Internet-Sign Up Referral and Microsoft Internet Explorer License and Distribution Agreement – Microsoft Corp. and EarthLink Network Inc.
INTERNET-SIGN UP WIZARD REFERRAL AND MICROSOFT INTERNET
EXPLORER LICENSE AND DISTRIBUTION AGREEMENT
This Internet-Sign Up Referral and Microsoft Internet Explorer License
and Distribution Agreement ('Agreement') is made and entered into this 16th
day of August, 1996 ('Effective Date'), by and between MICROSOFT CORPORATION,
a Washington corporation, One Microsoft Way, Redmond, WA 98052-6399 ('MS'),
and Earthlink Network, Inc., a Delaware corporation, including its majority
owned subsidiaries and affiliates (collectively, 'COMPANY').
INTRODUCTION
This Agreement includes two distinct business arrangements.
Under the first arrangements, MS plans to develop and distribute an
'Internet Connection Wizard' as a means of promoting internet access services
for various Internet access service providers, including COMPANY, and of
acquiring subscribers for such access services. COMPANY will pay MS a
referral fee for each subscriber acquired by means of the Internet Connection
Wizard.
Under the second arrangement, COMPANY may distribute, on a royalty-free
basis, a customized version of Microsoft Internet Explorer to subscribers
or potential subscribers of its Internet access services.
In consideration of the mutual promises and covenants contained herein,
the parties agree as follows:
1. DEFINITIONS. The following terms, whenever initially capitalized, shall
have the following meanings for purposes of this Agreement:
1.1 'Access' shall mean telecommunications facilities and services that
enable a computer user to access and use Internet sites and content by means
of a TCP/IP connection.
1.2 'COMPANY Information' shall mean information regarding or relating to
the ISP Service such as order processing information, fees, service plans,
etc., and other information that is reasonably necessary to describe and
solicit orders of the ISP Service to the ISP Subscriber and/or such other
information that has been mutually agreed to by the parties.
1.3 'Comic Chat' shall mean the graphical Internet chat client in all
available language versions requested by COMPANY, and for all available
platforms.
1.4 'Criteria' shall mean the applicable Internet Explorer criteria as
defined in the Microsoft Internet Explorer Logo Qualification Criteria,
attached to Exhibit G as Attachments 1 and 2, and such future versions as
established by MS in its sole discretion.
1.5 'Guidelines' shall mean the guidelines for use of the Logo as
outlined in the Microsoft Internet Explorer Logo Usage Guidelines which are
attached hereto as Exhibit G and H and are an integral part of this Agreement.
1.6 'IEAK' shall mean the Internet Explorer Administration Kit, including
any updates to the IEAK as may be provided by MS from time to time, which
contains a single copy of the Licensed Software in object code as well as a
set of tools that enable COMPANY to perform limited customizations
LICENSE #7691-6250
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
to the Licensed Software in order to facilitate the ISP Subscriber sign up
process, and to automate the task of creating diskettes/CD ROMs for
distribution. COMPANY shall use the IEAK in accordance with the instructions
in the IEAK and the Logo Guidelines provided by MS.
1.7 'Internet Connection Wizard' shall mean an electronic referral
mechanism to be developed by MS to promote the ISP services for various ISP
service providers, including COMPANY, and which ordering mechanism shall
enable the end user to order ISP Service via a link to COMPANY's Sign-up
Server or other method mutually agreed to by the parties. The Internet
Connection Wizard shall prompt the ISP Subscriber to enter various Locator
Information. The Internet Connection Wizard shall be launched from an icon on
the 'desktop' of the English language version of Windows 95 designated as 'The
Internet' or such other name designated by MS. MS may include the Internet
Connection Wizard in other MS products as determined by MS. An overview of
the referral and ordering process is set forth in Exhibit Z.
1.8 'Internet Explorer' shall mean the (a) Microsoft Internet Explorer
(Domestic English Language and such other foreign language versions requested
by COMPANY and which MS has available) for the following platforms: Windows
3.x (including Windows for Workgroups 3.x), Windows NT 3.x, Windows 95 and
Apple Macintosh; and (b) a customized version of Internet Explorer created
through the use of the IEAK. Availability of various versions of Internet
Explorer is summarized in Exhibit F.
1.9 'Internet Mail and News' shall mean the client for email and Internet
newsgroups in all available language versions requested by COMPANY, and for all
available platforms.
1.10 'Internet Product' shall mean any COMPANY product which provides
access to or information about the Internet. An Internet Product may not be a
personal computer. For purposes of this Agreement, 'ISP Service' (defined
below) shall be a type of Internet Product.
1.11 'Internet Site' shall mean COMPANY's worldwide web site(s) which
meet the applicable Criteria.
1.12 'ISP Information' shall mean information regarding or relating to
internet access services (including the ISP Service) such as order processing
information, fees, service plans, ETC., and other information that is
reasonably necessary to describe and solicit orders of such internet access
services to the internet access service subscriber and/or such other
information that has been mutually agreed to by MS and an internet service
provided (including COMPANY).
1.13 'ISP Information Page' shall mean a HTML based page which includes
ISP Information, to be maintained by COMPANY and hosted on the MS Referral
Server. The ISP Information Page shall be downloaded to the prospective ISP
Subscriber as part of the ordering and referral process.
1.14 'ISP Phone Book(s)' shall mean a listing of names of ISPs and
associated telephone numbers and other ISP Information, including COMPANY
Information. ISP Phone Books may be unique to a given telephone area code
and/or geographic region. There may be one or more ISP Phone Books specific
to a single telephone area code, geographic region or Service Area. The ISP
Phone Book(s) shall be hosted on one or more Referral Server(s). MS shall
solely determine the placement, presentation and content of COMPANY
Information in the ISP Phone Book(s).
1.15 'ISP Referral Fee' shall mean an amount set forth in Exhibit D for
each new ISP Subscriber. COMPANY shall receive a credit for each ISP
Subscriber for which an ISP Referral Fee was previously paid, who cancels the
ISP Service account within ninety (90) days of initiation of the ISP Service.
1.16 'ISP Service' shall mean a COMPANY service, listed in Exhibit B,
which provides an internet protocol (IP) access service to the Internet as
contemplated by this Agreement. The parties
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
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acknowledge that COMPANY may provide access to the Internet via other
Internet Product(s) not listed in Exhibit B.
1.17 'ISP Subscriber' shall mean any individual or legal entity who
subscribes to the ISP Service through or as a result of the Internet
Connection Wizard.
1.18 'License Key' shall mean the 10-digital alpha numeric code provided
by MS that enables COMPANY to use the customization features in the IEAK.
1.19 'Licensed Software' shall mean, collectively, Internet Explorer,
NetMeeting, Internet Mail and News, and Comic Chat.
1.20 'Locator Information' shall mean an ISP Subscriber's name, email and
conventional mailing addresses, telephone and facsimile numbers, credit card
number, and any other data about such subscriber that enables the possessor of
such information to personally identify the end user.
1.21 'Logo' shall mean the 'Microsoft-Registered Trademark- Internet
Explorer' logo depicted in the Guidelines or such additional or replacement
logos as MS may provide from time to time under this Agreement.
1.22 'NetMeeting' shall mean Microsoft's realtime collaboration and
communication software in all available language versions requested by
COMPANY, and for all available platforms.
1.23 'Referral Server' shall mean a server maintained by MS which shall
provide an ISP Subscriber with one or more ISP Phone Books, and which shall
enable the ISP Subscriber to transmit ordering information, via the Internet
Connection Wizard to the Sign-up Server.
1.24 'Service Area' shall mean the area in which COMPANY currently
provides or will provide Access, as of the Effective Date, as set forth in
Exhibit B.
1.25 'Sign-up Server' shall mean a server maintained by COMPANY which
shall enable the ISP Subscriber to order ISP Service from COMPANY and shall
further enable COMPANY to configure the ISP Subscriber's copy of the Licensed
Software (hosted on the ISP Subscriber's computer), all via online
transmission. COMPANY shall use the Sign-up Server to configure the ISP
Subscriber's copy of Licensed Software in accordance with the ISP Subscriber
Configuration Guidelines set forth in Exhibit E.
2. LICENSE FOR DISTRIBUTION OF CUSTOMIZED VERSION OF MICROSOFT INTERNET
EXPLORER; LOGO LICENSE; AND LICENSE RESTRICTIONS
2.1 MS grants to COMPANY a nonexclusive, limited worldwide, royalty-free
license during the term of this Agreement to (a) customize Internet Explorer
using the IEAK solely in accordance with the instructions provided in the
IEAK's 'Custom ISK Wizard'; and (b) reproduce and distribute (directly and
indirectly) through COMPANY's distribution channel the Licensed Software
(including Internet Explorer as may be customized by COMPANY) to potential
end users of COMPANY's Internet Product(s). COMPANY acknowledges and agrees
that its use of the IEAK to customize Internet Explorer requires the rightful
receipt from MS of the License Key allocated to COMPANY. Except as provided
in Exhibit E, Company may not ********* ** *** ************ **** ** ********
******** ******* ** *** *** ************ ********** in the course of
Company's configuration of the ISP Subscriber's copy of Licensed Software.
2.2 COMPANY acknowledges and agrees that its use of the IEAK to customize
Internet Explorer requires the rightful receipt from MS of the License Key
allocated to COMPANY. COMPANY agrees that it shall use the IEAK solely in
accordance with the instructions provided in the IEAK's Custom
* - Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
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ISK Wizard that is available to COMPANY upon input of the allocated License
Key and in accordance with the Logo Guidelines provided by MS.
2.3 If MS makes a new release (other than an 'Update' release which is
designated by MS as a change in the hundredths digit ([x.x(x)]) of any
component of the Licensed Software available, then: (a) COMPANY may no longer
distribute the old version of the Licensed Software component, and may only
distribute such new release of the Licensed Software component with COMPANY's
Internet Product, provided, however that Company may continue to distribute
existing inventory of Company's Internet Product containing a prior version
of a Licensed Software component for a period of six (6) months following MS'
release of a new release; and (b) COMPANY must formally notify its customers
on COMPANY's home page for its main public web site that an upgrade of the
Licensed Software component is available at the download URL specified in the
most current version of the Internet Explorer Logo License Agreement located
on www.microsoft.com for Internet Explorer and at www.microsoft.com/ie for
other components of the Licensed Software. The text of the respective notices
must state: For Internet Explorer: 'Microsoft has made available a new
version of Internet Explorer. Click the Internet Explorer Logo to upgrade
your browser today.' and for other components: 'Microsoft has made available a
new version of (NetMeeting/Internet Mail and News/Comic Chat). Go to
www.microsoft.com/ie to update you software today'. This notification will
remain present on the COMPANY's main public web site until the earlier of
COMPANY's depletion of its outdated inventory, or until three (3) months
following the public availability of a new release.
2.4 Subject to and expressly conditioned upon compliance with the terms
and conditions of this Agreement, MS hereby grants to COMPANY a worldwide,
nonexclusive, non-assignable, nontransferable, royalty-free, right to use the
Logo solely in conjunction with COMPANY's Internet Site(s) and/or Internet
Product(s) and solely in the manner described in the Guidelines. COMPANY
agrees and acknowledges: MS owns the Logo; use of the Logo will inure to the
benefit of MS; COMPANY will not adopt, use, or register any corporate name,
trade name, trademark, service mark, or certification mark, or other
designation similar to, or containing in whole or in part, the Logo;
COMPANY's use of the Logo shall adhere to the Criteria.
2.5 COMPANY may not reverse engineer, decompile or disassemble the
Licensed Software.
2.6 COMPANY shall only distribute NetMeeting in conjunction with Internet
Explorer.
2.7 COMPANY may not permit further redistribution of the Licensed Software
by ISP Subscribers and end user customers of COMPANY's other internet access
services, if applicable.
2.8 COMPANY shall maintain and not alter or remove any copyright,
trademark and other protective notices contained in the Licensed Software,
including the end user license agreement ('EULA') which is included in the
setup installation of the Licensed Software. COMPANY shall also comply with
Microsoft's trademark guidelines with respect to the proper use of Microsoft
trademarks associated with the Licensed Software.
2.9 COMPANY shall require its distributors, dealers and others in its
distribution channels to comply with the relevant distribution terms of this
Agreement, in particular with Section 2.
2.10 COMPANY shall not modify, alter or remove contents of the Licensed
Software except as expressly provided in this Agreement.
2.11 All rights not expressly granted herein are reserved by MS.
3. MICROSOFT OBLIGATIONS
MS shall perform the following:
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
4
3.1 DEVELOP INTERNET CONNECTION WIZARD AND ISP PHONE BOOK(S);
MAINTAIN ISP PHONE BOOK(S). Provided that COMPANY complies with its
obligations under this Agreement, MS shall include COMPANY's name, telephone
number and other mutually agreed upon COMPANY Information in the applicable
ISP Phone Book(s). Notwithstanding anything to the contrary in this
Agreement, MS may move COMPANY Information to another ISP Phone book or
remove COMPANY Information from one or all ISP Phone books if (a) during any
two calendar quarters COMPANY's shipments of Licensed Software (where
Internet Explorer is distributed ** *** **** *** *******) falls below
************ ******* ***** of total COMPANY shipments of all web browsers or
(b) commencing two calendar quarters after MS first distributes an Internet
Connection Wizard, during any single calendar quarter the number of new ISP
Subscribers for such quarter compared to the number of new subscribers of
other ISPs which appear in the same ISP Phone Book as COMPANY for such
quarter, is such that COMPANY is in the ****** ****** ******* ***** of all
ISPs listed in the ISP Phone Book. By way of example, if there are *** ***
ISPs in an ISP Phone Book ***** *** ******* *** *** ****** ****** ** ***
*********** ******** ** ***** **** ** *** *** ***** *****, then MS could move
COMPANY information to another ISP Phone Book or remove COMPANY information
from one or all ISP Phone Books. For purposes of Section 3.1(a) browser
shipment calculation shall exclude those copies of a web browser shipped by
******** ******** ********** ****** ** ******* **
3.2 DISTRIBUTION OF INTERNET CONNECTION WIZARD. Incorporate the
Internet Connection Wizard into an icon on the 'desktop' of the English
language version of Windows 95 designated as 'The Internet' or such other
name designated by MS.
3.3 REFERRAL SERVER. Develop and maintain Referral Server.
3.4 PROMOTION. Include information concerning the ISP Service in press
releases and marketing activities related to promotion of the Internet
Connection Wizard.
4. COMPANY OBLIGATIONS
-------------------
COMPANY shall perform the duties described in Exhibit C.
5. PAYMENT AND REPORTING
---------------------
5.1 ADVANCE. In Consideration for MS including information regarding
the ISP Services in the ISP Phone Book, COMPANY shall distribute up to ******
****** of Microsoft Internet Explorer to its current customer base ** *******
according to Exhibit D Section 4. Advance shall be ****** **** ******* ******
** *** ******** *** ******** ********* shipped to subscribers before 9/30/96.
COMPANY shall pay the Advance to MS on or before 9/30/96.
5.2 ISP REFERRAL FEE. In consideration of each ISP Subscriber, COMPANY
shall pay MS the ISP Referral Fee for each subscription for ISP Service
ordered by each ISP Subscriber.
5.3 REPORTING. Within forty five (45) days after the end of each
calendar quarter, COMPANY shall furnish MS a statement together with payment
for any amount shown thereby to be due to MS. The royalty statement shall be
based upon ISP Referral Fees for the quarter then ended, and shall be in the
form of the sample report included on Exhibit D. Late payment(s), including
receipts for foreign taxes withheld, if applicable, shall bear interest at
the rate of one and one-half percent (1.5%) per month or the maximum rate
allowable by applicable law, from the date such payment is due until the date
it is actually paid. COMPANY's report shall include for each version of the
Licensed Software, the number of copies of the Licensed Software licensed or
distributed by or for COMPANY during that calendar quarter, including
'competitive upgrade' copies as described in Exhibit D. In the event that no
copies were licensed or distributed by or for COMPANY during a calendar
quarter, COMPANY shall indicate this on the report. COMPANY's report shall
further include the number of copies of all web browsers licensed or
* - Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
5
distributed by or for COMPANY during that calendar quarter. All such reports
shall be maintained in confidence by MS and shall not be disclosed to any
third party except to its immediate legal and financial consultants as may be
required in the ordinary course of MS' business.
5.4 All amounts due hereunder shall be sent to the address listed in
Section 11. All amounts due hereunder are exclusive of any taxes, duties,
fees, excises or tariffs imposed on any of COMPANY's activities in connection
with this Agreement. Such charges, if any, shall be paid by COMPANY.
6. ACCEPTANCE, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
--------------------------------------------------------------
6.1 The Licensed Software and IEAK are deemed accepted by COMPANY.
6.2 Neither the COMPANY nor any of its employees shall have any right to
make any representation, warranty, or promise on behalf of MS.
6.3 THE LICENSED SOFTWARE AND IEAK ARE PROVIDED TO COMPANY AS IS WITHOUT
WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE
LICENSED SOFTWARE AND IEAK ARE ASSUMED BY COMPANY AND THE END-USER CUSTOMER.
MS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
6.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DIRECT (EXCEPT AS TO
AMOUNTS OWED HEREUNDER), CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL
DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND
THE LIKE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE
OR IEAK, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY
NOT APPLY.
6.5 Not withstanding Section 6.4:
(a) MS agrees to defend COMPANY against, and pay the amount of any adverse
final judgment (or settlement to which MS consents) resulting from, third
party claim(s) (hereinafter 'Indemnified Claims') that the Internet Explorer
infringes any copyright or trade secret enforceable in any included
Jurisdictions (defined in Section 6.5(d), below); provided MS is notified
promptly in writing of the Indemnified Claim and has sole control over its
defense or settlement, and COMPANY provides reasonable assistance in the
defense of the same at MS expense for COMPANY's reasonably incurred
out-of-pocket expenses.
(b) In the event MS receives information concerning an intellectual
property infringement claim (including an Indemnified Claim) related to the
Internet Explorer, MS may at its expense, without obligation to do so, either
(i) procure for COMPANY the right to continue to distribute the alleged
infringing Internet Explorer or (ii) replace or modify the Internet Explorer
to make it non-infringing, and in which case, COMPANY shall thereupon cease
distribution of the alleged infringing Internet Explorer.
(c) MS shall have no liability for any intellectual property infringement
claim (including an Indemnified Claim) based on COMPANY's (i) manufacture,
distribution, or use of any Internet Explorer after MS' notice that COMPANY
should cease manufacture, distribution, or use of such Internet Explorer due
to such a claim; or (ii) unauthorized combination of a Internet Explorer with
any other product, program or data; or (iii) unauthorized adaptation or
modification of any Internet
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
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Explorer. For all claims described in this Section 6.5(c), COMPANY agrees to
defend and indemnify MS to the same extent that MS is obligated to defend and
indemnify COMPANY under Sections 6.5(a), 6.5(b) and 6.5(c).
(d) MS shall have no obligation to COMPANY for any Indemnified Claims
which arise outside the geographical boundaries of the United States, Canada,
Australia, Japan, the European Union, and Norway ('Included Jurisdictions').
7. TERM OF AGREEMENT
-----------------
The term of this Agreement shall commence as of the Effective Date and shall
continue for a period of two (2) years. Thereafter, this Agreement shall
automatically renew for successive one year terms unless either party gives
the other party thirty (30) days written notice of its intent not to renew.
Either party may terminate for any reason upon 30 days written notice.
8. DEFAULT AND TERMINATION
-----------------------
8.1 This Agreement may terminate earlier if any of the following events
of default occur: (a) if COMPANY materially fails to perform or comply with
this Agreement or any provision hereof; (b) if COMPANY fails to strictly
comply with the provisions of Section 10 or makes or attempts to make an
assignment in violation of Section 13.5; (c) if COMPANY becomes insolvent or
admits in writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; (d) if a petition under any foreign,
state, or United States bankruptcy act, receivership statute, or the like, as
they now exist, or as they may be amended, is filed by COMPANY; or (e) if
such a petition is filed by any third party, or an application for a receiver
of COMPANY is made by anyone and such petition or application is not resolved
favorably to COMPANY within sixty (60) days.
8.2 Termination under subsection 8.1(b) shall be effective as of the
date notice is given. In all other cases, termination shall be effective
thirty (30) days after notice of termination to COMPANY if COMPANY's defaults
have not been cured. The rights and remedies of MS provided in this Section
shall not be exclusive and are in addition to any other rights and remedies
provided by law or this Agreement.
8.3 Upon termination of this Agreement for any reason, COMPANY must
cease distribution of the Licensed Software. Upon termination of this
Agreement, COMPANY's Information shall be immediately removed from the ISP
Phone Book(s). If this Agreement is terminated other than due to COMPANY's
default, COMPANY may distribute Licensed Software remaining in inventory as
of such termination date for a period of three (3) months. After such time,
COMPANY shall destroy all full or partial copies of the Licensed Software and
IEAK in COMPANY's possession or under its control. If this Agreement is
terminated for cause pursuant to Section 8, COMPANY shall return to MS or
destroy all full or partial copies of the Licensed Software and IEAK in
COMPANY'S possession or under its control within ten (10) days following the
termination date, including any in-house copies COMPANY may have produced.
8.4 End user licenses validly granted prior to expiration or termination
of this Agreement shall survive termination or expiration of this Agreement.
8.5 Sections 1, 5, 6, 8, 10, 11, 12 and 13 shall survive termination of
this Agreement.
9. SUPPORT
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9.1 COMPANY shall have the sole responsibility and expense for providing
all support for the Sign-up Server and all support needed by ISP Subscribers
for the Licensed Software and the ISP Service.
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
7
9.2 MS will provide COMPANY (but not ISP Subscribers) support for the
Internet Connection Wizard. Except for such support, this Agreement does not
include technical support from MS to COMPANY. Technical support may be
available from MS or an MS subsidiary pursuant to a separate agreement.
10. NONDISCLOSURE AGREEMENT
COMPANY shall keep confidential the terms and conditions of this Agreement,
and other non-public information and know-how disclosed to COMPANY by MS.
However, COMPANY may disclose the terms and conditions of this Agreement in
confidence as follows: (1) in confidence to its immediate legal and financial
consultants as required in the ordinary course of COMPANY's business; (2) to
the SEC or others as legally required in connection with a public offering of
the COMPANY's stock, in which event COMPANY will inform MS of the date and
content of its filing and will cooperate with MS in attempting to keep as
many of the terms of this agreement confidential as possible, especially the
financial terms; (3) to COMPANY's Affinity Marketing Partners only upon
specific request of such partners and then only page 1, paragraph 2.1 and the
signature page.
11. NOTICES AND REQUESTS
All notices, authorizations, and requests in connection with this Agreement
shall be deemed given on the day they are (i) deposited in the U.S. mails,
postage prepaid, certified or registered, return receipt requested; or (ii)
sent by overnight courier, charges prepaid, with a confirming fax; and
addressed as follows:
NOTICES TO COMPANY:
EarthLink Network, Inc.
3100 New York Drive
Pasadena, CA 91107
Attn: Garry Betty, President
Telephone: (818) 296 2408
Fax: (818) 296 4161
NOTICES TO MS AND PAYMENTS/VOLUME DISTRIBUTIONS SUMMARIES:
Notices: MICROSOFT CORPORATION
One Microsoft Way
Redmond, WA 98052-6399
Attn: Senior Vice President, Systems
Copy to: Law & Corporate Affairs, US Legal
Fax: (206) 936-7209
Payments/Volume MICROSOFT CORPORATION
Distribution Remittance Processing
Summaries: P.O. Box 84808
Seattle, WA 98124-6108
or such other address as the party to receive the notice or request so
designates by written notice to the other.
12. AUDITS
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
8
12.1 During the term of this Agreement, COMPANY agrees to keep all
usual and proper records and books of account and all usual and proper
entries relating to COMPANY's ISP Subscriptions sufficient to substantiate
the number of ISP Subscribers. COMPANY shall maintain on COMPANY premises
such records for itself and for each Subsidiary which exercises rights under
this Agreement.
12.2 In order to verify statements issued by COMPANY and COMPANY's
compliance with the terms of this Agreement, MS may cause an audit to be made
of COMPANY's applicable books and records. Any audit shall be conducted
during regular business hours at COMPANY's facilities upon reasonable advance
notice. Any audit shall be conducted by an independent certified public
accountant of national stature selected by MS (other than on a contingent fee
basis).
12.3 COMPANY agrees to provide MS' designated audit team access to the
relevant COMPANY's records and facilities.
12.4 Prompt adjustment shall be made to compensate for any errors or
omissions disclosed by such audit. Any such audit shall be paid for by MS
unless material discrepancies are disclosed. 'Material' shall mean the under
reporting of five percent (5%) of the amount due. If material discrepancies
are disclosed, COMPANY agrees to pay MS for the costs associated with the
audit in addition to the amount of any discrepancy.
13. GENERAL
13.1 This Agreement shall be construed and controlled by the laws of the
State of Washington, and COMPANY consents to jurisdiction and venue in the
state and federal courts sitting in the State of Washington. Process may be
served on either party in the manner provided in Section 11 above, or by such
other method as is authorized by law.
13.2 Neither this Agreement, nor any terms and conditions contained
herein, shall be construed as creating a partnership, joint venture, agency
relationship or as granting a franchise.
13.3 This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements or communications. It shall not be modified
except by a written agreement dated subsequent to the date of this Agreement
and signed on behalf of COMPANY and MS by their respective duly authorized
representatives. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of
the same of any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the
waiving party.
13.4 If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
13.5 The rights and obligations hereunder shall inure to the benefit of
the successors of the parties hereto, provided any rights or obligations
hereunder shall not be assigned by COMPANY without the prior written approval
of MS. COMPANY hereby agrees that it will remain responsible for and guarantee
the compliance of each majority owned subsidiary or affiliate which exercises
rights under this Agreement.
13.6 Any Licensed Software which COMPANY distributes or licenses to or
on behalf of the United States of America, its agencies and/or
instrumentalities (the 'Government'), is provided to COMPANY with RESTRICTED
RIGHTS. Use, duplication or disclosure by the Government is subject to
restriction as set forth in subparagraph (c)(l)(ii) of the rights in
Technical Data and Computer Software clause at DFAR 252.227-7013, or as set
forth in the particular department or agency regulations or rules which
provide Microsoft protection equivalent to or greater than the above-cited
clause. COMPANY shall comply with any requirements of the Government to
obtain such RESTRICTED RIGHTS protection,
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
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including without limitation, the placement of any restrictive legends on the
Tool documentation and any license agreement used in connection with the
distribution thereof. Manufacturer is Microsoft Corporation, One Microsoft
Way, Redmond, Washington 98052-6399. Under no circumstances shall Microsoft
be obligated to comply with any Governmental requirements regarding cost and
pricing data and cost accounting. For any distribution or license of the
Licensed Software that would require compliance by Microsoft with
Governmental requirements relating to cost and pricing data or cost
accounting, COMPANY must obtain an appropriate waiver or exemption from such
requirements for the benefit of Microsoft from the appropriate Governmental
authority before the distribution and/or license of the Licensed Software to
the Government.
13.7 COMPANY acknowledges that the Licensed Software and IEAK are
subject to the export control laws and regulations of the US, and any
amendments thereof. COMPANY confirms that with respect to the Licensed
Software, it will not export or re-export them, directly or indirectly,
either to (a) any countries that are subject to US export restrictions
(currently including, but not necessarily limited to, Cuba, the Federal
Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North
Korea, and Syria); (b) any end user who COMPANY knows or has reason to know
will utilize them in the design, development or production of nuclear,
chemical or biological weapons; or (c) any end user who has been prohibited
from participating in the US export transactions by any federal agency of the
US government. COMPANY further acknowledges that the Licensed Software and
IEAK may include technical data subject to export and re-export restrictions
imposed by US law.
13.8 COMPANY shall, at its own expense, obtain and arrange for the
maintenance in full force and effect of all governmental approvals, consents,
licenses, authorizations, declarations, filings, and registrations as may be
necessary for the performance of all of the terms and conditions of the
Agreement including, but not limited to, foreign exchange approvals, import
and offer agent licenses, fair trade approvals and all approvals which may be
required to realize the purposes of the Agreement.
13.9 In the event income taxes are required to be withheld by any
non-U.S.A. government on payments required hereunder, COMPANY may deduct such
taxes from the amount owed MS and pay them to the appropriate tax authority.
COMPANY shall promptly deliver to MS an official receipt for any such taxes
withheld or other documents necessary to enable MS to claim a U.S.A. Foreign
Tax Credit. COMPANY will make certain that any taxes withheld are minimized
to the extent permitted by the applicable law.
13.10 If either MS or COMPANY employs attorneys to enforce any rights
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees and costs.
13.11 The following Exhibits are part of the Agreement:
Exhibit B Company ISP Service(s)
Exhibit C Company Obligations
Exhibit D ISP Referral Fees
Exhibit E ISP Subscriber Configuration Guidelines
Exhibit F Internet Explorer
Exhibit G Microsoft -Registered Trademark- Internet Explorer Online
Logo Usage Guidelines
Attach 1&2 Microsoft Internet Explorer Logo Qualification
Criteria
Exhibit H Microsoft -Registered Trademark- Internet Explorer
Standard Logo Usage Guidelines
Exhibit X Microsoft Frontpage Server Extensions
Exhibit Y Current agreement list.
Exhibit Z Windows 95 ISP Referral and Ordering Process
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
10
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above. All signed copies of this Agreement shall be deemed
originals.
MICROSOFT CORPORATION EarthLink Network, Inc.
---------------------------
(COMPANY)
/s/ Cameron D. Myhrvold /s/ Charles G. Betty
-------------------------- ---------------------------
By (sign) By (sign)
Cameron D. Myhrvold Garry Betty
-------------------------- ---------------------------
Name (Print) Name (Print)
VP-Public Network Sales Its President
-------------------------- ---------------------------
Title Title
9-19-96 8/16/96
-------------------------- ---------------------------
Date Date
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
11
: PAGE>
EXHIBIT B
COMPANY'S ISP SERVICE(S)
EarthLinks co-branded
Affinity Marketing Program
COMPANY SERVICE AREA
Currently United States and Canada
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
12
EXHIBIT C
COMPANY OBLIGATIONS (NOTE: MS OBLIGATIONS ARE SET FORTH IN SECTION 3)
COMPANY SHALL PERFORM THE FOLLOWING DUTIES/OBLIGATIONS;
1. Offer the ISP Services(s).
2. Develop and maintain a Sign-up-Server. The Sign-up Server shall be
operational on a 7X24 basis.
3. Estabilsh a toll free telephone number, or any other communication
medium mutually agreed to by the parties for the processing of orders for ISP
Subscribers. COMPANY shall notify MS in writing by a mutually agreed upon
date of such specific communication medium or other relevant means of order
entry secured by COMPANY for the ISP Service and any other COMPANY
Information. COMPANY shall use unique numbers, extensions or addresses so as
to ensure that all ISP Subscribers (e.g. those directed to the Sign-up Server
by the Internet Connection Wizard) can be easily segregated from other orders
received by COMPANY that do not originate from the Internet Connection Wizard
for revenue reporting purposes.
4. Use and display the 'Microsoft Internet Explorer' logo on the home
page for COMPANY's ISP Service, along with a hot link to
www.microsoft.com/ie/ie.htm on the face of the home page.
5. In copies of Microsoft Internet Explorer distributed by COMPANY,
COMPANY may set the 'default' URL to point to COMPANY's home page for the ISP
Service, provided that such home page includes a hot link to
www.microsoft.com/ie/ie.htm.
6. Offer the Microsoft Internet Explorer ** *** **** *** *** ****** ***
********** *** **********. At the time of ISP Service request from an ISP
Subscriber, COMPANY shall not express or imply that an alternate browser is
available. COMPANY may provide a non-MS web browser with its ISP Service only
upon a customer initiated request.
7. Company shall not advertise or otherwise promote any non-MS web
browser **** **** ** ** *** ** ***** ************. By way of example, COMPANY
shall not display any logo for, or maintain a link to, a non-MS web browser on
Company's home page for the ISP Service, on the Start Page, or on any COMPANY
home page for any other internet access service offered by COMPANY.
8. Use the Microsoft Internet Explorer name and logo in COMPANY's
packaging, advertising and promotional materials. Such use shall be pursuant
to MS' standard trademark policies as attached hereto and as may be provided
by MS to COMPANY from time to time.
9. Within sixty (60) days following execution of this Agreement, issue
a press release announcing that COMPANY has licensed the Microsoft Internet
Explorer and include favorable commments about the Internet Explorer and
ActiveX technology. In the event COMPANY elects to distribute NetMeeting,
COMPANY shall issue a press release announcing such distribution within sixty
(60) days following execution of this Agreement. COMPANY shall provide any
such press release to Microsoft for review at least five (5) days
* - Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
13
prior to release, COMPANY agrees MS may use COMPANY's name in any press
release MS issues regarding licensing of the Microsoft Internet Explorer.
10. Before COMPANY is listed in the ISP Phone Book(s), COMPANY will
test and certify compliance of Access with MS specifications for security and
authentication protocols, other industry protocols, and other specifications
and standards specified by MS from time to time in accordance with the
procedures, and using the testing tools specified by MS from time to time,
COMPANY will provide MS with information and access as requested by MS from
time to time to allow MS to ensure COMPANY's ongoing compliance with such
specifications, the acceptance testing procedures, and the terms of this
Agreement.
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
14
EXHIBIT D
---------
ISP REFERRAL FEES
Number of New ISP Subscribers
Quarterly Fee
----------------------------- ---
************ ***
************ ***
************ ***
************ ***
1. The above Referral Fees shall be reduced by an additional ************
*** if, COMPANY implements at least two (2) 'ActiveX' controls in the
design of COMPANY's home page for the ISP Service. COMPANY shall notify
MS of the ActiveX controls implemented by COMPANY.
2. The above Referral Fees shall be reduced by an additional ************
*** if: (a) COMPANY uses Microsoft Windows NT and Microsoft Internet
Information Server as the platform for COMPANY's web site that hosts the
home page for the ISP Service and (b) if COMPANY offers web hosting
services, it uses Microsoft Internet Information Server as one of its
platforms for such web hosting services.
3. If COMPANY offers web hosting services, the above Referral Fees shall be
reduced by an additional *************** if COMPANY uses Microsoft
Front Page server extensions (listed in Exhibit X) on COMPANY's web hosting
servers.
4. COMPANY may deduct from aggregate Referral Fees owed to MS, the following
amounts for each copy of the most current available version of Internet
Explorer distributed ** * ************ ******** to subscribers to COMPANY's
internet access services *** *** ***** * ******* ***** **** ********
******** as of the date that COMPANY's name first appears in an ISP Phone
Book: (a) ***** ******* **** for each copy distributed on external media
(e.g. diskette or CD ROM) and (b) *** ****** **** for each copy distributed
electronically (e.g. downloaded from COMPANY's web site). The foregoing
deductions shall be limited to copies of Internet Explorer distributed
prior to one hundred and eighty (180) days after the Effective Date of
the Agreement and shall be further limited to no more than one (1) copy
of Internet Explorer per subscriber. In no event shall such deductions
exceed the total amount of Referral Fees payable to MS hereunder. COMPANY
shall report all such copies (separately for external media and electronic
distribution) on its quarterly reports.
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
15
EXHIBIT D (CONT'D)
-------------------
REFERRAL FEE REPORT
Report for _____________________________
Report Period: _______________________, 19____ to ______________________, 19___
Microsoft License #______________________________
--------------------------------------------------------------------------------
Referral Fee Calculation:
A. Total new ISP Subscriber* for the quarter: ____________ X $___=______
B. Previously reported ISP Subscriber accounts
lasting : 60 days which
terminate during the quarter ____________ X $ =______
C. Total fees due (Line A - Line B)= ______
D. Less Deductions for ********** ********** of Internet Explorer ______
Total payment enclosed: ______
*as defined in Section 1
--------------------------------------------------------------------------------
E. Total number of *** ** *** ******** distributed during quarter
through all channels: _______
F. Total number of copies of Internet Explorer distributed through
all channels where Internet Explorer is distributed ** *** ****
*** ******** _______
G. Total number of *********** ******** copies of Internet
Explorer shipped - external media _______
H. Total number of ************ ******** copies of Internet
Explorer shipped - electronic _______
The undersigned hereby certifies that he/she is an officer or director of
COMPANY and that this report is complete and correct.
___________________________(Signature)
___________________________(Print)
___________________________(Title)
___________________________(Date)
Telephone Number: ( )
___________________________
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
16
EXHIBIT E
---------
ISP SUBSCRIBER CONFIGURATION GUIDELINES
1. COMPANY shall configure the ISP Subscriber's copy of Internet Explorer
(hosted on the ISP Subscriber's computer) via an INS file such that the
'default' URL on Internet Explorer points to the Start Page.
2. COMPANY can add and populate a 'favorites folder' on the ISP Subscriber's
copy of Internet Explorer via an INS file.
3. [DRAFT] COMPANY's ISP Information Page shall comply with the following:
a. Size of the HTML page limited to 5K.
b. The page should have one exit point that points back to the main
referral page.
c. No scrolling, no tabs, no links, and no fields.
d. Should fit on 640x480 with no fields.
e. Use buttons as much as possible.
f. Do not use hot links.
g. A 'cancel' leaves the entire Internet Connection Wizard.
MS reserves the right to change the above criteria.
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
17
EXHIBIT F
---------
INTERNET EXPLORER
AVAILABILITY VERSION
-----------------------------------------------------------------------
PLATFORM 2.0 NEXT(c)
-----------------------------------------------------------------------
Windows 3.x, WFW 3.11 Today(a) *********
Windows NT -- ***********
Windows 95 Today(a) *************
Apple Macintosh Today(b) ********
(a) *******************
(b) **********************
(c) **********************
(d) ***********
* -- Confidential portions of this exhibit have been omitted, marked with
asterisks (*) and filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
18
EXHIBIT G TO THE LICENSE AND DISTRIBUTION AGREEMENT
---------------------------------------------------
MICROSOFT-REGISTERED TRADEMARK- INTERNET EXPLORER
ONLINE LOGO USAGE GUIDELINES
This site is best experienced with
[LOGO]
Click here to start.
1. USAGE
Use the Internet Explorer online logo (the 'logo') only to promote
Microsoft Internet Explorer and indicate that your Internet Site includes
or is compatible with the Microsoft Internet Explorer.
The Logo may only be used on your Internet Site which must meet the
applicable Logo Qualification Criteria and may not be used in any other
fashion.
RECOMMENDED TEXT. Based upon extensive research, we suggest that the
Internet Explorer Logo be accompanied by the following text: 'This site
is best experienced with ... Click here to start.' as indicated in the
below images. This information clarifies how the logo should be used,
especially for new Internet visitors who are unfamiliar with the
different means of navigating the Internet.
This site is best experienced with
[LOGO]
Click here to start.
This site is best experienced with [LOGO] Click here to start.
PRODUCT NAME. It should appear as 'Microsoft-Registered Trademark-
Internet Explorer' at the first and most prominent use in all materials
and can thereafter be referred to as 'Internet Explorer.'
2. INTENT
You are not permitted to use the logo to disparage Microsoft, its
products or services, or for promotional goods or for products which, in
MS' reasonable judgement, may diminish or otherwise damage Microsoft's
goodwill in the Logo, including but not limited to uses which could be
deemed to be obscene, pornographic, excessively violent, or otherwise in
poor taste or unlawful, or which purpose is to encourage unlawful
activities. Similarly, you cannot imitate Microsoft's product packaging
or the Logo in any of your materials, including advertising, product
packaging, and promotional materials. The Logo must not be used in a
manner that implies Microsoft's sponsorship or endorsement of the
product, service, or content presented on your Internet Site.
3. LOGO LINK
Used in an Internet Site, the Logo must be an active link to this
URL address:
http://www.microsoft.com/ie/ie.htm
----------------------------------
19
4. PRESENTATION
PROMINENCE. Do not use the Logo or the names 'Microsoft,' 'Microsoft
Internet Explorer,' or 'Internet Explorer' more prominently than your
company, product, or Internet Site name.
ARTWORK. Use only Microsoft authorized electronic artwork of the Logo.
The Logo must stand by itself and must include a minimum amount of empty
space surrounding the Logo (30 pixels) so as to separate it from any
other object, such as type, photography, borders, edges, and so on. The
Logo may not be used as a feature or design element of any other Logo.
SIZE. The Logo cannot be reduced in size beyond what is electronically
provided by Microsoft and must be placed in a prominent location on the
Internet Site where it is used. Do not remove any trademark symbols or
alter the Logo in any way. Redraws, distortions, or animation of the
Logo are not permitted beyond what is provided to authorized/registered
Microsoft Online logo Internet Sites.
FOOTNOTE. Include the following footnote on Internet Sites that include
the Logo: 'Microsoft is a registered trademark in the United States and
other countries and the Microsoft Internet Explorer Logo is a trademark
of Microsoft Corporation.'
ALTERATIONS TO THESE GUIDELINES
Microsoft reserves the right to change the Logo and these Usage Guidelines at
any time and solely at its discretion. If possible, Microsoft will provide
advanced notice of these changes. Any use of the Logo that is not consistent
with these guidelines is strictly prohibited.
CANCELLATION OF AUTHORIZATION TO HOST LOGO
Microsoft reserves the right to review use of the Internet Explorer Logo.
Disregard for these Usage Guidelines may result in a revocation of the right
to use the logo, and with it all benefits enjoyed through participation in
the logo program.
Third parties improperly using the Logo must correct any deficiencies in
their use of the Logo and/or in the quality of the product used in
conjunction with the Logo upon reasonable notice from Microsoft. Refusal to
correct such deficiencies may result in revocation of the right to use the
Logo.
QUESTIONS
If you have any questions about the Logo Program, please send e-mail to
'iservice@microsoft.com'
TRADEMARKS. Microsoft and Windows are registered trademarks and ActiveX is a
trademark in the United States and other countries and the Microsoft Internet
Explorer Logo is a trademark of Microsoft Corporation.
20
ATTACHMENT 1 TO EXHIBIT G OF THE MICROSOFT INTERNET EXPLORER LOGO
USAGE GUIDELINES
Microsoft -Registered Trademark- Internet Explorer Online
Logo Qualification Criteria
This site is best experienced with
[LOGO]
Click here to Start
Gaining authorization to use the version of the Microsoft -Registered
Trademark- Internet Explorer online logo shown above for your Internet Site
is easy. Simply fulfill the following two criteria and you are eligible to
use the logo.
1. Showcase on your Internet Site one or more of these HTML features:
- RATINGS. Support self-regulation of content to ensure
appropriate access to your Internet Site.
- MARQUEES. Scroll text or graphics across your screen.
- ENHANCED TABLES. Use colors/textures to make tabular data
- more legible and visually appealing.
- BACKGROUND SOUNDS. Provide an auditory experience when your
Internet Site is accessed.
- WATERMARKS. Create a mark of distinction on your home page.
- INLINE AVIs. Graphically animate your page beyond static
images.
- ENHANCED HTML FRAME TAGS. Simulate the appearance of a
magazine with borderless, nonscrolling, floating frames,
and even frames within frames.
- ENHANCED HTML STYLE SHEETS. Control margins, line spacing,
and placement of design elements; specify fonts and point
sizes; get desktop publishing support for the Web.
2. Enroll in the logo program, and agree to follow the Logo Usage Guidelines.
NEED HELP GETTING STARTED?
Please go to the FREE Microsoft Internet Explorer online logo-compliant Web
site template at http://www.microsoft.com/ie/log/actxtemp.htm. This template
will help to get you started in building your Internet Site or to simply
enhance your existing Internet Site. See examples of the new HTML features
and ActiveX -TM- -compatible controls at the ActiveX Gallery at
http://www.microsoft.com/ie/appdev/controls/default.htm.
If you want more assistance, order the ActiveX Development Kit at
http://www.microsoft.com/intdev/sdk.
NOTE ABOUT CHANGES:
Note: Due to the rapid development of Internet Explorer technology, these
criteria will change periodically over time. All online logo authorized sites
will be notified by e-mail of any changes to these criteria. Permission to
use the logo is limited to those who meet the then applicable criteria, and
those who no longer meet the criteria must discontinue use of logo.
TRADEMARKS. Microsoft and Windows are registered trademarks and ActiveX is a
trademark in the United States and other countries and the Microsoft Internet
Explorer Logo is a trademark of Microsoft Corporation.
21
ATTACHMENT 2 TO EXHIBIT G OF THE MICROSOFT INTERNET EXPLORER LOGO
USAGE GUIDELINES
Microsoft -Registered Trademark- Internet Explorer Online
Animated Logo Qualification Criteria
This site is best experienced with
[LOGO]
Click here to start.
Gaining authorization to use the animated version of the Microsoft Internet
Explorer online logo shown above for your Internet Site is easy. Simply
fulfill the following three criteria and you are eligible to use the logo:
1. Showcase on your Internet Site one or more of these HTML features:
- RATINGS. Support self-regulation of content to ensure
appropriate access to your Internet Site.
- MARQUEES. Scroll text or graphics across your screen.
- ENHANCED TABLES. Use colors/textures to make tabular data
more legible and visually appealing.
- BACKGROUND SOUNDS. Provide an auditory experience when your
Internet Site is accessed.
- WATERMARKS. Create a mark of distinction on your home page.
- INLINE AVIs. Graphically animate your page beyond static
images.
- ENHANCED HTML FRAME TAGS. Simulate the appearance of a
magazine with borderless, nonscrolling, floating frames, and
even frames within frames.
- ENHANCED HTML STYLE SHEETS. Control margins, line spacing,
and placement of design elements; specify fonts and point
sizes; get desktop publishing support for the Web.
2. Activate your Internet Site with ActiveX -TM- -compatible Technology.
Support one or more ActiveX-compatible controls on your Internet Site.
- DEMONSTRATE ACTIVEX-COMPATIBLE CONTROLS. Make your
Internet Site interactive today!
- SCRIPT ACTIVEX-COMPATIBLE CONTROLS. Use ActiveX-compatible
scripts to make a Web page interactive. You can easily link
together ActiveX-compatible controls or intrinsic controls to
create dynamic pages.
3. Enroll in the logo program and agree to follow the Logo Usage Guidelines.
NEED HELP GETTING STARTED?
Please go to the FREE Microsoft Internet Explorer online logo-compliant Web
site template at http://www.microsoft.com/ie/log/actxtemp.htm. This template
will help to get you started in building your Internet Site or to simply
enhance your existing Internet Site. See examples of the new HTML features
and ActiveX-compatible controls at the ActiveX Gallery at
http://www.microsoft.com/ie/appdev/controls/default.htm.
If you want more assistance, order the ActiveX Development Kit at
http://www.microsoft.com/intdev/sdk.
Note: Due to the rapid development of Internet Explorer technology, these
criteria will change periodically over time. All online logo authorized sites
will be notified by e-mail of any changes to these criteria. Permission to
use the logo is limited to those who meet the then applicable criteria, and
those who no longer meet the criteria must discontinue use of logo.
TRADEMARKS. Microsoft and Windows are registered trademarks and ActiveX is a
trademark in the United States and other countries and the Microsoft Internet
Explorer Logo is a trademark of Microsoft Corporation.
22
EXHIBIT H TO THE LICENSE AND DISTRIBUTION AGREEMENT
MICROSOFT-Registered Trademark-INTERNET EXPLORER STANDARD LOGO USAGE GUIDELINES
-------------------------------------------------------------------------------
Includes
[LOGO]
Microsoft has established the following set of guidelines to assist you in
proper use of the Microsoft Internet Explorer standard logo (the 'Logo').
The power of the Logo lies in its consistent and appropriate use. Any usage
outside these guidelines dilutes the effectiveness of the Logo and makes it
more difficult to defend our rights to the trademark.
Microsoft reserves the right to change the Logo and/or these Guidelines at
any time at its discretion. Third parties shall comply with the Guidelines as
amended from time to time.
ACCOMPANYING WORDS
The graphic may not be used without the words 'Includes,'
'Microsoft-Registered Trademark-,' and 'Internet Explorer' attached, except
as otherwise provided below. No additional or substitute words may be used.
The words may not be abbreviated, translated, or transliterated, as in
non-English documentation. Microsoft will, however, provide the Logo in
versions where the word 'Includes' may be translated for the local market, as
available. You may not substitute your own translation of the Logo.
USING THE MICROSOFT INTERNET EXPLORER STANDARD LOGO
- Use the Logo only to promote Microsoft Internet Explorer and indicate that
your product includes Microsoft Internet Explorer.
- This Logo is NOT to be placed on World Wide Web sites for the purpose of
downloading Microsoft Internet Explorer. For this purpose, please see the
Microsoft Internet Explorer Online Logo Usage guidelines at
http://www.microsoft.com/ie/logo/.
- Microsoft will provide you with electronic artwork of the Logo. You may not
alter this artwork in any way.
- This Logo is for Microsoft and third party use only as a graphical
representation of Microsoft Internet Explorer software.
- Microsoft Use: The Logo may be used by Microsoft on packaging, channel,
collateral, advertising, direct mail, and events promotion materials for
Microsoft products that include Microsoft Internet Explorer software. When
referring to Microsoft Internet Explorer by itself, Microsoft may use the
Logo without the word 'Includes.'
- Third Party Use: The Logo may be used by third parties authorized to
distribute the Microsoft Internet Explorer software under a separate
License and Distribution Agreement. Authorized third parties may use the
Logo only on the product packaging of products that include Microsoft
Internet Explorer software and related advertising.
LEGAL INFORMATION
- The Logo is owned by Microsoft Corporation. All uses of the Logo must
include the following notice: 'Microsoft is a registered trademark in the
United States and other countries and the Microsoft Internet Explorer Logo is
a trademark of Microsoft Corporation.' A trademark symbol (-TM-) should appear
to the right of the Logo without alteration from the electronic or
camera-ready artwork provided. In
23
addition, a registered trademark symbol (-Registered Trademark-) must
appear in the upper-right corner immediately following the word 'Microsoft.'
Do not remove any trademark symbols or alter the Logo in any way.
- The product name for Microsoft Internet Explorer should appear as
'Microsoft-Registered Trademark-Internet Explorer' at the first and most
prominent use in all materials and can thereafter be referred to as 'Internet
Explorer.'
- Microsoft owns the Microsoft Internet Explorer Logo and all uses of the Logo
will inure to the benefit of Microsoft. Third parties shall employ best
efforts to use the Logo in a manner that does not derogate from Microsoft's
rights in the Logo and will take no action that will interfere with or
diminish Microsoft's rights in the Logo. Third parties should not adopt, use,
or register any corporate name, trade name, trademark, service mark or
certification mark, trade dress, or other designation similar to, or
containing in whole or in part the Logo.
- Third parties may not use the Logo in a manner that would imply that their
company or any goods or services provided by such third parties are sponsored
or endorsed by, or affiliated with Microsoft.
- Third parties may not display the Logo on packaging, documentation,
collateral, or advertising in a manner that suggests their product is a
Microsoft product, or in a manner that suggests Microsoft is a part of their
product name.
- You are not permitted to use the Logo to disparage Microsoft Corporation,
its subsidiaries, products, or services, or for promotional goods or for
products which, in Microsoft's reasonable judgment, may diminish or otherwise
damage Microsoft's goodwill in the Logo, including but not limited to uses
that could be deemed obscene, pornographic, excessively violent, or otherwise
in poor taste or unlawful, or which purpose is to encourage unlawful
activities.
- Third parties may not imitate Microsoft's product packaging or the Logo in
any of their materials, including advertising, product packaging, and
promotional materials.
- The Logo or the names 'Microsoft,' 'Microsoft Internet Explorer,' or
'Internet Explorer' cannot appear larger and/or more prominent than third
parties' trade name, service name, product name, or trademark on any
materials produced or distributed by such third parties.
- Microsoft reserves the right to object to unfair uses or misuses of its
trademarks or other violations of applicable law.
SIZING AND PLACEMENT REQUIREMENTS
- Recommended minimum size is 1' high. The 'small' graphic interchange format
(GIF) file provided is an example of the smallest recommended size.
- The Logo with accompanying words must stand alone. A minimum amount of
empty space must surround the Logo so as to separate it from any other object
such as type, photography, borders, edges, and so on. The required border of
empty space around the Logo must be 1/2X wide, where X equals the height of
the Logo as measured from the top edge of the word 'Includes' to the bottom
edge of the word 'Explorer.'
- You may not combine the Logo with any other object, including, but not
limited to, other logos, words, graphics, photos, slogans, numbers, design
features, or symbols.
- The Logo may not be used as a design feature on your product, product
packaging, documentation, collateral, or advertising.
FOUR-COLOR OR ONE-COLOR APPLICATIONS
COLORS
The color version is the preferred way of reproducing the Logo. The Logo
consists of a blue graphic element and black type. The PANTONE-Registered
Trademark- Matching System (PMS) color for the blue is PMS 279 C. Four-color
process (CMYK) equivalents can also be used. For online usage, the blue color
should be Red 0, Green 102, Blue 255 for 8-bit or higher resolution palettes.
The color version can be reproduced only as described here.
24
BLACK-AND-WHITE APPLICATIONS
The black-and-white Logo consists of a black graphic element and black type.
Please use the file provided.
ACCESSING THE FILES
The print files are provided in Encapsulated PostScript-Registered Trademark-
(EPS) and Windows-Registered Trademark- metafile (WMF) format. Use the EPS
files for materials printed to a PostScript-compatible printer. Use the
Windows metafile to print to a non-PostScript printer. These files should not
be opened and edited, only placed (for example, select 'import...picture')
into software programs such as common page-layout or presentation programs,
word-processing software, and so forth.
Due to translation problems between the Mac and PC, Mac-TM- EPS images may
lose their preview. When you place them into your page-layout document, you
will see a box or a big 'X' instead of the preview. The image will still
print correctly and the bounding box accurately shows the size of the image.
EPS images are sizable, but please scale proportionately.
PC EPS images only have black-and-white previews. If you chose to use a color
PC EPS, it will still preview in black-and-white. When you print it, the
color will print correctly.
EPS format is device-dependent so the resolution of the device you are
printing to is the resolution you will achieve.
The art files include Adobe Illustrator (ART) and Macromedia Freehand (FH5)
format. These are provided for use where the print files supplied will not
work. They are not to be altered.
QUALITY CONTROL
Microsoft reserves the right to review your use of the Logo and to conduct
spot checks on all products, product packaging, marketing materials, and
documentation and may periodically send out requests for samples. Microsoft
may also conduct spot checks in retail outlets and other product sources to
monitor your compliance with these Logo Usage Guidelines. Refusal to submit
samples, noncompliance with these Guidelines, or failure to correct any
deficiencies in your use of the Logo and/or in the quality of the product
used in conjunction with the Logo upon reasonable notice from Microsoft could
result in revocation of your license to use the Logo.
-C- 1996 Microsoft Corporation. All rights reserved.
Microsoft and Windows are registered trademarks in the United States and/or
other countries and the Microsoft Internet Explorer logo is a trademark of
Microsoft Corporation.
PostScript is a registered trademark of Adobe Systems, Inc. Macintosh is a
registered trademark and Mac is a trademark of Apple Computer, Inc. PANTONE
is a registered trademark of Pantone, Inc.
-------------------------------------------------------------------------------
25
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