NETSCAPE COMMUNICATIONS CORPORATION
INSERTION ORDER
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Legal name of Advertiser GoTo.com Advertiser's Agency
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Address of Principal Place of Business Agency Contact
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140 W. Union St.
------------------------------------------ Agency Address
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City Pasadena State CA Zip 91103 City State Zip
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Advertiser Contact Tad Benson Phone Fax
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Phone 626.685.5712 E-mail
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Fax 626.685.5601
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E-mail tsd@goto.com
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State/country of organization
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If Advertiser is not a corporation, please Netscape Web Site (specify
specify form of organization 'country' and 'language')
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IMPORTANT NOTICE: THIS INSERTION ORDER IS SUBJECT TO NETSCAPE'S ACCEPTANCE AND
WILL BE EFFECTIVE AS OF THE ACCEPTANCE DATE BELOW. BY SUBMISSION OF THIS
INSERTION ORDER, ADVERTISER AGREES TO BE BOUND BY THE TERMS SET FORTH HEREIN
AND IN THE NETSCAPE STANDARD TERMS AND CONDITIONS FOR ADVERTISING AVAILABLE AT
URL: http://home.netscape.com/ads/termsandconditions.html (COLLECTIVELY,
'AGREEMENT'). FAILURE TO COMPLY WITH THE AGREEMENT MAY RESULT IN IMMEDIATE
TERMINATION OF THIS AGREEMENT.
Should GoTo.com become a NetSearch premier partner, GoTo.com will have the
option of canceling this contract without penalty immediately once the premier
position launches.
Scheduling/Pricing Information
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April 1-30 43,333,333 impressions Netsearch banner $195,000.00
May 1-31 43,333,333 impressions Netsearch banner $195,000.00
June 1-30 43,333,333 impressions Netsearch banner $195,000.00
April 1-June 30 130,000,000 impressions Netsearch banner $585,000.00
Net Amounts: $1,170,000.00 gross
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Start Date: April 1, 1999 Discounts: 50% total discount
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End Date: June 30, 1999 Taxes (if any):
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Bill to: client Amount Due: $585,000 Net
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PO Number bill $195,000 per month
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ADVERTISER: If Advertiser's agency ACCEPTANCE BY:
signs below, such Advertiser's agency
hereby represents that it has full NETSCAPE COMMUNICATION CORPORATION
authority to bind the Advertiser set
forth above.
Signature: /s/ TODD TAPPIN Signature:
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Name: Todd Tappin Name:
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Title: CFO Title:
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Date: 3/11/99 Acceptance Date:
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Advertiser Contact: Tad Benson Netcenter Ad Sales Rep: Debi Lefbovitz
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Phone: 626/685-5712
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Netscape Communications Corporation
Standard Terms and Conditions for Advertising
These terms and conditions ('Standard Terms') shall be deemed incorporated by
reference into any insertion order (the 'Insertion Order') submitted by the
Advertiser or its agency set forth in the Insertion Order (collectively,
'Advertiser') and shall govern the Insertion Order, superseding all terms
therein except for those relating to advertisement scheduling and pricing. All
Insertion Orders are subject to acceptance by Netscape. Rates and the Standard
Terms are subject to change without notice. Netscape reserves the right to
refuse or cancel any Insertion Order, without cause, at any time. The Standard
Terms and Insertion Order shall be collectively known as the 'Agreement.'
Advertiser and its agency (if applicable) shall be jointly and severally
responsible under this Agreement.
1. Term of Agreement. The term of this Agreement commences on the Acceptance
Date set forth in the Insertion Order and terminates on the End Date set forth
in the Insertion Order.
2. Terms of Payment. Advertiser, if advertising with Netscape for the first
time, must submit a completed Netscape credit application. If no credit
application is submitted or the request for credit is denied by Netscape (in
its sole discretion), the Insertion Order must be paid in advance of the
advertisement Start Date set forth in the Insertion Order. If Netscape approves
the request for credit, Netscape will invoice Advertiser as set forth in the
Insertion Order. Payment as set forth in the Insertion Order shall be made to
Netscape Communications Corporation ('Netscape') within 30 days of the date of
invoice. Amounts paid after such date shall bear interest at the rate of
one-and-one-half percent per month (or the highest rate permitted by law, if
less) until paid in full. In the event of any failure by Advertiser to make
payment, Advertiser will be responsible for all reasonable expenses (including
attorneys' fees) incurred by Netscape in collecting such amounts. All payments
due hereunder are in U.S. dollars and are exclusive of any applicable taxes.
Advertiser shall be responsible for all applicable taxes.
3. Positioning. Except as otherwise expressly provided in the Insertion Order,
positioning of advertisements within the Netscape website or on any page is at
the sole discretion of Netscape.
4. Renewal. Except as expressly set forth in the Insertion Order, any renewal
of the Insertion Order and acceptance of any additional advertising order shall
be at Netscape's sole discretion. Pricing for any renewal period is subject to
change by Netscape from time to time.
5. No Assignment or Resale of Ad Space. Advertiser may not resell, assign or
transfer any of its rights hereunder. Any attempt by Advertiser to resell,
assign or transfer such rights shall result in immediate and automatic
termination of this Agreement, without liability to Netscape.
6. Provision of Advertising Materials. (a) Advertiser will provide all
materials for the advertisement in accordance with Netscape's policies in
effect from time to time, including without limitation the manner of
transmission to Netscape and the lead-time prior to publication of the
advertisement. Netscape shall not be required to publish any advertisement that
is not received in accordance with such policies and reserves the right, at
Netscape's sole discretion, to charge Advertiser, at the rate specified in the
Insertion Order, for inventory held by Netscape pending receipt of acceptable
materials from Advertiser which are past due, or publish in substitution any
prior advertisement submitted by Advertiser until such time as Netscape can
reasonably begin publication of the advertisement set forth in the Insertion
Order. All changes to advertisement must be made in writing to
admgr@netscape.com and prior to the lead-time deadline. Advertiser hereby
grants to Netscape a non-exclusive, worldwide, fully paid license to use,
perform, reproduce, display, transmit and distribute the advertisement and all
contents therein in accordance herewith. (b) If Advertiser uses third parties to
serve the advertisement hereunder ('Third Parties'), Advertiser shall be
responsible for such Third Parties complying with the terms of this Agreement.
7. Statistics. Unless specified in the Insertion Order, Netscape makes no
guarantee with respect to usage statistics or levels of impressions for any
advertisement. Advertiser acknowledges that delivery statistics provided by
Netscape are the official and definitive measurements of Netscape's performance
on any delivery obligations provided in the Insertion Order. No other
measurements or usage statistics (including those of Advertiser or Third
Parties) shall be accepted by Netscape or have any effect on this Agreement. An
'impression' means each occurrence of a display of an advertisement.
8. Right to Reject Advertisement. All contents of advertisements (including
those served by Third Parties) are subject to Netscape's approval. Netscape
reserves the right to reject or cancel any advertisement, Insertion Order, URL
link, space reservation or position commitment, at any time, for any reason
whatsoever (including belief by Netscape that any placement thereof may subject
Netscape to criminal or civil liability).
9. No Warranty. NETSCAPE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND
EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
10. Limitations of Liability. In the event that Netscape fails to publish an
advertisement in accordance with the schedule provided in the Insertion Order,
or in the event that Netscape fails to deliver the number of impressions
specified in the Insertion Order (if any) by the End Date specified in the
Insertion Order, or in the event of any other failure, technical or otherwise
of such advertisement to appear as provided in the Insertion Order, the sole
liability of Netscape and exclusive remedy of Advertiser shall be limited to, at
Netscape's sole discretion, placement of the advertisement at a later time in a
comparable position, or extension of the End Date specified in the Insertion
Order until the total impressions are delivered. In no event shall Netscape be
liable for any act or omission, or any event directly or indirectly resulting
from any act or omission, of Third Parties (if any). IN NO EVENT SHALL NETSCAPE
BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, LOST PROFITS,
INDIRECT OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN
IF NETSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
NETSCAPE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO
THE AMOUNT RECEIVED BY NETSCAPE FROM ADVERTISER FOR THE INSERTION ORDER GIVING
RISE TO THE CLAIM. Without limiting the foregoing, Netscape shall have no
liability for any failure or delay resulting from any governmental action,
fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo,
strikes whether legal or illegal, labor or material shortage, transportation
interruption of any kind, work slowdown or any other condition affecting
production or delivery in any
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manner beyond the control of Netscape. Advertiser acknowledges that Netscape
has entered into this Agreement in reliance upon the limitations of liability
set forth herein and that the same is an essential basis of the bargain between
the parties.
11. Advertiser's Representations; Indemnification. Advertiser represents and
warrants to Netscape, and Third Parties (if any), that Advertiser holds all
necessary rights to permit the use of the advertisement by Netscape for the
purpose of this Agreement; and that the use, reproduction, distribution,
transmission or display of advertisement, any data regarding users, and any
material to which users can link, or any products or services made available to
users, through the advertisement will not (a) violate any criminal laws or any
rights of any third parties or (b) contain any material that is unlawful 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 law. Advertiser agrees to
indemnify, defend and hold Netscape and Third Parties (if any) harmless from
and against any and all liability, loss, damages, claims or causes of action,
including reasonable legal fees and expenses, arising out of or related to (i)
breach of any of the foregoing representations and warranties, or (ii) any
third party claim arising from use of or access to the advertisement under this
Agreement or any material to which users can link, or any products or services
made available to users, through the advertisement under this Agreement.
12. Cancellations. Except as otherwise provided in the Insertion Order, the
Insertion Order is non-cancelable by Advertiser. If Advertiser cancels the
Insertion Order, in whole or in part, Advertiser agrees to pay any additional
short rate charges.
13. Construction. No term or condition other than those set forth in the
Standard Terms or in the Insertion Order relating to advertisement scheduling
and pricing shall be binding on Netscape unless in a writing signed by duly
authorized representatives of the parties. In the event of any inconsistency
between the Insertion Order and the Standard Terms, the Standard Terms shall
control. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements and communications, whether oral or written, between
the parties relating to the subject matter hereof, and all past courses of
dealing or industry customs. The terms and conditions hereof shall prevail
exclusively over any written instrument submitted by Advertiser, including
Advertiser's insertion order, and Advertiser hereby disclaims any terms therein,
except for terms therein relating to advertisement scheduling and pricing.
14. Confidentiality. 'Confidential Information' shall mean (i) advertisements,
prior to publication, (ii) the Insertion Order and any Netscape statistics
which shall be deemed Netscape Confidential Information; and/or (iii) any
information designated in writing, or identified orally at time of disclosure,
by the disclosing party as 'confidential' or 'proprietary.' During the term of
this Agreement, and for a period of two years following any End Date, neither
party will use or disclose any Confidential Information of the other party
except as specifically contemplated herein. The foregoing restriction does not
apply to information that: (i) has been independently developed by the
receiving party without access to the other party's Confidential Information;
(ii) has become publicly known through no breach of this Section 14 by the
receiving party; (iii) has been rightfully received from a third party
authorized to make such disclosure; (iv) has been approved for release in
writing by the disclosing party; or (v) is required to be disclosed by a
competent legal or governmental authority.
15. Termination; Effect of Termination. In the event of a material breach by
Advertiser, Netscape may terminate this Agreement immediately without notice or
cure period, without liability to Netscape. In the event of any termination,
Advertiser shall remain liable for any amount due under an Insertion Order for
advertisement delivered by Netscape and such obligation to pay shall survive
any termination of this Agreement. If the parties contemplate any provision to
survive any termination or expiration of this Agreement, such provision shall
survive such termination or expiration. At the request of the disclosing party,
the receiving party shall return all of the disclosing party's Confidential
Information to the disclosing party.
16. Miscellaneous. This Agreement (i) shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of law; and (ii) will not be governed by the United
Nations Convention of Contracts for the International Sale of Goods. This
Agreement may be amended only by a writing executed by a duly authorized
representative of each party. Advertiser shall make no public announcement
regarding the existence or content of the Insertion Order without Netscape's
prior written approval, which approval shall not be unreasonably withheld. Any
dispute hereunder will be negotiated in good faith between the parties within
45 days commencing upon written notice from one party to the other. Any notices
under this Agreement shall be sent to the addresses set forth in the Insertion
Order (or in a separate writing) by facsimile or nationally-recognized express
delivery service and deemed given upon receipt. 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. If any provision contained in this Agreement is determined to be
invalid, illegal or unenforceable in any respect under any applicable law, then
such provision will be severed and replaced with a new provision that most
closely reflects the original intention of the parties, and the remaining
provisions of this Agreement will remain in full force and effect.
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Insertion Order - Netscape Communications Corp. and GoTo.com
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