International Net Search Program Services Agreement - Netscape Communications Corp. and Yahoo! Inc.
NETSCAPE COMMUNICATIONS CORPORATION
INTERNATIONAL NET SEARCH PROGRAM
SERVICES AGREEMENT
OBJECTIVE: To direct users of a Netscape client software Internet browser
product ("Browser") to local-language Internet search and directory services.
TERMS AND CONDITIONS:
1. PREMIER PROVIDER. The entity ("Premier Provider") named on the
signature page to this agreement ("Agreement") will be a premier search and
directory service for the collection of HTML pages which Netscape maintains
as certain of Netscape's local, non-U.S.-English web sites and language- and
geographically-targeted mirror sites, in the languages and geographic targets
as set forth below (referred to individually as a "Netscape Local Web Site"
and collectively as "Netscape Local Web Sites"). Each Netscape Local Web
Site shall include an HTML page providing local-language and/or
geographic-targeted Internet search and directory functionality (such HTML
page being referred to individually as a "Local Page" and collectively as the
"Local Pages"). (Each language- and geographically-targeted combination
listed under "Netscape Local Web Site" is referred to as a "Territory".) The
Local Pages shall be accessible by the public via the Internet at the URLs
specified below, or such other URLs as Netscape may designate from time to
time in writing:
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NETSCAPE LOCAL WEB SITE URL FOR LOCAL PAGE
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Brazilian Portuguese - Brazil http://home.netscape.com/pt/escapes/internet_search.html
Danish - Denmark http://home.netscape.com/da/escapes/internet_search.html
Dutch - The Netherlands http://home.netscape.com/nl/escapes/internet_search.html
French - France http://home.netscape.com/fr/escapes/internet_search.html
German - Germany http://home.netscape.com/de/escapes/internet_search.html
Italian - Italy http://home.netscape.com/it/escapes/internet_search.html
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Japanese - Japan http://home.netscape.com/ja/escapes/internet_search.html
Korean - Korea http://home.netscape.com/ko/escapes/internet_search.html
Spanish - Spain http://home.netscape.com/es/escapes/internet_search.html
Swedish - Sweden http://home.netscape.com/se/escapes/internet_search.html
Australian Mirror Site - Australia http://home.netscape.com/au/escapes/internet_search.html
U.K. Mirror Site - United Kingdom http://home.netscape.com/uk/escapes/internet_search.html
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The Local Pages may also be accessed by Internet users of a
Netscape-distributed local-language version of the Browser by pressing or
"clicking" on the Net Search Button or such other methods as Netscape may
specify from time to time. Notwithstanding the foregoing, Netscape reserves
the right to determine other means whereby users may access Local Pages which
provide Internet search and directory services on Netscape Local Web Sites,
including, but not limited to, the use of mirror sites and pointers based on
a user's IP address, and which localized pages are separate and distinct from
the Local Pages described in this Agreement.
2. PREMIER PERIOD. Netscape will maintain Premier Provider's Premier
Graphic, as defined below, on the Local Pages for the period beginning on the
Start Date and ending on the End Date below, except with respect to the Local
Page for Japan, which Premier Graphic shall be maintained on the Local Page
for Japan beginning on August 1, 1997, and ending on the End Date
(collectively, the "Premier Period"):
Start Date: July 1, 1997
End Date: June 30, 1998
3. SERVICES PROVIDED BY NETSCAPE.
3.1 PREMIER GRAPHIC. Each of the participants, including
Premier Provider, in this International Net Search Program (the
"Participants") will supply Netscape with HTML and/or GIF files, or files of
such other format as may be designated from time to time in writing by
Netscape, which conform to the specifications in EXHIBIT A (each of such
files comprise a "Premier Graphic"), for each of the languages for the
Netscape Local Web Sites listed in Section 1, which Netscape will place on
the applicable Local Pages during the Premier Period. Premier Provider shall
retain all right, title and interest in and to the Premier Provider's Premier
Graphic (including the copyright ownership thereof), and Premier Provider
hereby grants
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Netscape a royalty-free worldwide license, without payment or
other charge therefor, to use, display, perform, reproduce and distribute
Premier Provider's Premier Graphic, and such other licenses with respect to
Premier Provider's Premier Graphic necessary to fulfill the intention of this
Agreement. Premier Provider's Premier Graphic shall contain a functional
search field and, if available, directory tree. The specifications of the
Premier Graphics and the placement on the Local Pages of the Premier Graphics
are set forth on EXHIBIT A hereto. Premier Provider's compliance with the
content as well as the language, technical, visual and functional
specifications set forth in EXHIBIT A are a material obligation of Premier
Provider under this Agreement. Netscape may, upon notice to Premier
Provider, revise EXHIBIT A, provided that the display of the Premier Graphics
shall remain the largest and most prominent category of search graphics on
the Local Pages.
3.2 STACK. Netscape will produce the Local Pages as set forth on
EXHIBIT A. The Premier Graphic of each of the Participants on any Local Page
will appear to be overlapped in a stack (the "Stack"). A Premier Graphic
other than the Premier Graphic currently being displayed will be accessible
by the end user by pressing or "clicking" on a tab for the relevant
Participant's service. Netscape will produce the Local Pages such that when
an end user presses or "clicks" on hypertext links ("Premier Links") placed
by Premier Provider on Premier Provider's Premier Graphic, the end user's
Browser will access Premier Provider's applicable HTML pages located at the
applicable URLs ("Premier URLs") for such pages on the collection of
local-language HTML documents Premier Provider maintains as its web site in
the applicable local language ("Premier Provider's Local Web Site" or, as
appropriate, "Premier Provider's Local Web Sites"). In the event the Premier
Provider's Local Web Site for a particular Territory is not fully operational
on the first day of the Premier Period, Netscape shall include Premier
Provider's Premier Graphic for such Territory in the Stack on the Local Page
for such Territory, provided that: (i) such Premier Graphic shall link to
Premier Provider's U.S. English language Web site or such other relevant
Premier Provider Internet search service as specified by Premier Provider,
except with respect to the Premier Graphic for France; (ii) such link to
Premier Provider's Web site shall include a notification to the end user to
"stay tuned" for Premier Provider's Local Web Site for such Territory; (iii)
any such views of Premier Provider's Premier Graphic shall be counted as an
"Exposure" as defined in Section 6.1; and (iv) Premier Provider shall use
best efforts to launch a fully operational Local Web Site for such Territory
as soon after the Effective Date as practicable.
3.3 ROTATION. Netscape will rotate the display of the Premier
Graphic to be displayed on the top of the Stack when each Local Page is
served to an end user who has not selected a Premier Graphic as a default, as
described in Section 3.4. Subject to the provisions of Section 3.4, Premier
Provider's Premier Graphic will appear on the top of the Stack of each Local
Page [XXXX]("Rotation Percentage") of the time in which the Local Page is
served up to end users who have not selected a particular Premier Graphic or
selected a default Premier Graphic when accessing the particular Local Page.
Premier Provider acknowledges that the above-stated rotation percentage is a
quarterly target. Netscape shall use reasonable commercial efforts to serve
up the Premier Graphic at such rotation frequency with a variance of plus or
minus one percent (+/-1%) throughout the Premier Period.
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3.4 END USER DEFAULT. Netscape shall produce each Local Page
such that the end user may select which Premier Graphic, including, without
limitation, Premier Provider's Premier Graphic, the end user would prefer to
have displayed on the top of the Stack upon the calling up of each Local Page
by such end user. If an end user selects a default Premier Graphic, the
Premier Graphic selected by the end user will be displayed on top of the
Stack when that end user accesses such Local Page. If an end user has
elected to have a particular Premier Graphic appear on top of the Stack on a
default basis, the other Premier Graphics, including, without limitation,
Premier Provider's Premier Graphic, to the extent Premier Provider's Premier
Graphic is not selected as such default, will not appear on the top of the
Stack unless selected by the end user. Netscape plans to make the
functionality described in this Section 3.4 available by July 31, 1997.
3.5 LOCAL PAGE SPECIFICATIONS. The specifications of each of the
Premier Graphics, including, without limitation, Premier Provider's Premier
Graphic, the Stacks, and their placement on the Local Pages are set forth on
EXHIBIT A hereto; provided, however, that Netscape may, upon notice to
Premier Provider, (i) change the location of the Stacks or the Premier
Graphics on the Local Pages, (ii) redesign or reconfigure the Stacks, the
Local Pages, Netscape's Local Web Sites, and/or the manner in which an end
user interacts with any of the pages of Netscape's Local Web Sites, or (iii)
revise EXHIBIT A, and Premier Provider shall promptly, and in any event,
within no more than thirty (30) days following receipt of the notice, supply
Netscape with a revised Premier Provider Premier Graphic which conforms to
the specifications of the revised EXHIBIT A. In the event that Netscape
revises EXHIBIT A and Premier Provider must supply conforming materials, such
conforming materials shall be received by Netscape and fully functional no
later than five (5) days (excluding holidays) prior to the date Netscape
specifies for the posting of the revised Premier Provider Premier Graphic or
Stack on Netscape's Local Web Sites. If Netscape has not received such
revised and conforming materials no later than five (5) days prior to the
date Netscape specifies for the posting of the revised Premier Provider
Premier Graphic or Stack on Netscape's Local Web Sites, or if the materials
supplied by Premier Provider do not function in accordance with the
specifications set by Netscape, then Netscape shall either (i) post previous
versions of Premier Provider's supplied materials, or (ii) make such changes
as necessary to bring the materials into conformity with the new
specifications, until such time as the specifications of EXHIBIT A are again
revised.
3.6 UPDATE OF PREMIER GRAPHIC. Premier Provider may elect to
revise or update its Premier Graphic, provided that such Premier Graphic
complies with the specifications of EXHIBIT A. Netscape shall provide
Premier Provider with a schedule of material due dates and planned Local Page
updates.
3.7 EMERGENCY ENGINEERING SUPPORT. Netscape will provide, free
of charge, up to an aggregate of three (3) hours of emergency engineering
support services time per update to help Premier Provider service any newly
revised Premier Provider Premier Graphic so that such Premier Graphic
complies with the new specifications. Netscape will use reasonable
commercial efforts promptly to remedy any material malfunctioning of the
tabbing mechanism for Premier Provider's Premier Graphic or material
malfunctioning of the Premier Links under the control of Netscape, provided
Premier Provider will fully cooperate with Netscape to remedy
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any such material malfunctioning or misplacement, and provided further that
Netscape shall not incur liability for any failure to remedy such material
malfunctioning or misplacement if such remedy is not within the reasonable
control of Netscape. Premier Provider may report malfunctions to Netscape at
the email address intlsrchprod@netscape.com. Notwithstanding the foregoing,
Netscape has no obligation to perform services in connection with
malfunctions resulting from software not supplied by Netscape.
4. JOINT SERVICES. If the parties so mutually agree, Netscape and
Premier Provider shall operate a co-branded search and display service
consisting of customizing search results served up from Premier Provider's
Local Web Sites in conjunction with Netscape's premier search and directory
service described herein (collectively, the "Co-Branded Service"). The
Co-Branded Service name shall be mutually agreed upon by Netscape and Premier
Provider. Premier Provider shall not independently use the Co-Branded Service
Name without Netscape's prior written consent, unless such use occurs in
connection with Premier Provider's promotional efforts on behalf of the
Co-Branded Service. The Co-Branded Service name may only be displayed on
search results pages generated by Premier Provider in connection with the
Co-Branded Service. Premier Provider shall have the right to use the
Co-Branded Service name as described in this Section 4 during the Premier
Period. Premier Provider may not use the Co-Branded Service name for any
other purpose.
5. ADDITIONAL PREMIER PROVIDER BENEFITS.
5.1 ADVERTISING SERVICES. During the Premier Period, Premier
Provider may purchase additional advertising on Netscape's Local Web Sites
for advertising that will run during the Premier Period for the service of
Premier Provider at a discount of ten percent (10%) off Netscape's then
standard rates for such advertising. Premier Provider shall execute
Netscape's standard sponsorship agreement for online advertising with respect
to postings of Premier Provider's advertisement ("Premier Provider's
Advertisement"). Premier Provider and Netscape shall mutually agree to the
schedule and the placement of Premier Provider's Advertisement on Netscape's
Local Web Sites. Premier Provider shall supply Netscape with the graphic
files and other materials and information within the timeframes and as set
forth in the specifications of the applicable Netscape advertising program
and as reasonably requested by Netscape to produce the Premier Provider's
Advertisement. Premier Provider's Advertisement shall not contain any
Internet search or directory functionality as such Premier Provider's
Advertisement is served to end users.
5.2 LIMIT ON PREMIER PROVIDERS. Netscape shall limit the number
of companies whose tabs appear on the Stack at any one time to a total of
[XXXX]entities, except with respect to: (i) the Netscape Local Web Site in
France, which shall contain a total of [XXXX] entities on the Stack through
July 1997, and (ii) the Netscape Local Web Site in Japan, which shall contain
a total of [XXXX] entities on the Stack through July 1997.
5.3 PRESET BOOKMARK. Netscape will use reasonable commercial
efforts to include a graphic HTML link to Premier Provider's URL ("Premier
Provider's Bookmark") in the bookmark section of the local-language version
of Netscape Communicator client software
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versions 4.x. Although Netscape may decide to include Premier Provider's
Bookmark in certain local-language shipping versions of Netscape Communicator
4.x, Premier Provider's Bookmark may be reconfigured, customized or deleted
by an end user. Premier Provider may redirect, at its option, traffic to
Premier Provider's Bookmark to other Premier Provider Internet search
services.
6. EXPOSURE GUARANTEE.
6.1 An exposure ("Exposure") occurs upon the serving up to an end
user of: (i) the HTML page displaying Premier Provider's Premier Graphic on
the top of a Stack, (ii) if Netscape includes a bookmark link to Premier
Provider, the page on Premier Provider's Local Web Site linked to Premier
Provider's Bookmark, (the "Bookmarked Local Page") in conjunction with the
program described in this Agreement, or (iii) other Premier Provider content
as a consequence of an end user accessing a promotional page on Netscape's
Local Web Sites if the parties agree that such promotional page traffic shall
constitute an Exposure. Premier Provider's Premier Graphics may be served on
the top of the Stack to an end user by the following means: (i) Premier
Provider's Premier Graphics is displayed as part of the Stack rotation, as
described in Section 3.3, (ii) Premier Provider's Premier Graphics has been
set as an end user's default selection, as described in Section 3.4 or (iii)
an end user selects or clicks on Premier Provider's Premier Graphic tab in
the Stack.
6.2 MINIMUM GUARANTEED EXPOSURES. Netscape guarantees, during
the Premier Period:
(i) a combined total of [XXXX] for the following
Territories: Brazil, Denmark, The Netherlands, France,
Germany, Italy, Spain, Sweden and the United Kingdom;
(ii) [XXXX] for the Japanese Territory;
(iii) [XXXX] for the Korean Territory; and
(iv) [XXXX] for the Australian Territory.
Each Territory or group of Territories described in Sections 6.2(i)-(iv)
above shall be defined as a "Region," and each number of minimum guaranteed
exposures for each Region shall be defined as the "Minimum Guaranteed
Exposures" with respect to such Region; provided, however, that the number of
Minimum Guaranteed Exposures for a Region shall be reduced by the Reduction
Amount, as defined below, in the event that, as of the first day of the
Premier Period, or for any period during the Premier Period, Premier Provider
has not launched or is not operating a fully-functional, language- and
geographically-targeted Internet search and directory service for each of the
French-France, German-Germany, Japanese-Japan, and English-United Kingdom
Territories (collectively, the "Primary Territories"). As used in this
Section 6.2, the "Reduction Amount" means the product of (a) and (b) below:
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(a) Minimum Guaranteed Exposures for the Region in which the
Primary Territory's Internet search and directory service is not operating.
(b) the fraction equal to
(1) number of days during the Premier Period (a) that
Premier Provider does not operate for general use on the World Wide Web
fully-functional, language- and geographically-targeted Internet search and
directory services for the Primary Territories and (b) for which Premier
Provider has not provided to Netscape a Premier Graphic corresponding to each
of such services pursuant to Section 3.1 of this Agreement; divided by
(2) The number of days in the Premier Period.
Netscape shall apply the Reduction Amount to the Region in which the Primary
Territory's Internet search and directory service is not operating (i.e. if
the United Kingdom service is not operating, the Reduction Amount shall be
applied against the Minimum Guaranteed Exposures listed in Section 6.2(i)).
6.3 MAKE-GOOD. If, at the end of the Premier Period, Premier
Provider's content has not, in the aggregate, received total Exposures equal
to or greater than the Minimum Guaranteed Exposures for any of the four
Regions described in Section 6.2(i)-(iv) above, and provided that Premier
Provider has complied with its obligations hereunder, Netscape will, at its
discretion: (i) continue to place Premier Provider's Premier Graphic on the
Local Pages (as specified in this Section 3) of the particular Region in
which there is a shortage of Exposures beyond the end of the Premier Period
until such time as the Minimum Guaranteed Exposures for such Region have been
achieved; (ii) deliver to Premier Provider a mutually agreed upon program as
a remedy for the shortfall in Exposures; or (iii) purchase from Premier
Provider mutually agreed upon advertising and inventory services. If the
parties are unable to mutually agree upon a program or advertising and
inventory services as described in this Section 6.3(ii) and 6.3(iii), then
Netscape shall continue to place Premier Provider's Premier Graphic on the
Local Pages as specified in this Section 6.3(i). The remedy set forth in
this Section 6.3 shall be Premier Provider's sole and exclusive remedy, and
Netscape's sole and exclusive obligation, regarding Netscape's obligation set
forth in Section 6.2 in the event, by the end of the Premier Period, any of
the Minimum Guaranteed Exposures have not been achieved.
7. PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations
set forth herein, Premier Provider shall:
7.1 NETSCAPE NOW. Premier Provider shall display the "Netscape
Now" button prominently [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
Communicator. Download Netscape Now!" (or such higher non-beta version as is
then available). Premier Provider will produce the page such that when an
end user presses or clicks
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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] or
"push" content delivery system other than dedicated function software in the
appropriate topical area (e.g., personal finance). Premier Provider 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 Premier Provider to
remedy any such misplacement or malfunctioning, and provided further that
Premier Provider shall not incur liability for any failure to remedy such
misplacement or malfunctioning if such remedy is not within the reasonable
control of Premier Provider. In the event that Netscape replaces the
Netscape Now program with a successor program, Netscape shall advise Premier
Provider and Premier Provider shall produce the page to conform to such
successor program, provide Premier Provider's obligations under such
successor program shall not be materially increased. Netscape hereby grants
Premier Provider a nonexclusive, nontransferable, nonassignable,
nonsublicensable license to perform and display the Netscape Now button
directly in connection with fulfilling the foregoing obligation. Premier
Provider'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.
Premier Provider acknowledges that the Netscape Now button is a proprietary
logo of Netscape and contains Netscape's trademarks. In the event that
Netscape determines that Premier Provider'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. Premier
Provider 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. Premier
Provider agrees not to register or use any trademark that is similar to the
Netscape Now button. Premier Provider 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. If Premier
Provider fails to honor the commitment set forth in this Section 7.1,
Netscape shall be relieved of its obligations described in Section 6.3;
7.2 SERVER SOFTWARE. In order to showcase the close
relationship between Premier Provider and Netscape and highlight Premier
Provider's endorsement of Netscape's products, Premier Provider shall use at
least one (1) current version of Netscape core Web server software product
(currently comprised of Netscape Enterprise Server and Netscape FastTrack
Server) to maintain Premier Provider's Web Sites provided that Netscape has
released a localized Web server software product suitable for the respective
language-geography in the Territory. Premier Provider shall use commercially
reasonable efforts to deploy such Web server software upon release by
Netscape, and, if requested, provide Netscape with evidence of such use;
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7.3 SITE FEATURES. Implement at least one of HTML Frames,
layers, dynamic HTML pages, Java, JavaScript, absolute positioning, cascading
style sheets or the then current client software technology (or subsequent
features displayable by the Browser, within the beta testing period of the
availability of such features) ("Site Features") for display with those
Internet software clients capable of displaying the Site Features on (i)
Premier Provider's Local Web Sites, provided that Premier Provider shall use
reasonable commercial efforts to implement the Site Features on Premier
Provider's Local Web Sites in a location and in a fashion as Netscape may
agree, and (ii) at least one (1) HTML page located at each Premier URL (or on
an HTML page located further down the directory tree from the page located at
the Premier URL; provided Premier Provider will use reasonable efforts to
implement the Site Features as high in such directory tree structure as
possible), and, where appropriate, on all other HTML pages of Premier
Provider's primary Web site; and provided Premier Provider shall not be
required to implement the Site Features on pages of any secondary Web site of
Premier Provider that Premier Provider is required to construct to satisfy
Premier Provider's obligations under any third party contract existing as of
the date of this Agreement. Netscape shall use reasonable commercial efforts
to help Premier Provider implement changes in order to comply with new Site
Features;
7.4 MAILTO LINK. Include on the page served to an end user in
conjunction with the results of the end user's search query on Premier
Provider's service a "mailto" link which users of Premier Provider's service
can use to direct questions or help requests to Premier Provider. Netscape
shall also include such a "mailto" link on the page. Premier Provider will
use reasonable efforts to reply promptly to any such question or help request;
7.5 NO DISABLING. Not provide or implement any means or
functionality which would (i) alter or modify, or enable end users to alter
or modify, the Browser standard user interface or configuration, (ii) disable
any functionality of the Browser or any other Internet browser software, or
(iii) modify the functioning of pages served form Netscape's Local Web Site.
If Premier Provider fails to honor the commitment set forth in this Section
7.5, Netscape be relieved of its obligations described in Section 6.3;
7.6 USE OF PREMIER GRAPHIC SPACE. Not use, or assign the right
to use, the space allotted the Premier Graphic, or links therein, for the
benefit of a third party without first obtaining Netscape's prior written
consent therefor, not produce the Premier Graphic such that it includes
comparisons of Premier Provider's services with other services, and shall
maintain the Premier Graphic for the purpose of promoting Premier Provider's
Internet search and directory services; and
7.7 PREFERENCE FOR NETSCAPE PRODUCTS AND SERVICES. Use
commercially reasonable judgment to accord, in light of the intent of the
parties to highlight their strategic relationship as evidenced by the terms
and conditions of this Agreement, in Premier Provider's Local Web sites,
Netscape's products and services a position of overall prominence at least as
great as the positioning accorded any third-party Internet client software
provider.
8. PAYMENT TO NETSCAPE.
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8.1 PAYMENT. Premier Provider shall pay Netscape a total of
Three Hundred Thousand Dollars $300,000 (the "Payment") comprised of the
following:
Participation in the International Net Search Program $ [XXXX]
Engineering Fee $ [XXXX]
Localization Fee $ [XXXX]
8.2 CURRENCY; NET 30 DAYS; INTEREST. All amounts payable
hereunder are denominated in U.S. Dollars, and all amounts payable to
Netscape hereunder shall be paid in U.S. Dollars. Except as otherwise set
forth herein, all amounts payable by Premier Provider hereunder are payable
within thirty (30) days after receipt by Premier Provider of the
corresponding invoice submitted by Netscape. Any portion of the Cash Payment
or the Overage Payments 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.
8.3 TAXES.
a. EXCLUSIVE OF TAX. The Payment and Overage Payments
are exclusive of any tax. Premier Provider shall pay or reimburse Netscape
for all value-added, sales, use, consumption, property, ad valorem and
similar taxes, all customs duties, import fees or similar charges, stamp
duties, license fees and similar costs, and all other mandatory payments to
any government agencies of whatever kind imposed with respect to products or
services provided by Netscape under this Agreement or with respect to this
Agreement except taxes imposed on the net income of Netscape. If the
transaction is exempt from tax, Premier Provider shall provide Netscape with
a valid exemption certificate or other evidence or such exemption in a form
acceptable to Netscape. Premier Provider shall, at its own expense, use
reasonable efforts to recover refundable or recoverable taxes. Each party
shall cooperate with the other in minimizing applicable tax.
b. NO WITHHOLDING. All payments by Premier Provider to
Netscape pursuant to this Agreement shall be made without any withholding or
deduction of any withholding tax or other tax or mandatory payment to
government agencies. If Premier Provider is legally required to make any
such withholding or deduction from any payment due to Netscape under this
Agreement, the sum payable by Premier Provider upon which such withholding or
deduction is based shall be increased to the extent necessary to ensure that,
after such withholding or deduction, Netscape receives and retains, free from
liability for such withholding or deduction, a net amount equal to the amount
Netscape would have received and retained in the absence of such required
withholding or deduction.
c. PROVIDE RECEIPTS. In order to assist Netscape in
obtaining tax credits or deductions, Premier Provider shall provide to
Netscape, in a form acceptable to
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Netscape, original or certified copies of all tax payment receipts or other
evidence or payment of taxes by Premier Provider with respect to transactions
or payments under this Agreement.
d. SURVIVAL OF OBLIGATIONS. Premier Provider's
obligations under this Section shall survive any termination of this
Agreement.
8.4 CREDIT AGAINST PAYMENT. Premier Provider shall provide
Netscape with committed advertising inventory and services valued at [XXXX]
for Premier Provider's Local Web Sites, such inventory and services to be
valued based upon a mutually agreed upon rate. Netscape will provide to
Premier Provider a total credit of [XXXX] to be applied against the Payment
otherwise due under this Agreement as described in Section 8.1, as such
credit is determined by the value of the advertising services Netscape
receives from Premier Provider based on a mutually agreed upon rate. Such
advertising inventory and services shall be mutually agreed upon by the
parties including placement and available advertising key words or other
value added targeting services.
9. USAGE REPORTS.
9.1 PROVIDE USAGE REPORTS. Netscape and Premier Provider will
each provide the other, via email to the email address set forth below, with
usage reports ("Usage Reports") containing the information and in the format
set forth in Exhibit B hereto. The Usage Reports shall cover each one-month
time period of the Premier Period, and the parties shall use reasonable
commercial efforts to deliver the Usage Reports within fifteen (15) days
following the end of each month. If, due to technical problems, a party is
unable to provide any portion of a Usage Report in any given month, the
following data shall be used for each day for which data is missing: ninety
percent (90%) of the usage figures reported for the same day of the week most
recently reported (e.g. if data for the day seven (7) days prior is
available, ninety percent (90%) of the usage figures for such day; if not
available, the data for the day fourteen (14) days prior, and so on). The
parties may, by mutual written agreement, alter the content and format of the
Usage Reports. Once every quarter during the Premier Period, Netscape shall
engage an independent auditor to audit the Usage Reports submitted to Premier
Provider hereunder. During Netscape's normal business hours and upon
reasonable written notice and at Premier Provider's expense, Premier Provider
shall have the right to audit Netscape's Usage Reports during the Premier
Period and for two months after the end of the Premier Period. If such audit
shows that Premier Provider has overpaid at the end of the Premier Period,
such overpayment shall be corrected by Premier Provider's presence on the
Page being extended after the Premier Period for such time until Premier
Provider has received the Exposures which are commensurate with the total
amount, including credits, paid to Netscape hereunder.
9.2 NO LIABILITY. NETSCAPE AND PREMIER PROVIDER WILL USE
REASONABLE COMMERCIAL EFFORTS TO ENSURE THE TIMELY DELIVERY, ACCURACY AND
COMPLETENESS OF THE USAGE REPORTS, BUT NEITHER PARTY WARRANTS THAT THE USAGE
REPORTS WILL CONFORM TO ANY PUBLISHED NUMBERS AT ANY GIVEN TIME. NEITHER
PARTY SHALL BE HELD LIABLE FOR ANY CLAIMS AS THEY RELATE TO UNAUDITED USAGE
REPORTS.
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10. TERMINATION OR EXPIRATION.
10.1 METHODS OF TERMINATION.
a. TERM AND TERMINATION. This Agreement shall commence
as of the date hereof and, unless sooner terminated pursuant to this Section
10.1, shall terminate as of the end of the Premier Period.
b. TERMINATION ON BREACH. Either party may terminate
this Agreement if the other party materially breaches its obligations
hereunder and such breach remains uncured for fifteen (15) days following
notice to the breaching party of the breach or as otherwise provided in
Section 11.
10.2 EFFECT OF TERMINATION OR EXPIRATION. Except as specifically
provided otherwise in this Agreement, upon the expiration or termination of
the Agreement, all rights and obligations hereunder shall cease, including
Premier Provider's right to use the Co-Branded Service name as described in
Section 4 above (other than Premier Provider's payment obligations hereunder
to the extent accrued on or prior to the termination date or as otherwise
provided in this Section 10.2), and each party will promptly and at the
direction of the other party, either return or destroy, and will not take or
use, any items of any nature that belong to the other party and all items
containing or related to Confidential Information (as defined in EXHIBIT C)
of the other party. Notwithstanding the foregoing, if this Agreement expires
or is terminated for any reason, other than by Premier Provider as a result
of Netscape's material breach of the terms of this Agreement or by Netscape
for its convenience pursuant to Section 10.1(c), Premier Provider shall
remain liable for the value of the payments which are due or, but for such
expiration or termination, would otherwise become due and payable under the
terms of this Agreement. The following provisions shall survive the
expiration or termination of this Agreement for any reason: Section 8.3
(Taxes), Section 9.2 (No Liability), Section 10.2 (Effect of Termination),
Section 10.3 (No Compensation), Section 12 (Responsibility), Section 13
(Limitation of Liability), and Section 14 (General). In addition, to the
extent that any credit provided by Premier Provider to Netscape pursuant to
Section 8.4 shall not be applied against advertising services provided by
Premier Provider to Netscape during the Premier Period, Section 8.4 shall
survive the expiration or termination of this Agreement until all such
credits shall be applied against such services.
10.3 NO COMPENSATION. Premier Provider shall not be entitled to
any compensation, damages or payments in respect to goodwill that has been
established or for any damages on account of prospective profits or
anticipated sales, and Premier Provider shall not be entitled to
reimbursement in any amount for any training, advertising, market
development, investments, leases or other costs that shall have been expended
by either party before the expiration or termination of this Agreement,
regardless of the reason for or method of termination of this Agreement.
Premier Provider hereby waives its rights under applicable laws for any such
compensation, reimbursement or damages.
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11. RIGHT TO REFUSE. Netscape will have the right to review the
contents and format of Premier Provider's Premier Graphic, the Bookmarked
Local Page and Premier Provider's Advertisement. If Netscape, in its
reasonable discretion, at any time determines that Premier Provider's Premier
Graphic, the Bookmarked Local Page, the portion of the search results page on
Premier Provider's Local Websites under the control of Premier Provider and
accessed within one (1) click away from Premier Provider's Premier Graphic,
or Premier Provider's Advertisement contains any material, or presents any
material in a manner that Netscape deems inappropriate for any reason,
Netscape will inform Premier Provider of the reason Netscape has made such
determination and may (i) refuse to include Premier Provider's Premier
Graphic in the Local Pages or Premier Provider's Advertisement on Netscape's
Local Web Sites, and/or (ii) immediately terminate this Agreement if Premier
Provider has not revised to Netscape's reasonable satisfaction Premier
Provider's Premier Graphic, the Bookmarked Local Page or Premier Provider's
Advertisement within seven (7) business days of written notice from Netscape.
If Netscape, in its reasonable discretion, at any time determines that,
within one (1) click away from the Premier Provider's Premier Graphic portion
of Netscape's Local Web Sites, Premier Provider's Local Web Sites contain any
material, or present any material in a manner, that Netscape deems
inappropriate for any reason, Netscape may immediately terminate this
Agreement if Premier Provider has not revised such material or presentation
within seven (7) business days of written notice from Netscape. Netscape
reserves the right to refuse to include Premier Provider's Premier Graphic in
the Local Pages if such Premier Graphic does not completely conform to the
specifications set forth in EXHIBIT A, and any Premier Provider's
Advertisement that does not completely conform to the specifications of the
applicable advertising program.
12. RESPONSIBILITY. Premier Provider is solely responsible for any
legal liability arising out of or relating to (i) Premier Provider's Premier
Graphic, Premier Provider's Bookmark, the Bookmarked Local Page or Premier
Provider's Advertisement, and/or (ii) any material to which users can link
within one (1) click away through Premier Provider's Premier Graphic, Premier
Provider's Bookmark, the Bookmarked Local Page and Premier Provider's
Advertisement but not including search results. Premier Provider represents
and warrants that it holds the necessary rights to permit the use of Premier
Provider's Premier Graphic, the Premier URLs, the Premier Links, Premier
Provider's Bookmark, the Bookmarked Local Page and Premier Provider's
Advertisements by Netscape for the purpose of this Agreement; and that the
permitted use, reproduction, distribution, or transmission of Premier
Provider's Premier Graphic, Premier Provider's Bookmark, the Bookmarked Local
Page, Premier Provider's Advertisements and any material to which users can
link within one (1) click away through Premier Provider's Premier Graphic,
Premier Provider's Bookmark, the Bookmarked Local Page or Premier Provider's
Advertisements 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, 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. Premier Provider agrees to indemnify Netscape and to hold
Netscape harmless from any and all liability, loss, damages,
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claims, or causes of action, including reasonable legal fees and expenses
that may be incurred by Netscape, arising out of or related to Premier
Provider's breach of any of the foregoing representations and warranties. In
connection with such indemnification, Netscape will (i) promptly notify
Premier Provider in writing of any such claim and grant Premier Provider
control of the defense and all related settlement negotiations, and (ii)
cooperate with Premier Provider, at Premier Provider'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.
13. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND
WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER
(EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING UNDER SECTION 12) WHETHER IN
CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED
THE PAYMENT PAID OR PAYABLE BY PREMIER PROVIDER HEREUNDER.
14. GENERAL.
14.1 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.
14.2 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.
14.3 ASSIGNMENT. Neither party may assign this Agreement, in
whole or in part, without the other party's written consent; provided,
however, that either party may assign this Agreement without such consent in
connection with any merger, consolidation, sale of all or substantially all
of such party's assets or any other transaction in which more than fifty
percent (50%) of such party's voting securities are transferred (such events
being collectively referred to as a "Change in Control"), provided that: (i)
such Change in Control shall not occur with respect to a prospective assignee
who is in a directly competitive relationship with the other party, and (ii)
in the case of a Change of Control of Premier Provider, the assignee shall
affirmatively agree
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in writing to honor all commitments hereunder. Premier Provider hereby
warrants and represents that it is not currently in discussion, and has no
current plans to enter into discussions, with third parties concerning an
event which could give rise to a Change of Control of Premier Provider. A
breach of the foregoing representation is grounds for termination. If, after
a Change of Control of Premier Provider, the number of Exposures received by
Premier Provider during the subsequent quarter following such assignment
decreases by fifteen percent (15%) or more compared to the previous quarter,
Netscape shall have the right to terminate this Agreement.
14.4 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 or (ii) transmitted by
internationally-recognized private express courier, and shall be deemed to
have been given on the date of receipt if delivered personally, or the day on
which such notice is delivered to the recipient as evidenced by the delivery
records of such courier, but in no case later than five (5) days after
deposit with such 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:
Premier Provider: Netscape:
_______________________ Netscape Communications Corporation
_______________________ 501 East Middlefield Road, MV-002
_______________________ Mountain View, CA 94043
_______________________ Fax: (415) 528-4123
Attn:___________________ Attn: General Counsel
14.5 CONFIDENTIALITY. All disclosures of proprietary and/or
confidential information in connection with this Agreement, as well as the
contents of this Agreement shall be governed by the terms of the Mutual
Confidential Disclosure Agreement either entered into previously by the
parties or entered into concurrently with this Agreement, a copy of which is
attached hereto as EXHIBIT C. The information contained in the Usage Reports
provided by each party hereunder shall be deemed the Confidential Information
of the disclosing party. Notwithstanding the foregoing, Netscape may, in its
sole discretion, make publicly available client software market share
information contained in the Usage Reports submitted by Premier Provider,
provided that Netscape shall not indicate that Premier Provider is the source
of the information except as having participated in supplying a portion of
aggregated data. Netscape shall provide Premier Provider with notice prior
to using Premier Provider's name in connection with the release of any
information received by Premier Provider in a Usage Report.
14.6 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.
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14.7 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.
14.8 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.
14.9 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.
14.10 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.
14.11 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.
14.12 YAHOO JAPAN. Upon Yahoo's request, Netscape and Yahoo!
Japan KK shall execute a separate agreement upon mutually agreeable terms
substantially the same as provided for in this Agreement, and execute an
amendment to this Agreement as necessary.
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This Agreement shall be effective as of the later of the two (2) dates set
forth below.
Premier Provider: Netscape:
YAHOO! INC. NETSCAPE COMMUNICATIONS
CORPORATION
By: /s/ Jeffrey A. Mallett By: /s/ Michael Homer
-------------------------------- ----------------------------------
Print Name: Jeffrey A. Mallett Print Name: Michael Homer
------------------------ --------------------------
Title: SR. VP. Business Operations Title: SVP of Marketing
----------------------------- -------------------------------
Date: 6/30/97 Date: 6/30/97
------------------------------ --------------------------------
Premier Provider Address: Netscape Address:
3400 Central Expressway, Suite 201 501 East Middlefield Road, MV-002
Santa Clara, CA 95051 Mountain View, California 94043
USA
Attention: Attention: General Counsel
-------------------------
Facsimile: 408-731-3510 Facsimile: 415-528-4123
-------------------------- ---------------------------
Email: Email: Roberta@netscape.com
------------------------------ -------------------------------
Attached Exhibits:
EXHIBIT A: Specifications of the Local Pages
EXHIBIT B: Usage Reports
EXHIBIT C: Mutual Confidential Disclosure Agreement
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EXHIBIT A
Specifications of the Local Page
As of June 1, 1997, Net Search will support Netscape Navigator versions
2, 3 and 4 (on both the Macintosh and PC ("Wintel") platforms), and Microsoft
Internet Explorer 3.0 (PC only). (See Net Search Premier Graphics Test
Specification, External for complete list). All other browsers will be
routed to a simple version of the Local Page which encourages users to
download a more current version of Netscape's browser. Netscape will spend
up to one hour of engineering time per sampler per month to integrate a
Premier Graphic into the Net Search Local Page if available. If more
engineering or QA time than is available becomes necessary to fix bugs
discovered, or if the necessary changes to fix any bugs include changes to
the appearance of Premier Provider's Premier Graphic, Premier Provider's
Premier Graphic will be returned for revision. The specifications are as
follows:
- Size. All Premier Provider materials should be exactly 468 by 165 pixels.
Text and interactive forms included in Premier Provider's Premier Graphic
should be of a default font size of 12 points (Be aware, however, that
text and forms may resize on your audience's browsers as they change their
default font sizes.) Keep in mind that the < FONT SIZE= > tag is not
implemented in early versions of web browsers.
A Premier Graphic is measured by taking a screen shot on a system
configured as follows: A PC running Windows 95, with the settings
configured for small fonts, and an NEC MultiSync XV17+ (17 inch) monitor.
The screen shot will be taken of Netscape Navigator Gold version 3.1, with
the Proportional Font set at 12pt Times New Roman, and the Fixed Font set
at 10pt Courier New. The measurement will be taken in Paintbrush.
Netscape will provide "measurement services," if needed, for companies
that don't have the specified platform configuration.
- HTML Quirks. We have found a few less-than-obvious quirks which cause
some browsers to crash, which we thought would be helpful to pass on:
1. < FORM > tags must follow IMMEDIATELY AFTER your sampler's first
< TABLE > tag. Any variation of this whatsoever will cause a
significant number of users to crash.
2. Any empty < TD > tags should be separated by a carriage return.
HTML should read as follows:
< TD >
< /TD >
as opposed to
< TD >< /TD >
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3. If text appears without any spacing between words (for instance,
in a sentences as opposed to in a table), any text that falls
closer than 50 pixels to the edge of Premier Provider's Premier
Graphic should be tested on a Unix machine. Often, this text
will be cut off on that platform.
4. Interleaving HTML tags will cause several browsers to crash.
Tags should be ordered as follows:
< H3 >< FONT COLOR="#000055" >Text here< /FONT >< /H3 >
as opposed to
< H3 >< FONT COLOR="#000055" >Text here< /H3 >< /FONT >.
- Tables. In order to maintain the robustness of the Local Page, please do
not include any more than one nested table, for a total of two tables per
sampler. Any more than one nested table will cause crashes for a
significant number of users. One simple table is ideal, as even one
nested table may cause some implementation problems when integrated with
the Net Search Local Page. If you are nesting a table, please test
carefully.
- Image Maps. Only a client-side image map is necessary, since browsers
which don't support client-side maps will not be directed to the main Net
Search Local Page.
- File Sizes. To keep the user's load time low, we request that Premier
Provider files in total do not exceed 20K unless cleared by the
International Search production manager at intlsrchprod@netscape.com.
- Animated GIFs. Due to the large number of users whose browsers do not
support animated GIFs, and their typically large file size, we are not
implementing animated GIFs at this time.
- JavaScript. JavaScript tends to cause older browsers to behave
unpredictably and in many cases crash, and there is delicate technology
in place to implement Site Sampler functionality. As a result, the
implementation of Java Script in a Premier Graphic is not an option at
this time.
- Delivery. Content providers should email files to Netscape at
intlsrchprod@netscape.com. If you are providing multiple files, you
should place them in a folder labeled with the content provider's name.
For the best possible results, deliver a Premier Graphic that is already
integrated into a copy of the Net Search Local Page.
- Filenames. It is important that filenames be in the following format:
search_providername.fmt (for example, search_premprov.gif,
search_premprov.htm). If there are two or more files of a certain format,
filenames should be in the following format: search_providername#.fmt
(for example, search_premprov.gif, search_premprov.gif). When
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you update your Premier Graphic, continue to increment the number to
help avoid caching issues.
- Format. All content providers need to provide HTML files that include the
layout for their materials. All HTML should be uppercase. Please include
the TARGET=" _top" attribute in all HREF tags. Height and width tags need
to be specified for all images. Graphics files should be in GIF format;
all other formats should be cleared with the Destinations production
manager at intlsrchprod@netscape.com.
- Graphics. By limiting the number of individual graphics (server calls) in
your Premier Graphic, you will improve overall Local Page performance and
allow the Local Page to load more quickly. Cropping as close as possible
to the image, leaving no white space around them, will also allow the
Local Page to load more quickly. To minimize dithering and insure that
the users across all platforms see what you expect them to see, we
recommend use of the Netscape Color Palette.
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EXHIBIT B
Usage Reports
Sample report provided by Premier Provider to Netscape each month.
For the week of: 6/1/97 - 6/7/97
NETSCAPE BROWSERS ALL BROWSERS
----------------- ------------
NSCP 4.x - 5% NSCP Total - 75%
3.x - 40%
2.x - 5%
1.x - 2%
Total, basic - 52%
NSCP Gold 3.x - 25%
Total, Gold - 25%
NSCP Int'l 4.x - 2%
3.x - 18%
2.x - 3%
1.x - 0%
Total, Int'l - 23%
Total All - 100%
Premier Provider shall also provide Netscape with I/Pro audits, or
audits from reputable third party Internet auditors, the top 100 search terms
and the number of searches on each term.
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Sample report provided by Netscape to Premier Provider each month.
For the month of June 1997
(1) (2) (3) (4) (5)
Rotated Default Total first User total
Exposures Exposures Exposures Selected Exposures
(1+2) Exposures (3+4)
June 1 1M 200K 1.2M 400K 1.6M
June 2 1.1M 210K 1.31M 500K 1.81M
June 3 1.2M 220K 1.42M 600K 2.02M
...
...
June 31 1.8M 280K 2.08M 800K 3.08M
Total
A running total of the Exposures will also be included.
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EXHIBIT C
Mutual Confidential Disclosure Agreement
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MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
WHEREAS, Netscape Communications Corporation ("Netscape") has developed
unique and proprietary computer programs; and
WHEREAS, YAHOO! INC. ("Company") and Netscape wish to discuss a proposed
business relationship between Netscape and Company.
NOW, THEREFORE:
Each party (the "Receiving Party") understands that the other party (the
"Disclosing Party") has disclosed or may disclose information (including,
without limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information) which, to the extent previously, presently, or subsequently
disclosed to the Receiving Party is hereinafter referred to as "Proprietary
Information" of the Disclosing Party. All Proprietary Information disclosed
in tangible form by the Disclosing Party shall be marked "confidential" or
"proprietary" and all Proprietary Information disclosed orally or otherwise
in intangible form by the Disclosing Party shall be designated as
confidential or proprietary at the time of disclosure and shall be reduced to
a writing marked "confidential" or "proprietary" and delivered to the
Receiving Party within thirty (30) days following the date of disclosure.
In consideration of the parties' discussions and any access the
Receiving Party may have to Proprietary Information of the Disclosing Party,
the Receiving Party hereby agrees as follows:
1. The Receiving Party agrees (i) to hold the Disclosing Party's
Proprietary Information in confidence and to take all necessary precautions
to protect such Proprietary Information, (ii) not to divulge any such
Proprietary Information or any information derived therefrom to any third
person, (iii) not to make any use whatsoever at any time of such Proprietary
Information except to evaluate internally whether to enter into the currently
contemplated business relationship with the Disclosing Party, (iv) not to
remove or export any such Proprietary Information from the country of the
Disclosing Party, and (v) not to copy or reverse engineer, reverse compile or
attempt to derive the composition or underlying information of any such
Proprietary Information. The Receiving Party shall limit the use of and
access to the Disclosing Party's Proprietary Information to the Receiving
Party's employees who need to know such Proprietary Information for the
purpose of such internal evaluation and shall cause such employees to comply
with the obligations set forth herein. The Receiving Party shall treat the
Proprietary Information with at least the same degree of care and protection
as it would use with respect to its own proprietary information. The
foregoing obligations shall survive for a period of three (3) years from the
date of disclosure of the Proprietary Information. Without granting any right
or license, the Disclosing Party agrees that the foregoing shall not apply
with respect to information that (i) is in the public domain and is available
at the time of disclosure or which thereafter enters the public domain and is
available, through no improper action or inaction by the Receiving Party or
any affiliate, agent or employee of the Receiving Party, or
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(ii) was in the Receiving Party's possession or known by it prior to receipt
from the Disclosing Party, or (iii) was rightfully disclosed to the Receiving
Party by another person without restriction, or (iv) is independently
developed by the Receiving Party without access to such Proprietary
Information, or (v) is required to be disclosed pursuant to any statutory or
regulatory authority, provided the Disclosing Party is given prompt notice of
such requirement and the scope of such disclosure is limited to the extent
possible, or (vi) is required to be disclosed by a court order, provided the
Disclosing Party is given prompt notice of such order and provided the
opportunity to contest it.
2. Immediately upon (i) the decision by either party not to enter into
a business relationship, or (ii) a request by the Disclosing Party at any
time, the Receiving Party will turn over to the Disclosing Party all
Proprietary Information of the Disclosing Party and all documents or media
containing any such Proprietary Information and any and all copies or
extracts thereof. The parties understand that nothing herein (i) requires
the disclosure of any Proprietary Information, which shall be disclosed, if,
at all, solely at the option of the Disclosing Party, or (ii) requires either
party to proceed with any proposed transaction or relationship in connection
with which Proprietary Information may be disclosed.
3. Except to the extent required by law, neither party shall disclose
the existence or subject matter of the negotiations or business relationship
contemplated by this Agreement.
4. The Receiving Party acknowledges and agrees that due to the unique
nature of the Disclosing Party's Proprietary Information, there may be no
adequate remedy at law for any breach of its obligations. The Receiving
Party further acknowledges that any such breach may allow the Receiving Party
or third parties to unfairly compete with the Disclosing Party resulting in
irreparable harm to the Disclosing Party and, therefore, that upon any such
breach or any threat thereof, the Disclosing Party shall be entitled to seek
appropriate equitable relief in addition to whatever remedies it may have at
law. The Receiving Party will notify the Disclosing Party in writing
immediately upon the occurrence of any such unauthorized release or other
breach.
5. Neither party acquires any intellectual property rights under this
Agreement or through any disclosure hereunder, except the limited right to
use such Proprietary Information in accordance with this Agreement. No
warranties of any kind are given with respect to the Proprietary Information
disclosed under this Agreement or any use thereof, except as may be otherwise
agreed to in writing.
6. This Agreement supersedes all prior discussions and writings with
respect to the subject matter hereof, and constitutes the entire agreement
between the parties with respect to the subject matter hereof. No waiver or
modification of this Agreement will be binding upon either party unless made
in writing and signed by a duly authorized representative of each party and
no failure or delay in enforcing any right will be deemed a waiver. In the
event that any of the provisions of this Agreement shall be held by a court
or other tribunal of competent jurisdiction to be unenforceable, the
remaining portions hereof shall remain in full force and effect. This
Agreement shall be governed by the laws of the State of California without
regard to conflicts of
[X] CONFIDENTIAL TREATMENT REQUESTED.
OMITTED PORTIONS FILED SEPARATELY WITH THE COMMISSION.
<PAGE>
laws provisions thereof and each party submits to the jurisdiction and venue
of any California State or federal courts generally serving the Santa Clara
County area with respect to the subject matter of this Agreement.
NETSCAPE COMMUNICATIONS YAHOO! INC.
CORPORATION ----------------------------
(Company)
By: /s/ Jennifer Bailey By: /s/ Timothy P. Brady
-------------------------- -------------------------
Address: Address:
501 East Middlefield Road 3400 Centennial Expressway
Mountain View, CA 94043 Suite 201
Santa Clara, CA 95051
Date: March 21, 1997 Date: 3/21/97
------------------------ ------------------------
[X] CONFIDENTIAL TREATMENT REQUESTED.
OMITTED PORTIONS FILED SEPARATELY WITH THE COMMISSION.