[NETSCAPE LOGO] Netscape Agreement #
004574-1
AMENDMENT No. 1 TO
Bookmark Program Agreement
This Amendment No. 1 (the 'Amendment') is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
501 E. Middlefield Road, Mountain View, California 94043 ('Netscape'), and
Goto.com, a company organized under the laws of Delaware, with principal
offices at 130 West Union St., Pasadena, CA 91103 ('Participant') and effective
as of the date of execution by Netscape ('Amendment Effective Date').
WHEREAS, the parties have entered into a Bookmark Program Agreement effective
8/1, 1998 (the 'Agreement'); and
WHEREAS, the parties wish to modify the provisions of such Agreement;
NOW, THEREFORE, the parties, in consideration of the terms and conditions
herein, agree as follows:
1. A. The 'Version' (as referenced on the Cover Sheet) is updated from 4.06
to 4.5 Beta.
B. The 'Period' (as referenced on the Cover Sheet) during which this
Agreement is in force, is extended to begin on '7/15/98' and still
continue until 7/31/99.
C. The 'per Click' charge (as referenced on the Cover Sheet) will be
waived for the first 16 days from 7/15/98 until 7/31/98.
2. Capitalized terms defined in the Agreement shall have the same meaning in
this Amendment as in the Agreement.
3. Except as explicitly modified, all terms, conditions and provisions of the
Agreement shall continue in full force and effect.
4. In the event of any inconsistency or conflict between the Agreement and
this Amendment, the terms, conditions and provisions of this Amendment
shall govern and control.
5. This Amendment and the Agreement constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter are
superseded by the Agreement and this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives, effective as of the
Amendment Effective Date.
NETSCAPE COMMUNICATIONS 'PARTICIPANT'
CORPORATION
By: /s/ Noreen G. Bergin By: /s/ Stephanie A. Sarka
---------------------------- ----------------------------
Signature Signature
Name: Noreen G. Bergin Name: Stephanie A. Sarka
-------------------------- --------------------------
Print or Type Print or Type
Title: Senior Vice President, Title: SVP Marketing
Finance & Corporate -------------------------
Controller
-------------------------
Date: 7/28/98 Date: 7/13/98
-------------------------- --------------------------
BM Contract 4.06-4 Shots Amendment doc JDD7/10/95
Amendment No. __ Rev. 032398
CONFIDENTIAL
[NETSCAPE LOGO]
NETSCAPE COMMUNICATIONS CORPORATION
BOOKMARK PROGRAM AGREEMENT
Cover Sheet
No. [ILLEGIBLE]
GoTo.com, Inc. (GoTo.com)
-----------------------------------------------------------------------------
Full legal name of Participant ('Participant')
130 West Union Street, Pasadena CA 91103
-----------------------------------------------------------------------------
Address of Participant's Principal City State Zip/Country
Place of Business
Contact: Stephanie Sarka Phone: 626/535-2808 Fax: 626/535-2701
E-mail: stephanie@goto.com
130 West Union Street, Pasadena CA 91103
-----------------------------------------------------------------------------
Bill To Address City State Zip/Country
Participant is organized in the state of Delaware
IMPORTANT NOTICE: UPON EXECUTION BY THE PARTIES, THIS NETSCAPE COMMUNICATIONS
CORPORATION ('NETSCAPE') BOOKMARK PROGRAM AGREEMENT, OF WHICH THIS PAGE IS A
COVER SHEET, ALLOWS PARTICIPANT TO PARTICIPATE IN THE BOOKMARK PROGRAM AS
DESCRIBED HEREIN. BY SIGNING THIS COVER SHEET, PARTICIPANT AGREES TO ALL THE
TERMS AND CONDITIONS ATTACHED (COLLECTIVELY, THE 'AGREEMENT'). FAILURE TO
COMPLY WITH THIS AGREEMENT MAY RESULT IN TERMINATION.
Bookmark Production Information:
Netscape client software: Netscape-distributed Local Language Versions of
the Netscape Communicator
Version(s): Netscape Communicator 4.06 release (and all future '4.x' releases
between 8/1/98 and 7/31/99)
Bookmark Category: Search
Bookmark Title (no more than 25 characters): GoTo.com
Bookmark URL: http://www.goto.com/
Local Language: US.English
Platform(s): All platforms made generally commercially available by Netscape.
Period: 8/1/98 - 7/31/99
Payment Terms:
Cost Per Click: $0 Engineering Fee plus $0.10 cost per Click for 12 months.
Payable in accordance with the following schedule: $0.10 per Click per month,
with no annual cap. All totals are stated net of Participant's agency discount.
All amounts payable to Netscape must be paid in a single payment within 30 days
of the date of Netscape's invoice. All payments shall be made by wire transfer
or remittance in accordance with Netscape's instructions on such invoice. Past
due amounts shall bear interest at the lower of 1-1/2% per month or the maximum
rate allowed by law until paid in full.
GOTO.COM GO2 TECHNOLOGIES, INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Stephanie A. Sarka By: /s/ Noreen G. Bergin
------------------------------- -------------------------------
Name: Stephanie A. Sarka Name: Noreen G. Bergin
----------------------------- -----------------------------
Title: SVP Mktg. Title: Senior Vice President,
Finance & Corporate Controller
---------------------------- ----------------------------
Date: 7/9/98 Date of Acceptance
----------------------------- ('Effective Date'): 7/28/98
---------------
Address: 501 East Middlefield Road,
Mountain View, CA 94043
BOOKMARK PROGRAM TERMS & CONDITIONS
1. Definitions. 'Advertisement' means the graphic (GIF) file, or file of such
other format as Netscape may designate from time to time, supplied by
Participant to be published by Netscape on Netscape's U.S. English-Language Web
Site and which may contain a link to Participant's web site or to a web site
specified by Participant. 'Bookmark' means a graphic HTML link to a Bookmark
URL as such Bookmarks are included in the functionality of the Netscape
Communicator. 'Bookmark Folder' means the collection of Bookmarks, grouped by
topic and included in one folder in a Netscape Communicator Bookmark menu.
'Bookmark Title' means the descriptive name of Participant's Bookmark as set
forth in the Cover Sheet. 'Bookmark URL' means the URL which Participant
specifies as the Internet address linked to Participant's Bookmark. 'Bookmarked
Page' means the Internet page located at the Bookmark URL and accessed when an
End User selects Participant's Bookmark. 'Click' means an action typically
resulting from an End User positioning their mouse cursor on a clickable
hyperlink and selecting or clicking on that hyperlink. 'Clicks' are counted as
a redirection of a user's click through the Netscape server access logs to the
Participants Bookmark URL. 'End User' means any individual who deploys the
Netscape Communicator software. 'Local Language' means the language Version of
the Netscape Communicator as such language is specified in the Cover Sheet.
'Netscape Communicator' means the unmodified Local Language Version of
Netscape-distributed and pre-configured Internet client software.
'Participant's Bookmark' means the Bookmark Title and Bookmark URL selected by
Participant for inclusion in this Bookmark program, and as such Bookmark Title
and Bookmark URL are set forth in the Cover Sheet. 'Platform' means the
software operating system platform specified in the Cover Sheet. 'Rate Card'
means the information regarding Netscape advertising services, rates, and
technical requirements for Participant's submissions for publication on
Netscape's U.S. English-language Web Site. 'Slotting Fee' means the one-time
nonrecurring engineering payment to Netscape by Participant for Participant's
inclusion in the Bookmark program. 'Version' means a release of the Netscape
Communicator client software made commercially available by Netscape and
distributed in accordance with this Agreement.
2. Netscape Services. (a) Subject to the terms and conditions of this
Agreement, Netscape shall include in certain Versions of the Netscape
Communicator, a pre-loaded Bookmark for access to the Bookmark URL, as
specified by Participant on the Cover Sheet. The Participant's Bookmark shall
be included in Versions of the Netscape Communicator localized into the Local
Language and configured for the Platforms. Participant hereby acknowledges that
the Bookmark, although preset in the shipping Version of the Netscape
Communicator, may be reconfigured, customized or deleted by an End User. (b)
Netscape will create an index of topical bookmarks which will appear in a
drop-down menu when an End User selects a particular toolbar within the
Netscape Communicator user interface. Netscape may revise the Netscape
Communicator's user interface, provided that Participant's Bookmark shall be
included in any such revisions.
3. Fees and Taxes. (a) For the benefits and services provided by Netscape to
Participant hereunder, Participant shall pay Netscape the fees set forth on the
Cover Sheet. Netscape will issue a report and invoice Participant on a monthly
basis for the payment due based on the Clicks received by Participant's
Bookmark. Such report and invoice amount shall be Confidential Information. (b)
All payments by Participant are in U.S. Dollars and are exclusive of any
applicable taxes. Participant shall pay, indemnify and hold Netscape harmless
from all import duties, customs fees, levies or imports, and all sales, use,
value added, consumption, withholding or other taxes of any nature, other than
taxes on Netscape's net income, including penalties and interest, and all
government permit or license fees assessed upon or with respect to any payments
by Participant (except to the extent Participant provides Netscape with a valid
tax exemption certificate). If any applicable law requires Participant to
withhold amounts from any payments to Netscape hereunder, (i) Participant shall
effect such 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 Participant 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.
4. Participant Obligations. This Section 4 shall only apply if and when
Participant includes any other third party buttons, trademarks or logos or
otherwise promotes third parties on its Web Site. (a) During the term of this
Agreement, Participant agrees to display the 'Netscape Now' button prominently
above the fold on the Bookmarked Page. Participant will produce the Bookmarked
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 the Bookmarked
Page, the Netscape Now button shall be top-most and left-most, and equal to or
greater in size and prominence than the virtual button or other graphic for any
third party Internet client or server software or online service. Participant
shall use reasonable commercial efforts promptly to remedy any misplacement of
the Netscape Now button on the Bookmarked Page or any malfunctioning of the
button, provided Netscape will cooperate with Participant to remedy any such
misplacement or malfunctioning, and provided further that Participant shall not
incur liability for any failure to remedy such misplacement or malfunctioning
if such remedy is not within the reasonable control of Participant. In the
event that Netscape replaces the Netscape Now program with a successor program,
Netscape shall advise Participant and Participant shall produce the Bookmarked
Page to conform to such successor program, provided Participant's obligations
under such successor program shall not be materially increased. Netscape hereby
grants Participant a nonexclusive, nontransferable, license to
2
perform and display the Netscape Now button directly in connection with
fulfilling the obligations set forth above. Participant's use of the Netscape
Now button shall be in accordance with Netscape's reasonable policies regarding
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 Website. Participant acknowledges that the Netscape Now button
is a proprietary logo of Netscape and contains Netscape's trademarks. In the
event that Netscape determines that Participant's use of the Netscape Now button
is inconsistent with Netscape's quality standards, then Netscape shall have the
right in immediately suspend such use of the Netscape Now button. Participant
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 New button and associated trademarks
will inure to the benefit of Netscape. Participant agrees not to register or use
any trademark that is similar to the Netscape Now button. Participant 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. (b) Participant will use reasonable commercial efforts promptly to
remedy any material malfunctioning of Participant's Bookmark Advertisement and
the Bookmarked Page. Participant warrants that Participant's Bookmark
Advertisement and the Bookmarked Page will function in accordance with the
specifications for this Bookmark Program or the Netscape Advertising Program. In
the case of a breach of the warranties in this Section 4(b) (and in addition to
any rights Netscape may have), Participant shall remedy such nonconforming,
unsuitable or inaccurate Advertisement, Participant's Bookmark or Bookmarked
Page within a reasonable period of time (not to exceed 10 days) of notice of
each condition.
5. Right to Refuse. Netscape will have the right to review the contents and
format of Participant's Bookmark, the Bookmarked Page, Advertisement and/or any
material to which End Users can link through the Bookmarked Page or the
Advertisement. If Netscape, in its sole discretion, at any time determines that
the contents and format of Participant's Bookmark, the Bookmarked Page,
Advertisement and/or any material to which End Users can link through the
Bookmarked Page or the Advertisement contains any material, or presents any
material in a manner that Netscape deems inappropriate for any reason, Netscape
will inform Participant of the reason Netscape has made such determination and
may (i) refuse to include Participant's Bookmark, Advertisement or Bookmark URL
in the Netscape Communicator, and/or (ii) immediately terminate this Agreement
if Participant has not revised to Netscape's reasonable satisfaction the
contents and format of Participant's Bookmark, the Bookmarked Page,
Advertisement and/or any material to which End User's can link through the
Bookmarked Page or the Advertisement within 1 business day of written notice
from Netscape. If Netscape, in its sole discretion, at any time determines that
pages on Participant's web site linked to the Bookmarked Page contain 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
Participant. Netscape reserves the right to refuse to include any Bookmark for
any reason whatsoever.
6. Responsibility. Participant is solely responsible for any liability arising
out of or relating to Participant's Bookmark, the Bookmarked Page, Advertisement
and/or any material to which End Users can link through the Bookmarked Page or
the Advertisement. Participant represents and warrants that it holds the
necessary rights to permit the use of the Participant's Bookmark and
Advertisement by Netscape for the purpose of this Agreement and that the
permitted use, reproduction, distribution, or transmission of Participant's
Bookmark, the Bookmarked Page, Advertisement and any material to which End Users
can link through the Bookmarked Page or the Advertisement will not violate any
local laws or applicable international laws, 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. Participant 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 Participant's breach of any of the foregoing
representations and warranties.
7. Limitation of Liability. (a) IN NO EVENT WILL NETSCAPE BE LIABLE TO
PARTICIPANT FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED
ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THAT NETSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NETSCAPE'S
TOTAL LIABILITY HEREUNDER, WHETHER IN CONTRACT OR TORT OR ANY OTHER LEGAL
THEORY, IS LIMITED TO AND SHALL NOT EXCEED AMOUNTS RECEIVED FROM PARTICIPANT
HEREUNDER. (b) 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 will survive and apply even if any limited
remedy specified in this Agreement is found to have failed of its essential
purpose. (c) Participant acknowledges that Netscape has entered into this
Agreement in reliance upon the limitations of liability and the disclaimers of
damages set forth herein, and that the same form an essential basis of the
bargain and allocation of risks between the parties.
8. Confidentiality. (a) 'Confidential Information' shall mean this Agreement
(including but not limited to any monthly reports and invoices) and all
information a party discloses to the other which has been either (i)
characterized in writing as confidential at the time of its disclosure or (ii)
orally characterized as confidential at the time of disclosure except for
information which the receiving party can demonstrate (A) is previously
rightfully known to the receiving party without restriction or disclosure; (B)
is or becomes, from no act or failure to act on the part of the receiving party,
generally known in the relevant industry or public domain; (C) is disclosed to
the receiving party by a third party as a matter of right and without
restriction on disclosures; or (D) is independently developed by the receiving
party without access to the
[Company Name]
Bookmark Program Agreement
CONFIDENTIAL
3
Confidential Information. Each receiving party shall at all times, both during
the term hereof and for a period of at least three (3) years after termination,
keep in confidence all the disclosing party's Confidential Information using a
standard of care the receiving party uses with its own information of this
nature, but in no event less than reasonable care. The receiving party shall
not use the disclosing party's Confidential Information other than in the
course of its duties hereunder. Neither party acquires any intellectual
property rights under this Agreement or through any disclosure hereunder,
except the limited right to use such Confidential Information in accordance
with this Agreement. The Confidential Information under this Agreement is
delivered 'AS IS' and all representations or warranties, whether express or
implied, including warranties or conditions for fitness for a particular
purpose, merchantability, title and noninfringement are hereby disclaimed.
Without the prior written consent of the disclosing party, the receiving party
shall not disclose the disclosing party's Confidential Information except on a
'need to know' basis to an employee or contractor under binding obligations of
confidentiality substantially similar to those set forth herein. If a receiving
party is legally compelled to disclose any of the disclosing party's
Confidential Information, then, prior to such disclosure, the receiving party
will (x) assert the privileged and confidential nature of the Confidential
Information and (y) cooperate fully with the disclosing party in protecting
against any such disclosure and/or obtaining a protective order narrowing the
scope of such disclosure and/or use of the Confidential Information. In the
event such protection is not obtained, the receiving party shall disclose the
Confidential Information only to the extent necessary to comply with the
applicable legal requirements.
9. RECORDS; AUDIT: Netscape shall maintain accurate records reflecting the
number of billable Clicks recorded on Netscape's server access logs. At
Participant's expense, Participant shall have the right, at a mutually
agreeable time during normal business hours and upon at least 15 business days
prior notice, to conduct an audit to verify Click data upon which invoices are
based.
10. TERMINATION. (a) Participant may terminate Netscape's right to incorporate
Participant's Bookmark into new Versions of the Netscape Communicator on 90
days written notice to Netscape. Following such 90 day period, Netscape may
continue to distribute any Versions of the Netscape Communicator which were
released during the term of this Agreement (b) Netscape may terminate this
Agreement on 30 days written notice to Participant or as provided in Section 5.
Following any termination or expiration of this Agreement, Netscape may
continue to distribute any Netscape Communicator which was released during the
term of this Agreement. (c) The provisions of Section 1 (Definitions), Section
3 (Fees and Taxes), Section 6 (Responsibility), Section 7 (Limitation of
Liability), Section 8 (Confidentiality) and Section 11 (General) will survive
any termination or expiration of this Agreement. Any rights Netscape has to
distribute a Version of the Netscape Communicator which includes Participant's
Bookmark, will also survive termination or expiration of this Agreement.
Provisions of other Sections which, by their nature, must remain in effect
beyond the termination or expiration of this Agreement shall also survive.
11. GENERAL. (a) The parties hereto are independent contractors and shall have
no power or authority to bind the other party or to assume or create any
obligation or responsibility, express or implied, on behalf of the other party
or in the other party's name. This Agreement shall not be construed to create or
imply any partnership, agency, joint venture, or any other form of legal
association between the parties. (b) Participant may not assign this Agreement
in whole or in part, by operation of law or otherwise, without Netscape's prior
written consent, and any attempted assignment of this Agreement by Participant
without such consent will be null and void. Netscape may assign this Agreement
or its rights hereunder, or delegate its duties hereunder. This Agreement shall
apply to and bind any permitted successor or assigns of the parties hereto. (c)
Any dispute hereunder will be negotiated between the parties commencing upon
written notice from one party to the other. Settlement discussions and materials
will be confidential and inadmissible in any subsequent proceeding without both
parties' consent. If the dispute is not resolved by negotiation within 45 days
following such notice, the parties will refer the dispute to non-binding
mediation conducted by JAMS/EndDispute. The parties will share the costs of
mediation. If the dispute is not resolved after 45 days of mediation, the
parties will refer the dispute to binding arbitration by JAMS/EndDispute in
Santa Clara County, California. The results of any arbitration will be final and
non-appealable, except that either party may petition any court of competent
jurisdiction to review any decision relating to intellectual property matters
(including the scope of license rights), vacating or modifying erroneous
conclusions of law or findings of fact not supported by substantial evidence.
The arbitrator may fashion any legal or equitable except punitive or exemplary
damages, which both parties waive. The arbitrator will render a written
decision, which may be entered in and enforced by any court of competent
jurisdiction, but which will have no preclusive effect in other matters
involving third parties. The losing party will pay the costs of the arbitration
and the reasonable legal fees and expenses of the prevailing party, as
determined by the arbitrator. The parties will jointly pay arbitration costs
pending a final allocation by the arbitrator. At any point in the dispute
resolution process, either party may seek injunctive relief preserving the
status quo pending the outcome of that process. Except as noted, the parties
waive any right to judicial process. California law, without regard to its
conflict-of-law provisions, will govern this Agreement. The U.S. Arbitration Act
and JAMS/EndDispute rules will govern the arbitration process. Absent fraudulent
concealment, neither party may raise a claim more than 3 years after it arises
or any shorter period provided by applicable statutes of limitations. (d)
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. (e) Any notices
under this Agreement shall be in English, in writing, and sent by confirmed
facsimile, internationally-recognized express delivery service, or certified or
registered mail, return receipt requested, to the address specified in the Cover
Sheet, 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
[Company Name]
Bookmark Program Agreement
CONFIDENTIAL 4 Rev. 63098
JDD 2c
effective 5 days after dispatch. Notices to Netscape shall be to the attention
of the Legal Department, Netscape Communications Corporation, 501 East
Middlefield Road, Mountain View, California 94043. (f) 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. (g) 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. (h) 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 Cover Sheet 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.
(i) Participant will not issue a press release regarding the activities
described in this Agreement without Netscape's prior written consent.
Participant will not disclose the existence of this Agreement until after
Netscape publicly issues a press release regarding this Agreement. (j) This
Agreement is the complete and exclusive agreement between the parties with
respect to the subject matter hereof, superseding and replacing any and all
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. (k)
duly authorized representatives of the parties hereto have executed the Cover
Sheet to this Agreement.
5
Bookmark Program Agreement - Netscape Communications Corp. and GoTo.com Inc.
Was this helpful?