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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 21, 1997
EXCITE, INC.
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(Exact name of Registrant as specified in its charter)
CALIFORNIA
--------------------------------------------
(State or other jurisdiction of
incorporation)
0-28064 77-0378215
- ---------------------- ---------------------
(Commission (IRS Employer
File Number) Identification
No.)
555 Broadway, Redwood City, CA 94063
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(Address of principal executive offices) (Zip Code)
(415) 568-6000
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(Registrant's telephone number, including area code)
1091 Shoreline Blvd., Mountain View, CA 94043
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(Former name or former address, if changed since last report)
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ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS.
(c) The following exhibits are filed herewith or incorporated herein:
10.1 Premier Provider Services Agreement, including exhibits, between
the Registrant and Netscape Communications Corporation dated as of March 21,
1997 (confidential treatment has been requested for certain portions of this
exhibit).
10.2 Acquisition Agreement dated as of November 25, 1996 by and among
the Registrant, America Online, Inc. and Global Network Navigator, Inc.
(previously filed with the Commission on March 3, 1997 as an exhibit to the
Registrant's Registration Statement on Form S-1 (File No. 333-22669).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EXCITE, INC.
Date: May 8, 1997 By: /s/ Robert C. Hood
------------------
Robert C. Hood
Executive Vice President, Chief Administrative
Officer and Chief Financial Officer
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EXHIBIT INDEX
Exhibit
No. Description
------- -----------
10.1 Netscape Communications Corporation U.S.
English-Language Net Search Program Premier Provider
Services Agreement
<PAGE> 1
EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED
NETSCAPE COMMUNICATIONS CORPORATION
U.S. ENGLISH-LANGUAGE NET SEARCH PROGRAM
PREMIER PROVIDER SERVICES AGREEMENT
OBJECTIVE: To direct users of a Netscape client software Internet browser
product (including the Netscape Navigator 2.x and subsequent versions of
Netscape client software) ("BROWSER") to U.S. English-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 U.S. English-language HTML page accessible by the public via the
Internet at the Universal Resource Locator ("URL")
http://home.netscape.com/home/internet-search, or such other URL as Netscape may
designate from time to time in writing (the "PAGE"). The Page is part of 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 ("NETSCAPE'S U.S. ENGLISH-LANGUAGE WEB SITE").
The Page may also be accessed by Internet users of the Netscape-distributed
English-language version of the Browser by pressing or "clicking" on the Net
Search Button, by visiting the Page by way of a bookmark pre-loaded in certain
versions of the Browser toolbar as described herein, 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 pages which
provide Internet search and directory services on Netscape's U.S.
English-language Web Site including, but not limited to, through the use of
mirror sites and pointers based on a user's IP address, and which pages are
separate and distinct from the Page described in this Agreement.
2. PREMIER PERIOD. Netscape will maintain the Premier Graphic, as defined
below, on the Page for the following one-year period ("PREMIER PERIOD"):
From: May 1, 1997
Until: April 30, 1998
3. SERVICES PROVIDED BY NETSCAPE.
3.1. Premier Graphic. The Premier Provider 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 ("PREMIER GRAPHIC") which Netscape will place on the Page during the
Premier Period. Premier Provider shall retain all right, title and interest in
and to the Premier Graphic (including the copyright ownership thereof), and
Premier Provider hereby grants Netscape a royalty-free worldwide license,
without payment or other charge therefor, to use, display, perform, reproduce
and distribute the Premier Graphic, and such other licenses with respect to the
Premier Graphic necessary to fulfill the intention of this Agreement. The
Premier Graphic shall contain a functional search field and, if available,
directory tree. The specifications of the Premier Graphic and its placement on
the Page are set forth on Exhibit A hereto, and Premier Provider's compliance
with the content as well as the 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 Premier Graphics for each of the participants in this U.S.
English-language Net Search Program -- Premier Provider shall remain the largest
and most prominent category of search graphics on the Page, shall remain
equivalent in size for each of the Premier
<PAGE> 2
Providers, and shall not differ substantially, including, without limitation,
any reduction in the size of the Premier Graphic, from the current
specifications for the Premier Graphics set forth in Exhibit A.
3.2. Stack. Netscape will produce the Page as set forth on Exhibit A.
The Premier Graphic of each of the services appearing in the Premier Provider
category will appear to be overlapped in a stack (the "STACK"). A Premier
Graphic will be accessible by the end user by pressing or "clicking" on a tab
for the relevant Premier Provider's service. Netscape will produce the Page such
that when an end user presses or "clicks" on hypertext links ("PREMIER LINKS")
placed by Premier Provider on the Premier Graphic, the end user's Browser will
access Premier Provider's applicable HTML pages located at the applicable URL's
("PREMIER URL'S") for such pages on the collection of English-language HTML
documents Premier Provider maintains as its primary web site whose home page is
located at the URL http://www.excite.com ("PREMIER PROVIDER'S WEB SITE").
3.3. Rotation. Netscape will rotate the display of Premier Graphics
which will appear on the top of the Stack when the 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 [***********] ("ROTATION
PERCENTAGE") of the time in which the Page is served up to end users who have
not selected a particular Premier Graphic or selected a default Premier Graphic
when accessing the Page. Premier Provider acknowledges that the above-stated
rotation percentage is an annualized target. Netscape shall use reasonable
commercial efforts to serve up the Premier Graphic at such rotation frequency
with a [************************************] throughout the Premier Period.
3.4. End User Default. Netscape shall produce the Page such that the end
user may select which Premier Graphic, or the premier graphic supplied by
certain marquee providers participating in the Net Search Program, the end user
would prefer to have served on the top of the Stack. If an end user selects a
default Premier Graphic, the Premier Graphic selected by the end user will be
served on top of the Stack when that end user accesses the 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 will not appear on the top of the
Stack unless selected by the end user.
3.5. Alphabetical Listing. Premier Provider will supply Netscape with
text describing Premier Provider's search service ("Alphabetical Text"), which
shall be no more than fifty (50) words in length and which Alphabetical Text
Netscape may edit in Netscape's sole discretion. (The Alphabetical Text together
with Premier Provider's name are collectively referred to herein as the
"ALPHABETICAL LISTING"). During the Premier Period, Netscape will place the
Alphabetical Listing on an HTML page linked to the Page and which linked HTML
page lists Internet search services (the "ALPHA PAGE"). Netscape will produce
the Alpha Page such that when an end user presses or clicks on a link
("ALPHABETICAL LINK") embedded in the Alphabetical Listing, the end user's
Browser will access Premier Provider's applicable HTML page located at the
applicable URL for such page on Premier Provider's Web Site ("ALPHABETICAL
URL"). Premier Provider hereby grants Netscape a worldwide license to use,
display, perform, reproduce and distribute the Alphabetical Listing,
Alphabetical Link and Alphabetical URL and such other licenses with respect to
the Alphabetical Listing, Alphabetical Link and Alphabetical URL necessary to
fulfill the intention of this Agreement.
3.6. Page Specifications. The specifications of the Premier Graphic, the
Stack, the Alphabetical Listing and their placement on the Page and Alpha Page
are set forth on Exhibit A hereto; provided however, that Netscape may, within
reasonable limits and upon notice to Premier Provider, (i) change the location
of the Stack on the Page, the Premier Graphic or the Alphabetical Listing on the
Page or Alpha Page, (ii) redesign or reconfigure the Stack, the Page, the Alpha
Page, Netscape's U.S. English-language Web Site, and/or the manner in which an
end user interacts with any of the pages of Netscape's U.S. English-language Web
Site, or (iii) revise
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
2
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Exhibit A, with the changes described in (i), (ii) and (iii) of this sentence to
apply to all Premier Providers equally, 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 Graphic and Alphabetical Listing
which conform 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 within five (5) days (excluding holidays) prior to the revised
Premier Graphic, Stack or Alphabetical Listing being posted on Netscape's U.S.
English-language Web Site. If Netscape has not received such revised and
conforming materials within such five (5) day time period described above, 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. The
schedule of planned updates for the Page are set forth in Exhibit E, as such
Exhibit E may be revised from time to time.
3.7. 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 Page updates.
3.8. Emergency Engineering Support. Netscape will provide, free of
charge, up to an aggregate of one (1) hour per month of emergency engineering
support services time per update to help Premier Provider service any newly
revised Premier Graphic(s) so that the Premier Graphic complies with the new
specifications. Netscape will use reasonable commercial efforts promptly to
remedy any material malfunctioning of the tabbing mechanism for the Premier
Graphics, any material misplacement of the Alphabetical Listing or any material
malfunctioning of the Premier Links or Alphabetical Link under the control of
Netscape, provided Premier Provider will fully cooperate with Netscape to remedy
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 [email protected]. Notwithstanding the foregoing, Netscape has
no obligation to perform services in connection with malfunctions resulting from
software not supplied by Netscape.
4. ADDITIONAL PREMIER PROVIDER BENEFITS.
4.1. Advertising Services. During the Premier Period, Netscape will
provide Premier Provider with total advertising services valued at the level set
forth in Section 7.1(i). During the Premier Period, Premier Provider may
purchase additional advertising on Netscape's U.S. English-language Web Site for
advertising that will run during the Premier Period for the service of Premier
Provider at a discount of [**********] off Netscape's then standard rates for
such advertising. Premier Provider shall execute Netscape's Sponsorship
Agreement, a copy of which is attached as Exhibit C, 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 U.S. English-language Web Site.
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 functionality as
such Premier Provider's Advertisement is served to end users.
4.2. 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 five
(5) entities.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
3
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4.3. Preset Bookmark. Netscape shall include a graphic HTML link to
Premier Provider's URL ("PREMIER PROVIDER'S BOOKMARK") in the bookmark section
of the Netscape Communicator client software versions 4.x. Premier Provider
hereby acknowledges that Premier Provider's Bookmark, although preset in the
shipping version of the Netscape Communicator 4.x distributed by Netscape, may
be reconfigured, customized or deleted by an end user. Should a user upgrade
their version of the Communicator, the bookmarks which the user has loaded at
the time of the upgrade will be carried forward and installed as part of the
upgraded Communicator software.
4.4. Infoblock. Premier Provider shall be accorded consideration for
the possible inclusion of Premier Provider's service as a default "Infoblock",
or similar opportunity, in Netscape's Constellation client software, subject to
terms and conditions as Netscape may determine in its sole discretion.
5. EXPOSURE GUARANTEE
5.1. Occurrence of Exposures. An exposure ("EXPOSURE") occurs upon the
serving up to an end user of: (i) Premier Provider's Premier Graphic on the top
of the Stack, (ii) Premier Provider's Web Site in conjunction with a search
query executed by an end user through entering the search terms in the URL
window of the Browser, (iii) Premier Provider's Web Site as a result of an end
user clicking on a link (excluding Premier Links) to Premier Provider's Web Site
on Netscape's U.S. English-language Web Site, (iv) the page on Premier
Provider's Web Site linked to Premier Provider's Bookmark (the "BOOKMARKED
PAGE") in conjunction with the program described in this Agreement, (v) Premier
Provider's Web Site as a result of an end user clicking on or performing a
search through a Disabling Device (as defined below), or (vi) other Premier
Provider content as a consequence of an end user accessing a promotional page on
Netscape's U.S. English-language Web Site if the parties agree that such
promotional page traffic shall constitute an Exposure. The Premier Graphic may
be served on the top of the Stack to an end user by the following means: (i) the
Premier Graphic appears as part of the Stack rotation, as described in Section
3.3, (ii) the Premier Graphic has been set as an end user's default selection,
as described in Section 3.4, and (iii) an end user selects or clicks on the
Premier Graphic tab in the Stack.
5.2. Minimum Guaranteed Exposures. Netscape a total of
[******************************] Exposures (such number of Exposures being
referred to as the "MINIMUM GUARANTEED EXPOSURES") during the Premier Period.
5.3. 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, and provided that Premier
Provider has complied with its obligations hereunder, Netscape will:
[*******************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*************************************************************].
5.4.
[***********************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*************************************************************************]
4
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 5
6. PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations set forth
herein, Premier Provider shall:
6.1. Netscape Now. Display the "Netscape Now" button
[****************************] of Premier Provider's [***********] on Premier
Provider's Web Site, on any
[***********************************************************************], and
use best 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). Premier Provider 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
[***********************************] and
[*****************************************] than the virtual button or other
graphic
[**********************************************************************].
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, provided 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 6.1, Netscape shall be relieved
of its obligations described in Section 5.3;
6.2. Server Software. [***********] 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 Site and, if
requested, provide Netscape of evidence of such use. Netscape will provide
Premier Provider with "Expert-Expert" product support, as described in Exhibit
F, free of charge for any Netscape software deployed by Premier Provider in
accordance with this obligation;
6.3. Site Features. [********] HTML Frames, layers, dynamic HTML pages,
Java, JavaScript or the then current client software technology (or subsequent
features displayable by
5
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 6
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) the Premier Provider's Web Site,
provided that Premier Provider shall use reasonable commercial efforts to
implement the Site Features on Premier Provider's Web Site 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; 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;
6.4. Mailto Link. Include on the page served to an end user in
conjunction with the results of the end user's search query 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, but
in any event within one (1) week, to any such question or help request; and
6.5. Disabling Devices. Premier Provider agrees to establish and
maintain controls and procedures sufficient to timely and accurately
[*************************************************]. In the event that the
[***********************************] in any
[***************************************************] that the Page is served up
to end users [*********************************]. For purposes of this
Agreement, the term "DISABLING DEVICE" shall mean any means or functionality
provided, directly or indirectly pursuant to an agreement between Premier
Provider and a third party (other than an on-line end user agreement that
accompanies such means or functionality), by Premier Provider which (i) alters
or modifies, or enables end users to alter or modify, the Browser standard user
interface or configuration (other than Browsers that are altered or modified by
third parties to accommodate search functionality and that have been granted the
right by Netscape to make such alterations or modifications), (ii) disables any
functionality of the Browser (other than search functionality of Browsers that
is disabled by third parties that have been granted the right by Netscape to
disable such search functionality), or (iii) modifies the functioning of pages
served from Netscape's U.S. English-language Web Site; provided that a Disabling
Device shall not include any such means or functionality implemented by an end
user prior to the Premier Period.
6
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 7
7. PAYMENT TO NETSCAPE.
7.1. Payment. For the benefits and services provided by Netscape
to Premier Provider for the one (1) year Premier Period, Premier Provider shall
pay Netscape a total of [********] (the "PAYMENT") comprised of the following:
[*********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************]
7.2 Timing of Payment. Premier Provider shall pay the Payment as
follows:
[*********] upon the execution of this Agreement;
[*********] no later than June 30, 1997;
[*********] no later than September 30, 1997;
[*********] no later than December 31, 1997; and
[*********] no later than March 31, 1998.
7.3. Overage Payments. If, during the Premier Period, the number of
Premier Provider's Exposures exceeds the number of Minimum Guaranteed Exposures,
Premier Provider shall remit to Netscape additional payments ("OVERAGE
PAYMENTS") equal to [***************************] Exposures received in excess
of the Minimum Guaranteed Exposures, subject to the terms of Section 7.4.
Netscape shall invoice Premier Provider on a quarterly basis for such Overage
Payments. Premier Provider shall remit to Netscape [**************************]
of such Overage Payment (the "PAYABLE PORTION") within thirty (30) days of
receipt of such invoice and Premier Provider shall immediately grant to Netscape
a credit, for application against the cost of Netscape's participation in
advertising programs on Premier Provider's Web Site in accordance with Section
7.7, equal to [*******************] of such Overage Payment (the "CREDIT
PORTION").
7.4. Payment Cap. Notwithstanding the foregoing, the total amount
payable by Premier Provider to Netscape as described in this Section 7 shall not
exceed [******************************************] (the "PAYMENT CAP")
including all amounts due under Section 7.1 and Section 7.3;
[*******************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
*********************].
7.5. Interest. Any portion of the 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.
7.6. No Taxes. All payments due hereunder are exclusive of any
applicable taxes. Premier Provider 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
7
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 8
Premier Provider is required by law to make any deduction or to withhold from
any sum payable to Netscape by Premier Provider hereunder, (i) Premier Provider
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 Premier
Provider 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.
7.7. Credit against Payment. Premier Provider shall provide Netscape
with committed advertising inventory and services valued at
[********************************************************] as such inventory and
services are valued based on Premier Provider's advertising rate card, and
Netscape will provide to Premier Provider a credit of a total of
[********************************************************] off the Payment
otherwise due under this Agreement, as such credit is determined by the value of
the advertising services Netscape receives from Premier Provider based on
Premier Provider's advertising rate card. 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.
8. USAGE REPORTS.
8.1. 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 previous month's Usage Report data
will be substituted as a proxy for the unavailable data. The parties may, by
mutual written agreement, alter the content and format of the Usage Reports.
8.2. 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 SAID USAGE REPORTS.
9. TERMINATION.
9.1. Methods of Termination.
a. 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 10.
b. Termination for Convenience. Premier Provider may terminate
this Agreement for its convenience ("TERMINATION FOR CONVENIENCE") upon sixty
(60) prior written notice to Netscape.
9.2. Effect of Termination. Except as specifically provided otherwise
in this Agreement, upon termination of the Agreement, all rights and obligations
hereunder shall cease 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 of the other party. Notwithstanding the
8
<PAGE> 9
foregoing, (a) if this Agreement is terminated by Premier Provider other than as
a Termination for Convenience, or is terminated by Netscape because of a breach
by Premier Provider, Premier Provider shall remain liable for the value of the
payments which are due or, but for the breach, would otherwise become due and
payable under the terms of this Agreement, and (b) if this Agreement is
terminated by Premier Provider as a Termination for Convenience, Premier
Provider shall remain liable for the value of the payments which are due or
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 7.6 (No Taxes), Section 8.2 (No Liability),
Section 9.2 (Effect of Termination), Section 11 (Responsibility), Section 12
(Limitation of Liability), and Section 13 (General).
10. RIGHT TO REFUSE. Netscape will have the right to review the contents and
format of the Premier Graphic, the Alphabetical Listing, the Bookmarked Page and
Premier Provider's Advertisement. If Netscape, in its sole discretion, at any
time determines that the Premier Graphic, the Alphabetical Listing, the
Bookmarked Page 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 the Premier Graphic or the
Alphabetical Listing in the Page or Premier Provider's Advertisement on
Netscape's U.S. English-language Web Site, and/or (ii) immediately terminate
this Agreement if Premier Provider has not revised to Netscape's reasonable
satisfaction the Premier Graphic, the Alphabetical Listing, the Bookmarked Page
or Premier Provider's Advertisement within one (1) business day of written
notice from Netscape. If Netscape, in its sole discretion, at any time
determines that the Premier Provider's Web Site contains any material, or
presents any material in a manner, that Netscape deems inappropriate for any
reason, Netscape may immediately terminate this Agreement upon notice to Premier
Provider. Netscape reserves the right to refuse to include in the Page any
Premier Graphic, or any Alphabetical Listing in the Alpha Page, that 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.
11. RESPONSIBILITY. Premier Provider is solely responsible for any legal
liability arising out of or relating to (i) the Premier Graphic, the
Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page and
Premier Provider's Advertisement, and/or (ii) any material to which users can
link through the Premier Graphic, the Alphabetical Listing, Premier Provider's
Bookmark, the Bookmarked Page and Premier Provider's Advertisement. Premier
Provider represents and warrants that it holds the necessary rights to permit
the use of the Premier Graphic, the Alphabetical Listing, the Premier URL, the
Alphabetical URL, the Premier Links, the Alphabetical Link, Premier Provider's
Bookmark, the Bookmarked Page and Premier Provider's Advertisements by Netscape
for the purpose of this Agreement; and that the permitted use, reproduction,
distribution, or transmission of the Premier Graphic, the Alphabetical Listing,
Premier Provider's Bookmark, the Bookmarked Page, Premier Provider's
Advertisements and any material to which users can link through the Premier
Graphic, Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page
and 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, 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.
9
<PAGE> 10
12. 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 11) WHETHER IN CONTRACT OR TORT OR ANY
OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED THE PAYMENT DUE FROM
PREMIER PROVIDER HEREUNDER.
13. GENERAL.
13.1. 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.
13.2. Entire Agreement. The parties agree that by signing this
Agreement, the Net Search Program - Premier Provider agreement between the
parties dated March 8, 1996, as amended, (the "1996 Net Search Agreement") shall
be terminated, and any outstanding rights, duties or obligations between the
parties as described in the 1996 Net Search Agreement shall be extinguished.
This Agreement shall be the sole recital of the rights, duties and obligations
of the parties with respect to Netscape's U.S. English-language Web Site and
Premier Provider participation in the Net Search Program and shall supersede and
replace in its entirety the U.S. English-Language Net Search Program - Premier
Provider Services Agreement entered into between the parties on March 17, 1997.
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.
13.3. Assignment. Premier Provider may not assign any of its rights or
delegate any of its duties under this Agreement, or otherwise transfer this
Agreement (by merger, operation of law or otherwise) without the prior written
consent of Netscape. Any attempted assignment, delegation or transfer in
derogation hereof shall be null and void.
13.4. 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:
10
<PAGE> 11
Premier Provider: Netscape:
Excite, Inc. Netscape Communications Corporation
501 East Middlefield Road
------------------------------
Mountain View, CA 94043
------------------------------
Fax: (415) 528-4123
------------------------------
Attn: General Counsel Attn: General Counsel
13.5. 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 D. The information contained in the Usage Reports provided by
each party hereunder shall be deemed the Proprietary 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.
13.6. 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.
13.7. 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.
13.8. 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.
13.9. 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.
13.10. 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.
13.11. 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.
11
<PAGE> 12
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
PREMIER PROVIDER: NETSCAPE:
EXCITE, INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Robert C. Hood By: /s/ Jennifer Bailey
-------------------------------------- ------------------------------
Print Name: Robert C. Hood Print Name: Jennifer Bailey
------------------------------ ----------------------
Title: EVP-CAO/CFO Title: VP of Electronic Mktg.
----------------------------------- ---------------------------
Date: 3-21-97 Date: 3/21/97
------------------------------------ ----------------------------
Premier Provider Address: Netscape Address:
501 East Middlefield Road
-----------------------------------------
Mountain View, California 94043
-----------------------------------------
USA
-----------------------------------------
Attention: Attention: General Counsel
-------------------------------
Facsimile: Facsimile:
------------------------------- -----------------------
Email: Email:
----------------------------------- ---------------------------
Attached Exhibits:
Exhibit A: Specifications of the Page
Exhibit B: Usage Reports
Exhibit C: Form of Sponsorship Agreement
Exhibit D: Mutual Confidential Disclosure Agreement
Exhibit E: Schedule of Planned Updates
Exhibit F: Description of Expert-Expert Product Support
12
<PAGE> 13
EXHIBIT A
SPECIFICATIONS OF THE PAGE
Site Samples are available exclusively to Premier and "Marquee" Providers. As
of May 1, 1997, Net Search will support Netscape Navigator versions 2 and 3
(both Macintosh and PC platforms), and Microsoft Internet Explorer 3.0 (PC
only). (See Net Search Sampler Test Specification, External for complete
list). All other browsers will be routed to a simple version of the 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 the Site Samplers into the Net Search 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 the sampler, the Site Sampler will be returned for revision. The
specifications are as follows:
- - Size. All Premier Provider materials should be exactly 468 by 165
pixels. Design Site Samplers that include text and interactive forms
for 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.
Site Samplers will be 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 MutliSync 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 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 carriage return.
HTML should read as follows:
[TD]
[/TD]
as opposed to
[TD][/TD]
3. If text appears without any spacing between words (for
instance, in a sentence as opposed to in a table), any text
that falls closer than 50 pixels to the edge of the Site
Sampler 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:
5. [H3][FONT COLOR="#000055"]Text here[/FONT][/H3] as opposed to
6. [H3][FONT COLOR="#000055"]Text here[/H3][/FONT]
<PAGE> 14
- - Tables. In order to maintain the robustness of the 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 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 page.
- - File sizes. To keep the user's load time low, we request that Premier
Provider files not exceed 20K unless cleared by the Destinations
production manager at [email protected].
- - Animated GIF's. 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 the Site Sampler functionality. As a
result, the implementation of JavaScript in Site Samplers is not an
option at this time.
- - Delivery. Content providers should email files to Netscape at
[email protected]. 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 Site Samplers that are
already integrated into a copy of the Net Search page.
- - Filenames. It is important that filenames be in the following format:
search_providername.fmt (for example, search-yoohoo.gif,
search_yoohoo.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_yoohoo1.gif,
search_yoohoo2.gif). When you update your Site Sampler, 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 [email protected]
- - Graphics. By limiting the number of individual graphics (server
calls) in your Site Sampler, you will improve overall page performance
and allow the page to load more quickly. Cropping as close as
possible to the image, leaving no white space around them, will also
allow the 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.
[Screen print of Net Search page]
[Screen prints of Netscape: *MyNetsearch windows]
[Netscape Destinations page screenprint]
<PAGE> 15
EXHIBIT B
USAGE REPORTS
Sample report provided by Premier Provider to Netscape each month.
For the week of: 5/1/97 - 5/8/97
<TABLE>
<S> <C> <C> <C>
NSCP 4.x - 5% NSCP Total - 75%
3.x - 40% MSIE Total - 18%
2.x - 5% AOL Total - 6%
1.x - 2% Other 1%
Total, basic - 52%
NSCP Gold 3.x 25% MSTE 4.x - 5%
Total, Gold - 25% 3.x - 65%
2.x - 25%
1.x - 5%
Total MSTE - 100%
NSCP Int'l 4.x - 2%
3.x - 18%
2.x - 3%
1.x - 0%
Total, Int'l - 23%
Total All - 100%
</TABLE>
Number of Exposures resulting from Disabling Devices: __________________
Premier Provider shall also provide Netscape with I/Pro audits, the top 100
search terms and the number of searches on each term.
<PAGE> 16
Sample report provided by Netscape to Premier Provider each month.
For the month of May, 1997
<TABLE>
<CAPTION>
(1) (2) (3) (4) (5)
Rotated Default Total First User Total
Exposures Exposures Exposures Selected Exposures
<S> <C> <C> <C> <C> <C>
(1 + 2) (3 + 4)
May 1 1M 200K 1.2M 400K 1.6M
May 2 1.1M 210K 1.31M 500K 1.81M
May 3 1.2M 220K 1.42M 600K 2.02M
May 31 1.8M 280K 2.08M 800K 3.08M
Total
</TABLE>
A running total of the Exposures will also be included.
<PAGE> 17
EXHIBIT C
FORM OF SPONSORSHIP AGREEMENT
<PAGE> 18
NETSCAPE COMMUNICATIONS CORPORATION
SPONSORSHIP AGREEMENT (VERSION 3)
COVER SHEET AND INSERTION ORDER FOR ADVERTISING PROGRAM
<TABLE>
- ---------------------------------------------------------------------------------------------------------------
<S> <C>
Legal name of Sponsor . . . . . . . . . . . . . . . Sponsor's Agency . . . . . . . . . . . . . . . . . .
Address of Principal Place of Business Agency Name . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . Agency Address . . . . . . . . . . . . . . . . . . .
City State Zip . . . . City State Zip . . . .
-------------- ----------- -------------- -----------
Phone Fax . . . . . . . . . . Phone Fax . . . . . . . . . .
------------------- --------------------
E-mail . . . . . . . . . . . . E-mail . . . . . . . . . . . .
If Sponsor is not a corporation, please specify form (Please use Business Contact's information for this
of organization . . . . . . . . . . . . . . . . . . portion of the document.)
Place of organization . . . . . . . . . . . . . . .
- ---------------------------------------------------------------------------------------------------------------
IMPORTANT NOTICE: SUBJECT TO NETSCAPE'S ACCEPTANCE, THIS NETSCAPE COMMUNICATIONS CORPORATION SPONSORSHIP AGREEMENT, OF WHICH
THIS PAGE IS A COVER SHEET, ALLOWS YOU TO PURCHASE ADVERTISING SERVICES FROM NETSCAPE IN THE FORM AND AT THE PRICING SET FORTH
IN THE RATE CARD AND ADVERTISING PROGRAM, AS DEFINED HEREIN. YOU MUST PROVIDE TO NETSCAPE ADVERTISEMENT CONTENT AND OTHER
INFORMATION WHICH CONFORMS TO THE SPECIFICATIONS OF THE RATE CARD. CAREFULLY REVIEW THE REST OF THIS AGREEMENT FOR OTHER
IMPORTANT TERMS. FAILURE TO COMPLY WITH THIS AGREEMENT MAY RESULT IN TERMINATION.
SCHEDULING PRICING
---------- -------
Ad Package: . . . . . . . . . . . . . . . . . . . . . Net Amount Before Discounts: . . . . . . . . . . . .
Start Date: . . . . . . . . . . . . . . . . . . . . . Discounts (Check all that apply):
End Date: . . . . . . . . . . . . . . . . . . . . . . Netscape Now (10%) [ ]
Check One: Frequency (10%) [ ]
Paid [ ] Barter [ ] Makegood [ ] Other (specify type, %_________________) [ ]
Net Amount Due: . . . . . . . . . . . . . . . . . . .
BILLING
-------
Check One: Bill to (Sponsor or Agency): . . . . . . . . . . . .
PO # included (write here __________) [ ] Acct. Payable Name: . . . . . . . . . . . . . . . . .
PO Exemption Form attached [ ] Acct. Payable Phone: . . . . . . . . . . . . . . . .
Payment:
----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- -----
Jan $ Feb $ Mar $ Apr $ May $ Jun $ Jul $ Aug $ Sep $ Oct $ Nov $ Dec $
PRODUCTION
----------
URL linked to: http// . . . . . . . . . . . . . . . (Is it tested?) Y N
Banner: New or Existing (Is it tested?) Y N
Delivered by: Agency or Advertiser Production Name: . . . . . . . . . . . . . . . . . .
GIF delivered by (what method): . . . . . . . . . . Production Phone: . . . . . . . . . . . . . . . . . .
Notes:
SPONSOR: NETSCAPE COMMUNICATIONS CORPORATION
------------------------------
By: By:
------------------------------ ------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
------------------------------ ------------------------------
Date: Date of Acceptance:
------------------------------ -----------------
Sponsor Contact:
----------------------
Phone:
------------------------------
Fax: E-mail:
------------------------------ ------------------------------
</TABLE>
<PAGE> 19
NETSCAPE COMMUNICATIONS CORPORATION
SPONSORSHIP AGREEMENT (VERSION 3)
This Sponsorship Agreement ("Agreement") is entered into by and between
Netscape Communications Corporation, a Delaware corporation ("Netscape"), with
principal offices at 501 East Middlefield Road, Mountain View, California 94043
and the organization ("Sponsor") listed and identified on the cover sheet to
this Agreement ("Cover Sheet") as of the date of acceptance by Netscape
("Effective Date") listed on the Cover Sheet.
WHEREAS, Netscape is engaged in the business of providing Internet products and
services, including advertising services; and
WHEREAS, Sponsor desires to purchase advertising services from Netscape as
specified in this Agreement;
NOW, THEREFORE, the parties agree to the following terms and conditions:
1. Definitions.
(a) "Advertisement" means the graphic (GIF) file, or file of such other
format as Netscape may designate from time to time, supplied by Sponsor to be
published by Netscape on Netscape's U.S. English-language Web Site and which
may contain a link to Sponsor's web site or to a web site specified by Sponsor.
(b) "Advertising Program" means a Sponsor's particular selection and
purchase of advertising space and services for publication of its
Advertisements on Netscape's U.S. English-language Web Site, a copy of which
Advertising Program is included on the Cover Sheet.
(c) "Netscape's U.S. English-language Web Site" means a collection of U.S.
English-language HTML documents accessible by the public via the Internet at
the Universal Resource Locator ("URL") http://www/netscape.com, or such other
URL as may be designated from time to time in writing by Netscape.
(d) "Rate Card" means the information regarding Netscape advertising
services, rates, and technical requirements for Sponsor Submissions for
publication on Netscape's U.S. English-language Web Site, a copy of which Rate
Card is attached hereto.
(e) "Sponsor Submission" means all information and items necessary for
Netscape's publication of Sponsor's Advertisements, including initial
Advertising Program information, Advertisements, changes and updates to
Advertisements, and replacement or new Advertisements.
<PAGE> 20
(f) "Usage Statistics" means a set of numbers compiled by Netscape
regarding Netscape User access to a Sponsor's Advertisement and reported on a
periodic basis to Sponsor, for Sponsor's internal business purposes.
(g) "User" means any individual or client who accesses Netscape's U.S.
English-language Web Site.
2. Netscape Services.
(a) Advertising Services. Netscape will publish Sponsor's Advertisements
on Netscape's U.S. English-language Web Site according to the level of service
selected from the Rate Card and as specified in the Advertising Program.
Sponsor shall retain all right, title and interest in and to its Advertisements
(including the copyright ownership thereof), and Sponsor hereby grants Netscape
a royalty-free worldwide license, without payment or other charge therefor, to
use, display, perform, reproduce and distribute the Advertisements, and such
other licenses with respect to the Advertisements necessary to fulfill the
intention of this Agreement.
(b) Reports. Netscape will deliver Usage Statistics to Sponsor on a
monthly basis with respect to each of Sponsor's Advertisements.
(c) No Warranty. NETSCAPE WILL PROVIDE REPORTS (INCLUDING USAGE
STATISTICS) ONLY AS A COURTESY TO SPONSOR. NETSCAPE MAKES NO WARRANTY, EXPRESS
OR IMPLIED, AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, ADVERTISING AND
OTHER SERVICES AND ANY REPORTS PROVIDED HEREUNDER OR THEIR ACCURACY, AND
EXPRESSLY DISCLAIMS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND
FITNESS FOR ANY PARTICULAR PURPOSE.
3. Sponsor Submissions.
(a) Submission Deadline. Netscape must receive all Sponsor Submissions at
least five (5) business days prior to the scheduled date of publication for
each relevant Advertisement ("Submission Deadline").
(b) Late Sponsor Submissions. In the event that Netscape does not receive
a Sponsor Submission prior to the applicable Submission Deadline, Netscape may
publish in substitution any prior Advertisement submitted by Sponsor until such
time as Netscape can reasonably begin publication of the Advertisement
requested in the Sponsor Submission. If no such prior Advertisement is
available, Netscape may publish in substitution any material it deems
appropriate, in its sole discretion, until such time as Netscape can reasonably
begin publication of the Advertisement requested in the Sponsor Submission.
(c) Changes and Cancellations. All changes to and/or cancellations of
Sponsor Submissions must be made in writing, with an e-mail copy sent to
[email protected], and received by Netscape prior to the Submission Deadline.
(d) Rejections. Netscape may, in its complete discretion, refuse at any
time for any reason to accept any Sponsor Submission and/or to publish any
Advertisement.
4. Sponsor Warranty and Indemnification.
<PAGE> 21
(a) Sponsor Warranty. Sponsor hereby represents and warrants to Netscape:
i. No Infringement. Sponsor's Advertisements do not
now, and 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.
ii. No Objectionable Content. Sponsor's Advertisements
do not now, and will not, include any material that
is: unlawful, harmful, fraudulent, threatening,
abusive, harassing, defamatory, vulgar, obscene,
profane, hateful, racially, ethnically or otherwise
objectionable, including, without limitation, any
material that encourages conduct that would
constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local,
state, national or international law.
(b) Indemnification. Sponsor shall indemnify and hold Netscape,
its officers agents, directors, employees and distributors harmless from and
against all actions, claims, damages, costs and expenses (including attorney's
fees) arising out of or with respect to: (i) any breach of the foregoing
warranties; or (ii) any other third party claim in connection with Sponsor's
Advertisements.
<PAGE> 22
5. SPONSORSHIP PAYMENTS.
Sponsor shall pay Netscape according to the prices and terms listed in the Rate
Card.
6. CONFIDENTIALITY.
(a) Defined. "Confidential Information" will mean: (i)
Advertisements, prior to publication, (ii) the Usage Statistics, which shall be
considered Netscape's Confidential Information, and (iii) any information
designated in writing by the disclosing party as "confidential" or
"proprietary."
(b) Obligations. During the term of this Agreement and for a
period of three years thereafter, neither party will use or disclose any
Confidential Information of the other party except as specifically contemplated
herein. The foregoing restrictions will not apply to information that (i) has
been independently developed by the receiving party, (ii) has become publicly
known through no wrongful act of the receiving party, (iii) has been rightfully
received from a third party authorized to make such disclosure, (iv) has been
approved for release by the disclosing party in writing, or (v) is required to
be disclosed by a competent legal tribunal.
7. LIMITATION ON DAMAGES.
(a) Limitation. IN NO EVENT WILL NETSCAPE BE LIABLE TO SPONSOR
FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES OF ANY KIND (WHETHER OR NOT FORESEEABLE), WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR
OTHERWISE, EVEN IF NETSCAPE IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES. NETSCAPE'S TOTAL LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE
PAYMENTS RECEIVED BY NETSCAPE FROM SPONSOR HEREUNDER.
(b) Failure of Essential Purpose. The parties have agreed that
the limitations and exclusions of liability specified in this Agreement will
survive and apply even if any limited remedy specified in this Agreement is
found to have failed of its essential purpose.
(c) Basis of the Bargain. Sponsor acknowledges that Netscape has
set its rates and entered into this Agreement in reliance upon the limitations
of liability and the disclaimers of warranties and damages set forth herein,
and that the same form an essential basis of the bargain between the parties.
8. TERM AND TERMINATION.
(a) Term. The term of this Agreement commences on the Effective
Date and, unless earlier terminated in accordance with this Section 8, will
continue in effect for the period specified in the Advertising Program. This
Agreement may be renewed for additional periods upon the written agreement of
the parties at least ninety (90) days prior to the expiration date; provided,
however, that the advertising rates set for this Agreement in the Rate Card
hereto shall not apply to any renewal period and must be separately agreed to
by both of the parties.
(b) Termination. In the event of a breach by Sponsor of any of
its obligations hereunder, Netscape may terminate this Agreement immediately
upon written notice to Sponsor. Either party may terminate this Agreement for
convenience, with or without cause, upon thirty (30) days written notice to the
other party.
(c) Effect of Termination.
<PAGE> 23
i. Payment Obligations. If this Agreement is terminated by
Sponsor, or is terminated by Netscape because of a breach by
Sponsor, Sponsor shall remain liable for the value of the
payments which are due or, but for the breach, would otherwise
become due and payable under the terms of this Agreement.
ii. Survival. The following provisions will survive the
expiration or termination of this Agreement for any reason:
Section 1 (Definitions), Section 2(c) (No Warranty), Section
4(b) (Indemnification), Section 6 (Confidentiality), Section 7
(Limitation on Damages), Section 8(c) (Effect of Termination),
and Section 9 (General).
iii. Return of Materials. Upon expiration or termination of this
Agreement for any reason, Sponsor will promptly and at the
direction of Netscape either destroy, or return to Netscape,
and will not take or use, all items of any nature that belong
to Netscape or its Sponsors or other customers and all records
(in any form, format, or medium) containing or relating to
Confidential Information.
9. GENERAL.
(a) Assignment. Sponsor may not assign this Agreement in whole or
in part, by operation of law or otherwise, without Netscape's written consent,
and any attempted assignment of this Agreement without such consent will be
null and void.
(b) Governing Law. The validity, construction and performance of
this Agreement, and the legal relations between the parties to this Agreement,
will be governed by and construed in accordance with the laws of the State of
California, excluding that body of law applicable to conflicts of law. The
Superior Court of Santa Clara County and/or the Untied 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.
(c) Force Majeure. Except for the obligation to pay money,
neither party will be liable to the other party for any failure or delay in
performance caused by reasons beyond such party's reasonable control, and such
failure or delay will not constitute a breach of this Agreement.
(d) Notices. Any notices under this Agreement will be sent by
confirmed facsimile, nationally-recognized express delivery service, or
certified or registered mail, return receipt requested, to the address
specified below or such other address as the party specifies in writing.
Notice by confirmed facsimile or express delivery service will be deemed
received and effective upon delivery. Notice by certified or registered mail
will be deemed received and effective five (5) days after dispatch.
(e) Waiver. The waiver of any breach or default of this Agreement
will not constitute a waiver of any subsequent breach or default, and will not
act to amend or negate the rights of the waiving party.
(f) Severability. If one or more of the provisions contained in
this Agreement is determined to be invalid, illegal or unenforceable in any
respect under any applicable statute or rule of law, then such provision will
be considered inoperable to the extent of such invalidity, illegality or
unenforceability, and the remainder of this Agreement will continue in full
force and effect. The parties hereto agree to replace any such invalid,
illegal or unenforceable provision with a new provision that has the most
nearly similar permissible economic and legal effect.
(g) Entire Agreement. This Agreement, including the Rate Card and
Advertising Program, is the complete and exclusive agreement between the
parties with respect to the subject matter hereof, superseding and replacing
any and all
<PAGE> 24
prior agreements, communications, and understandings (both written and verbal)
regarding such subject matter. This Agreement may only be modified, or any
rights under it waived, by a written document executed by both parties.
10. AUTHORIZED SIGNATURES.
In order to bind the parties to this Agreement, their duly authorized
representatives have executed the Cover Sheet to this Agreement.
<PAGE> 25
RATE CARD (VERSION 3)
[ATTACHED]
<PAGE> 26
NETSCAPE BANNER ADVERTISING RATE CARD
For millions of users, the Netscape Web site is the starting point of their
travels through the Internet.
For advertisers in this new media environment, advertising at Netscape is as
easy as it is rewarding. Netscape is the premier foundation buy, with proven
success at continual improvements of programs and customer service. As a
result it leads Jupiter's list of top Web site revenues quarter after quarter.
With Netscape advertising you can:
- - cover the largest Internet audience of any Web site (according to our
I/Prom Audit for the first week of October 1996),
- - reach experienced users as well as tap into the flood of new users,
- - affect brand opinions and deliver brand messages quickly and
concisely,
- - match your advertising to Netscape's content,
- - fulfill interactive marketing objectives, and
- - link promotions to entire sales messages.
As the central resource, Netscape provides advertisers with the flexibility to
reach the audience in mass or within a targeted and segmented context. The
audience includes heavy users and core developers who come to explore the
latest happenings available from Netscape and its community. What's more,
Netscape introduces thousands of "newbies" to the Web every day.
Although some consider the Internet to be uncharted territory, with unknown
values and uncertain benefits, Netscape provides advertisers with solutions
they need for market coverage and provides a means of reaching consumers who
are engaged on the Internet now. There is no better place to reach the
Internet market.
All banner advertising programs include a banner linked directly to the
advertiser's Web site. All are offered on a monthly basis. In each program,
banners rotate at least once every ten minutes. And now, Netscape offers the
opportunity to secure one specific page to match your advertisement.
The following details will guide you through the evaluation and purchase
process. Select the information you need and get answers to your questions.
For additional information, please see Frequently Asked Questions or contact
Netscape's advertising representative.
GROSS RATES
<PAGE> 27
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Banner Volume 125K Volume 250K Volume 375K Volume 750K Ad Rotation Available
Size per Week per week per week per week (number of as a Custom
Program (Pixels) (CPM) (CPM) (CPM) (CPM) pages) Program
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Home Page 234x60 N/A N/A N/A contact for pending (1 yes
Banner price page)
- ----------------------------------------------------------------------------------------------------------------
Home Page 234x60 N/A N/A N/A contact for pending (1 yes
Sponsor (text and price page)
GIF)
- ----------------------------------------------------------------------------------------------------------------
Net Search 468x60 $24 $23 $22 $20 yes (21 yes
pages)
- ----------------------------------------------------------------------------------------------------------------
People 468x60 $28 $27 $26 $24 yes (10 yes
pages)
- ----------------------------------------------------------------------------------------------------------------
What's New 468x60 $40 $39 $38 $36 yes (1 no
page)
- ----------------------------------------------------------------------------------------------------------------
What's Cool 468x60 $40 $39 $38 $36 yes (1 no
page)
- ----------------------------------------------------------------------------------------------------------------
Technical 468x60 $35 $34 $33 $31 yes (24 yes (many
pages) pages
available)
- ----------------------------------------------------------------------------------------------------------------
Destinations 468x60 $30 $29 $28 $26 yes (105 yes (many
pages) pages
available)
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
Notes: All prices are gross; K per week refers to 1000 impressions per week;
CPM refers to cost per 1000 impressions; N/A means not available.
To request more information, please complete the inquiry form.
Netscape also provides advertising to reach international customers. For
information, please link to our International Advertising Program page.
CUSTOM PROGRAMS
Custom programs are available as 468-by-60 pixel banners only with volume buys
of 750K per week.
- - Select a page. Purchase a single page (or group of pages) for your
specific needs.
- - Contact a sales rep. Your advertising representative can answer
questions for you about traffic for the page, availability, and cost.
Some pages can be partially reserved, including Net Search and all
top-category Destinations pages.
- - Requirements. Netscape needs four weeks notice in order to create a
custom page for you.
- - Term. Minimum, 13 weeks; maximum, 26 weeks. All other discounts
still apply
- - Minimum Payment. $7500 for a 13-week commitment.
- - CPM. The CPM will be 20-percent higher than the CPM of the program
from which the pages were removed.
<PAGE> 28
DISCOUNTS AND PREMIUMS
- - One-week test premium (10%). One weekly test available per advertiser
per quarter. (This is for advertisers who make a one-week commitment
with one ad.)
- - Agency discount (15%). Agency must be a recognized or in-house
agency. Agency commission paid on net after all applicable discounts.
- - Netscape Now discount (10%). Advertiser must provide proof (screen
shot) of Netscape Now button placement on advertiser's home page to
earn discount. Screen shot must be provided at the time the contract
is signed. Netscape Now button must remain on page for duration of
contract.
- - High-volume discount (10%). An extra 10 percent discount is available
for advertisers who purchase at least 1 million impression per week.
The CPM rate is calculated based on 10 percent off the 750K-per-week
rate for your program.
- - Frequency discounts. Available based on current contract term length
only.
<TABLE>
<CAPTION>
1 to 12 weeks 13 to 25 weeks 26 to 38 weeks 39 to 51 weeks 52 weeks and more
<S> <C> <C> <C> <C>
no discount 5% off 10% off 15% off 20% off
</TABLE>
All discounts and premiums are multiplicative, not additive. (Example, Two 10
percent discounts off $100 would be 100 x .9 x .9, or $81; not 100-20% or $80.)
TERMS OF PAYMENT
- - Insertion orders. An insertion order (contract) must be filled out
completely, signed and delivered before the materials due date.
Reservations will not be held without a signed insertion letter.
- - Purchase order numbers. Are required on every insertion order
(Netscape's form), in lieu of a signed agency insertion order.
- - Invoicing and billing. Sponsors will be invoiced by the first day of
the contract period for the first four weeks. Each month thereafter,
sponsors will be invoiced an additional four weeks. Where applicable,
in the third, sixth, ninth and twelfth months, sponsors will be billed
for five weeks rather than four.
- - Payment. Due net 30 days from the date of invoice receipt.
- - Screen shot. A screen shot may be obtained by contacting your
advertising representative.
- - Cancellations. Netscape requires written notice ten business days in
advance. Netscape reserves the right to charge a 2 percent short
rate on all remaining undelivered advertising costs and to reverse any
unmet frequency discount.
TECHNICAL SPECIFICATIONS
BANNER AND SUBMISSION PROCESS
Materials due dates are each Wednesday by 5 p.m. PST prior to the start date
and must adhere to the technical specifications below. Start dates occur each
Wednesday. In the event of a holiday, the materials due date is the prior
business day. End dates occur each Tuesday. Holidays do not affect end dates.
- - Contact Netscape's advertising representative for availability.
- - Send the following materials by Wednesday 5 p.m. PST.
- - Mail the signed contract, insertion order, and home page screen shot
(if seeking the Netscape Now discount) to your advertising
representative.
- - Email GIF as attachment to [email protected]. Please, no
compression. See technical specifications.
- - In the same email attachment as GIF image, send entire URL following
the syntax http://server.domain.com/file.type. URL must be live by
materials due date.
<PAGE> 29
- - Late submissions will be held until the following start date. You
will be notified by your advertising representative.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
All Banner Programs Home Page Banner Home Page Text Plus GIF
Except Home Page
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Production Due to Wednesday 5 p.m. PST Wednesday 5 pm. PST at Wednesday 5 p.m. PST at
[email protected] prior to the following least one week before least one week before
Wednesday start date start date; late start date; late
submissions must be submissions must be
rescheduled rescheduled.
- ----------------------------------------------------------------------------------------------------------------
Advertisement Run Length Wednesday to Tuesday one day (weekends and one day (weekends and
holidays included in holidays included in
prior business day) prior business day)
- ----------------------------------------------------------------------------------------------------------------
Images resolution, 72 dpi; resolution, 72 dpi; resolution, 72 dpi;
maximum file size, 10K; maximum file size, 4K; maximum file size, 1K;
image size, 468x60 pixels image size, 234x60 image size, 44x31
- ----------------------------------------------------------------------------------------------------------------
MAP Files not accepted not accepted not accepted
- ----------------------------------------------------------------------------------------------------------------
Animated Banner Ads GIF only; must be not accepted not accepted
accompanied by a non-
animated GIF to be
considered; loop must
stop after 4 seconds
- ----------------------------------------------------------------------------------------------------------------
Naming Convention sponsor_program_banner_ad same as banner programs same as banner programs
.gif 7 letters maximum for GIFs; text should be
for sponsor and banner, sent in email message
for program designate the
program you want example:
netscap_technical_genstor
_ad.gif
- ----------------------------------------------------------------------------------------------------------------
Alternate Text for Images 10 words maximum 10 words maximum 4 words maximum
- ----------------------------------------------------------------------------------------------------------------
Ad Copy none none 25 words maximum; one
text link; link URL must
be provided with text and
image; Netscape reserves
the right to edit the
materials to meet
corporate guidelines
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
Pricing, programs, discounts, and premiums, as well as technical and delivery
requirements are subject to change at any time without notice.
<PAGE> 30
EXHIBIT D
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
<PAGE> 31
EXHIBIT D
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
WHEREAS, Netscape Communications Corporation ("Netscape") has
developed unique and proprietary computer programs; and
WHEREAS, ___________________________________ ("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 (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.
<PAGE> 32
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 acknowledged 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 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 . . . . . . . . . . . . . .
CORPORATION (Company)
By: . . . . . . . . . . . . . . . By: . . . . . . . . . . . . . .
Address: Address:
501 East Middlefield Road
Mountain View, California 94303
Date: . . . . . . . . . . Date: . . . . . . . . . .
<PAGE> 33
EXHIBIT E
SCHEDULE OF PLANNED UPDATES
Calendar: The following is the schedule for submitting materials for the Net
Search program during the first two months of the Premier Period.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Final materials due: Net Search Page goes live:
- -----------------------------------------------------------------------------------------------------------------
<S> <C>
May 6, 1997 May 12, 1997
- -----------------------------------------------------------------------------------------------------------------
May 13, 1997 May 19, 1997
- -----------------------------------------------------------------------------------------------------------------
May 19, 1997 (please note this is a Monday) May 22, 1997
- -----------------------------------------------------------------------------------------------------------------
May 27, 1997 (please note the 26th is a holiday) June 2, 1997
- -----------------------------------------------------------------------------------------------------------------
June 3, 1997 June 9, 1997
- -----------------------------------------------------------------------------------------------------------------
June 10, 1997 June 16, 1997
- -----------------------------------------------------------------------------------------------------------------
June 17, 1997 June 23, 1997
- -----------------------------------------------------------------------------------------------------------------
June 24, 1997 June 30, 1997
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 34
EXHIBIT F
DESCRIPTION OF EXPERT-EXPERT PRODUCT SUPPORT
Designed for medium to large organizations
Web businesses
Internet service providers
Large system integrators
Large resellers
Mission-critical level of support for Netscape customers.
- Priority escalation to expert-level technical support engineer
- Includes support for complex fault isolation
- Customers provide front-line (help-desk) support for their installed
base
- 2 authorized customer contacts included
- Unlimited incidents
- 24 x 7 (pager only after hours for PI issues only)
- Informational support on selected beta products
- Technical support bulletins
- Incident closure reports
