{"id":42111,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/bundling-and-distribution-services-agreement-netscape.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"bundling-and-distribution-services-agreement-netscape","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/bundling-and-distribution-services-agreement-netscape.html","title":{"rendered":"Bundling and Distribution Services Agreement &#8211; Netscape Communications Corp. and Net2Phone Inc."},"content":{"rendered":"<pre>\n                          Netscape Agreement #005440\n                          --------------------------\n\n                  BUNDLING AND DISTRIBUTION SERVICES AGREEMENT\n\n     This Bundling and Distribution Services Agreement, including the exhibits\nand attachments hereto (the \"Agreement\"), is effective as of the date of the\nlast signature as indicated in the signature block below (the \"Effective Date\"),\nbetween Net2Phone, Inc., a New Jersey corporation located at 171 Main Street,\nHackensack, NJ 07601 (\"Participant\"), and Netscape Communications Corporation, a\nDelaware corporation located at 501 East Middlefield Road, Mountain View, CA\n94043 and its wholly-owned subsidiaries (collectively \"Netscape\").\n\n                                    RECITALS\n\n        A.  Netscape markets and distributes computer software to link people \nand information over enterprise networks and the Internet.\n\n        B.  Participant markets and distributes computer software that \nprovides for the connection and transmission of telecommunications from personal\ncomputers to standard telephone media over enterprise networks and\/or the\nInternet.\n\n        C.  Netscape and Participant believe that it would be useful to end \nusers of Netscape products for such end users to have access to certain of\nParticipant's software.\n\n     NOW, THEREFORE, the parties agree as follows:\n\n                                   AGREEMENT\n\n1.  DEFINITIONS\n\n     \"Bundling Candidate\" means a version of the Co-branded Net2Phone Product\nthat Participant reasonably believes, after having conducted the tests required\nunder Exhibit A of this Agreement, meets the requirements contained in this\nAgreement for acceptance by Netscape.\n\n     \"Co-brand or Co-branded\" means such joint branding, marking and promotion\nof products, services and materials, and other related joint marketing efforts\nas the parties shall mutually agree, taking into account Netscape's trademark\nguidelines and affording Participant with sufficient prominence, in terms of\nsize, placement, appearance and the like, for Participant's name, logo,\ntrademarks, and other similar brand features, which in any event shall be no\nless favorable than what is afforded to other similarly situated partners of\nNetscape.\n\n     \"Co-branded Net2Phone Product\" means the Co-branded version of the\nNet2Phone Product together with any other changes to the Net2Phone Product\nrequired to make such co-branded version under this Agreement or as otherwise\nmutually agreed.\n\n     \"Co-branded Service\" means the Participant Service to be provided by\nParticipant for inclusion in the specified communications oriented areas of\nNetcenter, any Co-branded pages \n\n                                       1\n\n\n\n                                 CONFIDENTIAL\n \naccessible from or related to the Co-branded Net2Phone Product, and as the\nparties otherwise mutually agree.\n\n     \"Distribution\" means, collectively, Electronic Distribution and Non-\nElectronic Distribution.\n\n     \"Electronic Distribution\" means placing information and\/or products in\nfiles on servers which permit downloading of such information and\/or products.\n\n     \"Initial Bundling Period\" means the period from the Effective Date until\nthe date two (2) years after the later of (i) the date that the Beta 2 release\nof the Netscape Communicator 5.0 (the \"Beta 2 Release\") that contains the Co-\nbranded Net2Phone Product is first posted to the Netscape U.S. Website for\ndownload by the general public, or (ii) if the Beta 2 Release does not contain\nthe Co-branded Net2Phone Product, the date that the next succeeding release\nafter the Beta 2 Release containing the Co-branded Net2Phone Product is posted\nto the Netscape U.S. Website for download by the general public, or, (iii) if\nthe Beta 2 Release containing the Co-branded Net2Phone Product is released in\nless than 14 days after the Beta 1 Release, the date that the next succeeding\nrelease after the Beta 2 Release is first posted to the Netscape U.S. Website\nfor download by the general public , provided that in any event the Initial\nBundling Period shall start no later than the First Commercial Ship date of the\nNetscape Communicator 5.0(such date in (i), (ii) or (iii) being the \"Release\nDate\"). The Initial Bundling Period will end on the earlier to occur of (i) the\nend of the 2 year period after the Release Date or (ii) the termination of this\nAgreement, whichever comes first. Netscape shall provide Participant with\nwritten notice of the Release Date within thirty (30) days of when such date is\nfixed and determinable.\n\n     \"Inline Plug-in Pages\" means that area of Netscape's US Web Site marketed\nas the Inline Plug-in Pages.\n\n     \"Integrated Offering\" means a product, inclusive of any beta releases of\nthe product, produced or offered by Netscape, which combines the Co-branded\nNet2Phone Product and\/or third party product(s) with Netscape product(s), to\nproduce a single offering for users of enterprise networks and\/or the Internet;\nprovided that the Integrated Offering must contain significant functionality in\naddition to that provided by the Co-branded Net2Phone Product alone. Without\nlimiting the foregoing, an Integrated Offering includes a Netscape Software\nBundle product that is downloadable from a Netscape web site and that provides\nas part of its default installation procedures for the Co-branded Net2Phone\nProduct to be included in the download and installation.\n\n     \"Localized Versions\" means those international versions of the Co-branded\nNet2Phone Product specifically listed in Section 3.1 (b) and other international\nversions of the Co-branded Net2Phone Product that are included pursuant to\nSection 3.1(b), all of which will meet all the specific requirements of Section\n3.1 (b), Exhibit A and Attachment A-1 to Exhibit A.\n         ---------                       --------- \n\n     \"Major Release\" means a release of software for which there is a change to\nthe right of the decimal point in the tenths, or a change to the left of the\ndecimal point (e.g. 4.0 to 4.1 or 4.0 to 5.0).\n\n                                       2\n\n\n\n                                 CONFIDENTIAL\n \n     \"Minor Release\" means a release of software for which there is a change to\nthe right of the decimal point in the hundredths (e.g. 4.01 to 4.02).\n\n     \"Netcenter\" means that area of Netscape's US Web Site that offers online\nservices and shopping opportunities to end users.\n\n     \"Netscape Software Bundle\" means the Co-branded Net2Phone Product bundled\nwith and part of the default installation of every release of the object code\nform of the Netscape product offerings identified in Exhibit D as \"Products\n                                                     ---------             \nCovered Under Section 3.1(a)\" after the Effective Date which operate on the\nplatforms and in the languages listed in Exhibit D attached hereto (excluding\n                                         ---------                           \nspecific, custom software projects developed in accordance with customer\nrequirements that necessitate an exclusion of such Co-branded Net2Phone Product,\nprovided that Netscape has not encouragedsuch exclusion).\n\n     \"Netscape's US Web Site\" means the collection of U.S. English language HTML\ndocuments targeted at end users in the United States and currently accessible by\nthe public via the Internet at the URL http:\/\/home.netscape.com and\/or at such\nother URL or locations as Netscape may designate. For purposes of this\nAgreement, Netscape's US Web Site does not include any future technologies or\nfuture uses of existing technologies which might embody a collection of\ndocuments (other than HTML documents) on the Internet.\n\n     \"Net2Phone Product\" means the object code form of the product described\nunder the \"Description\" section of Attachment A-1 of Exhibit A and Attachment A-\n                                                     --------------------------\n2 of Exhibit A, related documentation, and any Upgrades (as defined below)\n--------------                                                            \nprovided to Netscape during the term of this Agreement.\n\n     \"Non-Electronic Distribution\" means distribution by any means other than\nElectronic Distribution, including any method of distribution now available or\nhereafter developed.\n\n     \"Participant Collateral Materials\" means all materials, information and\nother content (including without limitation product descriptions and logos, FAQs\nand product demos) supplied by, managed by or under the control of Participant,\nrelating to promotion and distribution of the Co-branded Net2Phone Product\nhereunder or to promotion of any other products or services of Participant that\nare a subject of this Agreement.\n\n     \"Participant Service\" means any Net2Phone related services and any\nassociated Participant web pages accessible through the Net2Phone Product.\n\n     \"Products\" means products produced or offered by Netscape for use with\nenterprise networks and the Internet, including without limitation Netscape\nNavigator and Netscape Communicator client software.\n\n     \"SmartUpdate Program\" means that portion of Netcenter known as SmartUpdate,\nwhich area provides end users with access to an Internet service that makes\navailable, free of charge, certain client software products, as further\ndescribed in Exhibit E.\n             --------- \n\n     \"Upgrades\" means any updates, upgrades or enhancements of the Co-branded\nNet2Phone Product, including without limitation any releases of the Co-branded\nNet2Phone \n\n                                       3\n\n\n\n                                 CONFIDENTIAL\n \nProduct that include bug fixes, as well as the Localized Versions\nprovided hereunder and versions provided for those platforms in Exhibit D.\n                                                                --------- \n\n2.  GRANT OF RIGHTS\n\n    2.1 License. Participant hereby grants Netscape a non-exclusive, \nworld-wide, royalty-free license to:\n\n    (a)  distribute Co-branded Net2Phone Product through Netscape's channels of\ndistribution by including Co-branded Net2Phone Product in one or more Integrated\nOfferings which Netscape distributes via any form of Distribution;\n\n    (b)  distribute Co-branded Net2Phone Product in standalone form through\nElectronic Distribution from any Netscape branded web site in the world\n(including Netscape branded web sites that may be operated by Affiliates (as\ndefined below));\n\n    (c)  use, reproduce, translate, market, create derivative works and \nsubsets of and distribute via any form of Distribution the user documentation\nfor the Co-branded Net2Phone Product provided by Participant and any derivative\nworks or subsets thereof prepared by or for Netscape, for use with Co-branded\nNet2Phone Product, provided Netscape meets the provisions defined in Section 7.6\nof this Agreement; and\n\n    (d)  use, reproduce, translate, market, create derivative works and \nsubsets of and distribute via any form of Distribution the Participant\nCollateral Materials and any derivative works or subsets thereof prepared by or\nfor Netscape provided Netscape meets the provisions defined in Section 7.6 of\nthis Agreement.\n\n     Netscape agrees that it shall not reverse engineer, reverse assemble,\ndecompile, disassemble or otherwise attempt to derive the source code from the\nCo-branded Net2Phone Product. Netscape agrees that, notwithstanding the licenses\ngranted in subsection (c) and (d) above, Netscape shall not translate, modify or\notherwise create derivative works of the user documentation or Participant\nCollateral Materials (and any derivative works or subsets thereof) referred to\nin such subsections (c) and (d) above (excluding minor formatting or stylistic\nmodifications and minor grammatical corrections) without Participant's consent,\nwhich consent shall not to be unreasonably withheld.\n\n     With respect to the Co-branded Net2Phone Product, Participant shall grant\nthe same rights to Netscape as those set forth above for all platforms and\nlocalized versions not already granted by the terms of this Agreement; however,\nsuch grant shall in no way impose any additional obligations under this\nAgreement upon Netscape to bundle or distribute such products.\n\n    2.2 Discretion. Except as specifically provided for in Section 3 of this\nAgreement, Netscape may, in its discretion, determine which of the above forms\nof Distribution is appropriate for Co-branded Net2Phone Product. The broad grant\nof distribution rights in Section 2.1 to Netscape for the Co-branded Net2Phone\nProduct, shall not obligate or be construed to obligate Netscape to bundle or\ndistribute the Co-branded Net2Phone Product beyond the obligations of this\nAgreement.\n\n                                       4\n\n\n\n                                 CONFIDENTIAL\n \n    2.3 Reproduction. Netscape and its channels of distribution may reproduce or\nhave reproduced Co-branded Net2Phone Product as necessary for Distribution\nauthorized under Section 2.1.\n\n    2.4 Trademark and Logo License. Netscape and its channels of distribution\nmay use Participant's trademarks and logos applicable to Co-branded Net2Phone\nProduct in connection with Distribution and related marketing and promotion,\nsubject to Participant's approval which shall not be unreasonably withheld.\nNetscape will use Participant's trademarks and logos as part of the promotional\nprograms set forth in Exhibit E. On Participant's request, Netscape will furnish\n                      ---------                                                 \nParticipant with a sample of such trademark usage. Netscape agrees not to remove\nany of Participant' s trademarks or logos from the Co-branded Net2Phone Product\nwithout Participant's prior approval.\n\n    2.4.1 Netscape grants Participant a non-exclusive, nontransferable, license\nto use the Netscape N and Design Horizon Logo (\"the Logo\") solely in connection\nwith the Cobranded Service and Cobranded Net2Phone Product to promote, market,\nsell and deliver such Co-branded Service and Co-branded Net2Phone Product in\naccordance with the terms of this Agreement. No right is granted to sublicense,\ntransfer, or assign any rights to use the Logo. Participant may only use the\nLogo as a collective whole and shall not separately use any element or elements\nof the Logo or modify the Logo in any manner.\n\n    2.4.2 Netscape hereby reserves any and all rights not expressly and\nexplicitly granted in this Agreement, including Netscape's right to authorize or\nlicense use of the Logo to any third party for use in connection with any goods\nand services. Without limiting the rights reserved in the first sentence,\nNetscape hereby reserves any and all rights to use, authorize use or license use\nof the Logo in any geographic territory and in any language. Participant shall\nhave no obligation to use the Logo as contemplated under this Agreement.\n\n    2.4.3 Participant hereby acknowledges that Netscape is the owner of the\nLogo, and any applications and\/or registrations thereto, agrees that it will not\ndo anything inconsistent with Netscape's intellectual property rights in the\nLogo. Participant agrees that nothing in this Agreement shall give Participant\nany right, title or interest in the Logo other than the right to use the Logo in\naccordance with this Agreement. Participant agrees not to register or attempt to\nregister the Logo with any domestic or foreign governmental or quasi-\ngovernmental authority. Participant may not register the Logo. The provisions of\nthis paragraph shall survive the expiration or termination of this Agreement.\n\n    2.4.4 Participant agrees that all use of the Logo shall only occur in\nconnection with the Co-branded Service and Co-branded Net2Phone Product, and\nthat such use shall conform with Netscape's trademark guidelines set forth at\nhft:\/\/home.netscape.com\/misc\/tradeLogos.html#tradeLogos which may be reasonably\n-------------------------------------------------------                        \nupdated from time to time by Netscape. Participant may not use the Logo in\nconnection with, or for the benefit of, any third party's products or services.\nParticipant further agrees not to use the Logo on or in connection with any\nproducts or services that are or could reasonably be deemed to be obscene,\npornographic, or disparaging of Netscape or its products or services, or\notherwise in poor taste, or that are themselves unlawful or whose purpose is to\nencourage unlawful activities by others (provided, however, that this clause\nshall not be applicable to the content of any \n\n                                       5\n\n\n\n                                 CONFIDENTIAL\n \ncommunications sent through the use of the Cobranded Service or Co-branded\nNet2Phone Product that is not created by Participant). ).\n\n    2.4.5 Participant agrees it shall only use the Logo on the Co-branded\nService and Co-branded Net2Phone Product that comply with the Quality Assurance\nprovisions of Section 4.6 and in accordance with this Agreement. Participant\nfurther agrees to use commercially reasonable efforts to maintain a level of\nquality of the Cobranded Service and Co-branded Net2Phone Product in connection\nwith its use of the Logo that is consistent with general industry standards.\nFailure to comply with this Section may be a basis for suspension of the use of\nthe Logo, the bundling services and promotional services obligations under\nSection 3.5.\n\n    2.4.6 Upon reasonable request by Netscape, no more often than quarterly\nParticipant shall provide Netscape with representative samples of each such use\nprior to the time the Logo is used on the Cobranded Service and Co-branded\nNet2Phone Product. If Netscape determines in good faith that Participant's use\ndoes not comply with this Agreement, Netscape shall notify Participant, and\nParticipant shall use reasonable efforts to remedy the improper use within ten\n(10) business days following receipt of such notice from Netscape.\n\n    2.4.7 Participant shall include with any online publication or publication\nin print of the Logo a legend indicating that the Logo is that of Netscape, used\nunder license, and a disclaimer that Participant and not Netscape has produced\nParticipant's Cobranded Services and Co-branded Net2Phone Product and the\nLicensee Cobranded Product.\n\n    2.4.8 If the Cobranded Service or the Cobranded Net2Phone Product contains\nor presents any material that constitutes an infringement of the Logo or\nNetscape's trademarks, patents, copyrights or trade secrets (except with respect\nto any such material provided or included by Netscape or at the request of\nNetscape), Participant's right to use the Logo shall be subject to suspension\nunder Section 3.5. Failure to correct such defects may constitute material\nbreach which shall be treated in accordance with Section 11.\n\n    2.5 Affiliate Sublicenses. Netscape may grant, and will use reasonable\nefforts, as appropriate to grant, its Affiliates (as defined herein) a\nsublicense to the Co-branded Net2Phone Product equal in scope to, and subject to\nthe same limitations as, the license granted hereunder by Participant to\nNetscape pursuant to this Section 2 only with respect to Netscape branded\nIntegrated Offerings and standalone Electronic Distribution (only SmartUpdate\nand future similar Netscape updating program(s) that check the installed\nproduct) from Netscape branded Netscape web sites or as Participant otherwise\napproves in writing. \"Affiliates\" means any corporation, partnership, joint\nventure or other entity or person controlled, controlling or under common\ncontrol with Netscape. For purposes of this definition, the term \"control\" shall\nmean the direct or indirect beneficial ownership of fifty percent (50%) or more\nof the voting interests (representing the right to vote for the election of\ndirectors or other managing authority) in an entity as of the date Netscape\ngrants such entity a sublicense to the Co-branded Net2Phone Product.\n\n                                       6\n\n\n\n                                 CONFIDENTIAL\n \n3.  MISCELLANEOUS OBLIGATIONS\n\n    3.1 Bundling Requirements. During the Initial Bundling Period, subject to\nthe terms and conditions herein, Netscape agrees to the following:\n\n        (a)  Netscape shall bundle the Co-branded Net2Phone Product with, and \nmake such Co-branded Net2Phone Product a part of the default installation of,\nthe Netscape Software Bundle, regardless of the means or agent of Distribution,\nstarting with inclusion in the beta versions of the Netscape 5.0 Communicator\nComplete and Netscape 5.0 Client Customization Kit (\"CCK\") default installs.\nExcept as provided below, the Co-branded Net2Phone Product shall be installed\nwithout user intervention upon the installation of the Netscape Software Bundle.\nParticipant acknowledges that the person(s) installing Netscape Software Bundle\nmay perform a custom installation of the Netscape Software Bundle or may de-\nselect installation of the Co-branded Net2Phone Product which may result in Co-\nbranded Net2Phone Product not being installed with the Netscape Software Bundle.\nParticipant further acknowledges that certain Netscape Software Bundle products\nallow third parties to customize the installation and operation of other\nNetscape Software Bundle products and that such capability may result in the\ndistribution, by such third parties to end users, of Netscape Software Bundle\nproducts that do not include the Co-branded Net2Phone Product or do not include\nit as a component that is installed by default. Netscape will make good faith\nefforts to work with Participant to develop ways to encourage distributors of\nCCK versions not to remove the Co-branded Net2Phone Product from the Netscape\nSoftware Bundle. In order to assist Netscape in any such efforts, Participant\nacknowledges that it may be necessary for Participant to provide appropriate\nincentives for such CCK distributors.\n\n        (b)  Netscape will bundle the localized versions of the Co-branded \nNet2Phone Product specified below and will use commercially reasonable efforts\nto bundle other localized versions of the Co-branded Net2Phone Product in the\ncorresponding localized versions of the Netscape Communicator Complete installs\ndefined above (i) to the extent that Netscape releases a specific localized\nproduct for such territories and (ii) provided the gold master of the localized\nversions and localized Co-branded Service pages meet Netscape's localized\nuniversal registration and branding requirements, and (iii) provided such\nlocalized version and Co-branded Service pages are made available at least eight\n(8) weeks prior to the initial Beta Release (or if such release does not have a\nbeta release, eight (8) weeks prior to Release To Manufacturer (\"RTM\")) of any\nsuch Localized Version(s) and (iv) provided passage of Netscape's acceptance\ntest as defined in Exhibit A. Bundling of Localized Versions will commence upon\n                   --------- \nthe first release of localized versions of Netscape 5.0 Communicator Complete\nand Netscape 5.0 CCK default installs. Netscape will provide Participant with\nreasonable notice of release schedules so as to facilitate Participant's ability\nto meet the deadlines set forth above. As soon as practicable following the\nEffective Date of this Agreement, Participant agrees to provide Netscape with\nthe following localized binaries: French, German, Spanish, Dutch, Portuguese,\nChinese, Japanese, Korean, Canadian, Great Britain, Australian and Italian\n\n\n        (c)  Netscape agrees to include a preloaded button in the U.S. English\nversions of the Netscape Navigator (excluding specific, custom software projects\ndeveloped in accordance with customer requirements that necessitate an exclusion\nof such Co-branded Net2Phone Product, provided that Netscape has not encouraged\nsuch exclusion) personal toolbar from\n\n                                       7\n\n\n\n                                 CONFIDENTIAL\n \nNetscape, or an equivalent position to that of the personal toolbar in the\nCommunicator 4.5 release (and in equivalent positions of subsequent releases),\nfor the Co-branded Net2Phone Product (\"Button\"). Inclusion of the Button in the\npersonal toolbar will commence when Netscape releases the initial Netscape\nSoftware Bundle subject to the golden master of the Co-branded Net2Phone Product\nfor the respective platform. Netscape also agrees to include a button in the\nversions of the localized language Netscape Navigator (excluding specific,\ncustom software projects developed in accordance with customer requirements that\nnecessitate an exclusion of such Co-branded Net2Phone Product, provided that\nNetscape has not encouraged such exclusion).personal toolbar from Netscape, or\nan equivalent position to that of the personal toolbar in the Communicator 4.5\nrelease (and in equivalent positions of subsequent releases) to the extent that\na Localized Version of the Co-branded Net2Phone Product has been delivered to\nNetscape. Inclusion of such button in the personal toolbar will commence when\nNetscape releases the Netscape Software Bundle that corresponds with the\ndelivered Localized Version. The position of the Button is to be such that it is\nthe second button from the left-most button on the personal toolbar and visible\non a 640x480 pixel screen size. Netscape cannot guarantee that the Button will\nremain part of the personal toolbar for CCK releases based on the customizable\nnature of the CCK products. The name, design, look and feel of the Button shall\nbe determined in Netscape's reasonable discretion, subject to Participant's\napproval, not to be unreasonably withheld but in any event will properly convey\nthe functionality of the Co-branded Net2Phone Product. In addition, and provided\nthat personal toolbar icons are supported for the corresponding version of the\nNetscape Navigator Product, Netscape will include an icon that conveys the\nfunctionality of the Co-branded Net2Phone Product on the Button with the text\ndescribed in the succeeding sentence. The text on the Button will say\n\"Net2Phone,\" unless otherwise mutually agreed upon by the parties. The Button\nwill either (i) launch the Co-branded Net2Phone Product, if installed, or (ii)\notherwise link to a Co-branded Net2Phone Product sell page.\n\n        (d)  Subject to Netscape's obligations under Section 3.3, for each \nNetscape Software Bundle and each Netscape Navigator release which includes the\nButton, Participant will provide the Co-branded Net2Phone Product for all\nPrimary Platforms described in Exhibit D in accordance with the applicable\n                               ---------                                  \nspecifications and test procedures expressly provided for under this\nAgreement, including those set forth in Exhibits A and G. Without limiting\n                                        ----------------                  \nParticipant's obligations pursuant to Exhibits A and G, in the event that a\n                                      ----------------                     \ngiven Netscape Software Bundle release can reasonably incorporate a previously\naccepted Co-branded Net2Phone Product without requiring any changes, Netscape\nshall include such existing Co-branded Net2Phone Product in the Netscape\nSoftware Bundle release in accordance with Sections 3.1(a) and (b).\n\n\n        (e)  If Netscape provides a localized version of SmartUpdate for an\ninternational version of Netscape's US Web Site, Netscape will include the Co-\nbranded Net2Phone Product pursuant to the SmartUpdate program terms and will use\ncommercially reasonable efforts to promote Participant in ways similar to those\nset forth in Section 3.2, if applicable to the particular international website.\nNetscape agrees to use commercially reasonable efforts to include the Co-branded\nNet2Phone Product and Co-branded Service in international versions of Netscape's\nUS Web Site and, if so included, Netscape will use commercially reasonable\nefforts to promote Participant in ways similar to those set forth in Section\n3.2, if applicable to the particular international website.\n\n                                       8\n\n\n\n                                 CONFIDENTIAL\n \n     Notwithstanding anything contained herein to the contrary, Netscape shall\nhave no obligation to bundle the Co-branded Net2Phone Product with any version\nof the Netscape Software Bundle to the extent that:\n\n        (i)   Participant has not delivered the applicable Co-branded Net2Phone\n     Product for each of the primary platforms described in Exhibit D for the\n                                                            ---------\n     applicable Netscape Software Bundle release;\n\n        (ii)  Co-branded Net2Phone Product does not meet any of the material \n     requirements set forth above and in Exhibit G; or\n                                         ---------    \n        (iii) Co-branded Net2Phone Product does not pass Netscape's acceptance\n     test as described in Exhibit A.\n                          --------- \n\n     Furthermore, notwithstanding anything contained herein to the contrary,\nNetscape shall have no obligation to bundle the Co-branded Net2Phone Product\nwith any version of the Netscape Software Bundle to the extent that Netscape\ndiscontinues general commercial distribution of such version of Netscape\nSoftware Bundle, for any reason, provided that Netscape does not discontinue\ndistribution for the purpose of avoiding its obligations hereunder by promoting\nan alternative Product that does not meet the definition of Netscape Software\nBundle or otherwise. In the event Netscape discontinues general commercial\ndistribution of all versions of the Netscape Software Bundle, but distributes a\nProduct similar to, but not meeting the definition of, the Netscape Software\nBundle, Netscape shall use its best efforts to bundle the Co-branded Net2Phone\nProduct in such alternative Product in accordance with this Agreement. In\naddition, if Netscape alone, or in conjunction with an Affiliate, distributes or\nmakes generally available a Product similar to, but not meeting the definition\nof, a Netscape Software Bundle with the goal or effect of replacing or phasing\nout over time the Netscape Software Bundle, Netscape shall use its best efforts\nto bundle the Co-branded Net2Phone Product in such alternative Products in\naccordance with this Agreement.\n\n    3.2 Netscape's Promotional Programs. During the Initial Bundling Period and\nin accordance with the commencement dates set forth in Exhibit E, or as\n                                                       ---------       \notherwise mutually agreed by the parties, Netscape shall provide the services\nset forth in Exhibit E to promote the Co-branded Net2Phone Product, with such\n             ---------                                                       \nchanges to the manner of promotion as may be reasonably necessary given changes\nthat may occur in the various promotional programs over time; provided that the\nlevel of promotion of the Co-branded Net2Phone Product (including the manner in\nwhich an end user is encouraged to download Co-branded Net2Phone Product) will\nremain substantially the same as is described in Exhibit E. Netscape shall use\n                                                 ---------                    \ngood faith efforts not to alter or replace Netcenter, Netscape's US Web Site or\nthe portions or areas thereof which are a subject of this Agreement (the\n\"Netscape Sites\") with the purpose or effect of significantly avoiding its\nobligations under this Section 3.2. In the event Netscape, alters, replaces,\ndiscontinues or otherwise phases out the operation of the Netscape Sites in a\nmanner that significantly avoids its obligations under this Section 3.2, but\noperates an alternative site(s) similar to the Netscape Sites alone or in\nconjunction with an Affiliate, Netscape shall comply with its obligations to\nprovide services in accordance with this Section 3.2 on such alternative\nsite(s).\n\n                                       9\n\n\n\n                                 CONFIDENTIAL\n \n     Notwithstanding anything contained in this Section 3.2, Netscape shall have\nno obligation to provide such services with respect to Co-branded Net2Phone\nProduct until thirty (30) days following Netscape's (i) acceptance of the\napplicable Co-branded Net2Phone Product in JAR format in accordance with\nExhibits A and E and (ii) receipt of mutually acceptable Participant Collateral\n----------------                                                               \nMaterials. However, within thirty (30) days following receipt of the above,\nNetscape shall provide the above services with respect to the Co-branded\nNet2Phone Product.\n\n    3.3 Technical Communication. During the Initial Bundling Period, the parties\nwill designate certain internal technical contacts for each other as set forth\nin Exhibit F and will conduct certain technical communication activities as\n   ---------                                                               \ndescribed in Exhibit F. Netscape will use commercially reasonable efforts to\n             ---------                                                      \nprovide technical and marketing assistance, including sufficient availability of\napplicable contacts and maintenance of regular communication channels between\nrelevant personnel, for the purpose of assisting both parties to abide by their\nobligations under this Agreement.\n\n    3.4 General Conditions to Netscape Bundling and Promotional Obligations.\nNotwithstanding anything contained in this Section 3, Netscape shall have no\nobligation under this Section 3 with respect to a particular version of Co-\nbranded Net2Phone Product or the Button to the extent that:\n\n        (i)   Netscape has received notice (written or verbal) of, and \n     reasonably believes, that the reproduction, use or distribution of any\n     version of the Co-branded Net2Phone Product in accordance with this\n     Agreement infringes or misappropriates the intellectual property rights of\n     any third party; or\n\n        (ii)  this Agreement is terminated by Participant or Netscape as set \n     forth in this Agreement; or\n\n        (iii) an aspect of such Co-branded Net2Phone Product exists, other \n     than an acknowledged security risk that a corporation\/ user accepts by\n     opening up holes in its firewall to enable use of the Co-branded Net2Phone\n     Product, that could be exploited in a manner that Netscape reasonably\n     believes (a) would expose Netscape's users to potential efforts to invade\n     their privacy or damage or modify data, software or hardware in an\n     unauthorized manner or (b) would otherwise result in meaningful and serious\n     claims that the Co-branded Net2Phone Product presents a security risk to\n     its users; or\n\n        (iv)  in the case of a previously accepted Co-branded Net2Phone \n     Product, the Co-branded Net2Phone Product contains a Priority level 1 or 2\n     Error, as defined in Exhibit C.\n                          --------- \n\n    3.5 Procedures Related to Suspension of Bundling or Promotional Services.\nPrior to suspending any bundling or promotional services obligations provided\nfor in Sections 3.1 or 3.2 or suspending use of the Logo as provided for in\nSection 2.4(other than in conjunction with termination of this Agreement which\nshall be treated in accordance with Section 11) in accordance with the above\noccurring events or the events described in Section 2.4 or in accordance with\nany other provision of this Agreement (other than termination of this\nAgreement), Netscape will give Participant notice and an opportunity to cure, as\nprovided below, \n\n                                       10\n\n\n\n                                 CONFIDENTIAL\n \nunless, in its reasonable discretion, Netscape will be materially and adversely\naffected in a substantial manner by failing to act immediately or at some\nsubsequent time prior to the completion of the notice and cure period. The\nnotice will be in writing and contain a reasonably detailed explanation for\nNetscape's intention to suspend a given bundling or promotional activity or use\nof the Logo. Upon receipt of such notice, Participant will have at least seven\n(7) business days to cure the applicable error or deficiency to Netscape's\nreasonable satisfaction and, if cured, Netscape shall not suspend the given\nbundling or promotional services or Logo usage. Netscape will make good faith\nefforts to facilitate Participant's cure efforts and to extend the cure period\nas appropriate, so long as Netscape, in its reasonable discretion, is not\nmaterially prejudiced thereby. In the event Netscape suspends any bundling or\npromotional services obligations provided for in Sections 3.1 or 3.2 or use of\nthe Logo provided for in Section 2.4 (other than for termination of this\nAgreement) in accordance with this Agreement, including the provisions above,\nNetscape will notify Participant in writing within twenty-four hours of this\ndecision setting forth in reasonable detail the explanation for such decision.\n\n     Participant will then have the opportunity to cure the applicable error or\ndeficiency. When such cure is demonstrated to Netscape's reasonable\nsatisfaction, which satisfaction shall not be unreasonably withheld, Netscape\nshall resume the applicable bundling or promotional services or Logo usage as\nsoon as commercially practical, which may be in the next release of the Netscape\nSoftware Bundle. If, in Participant's reasonable and good faith opinion,\nNetscape has improperly suspended any bundling or promotional services\nobligations provided for in Sections 3.1 or 3.2 or Logo usage as provided for in\nSection 2.4 in a manner that was not in accordance with this Agreement,\nParticipant shall provide Netscape with written notice of this contention. The\nparties will then attempt to determine in good faith whether or not such\ncontention is true. If the parties both determine that Netscape improperly\nsuspended any bundling or promotional services or Logo usage in a manner that\nwas not in accordance with this Agreement, the InitialBundling Period will be\nextended by the length of time of such suspension. If the parties cannot reach\nagreement on Participant's contention within thirty (30) days of the notice, the\nInitial Bundling Period will be extended by a period of time equal to one-half\nthe length of time of the suspension at issue; provided, however, that the total\naggregate amount of time the Initial Bundling Period may be extended in this\nmanner (i.e., where the parties cannot agree on the truth of the contention)\ncannot exceed sixty (60) days.\n\n     Prior to suspending any bundling or promotional services obligations\nprovided for in Sections 3.1 or 3.2 (other than in conjunction with termination\nof this Agreement which shall be treated in accordance with Section 11) in\naccordance with the above occurring events or in accordance with any other\nprovision of this Agreement (other than termination of this Agreement), Netscape\nwill give Participant notice and an opportunity to cure, as provided below,\nunless, in its reasonable discretion, Netscape will be materially and adversely\naffected in a substantial manner by failing to act immediately or at some\nsubsequent time prior to the completion of the notice and cure period. The\nnotice will be in writing and contain a reasonably detailed explanation for\nNetscape's intention to suspend a given bundling or promotional activity. Upon\nreceipt of such notice, Participant will have at least seven (7) business days\nto cure the applicable error or deficiency to Netscape's reasonable satisfaction\nand, if cured, Netscape shall not suspend the given bundling or promotional\nservices. Netscape will make good faith efforts to facilitate Participant's cure\nefforts and to extend the cure period as appropriate, so long as Netscape, in\nits reasonable discretion, is not materially prejudiced thereby.\n\n                                       11\n\n\n\n                                 CONFIDENTIAL\n \n     In the event Netscape suspends any bundling or promotional services\nobligations provided for in Sections 3.1 or 3.2 (other than for termination of\nthis Agreement) in accordance with this Agreement, including the provisions\nabove, Netscape will notify Participant in writing within twenty-four hours of\nthis decision setting forth in reasonable detail the explanation for such\ndecision. Participant will then have the opportunity to cure the applicable\nerror or deficiency. When such cure is demonstrated to Netscape's reasonable\nsatisfaction, which satisfaction shall not be unreasonably withheld, Netscape\nshall resume the applicable bundling or promotional services as soon as\ncommercially practical, which may be in the next release of the Netscape\nSoftware Bundle.\n\n     If, in Participant's reasonable and good faith opinion, Netscape has\nimproperly suspended any bundling or promotional services obligations provided\nfor in Sections 3.1 or 3.2 in a manner that was not in accordance with this\nAgreement, Participant shall provide Netscape with written notice of this\ncontention. The parties will then attempt to determine in good faith whether or\nnot such contention is true. If the parties both determine that Netscape\nimproperly suspended any bundling or promotional services in a manner that was\nnot in accordance with this Agreement, the Initial Bundling Period will be\nextended by the length of time of such suspension. If the parties cannot reach\nagreement on Participant's contention within thirty (30) days of the notice, the\nInitial Bundling Period will be extended by a period of time equal to one-half\nthe length of time of the suspension at issue; provided, however, that the total\naggregate amount of time the Initial Bundling Period may be extended in this\nmanner (i.e., where the parties cannot agree on the truth of the contention)\ncannot exceed sixty (60) days.\n\n    3.6 Provision of Unavailable Localized Versions. If Netscape desires a\nlocalized version of the Co-branded Net2Phone Product in addition to the\nLocalized Versions, then Netscape shall notify Participant in writing within 5\nmonths of the expected release date of the localized version. If Participant\nnotifies Netscape that it has or will have the localized version available 8\nweeks prior to the expected release date, then there shall be no fees owed to\nParticipant and the localized version shall be provided to Netscape at least 8\nweeks prior to the release date. Except with respect to Localized Versions, if\nParticipant does not plan to develop or acquire the localized version as\nrequested by Netscape prior to the 8 week deadline, then Netscape may elect to\norder such localized version from Participant for a fee equal to the\nParticipant's reasonable costs of localization plus **** percent (to be\nquoted and agreed upon by Netscape in writing prior to the localization).\nParticipant must respond within 10 working days after receiving Netscape's order\nfor the localized version if Participant wishes to accept such order. If\nParticipant accepts Netscape's order to develop the localized version, then both\nparties shall mutually agree upon a reasonable schedule for development of the\nlocalized version which must be completed at least 8 weeks prior to the expected\nrelease date such that Netscape has the ability to perform the agreed upon\nacceptance tests outlined in Exhibit A. Except as set forth specifically in this\n                             ---------                                          \nSection 3.6 (i.e., Netscape orders and agrees to pay for a localized version to\nbe developed at Netscape's request), there shall be no fees owed to Participant\nfor Localized Versions.\n\n    3.7 Competitive Products. For the term of this Agreement, Netscape agrees\nnot to bundle a directly competitive product to the Net2Phone Product that\nprovides for PC to telephone calls in the Netscape Products described in Exhibit\n                                                                         -------\nD.\n- \n\n[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH \nTHE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO \nRULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.\n                                       12\n\n\n\n                                 CONFIDENTIAL\n \n    3.8 Reporting. Netscape agrees to make reasonable efforts to provide\nParticipant with reporting information regarding aggregate numbers of downloads\nor other distributions of Netscape Communicator Complete and CCK, based on\navailability, from the Netscape download site and such other information as\nParticipant shall reasonably request and that Netscape can reasonably provide.\n\n4.  CO-BRANDED SERVICE OBLIGATIONS\n\n    4.1 Co-branded Service Pages. The pages of the Co-branded Service will be\nproduced, managed and hosted by Netscape or Participant as indicated in the site\nmap attached hereto as Exhibit I or as otherwise mutually agreed from time to\n                       ------------------------------------------------------\ntime. Any Co-branded Service pages hosted by Participant on Participant's\n----                                                                     \nservers shall be designed by Netscape subject to Participant's approval which\nshall not be unreasonably withheld. With no less than 10 days prior written\nnotice to Participant and except as limited by technical requirements, Netscape\nmay produce, manage and host all such Co-branded Service pages. All Co-branded\nService pages will have a \"Netscape.com\" domain name (or such other domain name\nas Netscape may determine) or as otherwise agreed between the parties. All\naccess to the Co-branded Service shall be deemed to be via Netscape's Web Site,\nand therefore shall be Netscape traffic, provided, however, that all traffic\nfrom the Participant billing history, account summary, call details and\nsubstantially similar pages linked directly to the Co-branded Net2Phone Product,\nshall be deemed Participant traffic. Except as set forth in the previous\nsentence, Participant agrees that for the purpose of third party industry\nmeasurement metrics (such as Media Metrix and Relevant Knowledge), all traffic\n(by any industry unit of measurement) within such areas should be exclusively\nattributable to Netscape so long as such industry measurement metric companies\ndo not attribute traffic to more than one entity. Participant shall contact such\nindustry metrics companies and initiate this process, and Netscape and\nParticipant will use commercially reasonable efforts and will sign appropriate\ndocumentation to obtain the consent of third party industry measurement firms to\nattribute traffic credit to both Participant and Netscape for such pages. The\npages of the Co-branded Service designated for Co-branding shall be Co-branded\nby Netscape and Participant and such Co-branding shall appear above the fold.\nAll use of Participant's name, logos, trademarks and service marks shall be\nsubject to Participant's approval. Every Co-branded Service page within\nNetcenter shall include a header as specified at the following URL: http:\/ \/\nproto.mcom.com:888\/nc20\/html with User ID = **** and Password = **** or a\nreplacement URL specified by Netscape from time to time. The overall look and\nfeel of the header shall be determined by Netscape and be consistent with the\nlook and feel of the other navigational elements within Netcenter. Netscape will\nbe responsible for the design and look and feel of the Co-branded Service,\nsubject to Participant's reasonable approval, not to be unreasonably withheld.\nParticipant will be notified of any change to such design and look and feel and,\nsubject to Participant's reasonable approval, given 30 days to implement such\nchanges. All Co-branded Service pages will follow Netscape re-circulation,\ndesign and template specifications. The Co-branded Service pages may have\nmutually agreed upon links to the Participant Service or Participant's website,\nhowever, none of the Co-branded Service pages will link to a Netscape direct\ncompetitor.\n\n    4.2 Production, Technology and Content Programming. Subject to Participant's\napproval, not to be unreasonably withheld, Netscape shall be responsible for\ncreating the graphic user interface for the Co-branded Service with commercially\nreasonable assistance from \n\n[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH \nTHE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO \nRULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.\n\n                                       13\n\n\n\n                                 CONFIDENTIAL\n \nParticipant, upon Netscape's request. The Co-branded Service shall use\nsubstantially the same technology and advantages as Participant uses in the\nParticipant Service unless otherwise agreed to by the parties. The Co-branded\nService shall not be disadvantaged or suffer from inferior production,\nprogramming or performance relative to the Participant Service, or any\nsubstantially similar service which Participant might make available to, or\noperate on behalf of, third parties. Participant shall consider, whenever\nreasonably possible, employing in the Co-branded Service and for Participant's\nenterprise, Netscape's technology, if available, provided that such use of\nNetscape's technology does not unduly burden the performance or production of\nthe Co-branded Service.\n\n    4.3 Sale of Advertising. The parties shall allocate the sale and resulting\nrevenue from Co-branded pages of the Co-branded Service as follows:\n\n        (a)  Netcenter Pages. As further described in Exhibit I, Netscape \n                                                      ---------     \nshall be responsible for selling and serving advertising and any other\npromotions within the sell pages that are linked from the Netcenter \"Contact\"\nand \"Voice Services\" or equivalent nomenclature pages and Participant shall be\nresponsible for selling and serving advertising and any other promotions within\nthe download pages that are linked to the sell pages described above and any\npages thereafter linked to Participant's download pages. Each party shall retain\nall advertising revenues realized from the sale of advertising pursuant to this\nSection 4.3 (a).\n\n        (b)  Pages Accessed from the Co-branded Net2Phone Product. Participant\nshall be responsible for selling and serving advertising and any other\npromotions within the Co-branded pages linked directly and indirectly (except\nfor those pages described in subsections (a) and (c) of this Section) to the Co-\nbranded Net2Phone Product and will share revenues from such sales in accordance\nwith Section 13.\n\n        (c)  Netcenter Pages Accessed from Clicking on the Personal Tool Bar \nand the Contact Address Book. Netscape shall be responsible for selling and\nserving advertising and any other promotions within the pages accessed by\nclicking on the personal toolbar or clicking on the web-based address book\naccessible from Contact (\"Contact Address Book\") hosted by Netscape as indicated\nin Exhibit I. Participant shall be responsible for selling and serving\n   ---------\nadvertising and any other promotions within the pages hosted by Participant as\nindicated in Exhibit I. Each party shall retain all advertising revenues\n             ---------\nrealized from the sale of advertising pursuant to this Section 4.3 (c).\n\n    4.4 Technical Support by Participant. During the Term, Participant shall\nprovide technical support services for the Co-branded Service to Netscape on a\ntimely basis, appoint a technical contact to whom Netscape may address all\ntechnical questions relating to the Co-branded Service, and use reasonable\ncommercial efforts to promptly remedy any material malfunctioning of the Co-\nbranded Service, except to the extent such support services or material\nmalfunctioning is attributable to any Products or to hardware or software under\nNetscape's or the end user's responsibility or control (other than the Co-\nbranded Net2Phone Product itself or related portions of the Co-branded Service).\nExcept as provided at the end of the previous sentence, Participant shall be\nsolely responsible for end user satisfaction with respect to the Co-branded\nService and maintenance and support requirements in connection with the Co-\nbranded Service. Except for those portions of the Co-branded Service for which\nNetscape is \n\n                                       14\n\n\n\n                                 CONFIDENTIAL\n \nresponsible pursuant to the terms of this Agreement, Participant shall be solely\nresponsible for the purchase, implementation, maintenance and support of all\nsoftware and hardware required to maintain portions of the Co-branded Service\nfor which Participant is responsible and fulfill its obligations under the\nAgreement. Technical support obligations for the Co-branded Net2Phone Product\nare outlined in Section 8.1.\n\n    4.5 Netscape Technical Support. During the Term, Netscape shall provide\ntechnical support services to Participant for interaction between the Co-branded\nService and other areas of Netcenter on a timely basis, appoint a technical\ncontact to whom Participant may address all technical questions relating to the\ntechnical interface between such areas and use its commercially reasonable\nefforts to promptly remedy any material malfunctioning of areas of Netcenter\nthat interact with the Co-branded Service. Netscape shall be solely responsible\nfor end user satisfaction with respect to the Netcenter Service and maintenance\nand support requirements in connection with the Netcenter Service. Netscape\nshall be solely responsible for the purchase, implementation, maintenance and\nsupport of all software and hardware required to maintain the portions of the\nCo-branded Service for which Netscape is responsible and fulfill its obligations\nunder the Agreement.\n\n    4.6 Quality Assurance. All of Participant's service offerings within the Co-\nbranded Service and Co-branded Net2Phone Product must be \"Best of Breed\",\nmeaning competitive with comparable market leading products and services,\nexcluding price, containing substantially all of the features and functionality\nof, and being of the same or superior quality to such other available comparable\nmarket leading products and services. In the event Netscape notifies Participant\nthat any portion of the Co-branded Service does not meet Best of Breed criteria,\nParticipant shall have 10 business days within which to submit a mutually agreed\nupon action plan to cure such quality issue.\n\n5.  END USER REGISTRATION AND CUSTOMER SUPPORT\n\n    5.1 User Registration. End users who wish to engage in any activities in the\nCo-branded Service including use of the Co-branded Net2Phone Product which\nrequires User Registration will have to register with the Co-Branded Service in\naccordance with the terms described in Exhibit H, as such Exhibit may be revised\n                                       ---------                                \nby Netscape from time to time. Any and all information regarding end users that\nis obtained by Participant through, or in connection with, the Service will be\nsubject to the terms and conditions of Exhibit H.\n                                       --------- \n\n    5.2 Netcenter Customer Support Programs. Participant shall provide the\nfollowing customer support features in the Co-branded Service: (i) 72 hour\nresponse to customer inquiries; (ii) 24 hour notification of order confirmation\nand estimated delivery time; and (iii) a secure transaction environment\n(supporting at least SSL 3.0, or the then current industry standard). Netscape\nmay develop additional Netcenter features and programs to help promote sales and\ncustomer loyalty, and Participant shall implement such services and features\nwhen they are developed, provided such implementation is reasonable and is\nstandard for participants in Netcenter.\n\n                                       15\n\n\n\n                                 CONFIDENTIAL\n \n6.  PROPRIETARY RIGHTS.\n\n     Participant shall have no ownership interest in any of Netscape's products,\nincluding the Products, nor in any of Netscape's trademarks, and Netscape and\nits licensors shall retain ownership in such products and trademarks.\nParticipant and its suppliers shall retain ownership in, and Netscape shall have\nno ownership interest in, all copyrights, patents, trade secrets, trademarks and\ntrade name rights and all other right, title and interest in and to the\nParticipant Marks, the Net2Phone Products, Co-branded Net2Phone Products (except\nfor any Netscape trademarks and\/or trade names therein), the Participant\nService, the Participant Collateral Materials, international versions of the\nforegoing, any enhancements and improvements thereto, and derivative works\nthereof, delivered by Participant hereunder, and all proprietary rights therein,\nincluding all packaging designs, logos, slogans, advertising materials,\npromotional materials, and all other materials delivered by Participant pursuant\nhereto, except for the limited license rights expressly granted to Netscape as\nset forth in this Agreement. Netscape will not delete or in any manner alter the\ncopyright, trademark, and other proprietary rights notices appearing on the Co-\nbranded Net2Phone Product, the Net2Phone Product or any of the items licensed to\nNetscape under Section 2, and will reproduce such notices on all copies it makes\nof such products or items.\n\n7.  BUSINESS PRACTICES\n\n    7.1 End User Fees. Participant acknowledges that Netscape may charge for the\nProducts and\/or Integrated Offerings, provided that Netscape will not charge a\nfee for a stand-alone version of the Co-branded Net2Phone Product.\n\n    7.2 Identity as Separate Product. All Distributions will distinguish Co-\nbranded Net2Phone Product as separate and distinct from the Products. The\nlicense grant to the end user for Co-branded Net2phone Product will be granted\nby Participant and not Netscape. Participant shall be responsible for all its\nobligations with respect to Co-branded Net2Phone Product pursuant to such\nlicense grant to end users. Netscape may utilize whatever reasonable method(s)\nNetscape deems appropriate to convey the separate nature of Participant Product\nto end users.\n\n    7.3 End User License Agreement. Co-branded Net2Phone Product will be\nlicensed under an end user license agreement between Participant and the end\nuser which is built into the Co-branded Net2Phone Product and which is\nsubstantially similar to the form attached hereto as Exhibit B (\"License Form\").\n                                                     ---------                  \nParticipant acknowledges that Netscape's installation procedure for the\nIntegrated Offering may not provide a mechanism for the potential end user to\nreview the end user license agreement prior to installation\n\n    7.4 Integration. Netscape will, with consultation of Participant, determine\ninstallation requirements and other technical requirements applicable to\ninclusion of Co-branded Net2Phone Product in the Integrated Offering. At\nNetscape's request, Participant will promptly assist Netscape in making the\nintegration of Co-branded Net2Phone Product into the Integrated Offering as\nseamless as reasonably possible.\n\n    7.5 Unauthorized Distribution. Participant acknowledges that Electronic\nDistribution of the Co-branded Net2Phone Product may result in an increased\nnumber of persons obtaining \n\n                                       16\n\n\n\n                                 CONFIDENTIAL\n \ncopies through improper channels (e.g., redistribution over the Internet,\n\"mirror sites,\" unauthorized posting to newsgroups, etc.). Participant agrees\nthat Netscape will not bear the risk of unauthorized distribution or\nredistribution by third parties, both during and after the term of this\nAgreement, and that Netscape shall have no liability to Participant or its\nsuppliers for any such unauthorized distribution.\n\n    7.6 User Documentation Changes. Netscape agrees that if it (a) makes any\nmajor modifications (for distribution) to the Co-branded Net2Phone Product user\ndocumentation and Participant Collateral Materials other than formatting and\nnon-substantive style (\"User Doc Modifications\"), the Participant shall have the\nright to approve such User Doc Modifications as follows. Netscape shall provide\nany such User Doc Modifications to Participant for review and approval, and\nParticipant shall not unreasonably withhold or delay any such approval. If\nParticipant does not respond to Netscape with approval or specified reasons for\nrejection of User Doc Modifications within five (5) business days after\nsubmission by Netscape, then such User Doc Modifications shall be deemed\napproved by Participant. At the time of entering into this Agreement, Netscape\ndoes not anticipate making any User Doc Modifications. Participant shall own\nsuch User Doc Modifications (except for any Netscape trademarks\/logos contained\ntherein), and Netscape hereby transfers and assigns all of its rights therein to\nParticipant, subject to the following: (1) all User Doc Modifications are\nprovided to Participant \"AS IS\"; and (2) except for any Participant\ntrademarks\/logos contained therein, Netscape shall retain a nonexclusive,\nperpetual, irrevocable, worldwide license to use, distribute, reproduce, publish\nand modify the User Doc Modifications (not the Co-branded Net2Phone Product user\ndocumentation, only the changes thereto), with rights to sublicense such rights.\n\n8.  PARTICIPANT OBLIGATIONS\n\n    8.1 Support. Netscape will not provide any support for Co-branded Net2Phone\nProduct. Netscape may notify end users that it does not provide any such support\nand that end users must contact Participant directly for support options.\nParticipant will take reasonable commercial steps to make end users aware that\nall support requests for Co-branded Net2Phone Product should be directed to\nParticipant. Participant will make available to end users of the Co-branded\nNet2Phone Product support that, at a minimum, conforms to the requirements of\nExhibit C relating to end user support. Participant also agrees to provide HTML\n---------                                                                      \nbased user support through the browser. A minimum of 80% of user support should\nbe located on the server.\n\n    8.2 Upgrades. Participant will include Netscape in its alpha and beta\nprograms for any Upgrades released during the term of this Agreement, and will\nprovide Netscape with the production version of such Upgrades simultaneously\nwith its earliest release of such Upgrades to other customers. Participant shall\nalso provide Netscape during the term hereof with any error corrections, bug\nfixes and enhancements to the Co-branded Net2Phone Product (other than\ncorrections, bug fixes and enhancements specifically for custom or specialized\nversions or projects) simultaneously with its earliest release of such error\ncorrections, bug fixes or enhancements to other customers. Netscape will use\nreasonable and good faith efforts to incorporate any such Upgrade, error\ncorrection, bug fix or enhancement in an the applicable Integrated Offering or\nDistribution in a commercially reasonable period of time.\n\n                                       17\n\n\n\n                                 CONFIDENTIAL\n \n    8.3 Complete Listing. Participant will provide Netscape with a complete list\nof all files, libraries, etc. that are required for installation and use of Co-\nbranded Net2Phone Product within five (5) days of Netscape's request.\n\n    8.4 No Viruses. Participant will use commercially reasonable efforts to\nensure that the Co-branded Net2Phone Product (i) does not contain any computer\nvirus or (ii) will not otherwise introduce any harmful or destructive code into\nthe end user's computer.\n\n    8.5 Participant Collateral Material. Participant will provide Netscape the\nParticipant Collateral Materials as specified in Exhibit A and such additional\n                                                 ---------                    \nor modified Participant Collateral Materials as Netscape may reasonably request\nfrom time to time for Netscape's use in accordance with this Agreement. If\nNetscape determines that any Participant Collateral Material, or any material\nthat is located one click away from any Participant Collateral Materials,\ncontains anything that Netscape reasonably deems likely to cause Netscape\nmaterial harm, Netscape will inform Participant and may exclude Participant\nCollateral Materials from Netscape's website, marketing materials and products\nuntil corrected. Netscape reserves the right not to include in its website,\nmarketing materials and products, any Participant Collateral Materials that do\nnot substantially conform to the terms set forth in this Agreement.\n\n    8.6 Netscape Now. Participant agrees during the Initial Bundle Period to\npromote Netscape Navigator as a \"recommended browser\" for using with Co-branded\nNet2Phone Products, and in a manner no less favorably than any other browser,\nwhenever and wherever Participant promotes the use of any browser. Participant\nagrees to place the Netscape Now button(s) on Participant's web site located at\nURL www.net2phone.com in accordance with the then current Netscape Now\nguidelines provided by Netscape, and which are currently available at\nhttp:\/\/home.netscape.com\/comprod\/mirror\/netscape\/now\/guidelines.html.\n-------------------------------------------------------------------- \n\n    8.7 Payments. Participant agrees to make the payments set forth in Section\n13.\n\n    8.8 Marketing Promotions. Participant shall provide mutually agreed upon\nmarketing promotions or product\/service bundles for the Co-branded Net2Phone\nProduct, including all localized versions.\n\n9.  WARRANTIES AND INDEMNIFICATION\n\n    9.1 Title. Participant warrants to the best of its knowledge that (i) it has\nthe right to grant the licenses as set forth in this Agreement, (ii) such\nlicenses do not infringe on any third parties' proprietary rights, (iii) it owns\nor possesses all rights to the Co-branded Net2Phone Product and to the\nParticipant Collateral Materials necessary to grant the licenses hereunder, (iv)\nNetscape shall not be obligated to pay any fees or royalties for use of the Co-\nbranded Net2Phone Product or the Participant Collateral Materials, and (v) there\nare no pending or threatened lawsuits concerning any aspect of the Co-branded\nNet2Phone Product or any Participant Collateral Materials that would have a\nmaterially adverse impact on Netscape and its ability to exercise the licenses\ngranted hereunder. If Participant becomes aware of any pending or threatened\nlawsuit concerning any aspect of the Co-branded Net2Phone Product or the\nParticipant Collateral Materials that, in its reasonable opinion, could likely\nhave a materially \n\n                                       18\n\n\n\n                                 CONFIDENTIAL\n \nadverse impact on Netscape and its ability to exercise the licenses granted\nhereunder, Participant shall notify Netscape and provide Netscape with\ninformation reasonably related thereto.\n\n    9.2 Export. Participant shall be responsible for obtaining any and all\nnecessary approvals, registrations or certifications for the international sale\nor export of the Co-branded Net2Phone Product. Participant shall inform Netscape\nand keep Netscape apprised of the export approval status of the Co-branded\nNet2Phone Product and must promptly inform Netscape of any cryptographic\ntechnologies used or embedded within the Co-branded Net2Phone Product, and of\nany associated international restrictions. Notwithstanding the foregoing, both\nparties shall adhere to all applicable laws, regulations and rules relating to\nthe export of technical data and shall not export or re-export any technical\ndata, any products received from the other party or the direct product of such\ntechnical data to any proscribed country listed in such applicable laws,\nregulations and rules unless properly authorized.\n\n    9.3 Non-Infringement. Without limiting Netscape's rights under Section 9.8,\nshould the Co-branded Net2Phone Product become, or in Participant's opinion be\nlikely to become, the subject of any infringement claim or suit, Participant\nshall, at its option: (i) procure for Netscape the right to continue\ndistributing the Co-branded Net2Phone Product, as well as the right for Netscape\nand its customers to continue use of the Co-branded Net2Phone Product, while\nmaintaining substantially similar functionality, (ii) modify the Co-branded\nNet2Phone Product such that it no longer infringes the proprietary rights of any\nthird party, while maintaining substantially similar functionality, look and\nfeel of the Co-branded Net2Phone Products, or (iii) if (i) and (ii) are not\ncommercially practicable and Participant determines in good faith (and is\nconfirmed by an opinion of its counsel, if reasonably requested by Netscape)\nthat continued distribution by Netscape (and its other similarly situated\ndistributors) will likely increase the likelihood of liability to Participant\nand Participant ceases distribution of Co-branded Net2Phone Product by its other\nsimilarly situated distributors, Participant may terminate this Agreement.\n\n    9.4 Performance. Participant warrants that (i) for a period of 90 days from\nthe applicable delivery date that the media on which the Co-branded Net2Phone\nProduct is delivered will be free of defects in material and workmanship, (ii)\nthe Co-branded Net2Phone Product will function substantially in accordance with\nthe specifications for the Co-branded Net2Phone Product in applicable\ndocumentation, and (iii) the Co-branded Net2Phone Product documentation shall be\naccurate in all material respects. In the case of a breach of the warranties in\nthis Section 9.4, Participant shall use commercially reasonable efforts to\nrepair or replace non-conforming, unsuitable or inaccurate Co-branded Net2Phone\nProduct software or documentation within a reasonable period of time of notice\nof such condition.\n\n    9.5 Year 2000. Participant warrants that the Co-branded Net2Phone Product is\nYear 2000 Compliant. \"Year 2000 Compliant\" shall mean the Co-branded Net2Phone\nProduct complies with the following:\n\n        (a)  General Integrity: No value for the current date will interrupt \n             -----------------\nnormal operation: the Co-branded Net2Phone Product returns the correct date\naccurate to century in response to a request for current date, the Co-branded\nNet2Phone Product correctly provides date output and performs calculations on\ndates or portions of dates, and the Co-branded Net2Phone Product is not\nadversely affected by any value returned;\n\n                                       19\n\n\n\n                                 CONFIDENTIAL\n \n        (b)  Date Integrity: Correct results are returned in the operation of \n             --------------  \nall legal, arithmetic, logical and calendar operations of dates that span\ncentury marks;\n\n        (c)  Explicit Century: The Co-branded Net2Phone Product's internal \n             ----------------     \ndate storage format explicitly includes the century and reporting formats allow\ndate representations in four digit format;\n\n        (d)  Implicit Century: On encountering data that does not include the \n             ---------------- \ncentury either from transaction input or from an external data source, the\ncentury value is unambiguously inferred by the Co-branded Net2Phone Product.\n\n     In the case of a breach of the warranty described in this Section 9.5,\nParticipant shall use commercially reasonable efforts to modify the Co-branded\nNet2Phone Product such that the Co-branded Net2Phone Product is Year 2000\nCompliant. Netscape may suspend the distribution of Co-branded Net2Phone Product\nif Participant is in breach of the warranty in this Section 9.5 in accordance\nwith the procedures set forth in Section 3.5 of this Agreement..\n\n    9.6 General Warranty. Each party represents and warrants to the other party\nthat: (i) it has the full corporate right, power and authority to enter into\nthis Agreement, and to perform the acts required of it hereunder; and (ii) the\nexecution of this Agreement by it, and the performance by it of its obligations\nand duties hereunder, do not and shall not violate any agreement to which it is\na party or by which it is otherwise bound.\n\n    9.7 Disclaimer. THE WARRANTIES PROVIDED BY EACH PARTY HEREIN ARE EXCLUSIVE\nAND THE ONLY WARRANTIES PROVIDED BY EACH PARTY WITH RESPECT TO THE PARTICIPANT'S\nPRODUCTS AND SERVICES AND THIS AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF, AND\nBOTH PARTIES AND THEIR SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND,\nEXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR,\nEXCEPT AS EXPRESSLY PROVIDED HEREIN, NONINFRINGEMENT.\n\n    9.8 Participant Indemnity. Participant agrees to defend any action or claim\nbrought against Netscape to the extent that such action or claim is based upon,\nthird party claims alleging (i) Participant does not have the right to grant the\nlicenses as set forth in this Agreement, such licenses do infringe on any third\nparties' proprietary rights, Participant does not own or possess all rights to\nthe Co-branded Net2Phone Product and to the Participant Collateral Materials and\nto the portions of the Co-branded Service provided by Participant necessary to\ngrant the licenses and rights hereunder, and\/or Netscape shall be obligated to\npay fees or royalties for use of the Co-branded Net2Phone Product or the\nParticipant Collateral Materials or the portions of the Co-branded Service\nprovided by Participant, and\/or (ii) that Netscape's exercise of its rights to\nthe Co-branded Net2Phone Product and\/or Participant Collateral Materials and\/or\nportions of the Co-branded Service provided by Participant granted by\nParticipant hereunder infringes any trademark patent, copyright, trade secret or\nother proprietary right of any third party (in each such case, a \"Netscape\nClaim\"). Participant will pay any costs, damages and expenses (including\nsettlement costs and reasonable attorneys' fees) attributable to such Netscape\nClaim that are awarded in a final judgment against Netscape, provided that\nNetscape (i) promptly notifies \n\n                                       20\n\n\n\n                                 CONFIDENTIAL\n \nParticipant in writing of any such claim and grants Participant sole control of\nthe defense and all related settlement negotiations, and (ii) cooperates with\nParticipant, at Participant's expense, in defending or settling such claim;\nprovided that if any settlement results in any ongoing liability to, or\nprejudices or detrimentally impacts Netscape, and such obligation, liability,\nprejudice or impact can reasonably be expected to be material, then such\nsettlement shall require Netscape's written consent. In connection with any such\nclaim, Netscape may have its own counsel in attendance at all public\ninteractions and substantive negotiations at its own cost and expense.\n\n     Exclusions. Notwithstanding the above, Participant will have no liability\nfor any Netscape Claim to the extent (i) it relates to any Products, any\nportions of the Netscape Software Bundle or Integrated Offering or the Co-\nbranded Service that are not provided to Netscape by Participant or any other\nproduct or service not provided, in whole or in part, by Participant or (ii) it\nresults from (a) modifications to the Co-branded Net2Phone Product or\nParticipant Collateral Materials or portions of the Co-branded Service provided\nby Participant made other than by Participant or at Participant's direction or\nwithout Participant's approval; (b) failure of Netscape to use updated or\nmodified versions of the Co-branded Net2Phone Product or Participant Collateral\nMaterials when such versions have been timely supplied to Netscape by\nParticipant to be included in the next relevant Netscape Software Bundle, or\nportions of the Co-branded Service; (c) the use of the Net2Phone Product or\nParticipant Collateral Materials or portions of the Co-branded Service provided\nby Participant in combination with software or hardware not provided by\nParticipant if such infringement would have been avoided but for such\ncombination.\n\n     9.9 Netscape Indemnity to Participant. Netscape agrees to defend any action\nor claim brought against Participant to the extent that such action or claim is\nbased upon third party claims alleging that any portion of the Co-branded\nService provided by Netscape or any portion of the Netscape Software Bundle or\nIntegrated Offering provided by Netscape infringes any trademark, patent,\ncopyright or trade secret or other proprietary right of any third party (in each\nsuch case a \"Participant Claim\"). Netscape will pay any costs, damages and\nexpenses (including settlement costs and reasonable attorneys' fees)\nattributable to such Participant Claim that are awarded in a final judgment\nagainst Participant, provided that Participant (i) promptly notifies Netscape in\nwriting of any such claim and grants Netscape sole control of the defense and\nall related settlement negotiations, and (ii) cooperates with Netscape, at\nNetscape's expense, in defending or settling such claim; provided that if any\nsettlement results in any ongoing liability to, or prejudices or detrimentally\nimpacts Participant, and such obligation, liability, prejudice or impact can\nreasonably be expected to be material, then such settlement shall require\nParticipant's written consent. In connection with any such claim, Participant\nmay have its own counsel in attendance at all public interactions and\nsubstantive negotiations at its own cost and expense.\n\n     Exclusions. Notwithstanding the above, Netscape will have no liability for\nany Participant Claim to the extent (i) it relates to the Net2Phone Product, any\nportions of the Netscape Software Bundle or Integrated Offering or the Co-\nbranded Net2Phone Product or the Co-branded Service that are not provided by\nNetscape, or any other product or service not provided, in whole or in part, by\nNetscape or (ii) it results from (a) modifications to the portions of the\nNetscape Software Bundle or Integrated Offering or Co-branded Net2Phone Product\nor Co-branded Service provided by Netscape made other than by Netscape or at\nNetscape's direction or without Netscape's approval; (b) failure of Participant\nto use updated or modified versions of the portions of the Co-branded Service or\nCo-branded Net2Phone Product provided \n\n                                       21\n\n\n\n                                 CONFIDENTIAL\n \nby Netscape to Participant provided that Netscape supplies such version to\nParticipant in a timely manner; (c) the use of the portions of the Co-branded\nService or Co-branded Net2Phone Product provided by Netscape in combination with\nsoftware or hardware not provided by Netscape if such infringement would have\nbeen avoided but for such combination.\n\n10.  LIMITATION OF LIABILITY.\n\n     EXCEPT FOR PARTICIPANT'S OBLIGATIONS AND LIABILITY UNDER SECTION 9.8 AND 12\nAND NETSCAPE'S OBLIGATIONS AND LIABILITY UNDER SECTIONS 9.9 AND 12, IN NO EVENT\nWILL EITHER PARTY OR THEIR SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR ANY FORM\nOF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM\nANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT OR THE\nPARTICIPANT'S PRODUCTS OR SERVICES LICENSED HEREUNDER, WHETHER ARISING IN TORT\n(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF IT HAS BEEN INFORMED IN\nADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING,\nEXCEPT FOR PARTICIPANT'S OBLIGATIONS AND LIABILITIES UNDER SECTIONS 9.8 AND 12\nAND NETSCAPE'S OBLIGATIONS AND LIABILITIES UNDER SECTIONS 9.9 AND 12, IN NO\nEVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT EXCEED THE GREATER OF (i) THE SUM OF THE PAYMENTS MADE BY\nPARTICIPANT TO NETSCAPE UNDER THIS AGREEMENT DURING THE 6 MONTH PERIOD PRIOR TO\nTHE CLAIM GIVING RISE TO SUCH LIABILITY OR (ii) TWO HUNDRED AND FIFTY THOUSAND\nDOLLARS (US$250,000).\n\n11.  TERMINATION\n\n    11.1 Term after Initial Bundling Period. The term of this Agreement shall\ncontinue up until the end of the Initial Bundling period, unless terminated\nearlier as set forth herein. This Agreement shall automatically terminate upon\nthe end of the Initial Bundling Period unless the parties agree in writing to\nextend or renew the term of this Agreement. Notwithstanding the foregoing,\nNetscape agrees to use commercially reasonable efforts to negotiate in good\nfaith with Participant mutually satisfactory terms for an additional one (1)\nyear period. Participant shall provide Netscape with ninety (90) days prior\nnotice of its desire to renew for a third year.\n\n    11.2 Termination for Cause. Either party shall have the right to terminate\nthis Agreement upon a material default by the other party of any of its material\nobligations under this Agreement, in accordance with the following procedures:\n(i) the party claiming breach shall provide the breaching party with written\nnotice setting forth in reasonable detail the material default; (ii) upon\nreceipt of such notice, the breaching party shall have thirty (30) days to\neither remedy such default or provide the other party with a written plan to\nremedy such default in no more than sixty (60) days from the date such plan is\nprovided to the other party; and (iii) upon the failure of the breaching party\nto cure such default within the thirty (30) or sixty (60) day period, as\napplicable, the party claiming breach may terminate this Agreement effective\nimmediately upon written notice thereof.\n\n                                       22\n\n\n\n                                 CONFIDENTIAL\n \n    11.3 Termination. Either Party shall have the right to terminate this\nAgreement upon written notice to the other party in the event either party is\ndissolved and no successor assumes such dissolved party's obligations under this\nAgreement. In the event a governmental authority with applicable jurisdiction\ndetermines that the calling service provided under the Co-branded Net2Phone\nProduct is contrary to existing laws, rules or regulations, Participant may\nterminate this Agreement upon written notice to Netscape.\n\n    11.4 Rights Upon Termination. Upon termination of this Agreement, Netscape\nshall have the right at its option, to continue producing versions of the\nIntegrated Offering(s) including the Co-branded Net2Phone Product for the longer\n(\"End Date\") of (i) Netscape's production of the next major commercial release\n(indicated by a change in version number to the left of the decimal point of an\nIntegrated Offering(s)) of the Integrated Offering(s), or (ii) twelve (12)\nmonths from date of expiration or termination. Following any termination or\nexpiration of this Agreement, Netscape and its distribution channels shall be\nentitled to continue to exercise the rights granted hereunder indefinitely with\nrespect to any version(s) of the Integrated Offerings already released prior to\nthe End Date and with respect to any versions of Co-branded Net2Phone Product\noffered through the SmartUpdate Program. Upon termination for cause of this\nAgreement by Participant or in the event that Netscape is dissolved and no\nsuccessor assumes Netscape's obligations under this Agreement, Participant shall\nnot be obligated to make any additional payments to Netscape as provided for in\nSection 13, however, Participant shall be obligated to pay any amounts due and\npayable prior to such termination for cause.\n\n11.5 Survival after Termination.\n\n    11.5.1 Sublicenses. All sublicenses to the Co-branded Net2Phone Product\nwhich are properly granted shall survive any termination or expiration of this\nAgreement.\n\n    11.5.2 Provisions of Agreement. The provisions of Sections 6, 7.5, 8.1, 9.8,\n9.9, 10,11.4, 11.5, 12, 13 and 14 will survive any termination or expiration of\nthis Agreement; provided that the survival of Section 8.1 will not exceed twelve\n(12) months following the termination or expiration of this Agreement.\nProvisions of other Sections which, by their nature, must remain in effect\nbeyond the termination or expiration of this Agreement shall also survive.\n\n12.  CONFIDENTIALITY\n\n    12.1 Confidential Information. Except as provided for Exhibit H, each party\n                                                          ---------            \n(the \"Receiving Party\") understands that the other party (the \"Disclosing\nParty\") has disclosed or may disclose information of a confidential nature\nincluding, without limitation, computer programs, code, algorithms, names and\nexpertise of employees and consultants, know-how, formulas, processes, ideas,\ninventions (whether patentable or not), schematics and other technical,\nbusiness, financial and product development plans, forecasts, strategies and\ninformation (\"Proprietary Information\"). All Proprietary Information disclosed\nin tangible form by the Disclosing Party shall be marked \"confidential\" or\n\"proprietary\" and all Proprietary Information disclosed orally or otherwise in\nintangible form by the Disclosing Party shall be designated as confidential or\nproprietary at the time of disclosure.\n\n                                       23\n\n\n\n                                 CONFIDENTIAL\n \n    12.2 Disclosure and Use. The Receiving Party agrees (i) to hold the\nDisclosing Party's Proprietary Information in confidence and to take all\nnecessary precautions to protect such Proprietary Information (including,\nwithout limitation, all precautions the Receiving Party employs with respect to\nits own confidential materials), (ii) not to divulge any such Proprietary\nInformation or any information derived therefrom to any third person, except\nindependent contractors under an obligation of confidentiality and with a need\nto know for purposes authorized under this Agreement, (iii) not to make any use\nwhatsoever at any time of such Proprietary Information except as authorized\nunder this Agreement, and (iv) not to remove or export any such Proprietary\nInformation from the country of the Receiving Party except as may be allowed by\napplicable export laws. The Receiving Party shall limit the use of and access to\nthe Disclosing Party's Proprietary Information to the Receiving Party's\nemployees, attorneys and independent contractors under an obligation of\nconfidentiality and restricted use who need to know such Proprietary Information\nfor the purposes authorized under this Agreement. The Receiving Party shall\ntreat the Proprietary Information with at least the same degree of care and\nprotection as it would use with respect to its own proprietary information. The\nforegoing obligations shall survive for a period of three (3) years from the\ndate of disclosure of the Proprietary Information. Without granting any right or\nlicense, the Disclosing Party agrees that the foregoing shall not apply with\nrespect to information that the Receiving Party can establish (i) is in the\npublic domain and is available at the time of disclosure or which thereafter\nenters the public domain and is available, through no improper action or\ninaction by the Receiving Party or any affiliate, agent or employee, or (ii) was\nin its possession or known by it prior to receipt from the Disclosing Party, or\n(iii) was rightfully disclosed to it by another person without restriction, or\n(iv) is independently developed by the Receiving Party without access to such\nProprietary Information, or (v) is required to be disclosed pursuant to any\nstatutory or regulatory authority, provided the Disclosing Party is given prompt\nnotice of such requirement and the scope of such disclosure is limited to the\nextent possible, or (vi) is required to be disclosed by a court order, provided\nthe Disclosing Party is given prompt notice of such order and provided the\nopportunity to contest it.\n\n    12.3 Independent Development. The terms of confidentiality under this\nAgreement shall not be construed to limit either party's right to independently\ndevelop or acquire products without use of the other party's Proprietary\nInformation. Further, Proprietary Information as defined in Section 10.1 above\nshall not include the Residuals resulting from access to such Proprietary\nInformation. The term \"Residuals\" means information in intangible form which may\nbe retained in the unaided memories of Receiving Party's employees or\nindependent contractors who have had access to the information. An employee's or\ncontractor's memory will be considered to be unaided if the employee has not\nintentionally memorized the Proprietary Information for the purpose of retaining\nand subsequently using or disclosing it. Neither party shall have any obligation\nto limit or restrict the assignment of such persons or to pay royalties for any\nwork resulting from the use of Residuals. However, the foregoing shall not be\ndeemed to grant to either party a license under the other party's copyrights or\npatents.\n\n    12.4 Return of Proprietary Information. Upon any termination or expiration\nof this Agreement each party upon the reasonable request of the disclosing\nparty, will destroy, or return to the other party, all tangible copies of the\nother party's Proprietary Information.\n\n                                       24\n\n\n\n                                 CONFIDENTIAL\n \n    12.5 Confidentiality of Agreement. Each party agrees that the terms of this\nAgreement shall be deemed Proprietary Information of the other party, provided\nthat in addition to the permitted disclosures under section 10.2, either party\nmay disclose the terms of this Agreement (i) if required to do so by law or\ngenerally accepted accounting principles, (ii) as required to assert its rights\nhereunder, and (iii) to its own directors, employees, attorneys, accountants,\nand other advisors on a \"need to know\" basis and under an obligation of\nconfidentiality no less stringent than set forth herein. Each party agrees that\nthe Disclosing Party will be given prompt notice of any disclosure made pursuant\nto clause (i) or (ii) above, and that any such disclosure shall be limited to\nthe extent possible. In addition, either party may disclose the terms of this\nAgreement or matters relating thereto to its Affiliates.\n\n    12.6 Use of End-User Information. Any information provided to Participant by\nNetscape, or collected by Participant (other than information obtained by\nParticipant independently from end users who provide their information directly\nto Participant and not from a Netscape web site) from Netcenter members or Inbox\nDirect subscribers, shall be subject to Netcenter's privacy policy and terms of\nuse, as in effect from time to time, the current version of which is located at\nhttp:\/\/www.netscape.com\/netcenter\/privacy.html.\n---------------------------------------------- \n\n13.  PAYMENT.\n\n    13.1 Percentage of Net Revenues from Participant Service. During the Initial\nBundling Period, (i) Participant shall pay Netscape **** of the Net Revenue, as\ndefined below, attributable to the initial purchase of the calling service\nprovided through the Co-branded Net2Phone Product\/Co-branded Service by first\ntime users of the Co-branded Net2Phone Product\/Co-branded Service, and (ii)\nParticipant shall pay Netscape **** of the Net Revenue attributable to recharge\nfees for the calling service provided through the Co-branded Net2Phone\nProduct\/Co-branded Service generated by users throughout the Initial Bundling\nPeriod who first registered during the Initial Bundling Period (\"Initial\nUsers\"). For a period of two (2) years after the Initial Bundling Period,\nParticipant shall pay Netscape **** of the Net Revenue attributable to recharge\nfees for the calling service provided through the Co-branded Net2Phone Product\/\nCo-branded Service generated by Initial Users throughout such two (2) year\nperiod. During the Initial Bundling Period and for a period of six (6) months\nthereafter, Participant shall pay Netscape **** of Net Revenue attributable to\namounts paid by Initial Users for Participant products and services other than\nthe Co-branded Net2Phone Product. \"Net Revenue\" shall mean gross revenues that\nhave been invoiced and received by Participant and are attributable to accounts\nregistered through the Co-branded Net2Phone Product and Co-branded Service net\nof any taxes, surcharges, refunds, charge-backs and fraudulent usage.\n\n    13.2 Advertising Revenue Share. All revenue realized according to \nsection 4.3 (b) shall be shared **** between the parties.\n\n    13.3 Reports. For purposes of tracking payments hereunder, Participant \nagrees to provide to Netscape the following data within forty-five (45) days\nafter the end of each calendar quarter: the quantities of users who registered\nfor the Co-branded Net2Phone Product in that quarter and made an initial\npurchase; the Net Revenue from sales made broken down by category as provided in\nSection 13.1 (i.e. initial purchases, recharge fees and upsells) ; advertising\nrevenue generated from pages linked to the Co-branded Net2Phone Product, number\nof downloads from \n\n[****] REPRESENTS MATERIAL, WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH \nTHE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO \nRULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.\n\n                                       25\n\n\n\n                                 CONFIDENTIAL\n \nParticipant's servers, and such other information as Netscape shall reasonably\nrequest that Participant can reasonably provide. With such report, Participant\nshall also report the fees for the quarter that accrued hereunder and provide\npayment to Netscape of any fees then due.\n\n    13.4 Records and Audit Rights. Participant shall maintain accurate records\nrelating to the tracking of Co-branded Net2Phone Product Upgrade Sales and names\ngenerated from distribution of Co-branded Net2Phone Product by Netscape\nhereunder, sufficient to track and verify the fees payable to Netscape\nhereunder. Netscape may through an independent nationally recognized CPA conduct\nup to one audit of Participant per year to verify compliance with this Agreement\nupon at least twenty (20) business days prior notice, which audit shall be\nconducted at Netscape's expense, unless the results establish that inaccuracies\nhave resulted in underpayment to Netscape of more than five percent (5%) of the\namount actually due, in which case Participant shall pay all amounts due and\nbear the expense of the audit. The information obtained during any audit of\nParticipant shall, subject to the terms of Section 10, be Proprietary\nInformation of Participant and shall not be disclosed by Netscape except as may\nbe reasonably necessary in order to enforce this Agreement.\n\n    13.5 Payments. All amounts payable to Netscape are nonrefundable, are \nstated and to be paid in U.S. Dollars and must be paid in accordance with the\nterms set forth herein. All payments shall be made by wire transfer or check.\n\n    13.6 Taxes. All payment amounts in this Agreement are in US dollars and are\nexclusive of any applicable taxes and shall be made free and clear of, without\nreduction for, (and Participant shall be responsible for and shall indemnify\nNetscape against) any applicable U.S. and foreign, state and local taxes, value\nadded or sales taxes, withholding taxes, duties or levies and assessments,\nhowsoever designated or computed, pertaining to the payments under this\nAgreement (excluding taxes based upon the net income of Netscape). Participant\nshall promptly furnish Netscape with tax receipts evidencing the payment of any\ntaxes referred to in the preceding sentence. Netscape and Participant shall\ncooperate with each other in minimizing any applicable tax and in obtaining any\nexemption from or reduced rate of tax available under any applicable law or tax\ntreaty.\n\n14.  GENERAL\n\n    14.1 Governing Law. This Agreement shall be subject to and governed in all\nrespects by the statutes and laws of the State of Delaware without regard to the\nconflicts of laws principles thereof. In the event Participant brings suit\nagainst Netscape, the Superior Court of Santa Clara County and\/or the United\nStates District Court for the Northern District of California shall have\nexclusive jurisdiction and venue over all controversies in connection herewith,\nand each party hereby consents to such exclusive and personal jurisdiction and\nvenue. In the event Netscape brings suit against Participant, an appropriate\nSuperior Court and\/or United States District Court for either the State of New\nJersey or the State of New York shall have exclusive jurisdiction and venue over\nall controversies in connection herewith, and each party hereby consents to such\nexclusive and personal jurisdiction and venue.\n\n    14.2 Entire Agreement. This Agreement, including the exhibits and\nattachments referenced on the signature page hereto, constitutes the entire\nAgreement and understanding \n\n                                       26\n\n\n\n                                 CONFIDENTIAL\n \nbetween the parties and integrates all prior discussions between them related to\nits subject matter. No modification of any of the terms of this Agreement shall\nbe valid unless in writing and signed by an authorized representative of each\nparty.\n\n    14.3 Assignment. Except as set forth below, neither party may assign any of\nits rights or (except in the normal course of its business) delegate any of its\nduties under this Agreement, or otherwise assign or transfer this Agreement\nwithout the prior written consent of the other party. Either party may assign\nthis Agreement in connection with any merger, acquisition, reorganization, sale\nof substantially all the assets or stock of that party or any similar event\n(\"Change of Control Event\") without the prior written consent of the other\nparty. In the event of a Change of Control Event in which Netscape is not to be\na surviving entity, Netscape will use commercially reasonable efforts to ensure\nthis Agreement is assigned to the successor entity. Netscape shall have the\nright to terminate this Agreement upon thirty (30) days prior written notice if\nParticipant assigns or transfers this Agreement as permitted to a direct\ncompetitor of Netscape in the web client or web portal business without\nNetscape's consent. Any attempted assignment, delegation or transfer in\nderogation of the foregoing shall be null and void. This Agreement shall apply\nto and bind any permitted successors or assigns of the parties hereto and any\nreference to the applicable parties herein shall refer to the applicable\nsuccessors or assigns.\n\n        14.4 Notices. All notices required or permitted hereunder shall be \ngiven in writing addressed to the respective parties as set forth below and\nshall either be (i) personally delivered, (ii) transmitted by postage prepaid\ncertified mail, return receipt requested, or (iii) transmitted by nationally-\nrecognized private express courier, and shall be deemed to have been given on\nthe date of receipt if delivered personally, or two (2) days after deposit in\nmail or express courier. Either party may change its address for purposes hereof\nby written notice to the other in accordance with the provisions of this\nSubsection. The addresses for the parties are as follows:\n\nParticipant:                             Netscape:\n---------------------------------------  --------------------------------------\n \nNet2Phone, Inc.                          Netscape Communications Corporation\n171 Main Street                          501 East Middlefield Road\nHackensack, NJ 07601                     Mountain View, CA 94043\nFax: 201-928-2970                        Fax: (415) 528-4123\nAttn: General Counsel                    Attn: General Counsel\n \nWith a copy to:                          With a copy to:\n---------------------------------------  --------------------------------------\n \nJonathan Reich                           Eric Alexander\nSenior VP of Marketing and Business      Senior Business Development Manager\n Development\n\n    14.5 Force Majeure. Neither party will be responsible for any failure to \nperform its obligations under this Agreement due to causes beyond its reasonable\ncontrol, including but not limited to acts of God, war, riot, embargoes, acts of\ncivil or military authorities, fire, floods, or accidents.\n\n                                       27\n\n\n\n                                 CONFIDENTIAL\n \n    14.6 Waiver. The waiver, express or implied, by either party of any \nbreach of this Agreement by the other party will not waive any subsequent breach\nby such party of the same or a different kind. \n\n    14.7 Headings. The headings to the Sections and Subsections of this\nAgreement are included merely for convenience of reference and shall not affect\nthe meaning of the language included therein.\n\n    14.8 Independent Contractors. The parties acknowledge and agree that they \nare dealing with each other hereunder as independent contractors. Nothing\ncontained in this Agreement shall be interpreted as constituting either party\nthe joint venturer, employee or partner of the other party or as conferring upon\neither party the power of authority to bind the other party in any transaction\nwith third parties.\n\n    14.9 Severability. In the event any provision of this Agreement is held by a\ncourt or other tribunal of competent jurisdiction to be unenforceable, the other\nprovisions of this Agreement will remain in full force and effect.\n\n    14.10 Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. For purposes hereof, a\nfacsimile copy of this Agreement, including the signature pages hereto shall be\ndeemed to be an original. Notwithstanding the foregoing, the parties shall\ndeliver original execution copies of this Agreement to one another as soon as\npracticable following execution thereof.\n\n                                       28\n\n\n\n                                 CONFIDENTIAL\n \n    14.11 Publicity. The parties agree to issue a mutually agreeable joint \npress release announcing their relationship and the purpose of this Agreement\nSuch initial press release will include quotes from both Marc Andreessen\nendorsing the Net2Phone technology and Jim Barksdale endorsing the strategic\npartnership between Net2Phone and Netscape and the potential of the business\nopportunity. The parties shall cooperate with each other with respect to the\ntiming and content of the joint press release, and with respect to any other\npress releases either may issue that directly relate to this Agreement or the\nrelationship hereunder (neither party shall issue a press release on its own\nrelating to this Agreement or the relationship hereunder prior to the joint\npress release). Except as the parties otherwise agree, no press release from\neither party shall contain any information regarding the financial or\ncompensatory provisions of this Agreement. Further, any press release shall\ncomply with the provisions of Section 10.\n\n                                       29\n\n\n\n                                CONFIDENTIAL\n \n\n\n \nPARTICIPANT                                                         NETSCAPE\n\nNET2PHONE, INC.                                NETSCAPE COMMUNICATIONS CORPORATION\n\nBy:  \/s\/ Jonathan Reich                        By:  \/s\/ Noreen G. Bergin\n   ---------------------------------------         ----------------------------------\nPrint Name:  JONATHAN REICH                    Print Name:  Noreen G. Bergin\nTitle:  Senior Vice President Marketing &amp; Title:  Senior Vice President, Finance &amp; Bus. Dev.                                      Corporate Controller\nDate:   January 31, 1999                        Date:  01\/31\/99\n   ---------------------------------------         ---------------------------------- \n                                                                  REVIEWED BY\n                                                                 NETSCAPE LEGAL\n \n                                                             Initial     AM 1\/31\/99\n\n                                        \n\n\n\n                                       30\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8319,8328],"corporate_contracts_industries":[9513,9519],"corporate_contracts_types":[9613,9619],"class_list":["post-42111","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-net2phone-inc","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42111","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42111"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42111"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42111"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42111"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}