, however, that Netscape shall only offer the Netscape Advertising
Inventory for barter, and not for sale, and provided further that Netscape shall
not be entitled to place more than [XXXX] of the monthly Netscape Ad Inventory
in any one Channel. Notwithstanding the foregoing, the parties may mutually
agree from time to time to make additional Service Ad Inventory available to
Netscape for barter transactions. In order to avoid conflicts with barter
transactions, Netscape shall designate a contact person to coordinate with Yahoo
the availability of Service Ad Inventory.
11.4. EQUIVALENT EFFORT. In selling advertising inventory and providing
advertising services hereunder, Yahoo will carry out such services with
substantially the same diligence and vigor as it employs when selling, managing
or maintaining similar advertising on its own services and Web sites. Without
limiting the foregoing, Yahoo shall not unreasonably favor its own Web site, or
the Web site or services of any third party, over the Service.
11.5. REFUSE TO PUBLISH. Netscape may, in its reasonable discretion, at any
time for any reason refuse to accept or publish, or direct Yahoo to refuse to
accept or publish, a Content Provider listing, a Content Module, an
advertisement and/or other content on the Service, the What's New Page, the
What's Cool Page, the People Pages if such content directly, explicitly and
maliciously disparages Netscape or Netscape's products; pertains to the
promotion, depiction, sale, use or endorsement of alcohol, tobacco, sexually
explicit materials, religious institutions; and such other areas as the parties
may mutually agree.
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[XXXX]
11.7. NETSCAPE NOW PROGRAM COMPLIANCE ON YAHOO'S WEB SITE AND THE SERVICE.
Yahoo shall display the "Netscape Now" button [XXXX], and use reasonable
commercial efforts to include the following statement (or a statement designated
by Netscape and generally used by Netscape as a successor to the following
statement or in connection with any successor program to Netscape's Netscape Now
program) next to the Netscape Now button: "This site is best viewed with
Netscape Navigator 3.0. Download Netscape Now!" (or such higher non-beta
version as is then available). Yahoo will produce the page such that when an
end user presses or clicks on the Netscape Now button (or such other button used
in connection with any successor program to the Netscape Now program), the end
user's Internet client software will access the applicable HTML page located at
a URL supplied by Netscape. On any page on which the Netscape Now button, or a
successor button, is displayed, the Netscape Now button shall be [XXXX]. Yahoo
shall use reasonable commercial efforts promptly to remedy any misplacement of
the Netscape Now button on its home page or other pages or any malfunctioning of
the button, provided Netscape will fully cooperate with Yahoo to remedy any such
misplacement or malfunctioning, and provided further that Yahoo shall not incur
liability for any failure to remedy such misplacement or malfunctioning if such
remedy is not within the reasonable control of Yahoo. In the event that Netscape
replaces the Netscape Now program with a successor program, Netscape shall
advise Yahoo and Yahoo shall produce the page to conform to such successor
program, provided Yahoo's obligations under such successor program shall not be
materially increased. Netscape hereby grants Yahoo a nonexclusive,
nontransferable, nonassignable, nonsublicensable license to perform and display
the Netscape Now button directly in connection with fulfilling the foregoing
obligation. Yahoo's use of the Netscape Now button shall be in accordance with
Netscape's reasonable policies regarding advertising and trademark usage as
established from time to time by Netscape, including the guidelines of the
Netscape Now Program published on Netscape's U.S. English-language Web Site.
Yahoo acknowledges that the Netscape Now button is a proprietary logo of
Netscape and contains Netscape's trademarks. In the event that Netscape
determines that Yahoo's use of the Netscape Now button is inconsistent with
Netscape's quality standards, then Netscape shall have the right to suspend
immediately such use of the Netscape Now button. Yahoo understands and agrees
that the use of the Netscape Now button in connection with this Agreement shall
not create any right, title or interest in or to the use of the Netscape Now
button or associated trademarks and that all such use and goodwill associated
with the Netscape Now button and associated trademarks will inure to the benefit
of Netscape. Yahoo agrees not to register or use any trademark that is similar
to the Netscape Now button. Yahoo further agrees that it will not use the
Netscape Now button in a misleading manner or otherwise in a manner that could
tend to reflect adversely on Netscape or its products.
11.8. CONTENT PROVIDER COMPLIANCE. Yahoo will require Content Providers to
substantially abide by the criteria for participating in the Service as such
criteria are described in Exhibit F. Yahoo shall use reasonable commercial
efforts to monitor the Content Providers' compliance with the guidelines and, as
necessary, notify Content Providers of their non-compliance. If a Content
Provider fails to come into compliance after receipt of notification, Netscape
shall direct Yahoo to reduce the listing status of a non-complying Content
Provider or remove the Content Provider from the Service, as Netscape shall
determine.
11.9. MARKETING COLLATERAL. Yahoo will maintain on the Service marketing
collateral for the Service. The collateral will be updated regularly and on an
as-needed basis. The marketing collateral, as well as application for Content
Provider participation in the Service, as described in Section 6.1, shall be
located in an easily accessible location. Each party shall include a link to
the Service's marketing collateral in an appropriate area of the party's Web
site.
11.10. SERVICE ENROLLMENT SUPPORT. Yahoo shall provide information and sales
support to Content Providers regarding participation in the Service.
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
11.11. TECHNICAL SUPPORT OF SERVICE. During the Term, Yahoo shall provide
technical support services for the Service in a timely basis. Yahoo shall
appoint a technical contact to whom Netscape may address all technical questions
relating to the Service. Yahoo shall use best efforts to promptly remedy any
material misplacement or malfunctioning of the Service.
12. JOINT ACTIVITIES.
12.1. PRESS PLANS. Yahoo and Netscape agree to participate in a joint press
announcement regarding the Service which will take place on a mutually agreed
upon date. The parties shall agree to the form and content of the joint press
release. Notwithstanding the foregoing, either party may issue its own press
release, subject to the other party's prior approval of the content within the
release. With respect to major advertising and marketing deal announcements
regarding the Service, Netscape and Yahoo shall have forty-eight (48) hours to
respond, in writing, to any proposed announcement. In any press announcement
regarding the Service, both Yahoo and Netscape's name and logo shall be included
in the press release, and the names and logos shall appear with equal
prominence. Interviews with the press regarding announcement of the Service
shall be coordinated between both Netscape and Yahoo.
12.2. RESEARCH. If Yahoo or Netscape conducts any research regarding the
Service, such research results shall be shared between both companies on a
timely basis. If Yahoo or Netscape conducts a study on their respective primary
English-language Web site, both companies shall include the Service in the
study, where appropriate. Yahoo will conduct substantially the same level and
as much research and data collection regarding the Service as Yahoo conducts
with respect to My Yahoo!
12.3. QUARTERLY REVIEWS OF THE SERVICE. Netscape and Yahoo agree to
establish quarterly reviews of the Service to evaluate the success of the
Service and agree to modifications and improvements to the Service.
12.4. DESIGN REVIEWS AND OWNERSHIP. The graphic user interface ("GUI") of
the Service shall be jointly owned by the parties, as mutually determined by the
parties. Netscape and Yahoo shall mutually agree to all major design changes in
the GUI, including, but not limited to, significant new artwork or functional
changes. As part of the approval process for significant changes to the GUI,
the parties shall determine the ownership rights with respect to the newly added
feature or functionality, and either party may decline to add such feature or
functionality to the GUI. If either party has contributed to the GUI such
features or functionality owned by that party, the other party shall be granted
a royalty-free, irrevocable, perpetual world-wide license, without payment or
other charge therefore, to use, display, perform, reproduce and distribute such
feature or functionality in connection with the GUI in the Service or any
successor service after the termination or expiration of this Agreement. In no
event shall Netscape be entitled to a license or any ownership right in any
computer code written by Yahoo in connection with the GUI. Nothing contained
herein shall prevent Netscape from independently developing features or
functionality which are similar to the features and functionality owned by Yahoo
and implemented in the Service, provided that no intellectual property of Yahoo
is utilized and any use of such features or functionality are consistent with
Section 18.2 of this Agreement. The parties agree that Yahoo is not creating
the Service as a work made for hire. Except as set forth above with respect to
the GUI, nothing in the Agreement shall be deemed to grant to Netscape an
express or implied license or ownership right to any copyright, trademark, trade
secret or patent to any technology, content, or other material of Yahoo created
for or included in the Service, whether or not such were created at Netscape's
request or with Netscape's cooperation.
13. [XXXX]
14. PAYMENT.
14.1. PAYMENT AMOUNTS. For the benefits and services provided by Netscape
to Yahoo during the Term, Yahoo shall remit to Netscape a total of Twenty-Five
Million Dollars ($25,000,000) as the Payment, comprised of the following
components:
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
Ten Million Dollars ($10,000,000) as a guarantee against advertising revenue
in the first year of the Term, plus
Fifteen Million Dollars ($15,000,000) as a guarantee against advertising
revenue in the second year of the Term, provided Netscape delivers the
Netscape traffic requirements as described in Section 15.
14.2. TIMING OF PAYMENT. Yahoo shall pay Netscape the Payment within fifteen
(15) days after the dates set forth below:
In the first year of the Term:
One Million Five Hundred Thousand Dollars ($1,500,000) - June 15, 1997;
Two Million Two Hundred Fifty Thousand Dollars ($2,250,000) - September 30,
1997;
Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) - December
31, 1997;
Three Million Five Hundred Thousand Dollars ($3,500,000) - March 31, 1998;
and
In the second year of the Term:
Three Million Five Hundred Thousand Dollars ($3,500,000) - June 30, 1998;
Three Million Five Hundred Thousand Dollars ($3,500,000) - September 30,
1998;
Four Million Dollars ($4,000,000) - December 31, 1998;
Four Million Dollars ($4,000,000) - March 31, 1999;
or, if any such date is not a business day, the next following business day.
14.3. REVENUE COUNTED TOWARD GUARANTEE. Any revenue received by
Netscape after the Effective Date based on previous advertising services for
Destinations which contracts are absorbed and honored by Yahoo will be applied
toward Yahoo guaranteed advertising revenue amounts, subject to the terms of
Section 16. The net revenue amount received by Netscape for such advertising
(after deducting for bad debt (not to exceed 3%), cost of sales (not to exceed
20%) and barter) shall be deducted from the payment due from Yahoo to Netscape
in the calendar quarter in which such revenues are received.
14.4. PAYMENT OF REVENUE SPLITS. Within each of the first year of the
Term and the second year of the Term and to the extent cumulative revenues
generated by the Service exceed the cumulative scheduled payments to date as
described in Section 14.2, Yahoo shall pay to Netscape Netscape's portion of the
shared revenues, as such revenue sharing is described in Section 17, within
twenty-five (25) days of the end of the quarter in which the revenue is
recognized by Yahoo. Such amounts will be applied to the following quarter's
scheduled payments described in Section 14.2.
14.5. INTEREST AND TAXES. Any portion of the Payment which has not
been paid to Netscape within the applicable time set forth above shall bear
interest at the lesser of (i) one percent (1%) per month, or (ii) the maximum
amount allowed by law. All payments due hereunder are exclusive of any
applicable taxes. Yahoo shall be responsible for all applicable national, state
and local taxes, value added or sales taxes, exchange, interest, banking,
collection and other charges and levies and assessments pertaining to payments
other than U.S. taxes based on Netscape's net income. If Yahoo is required by
law to make any deduction or to withhold from any sum payable to Netscape by
Yahoo hereunder, (i) Yahoo shall effect such deduction or withholding, remit
such amounts to the appropriate taxing authorities and promptly furnish Netscape
with tax receipts evidencing the payments of such amounts, and (ii) the sum
payable by Yahoo upon which the deduction or withholding is based shall be
increased to the extent necessary to ensure that, after such deduction or
withholding, Netscape receives and retains, free from liability for such
deduction or withholding, a net amount equal to the amount Netscape would have
received and retained in the absence of such required deduction or withholding.
15. TRAFFIC GUARANTEE.
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
15.1. TRAFFIC TO THE SERVICE. Netscape agrees to deliver to the Front
Page of the Service, and the top page of a Channel (except the Netscape
Dedicated Channel) as the result of that Channel being accessed by a referring
URL (by means of a bookmark or hypertext link, for example) which points to the
top page of the Channel, a combined total of [XXXX] in the first year beginning
on the Launch Date; and [XXXX] in the second year after the Launch Date, as such
traffic estimates are set forth in Exhibit E. Notwithstanding anything else in
this Section 15.1, Netscape guarantees that at least [XXXX].
15.2. OTHER TRAFFIC. [XXXX]
16. ADVERTISING ON WHAT'S NEW PAGE AND WHAT'S COOL PAGE.
16.1. NETSCAPE AD SALES. Netscape will continue to manage the sale of
the banner advertising inventory on the What's New Page and What's Cool Page
during the second calendar quarter in 1997 until July1, 1997. Netscape will
receive [XXXX] of this net advertising revenue (as calculated in Section 14.3,
above), provided such net revenue has been run and recognized before July 1,
1997. Such net revenue shall not be credited against Yahoo's payment guarantees
as described in Section 14.2. If net revenue has been booked but not run by
Netscape prior to July 1, 1997, then such net revenue shall be credited against
Yahoo's payment guarantees, subject to the net revenue allocation described in
Section 16.2. Advertising booked and run prior to July 1, 1997 shall be defined
as "WNWC Ads". Advertising booked but not run prior to July 1, 1997 shall be
considered "Netscape Legacy Ads."
16.2. ALLOCATION OF NET REVENUE. Beginning on July 1, 1997, Yahoo will
manage the sale of the banner advertising inventory for the What's New Page and
What's Cool Page. The net revenue from such advertising sales (as calculated in
Section 17.1) will be allocated [XXXX] to Netscape and [XXXX] to Yahoo,
including any amounts of net revenue booked, but not run, by Netscape during the
second calendar quarter of 1997, up to a total advertising net revenue of
[XXXX]. After [XXXX] in total advertising net revenue from the What's New Page
and What's Cool Page is achieved (including any amounts booked and run by
Netscape from the Launch Date until July 1, 1997), the net revenue will be
allocated [XXXX] to Netscape and [XXXX] to Yahoo for the remainder of the Term.
Such net revenues shall be credited against Yahoo's payment guarantees.
17. REVENUE SPLIT.
17.1. ALLOCATION. For all pages in the Service and the People Pages,
the parties will share revenue as follows: The net revenue will be allocated
[XXXX] to Netscape, and [XXXX] to Yahoo, where net revenue is defined as total
revenues less barter, bad debt (provided that charges against bad debt do not
exceed three percent (3%) of the gross revenues), and cost of sales (at twenty
percent (20%) of gross revenues). This revenue percentage allocation applies to
all revenues received by the parties under this Agreement other than revenues
received by Netscape as described in Section 16.1. Yahoo may keep an ongoing
reserve of three percent (3%) for bad debt, and actual bad debt shall be
reconciled at the conclusion of each twelve (12) month period.
17.2 ADJUSTMENTS. If Netscape meets its traffic guarantee in the
first year after the Launch Date, as described in Section 15, then, in the
second year after the Launch Date: (i) Yahoo shall guarantee a minimum or
Fifteen Million Dollars ($15,000,000) in advertising revenue, as described in
Section 14.1, and (ii) Netscape will guarantee the traffic commitment as
described in Section 15. [XXXX]
Any further adjustments shall be mutually agreed to by Netscape and
Yahoo in the fourth quarter of the first year after the Launch Date. Such
additional adjustments shall be based on traffic trends in the third and
fourth quarters of the first year after the Launch Date and actual traffic in
the fourth quarter of the first year after the Launch Date.
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
[XXXX]
19. REPORTING AND AUDIT RIGHTS.
19.1 REPORTING. Within fifteen (15) days after the end of each month
during the Term: (i) Yahoo shall provide Netscape with a report in common log
format describing the total number of hits and page impressions for each of the
pages in the Service, and such other tracking information as the parties shall
mutually agree, and (ii) Netscape shall provide Yahoo with a report describing
the number of redirects of traffic to the Service from Netscape's Web Site, the
What's New Page, the What's Cool Page and the People Pages, and such other
tracking information as the parties shall mutually agree.
19.2 AUDIT RIGHTS. Each June and December during the Term, the
parties shall review the financial results (including gross revenues, bad debt
and barter) for the Service. Netscape shall have the right, upon no less than
fifteen (15) days prior written notice to Yahoo, to cause an independent
Certified Public Accountant to inspect, during Yahoo's normal business hours,
the records of Yahoo upon which Yahoo's revenue reports are based. The costs of
such audit shall be paid by Netscape provided, however, that if said inspection
shall reveal an error in excess of (five) (5%) percent in monies due to
Netscape, Yahoo shall pay for the audit. Netscape's audit rights as described
herein shall continue for two (2) months after the expiration or termination of
this Agreement.
20. TERM AND TERMINATION.
20.1. TERM. Unless earlier terminated pursuant to the provisions of
20.2, the Term of this Agreement shall continue for [XXXX] after the Launch
Date. The Agreement shall be automatically extended for a [XXXX] period
thereafter, provided that [XXXX] after the Launch Date, neither party has any
objection to the automatic renewal. [XXXX] after the Launch Date, the parties
agree to enter into [XXXX] for a period of [XXXX] during which time the parties
shall [XXXX]. If, at the end of such [XXXX], no agreement is reached as to the
terms of the renewal period, this Agreement shall expire at the end of the Term.
20.2. TERMINATION FOR CAUSE. Either party shall have the right to
terminate this Agreement upon a material default by the other party of any of
its material obligations under this Agreement, unless within thirty (30)
calendar days after written notice of such default the defaulting party remedies
such default. Netscape shall have the right to terminate the Agreement upon
Yahoo's breach of its representation and warranty set forth in Section 23.3.
20.3. RIGHTS UPON TERMINATION OR EXPIRATION. Upon expiration or
termination of this Agreement: (i) Netscape shall have the right, without any
additional payment, charge or royalty to Yahoo, to produce a service similar to
the Service which does not include Yahoo's intellectual property (except as set
forth in Section 12.4) or name but which might employ a graphic user interface
which is substantially similar to the graphic user interface of the Service, and
(ii) Yahoo shall no longer have the right to use the Service Name or produce the
Service. In addition to the right to receive amounts payable at the time of the
termination of expiration of this Agreement, Sections 3.3, 12.4, 19.2, 20.3, 21,
22 and 23 shall survive the termination or expiration of this Agreement for any
reason. Provisions of other Sections which, by their nature, must remain in
effect beyond the termination or expiration of this Agreement shall survive.
21. WARRANTIES AND INDEMNIFICATION
21.1 TITLE. Yahoo warrants that it has the right to perform the
services set forth in this Agreement, (i) it owns or licenses all rights, title
and interest in and to the technology underlying the production of the Service,
(ii) Netscape shall not be obligated to pay any fees or royalties for
implementing the Service other than as specifically set forth in this Agreement,
and (iii) there are no pending or threatened lawsuits concerning any aspect of
the technology underlying the Service.
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
21.2. PERFORMANCE. Yahoo warrants that the Service will function
substantially in accordance with the specifications set forth in this Agreement
and as the parties may determine from time to time. Yahoo shall repair any
malfunctions of the Service within a reasonable period of time (not to exceed
two (2) days) after notice of such condition.
21.3 RESPONSIBILITY. Yahoo represents and warrants to Netscape that
the Content Provider listings (other than the Content Provider listings provided
by Netscape and which Content Providers refuse to sign Yahoo's standard form for
participation in the Service as Yahoo shall notify to Netscape), advertisements,
Content Modules, other content managed by and technology utilized by Yahoo which
will appear on or be used in the Service, the What's New Page, the What's Cool
Page and the People Pages will not violate any criminal laws or any rights of
any third parties, including, but not limited to, infringement or
misappropriation of any copyright, patent, U.S. trademark, trade secret, music,
image, or other proprietary or property right, false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity, violation
of any antidiscrimination law or regulation, or any other right of any person or
entity, or otherwise violate any applicable local, state, national or
international law. The foregoing representations and warranties shall not apply
to any matter concerning or arising from the Refusniks, WNWC Ads, the Transition
Content Providers prior to July 1, 1997, the Special Content Providers who have
not executed the Standard Yahoo Contract in accordance with Section 6.4, the
Netscape Dedicated Channel, any trademarks, intellectual property, content or
materials licensed from or provided by Netscape for use on or included in the
Service, the What's New Page, the What's Cool Page, or the People Page, or any
action taken at Netscape direction, insofar as Yahoo is required by Netscape to
undertake such activities or actions, or manage or include such content and
materials, related to the activities described in this Agreement. Netscape
hereby represents and warrants to Yahoo that any material contained in or matter
pertaining to the Refusniks, WNWC Ads, the Transition Content Providers prior to
July 1, 1997, the Special Content Providers who have not executed the Standard
Yahoo Contract in accordance with Section 6.4, the Netscape Dedicated Channel,
any trademarks, intellectual property, content or materials licensed from or
provided by Netscape for use on or included in the Service, the What's New Page,
the What's Cool Page, or the People Page, or any action taken by Yahoo at
Netscape's direction, insofar as Yahoo is required by Netscape to undertake such
activities or actions, or manage or include such content and materials, related
to the activities described in this Agreement, will not violate any criminal
laws or any rights of any third parties, including, but not limited to,
infringement or misappropriation of any copyright, patent, U.S. trademark, trade
secret, music, image, or other proprietary or property right, false advertising,
unfair competition, defamation, invasion of privacy or rights of celebrity,
violation of any antidiscrimination law or regulation, or any other right of any
person or entity, or otherwise violate any applicable local, state, national or
international law.
21.4. DISCLAIMER. THE WARRANTIES PROVIDED BY YAHOO HEREIN ARE THE ONLY
WARRANTIES PROVIDED BY YAHOO WITH RESPECT TO THE SERVICE. SUCH WARRANTIES ARE IN
LIEU OF ALL OTHER WARRANTIES BY YAHOO, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE SERVICE.
21.5. INDEMNIFICATION. Yahoo agrees to indemnify Netscape and to hold
Netscape harmless from any and all liability, loss, damages, claims, or causes
of action, including reasonable legal fees and expenses that may be incurred by
Netscape, arising out of or related to Yahoo's breach of any of the
representations and warranties set forth in Section 21.3. In connection with
such indemnification, Netscape will (i) promptly notify Yahoo in writing of any
such claim and grant Yahoo control of the defense and all related settlement
negotiations, and (ii) cooperate with Yahoo, at Yahoo's expense, in defending or
settling such claim; provided that if any settlement results in any ongoing
liability to, or prejudices or detrimentally impacts Netscape, and such
obligation, liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require Netscape's written consent. In
connection with any such claim, Netscape may have its own counsel in attendance
at all public interactions and substantive negotiations at its own cost and
expense. Netscape agrees to indemnify Yahoo and to hold Yahoo harmless from any
and all liability, loss, damages, claims, or causes of action,
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
including reasonable legal fees and expenses that may be incurred by Yahoo,
arising out of or related to Netscape's breach of any of the representations and
warranties set forth in Section 21.3. In connection with such indemnification,
Yahoo will (i) promptly notify Netscape in writing of any such claim and grant
Netscape control of the defense and all related settlement negotiations, and
(ii) cooperate with Netscape, at Netscape's expense, in defending or settling
such claim; provided that if any settlement results in any ongoing liability to,
or prejudices or detrimentally impacts Yahoo, and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require Yahoo's written consent. In connection with any such
claim, Yahoo may have its own counsel in attendance at all public interactions
and substantive negotiations at its own cost and expense.
22. LIMITATION OF LIABILITY. EXCEPT FOR THEIR RESPECTIVE OBLIGATIONS AND
LIABILITY UNDER SECTION 21.5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO
THIS AGREEMENT OR THE TECHNOLOGY LICENSED HEREUNDER, WHETHER ARISING IN TORT
(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF IT HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
23. GENERAL.
23.1. GOVERNING LAW. This Agreement shall be subject to and governed
in all respects by the statutes and laws of the State of California without
regard to the conflicts of laws principles thereof. The Superior Court of Santa
Clara County and/or the United States District Court for the Northern District
of California shall have exclusive jurisdiction and venue over all controversies
in connection herewith, and each party hereby consents to such exclusive and
personal jurisdiction and venue.
23.2. ENTIRE AGREEMENT. This Agreement, including the exhibits and
attachments referenced on the signature page hereto,
constitutes the entire Agreement and understanding between the parties and
integrates all prior discussions between them related to its subject matter. No
modification of any of the terms of this Agreement shall be valid unless in
writing and signed by an authorized representative of each party.
23.3. ASSIGNMENT.[XXXX]
23.4. NOTICES. All notices required or permitted hereunder shall be
given in writing addressed to the respective parties as set forth below and
shall either be (i) personally delivered, (ii) transmitted by postage prepaid
certified mail, return receipt requested, or (iii) transmitted by nationally-
recognized private express courier, and shall be deemed to have been given on
the date of receipt if delivered personally, or two (2) days after deposit in
mail or express courier. Either party may change its address for purposes hereof
by written notice to the other in accordance with the provisions of this
Subsection. The addresses for the parties are as follows:
Yahoo: Netscape:
Yahoo! Inc. Netscape Communications Corporation
3400 Central Expressway, Ste. 201 501 East Middlefield Road
Santa Clara, CA 95051 Mountain View, CA 94043
Fax: (408) 731-3510 Fax: (415) 528-4123
Attn: General Counsel Attn: General Counsel
23.5. CONFIDENTIALITY. All disclosures of proprietary and/or
confidential information in connection with this Agreement as well as the
contents of this Agreement, the financial arrangements described in this
Agreement, the Content Providers, advertising sales, end user information and
research related to the Service shall be governed by the terms of the Mutual
Confidential Disclosure Agreement attached hereto as Exhibit G. The information
contained in the reports provided by each party hereunder
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
shall be deemed the Proprietary Information of the disclosing party.
Notwithstanding the foregoing, Netscape may, in its sole discretion, make
publicly available the auditing of traffic results and indicate that Yahoo is
the source of the information.
23.6. FORCE MAJEURE. Neither party will be responsible for any failure
to perform its obligations under this Agreement due to causes beyond its
reasonable control, including but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods or accidents.
23.7. WAIVER. The waiver, express or implied, by either party of any
breach of this Agreement by the other party will not waive any subsequent breach
by such party of the same or a different kind.
23.8. HEADINGS. The headings to the Sections and Subsections of this
Agreement are included merely for convenience of reference and shall not affect
the meaning of the language included therein.
23.9. INDEPENDENT CONTRACTORS. The parties acknowledge and agree that
they are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring upon
either party the power of authority to bind the other party in any transaction
with third parties.
23.10. SEVERABILITY. In the event any provision of this Agreement is
held by a court or other tribunal of competent jurisdiction to be unenforceable,
such provision shall be reformed only to the extent necessary to make it
enforceable, and the other provisions of this Agreement will remain in full
force and effect.
23.11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto, shall be
deemed to be an original. Notwithstanding the foregoing, the parties shall
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
23.12 ATTORNEY'S FEES. In the event of any action, suit, or proceeding
brought by either party to enforce the terms of this Agreement, the prevailing
party shall be entitled to receive its costs, expert witness fees, and
reasonable attorneys fees and expenses, including costs and fees on appeal.
[X] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
YAHOO: NETSCAPE:
YAHOO! INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ JEFFREY MALLETT By: /s/ JENNIFER BAILEY
------------------------------- -------------------------------
Print Name: Jeffrey Mallett Print Name: Jennifer Bailey
----------------------- -----------------------
Title: Senior Vice President Title: VP of Electronic Marketing
---------------------------- ----------------------------
Date: 3/17/97 Date: 3/17/97
----------------------------- -----------------------------
Yahoo! Inc. Address: Netscape Address:
3400 Central Expressway, Ste. 201 501 East Middlefield Road
Santa Clara, CA 95051 Mountain View, California 94043
USA USA
Attention: General Counsel Attention: General Counsel
Facsimile: (408) 731-3510 Facsimile: (415) 528-4123
Email: jplace@yahoo.com Email: roberta@netscape.com
Effective Date:____________________
Attached Exhibits:
Exhibit A: Pro Forma Layout of Service
Exhibit B: Netscape-Designated Content Providers
Exhibit C: Form of End User Registration
Exhibit D: Netscape Advertising Obligations
Exhibit E: Traffic Estimates
Exhibit F: Criteria for Content Provider Participation
Exhibit G: Mutual Non-Disclosure Agreement
[X] CONFIDENTIAL TREATMENT REQUESTED