{"id":42142,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/co-marketing-agreement-netscape-communications-corp-and-yahoo.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"co-marketing-agreement-netscape-communications-corp-and-yahoo","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/co-marketing-agreement-netscape-communications-corp-and-yahoo.html","title":{"rendered":"Co-Marketing Agreement &#8211; Netscape Communications Corp. and Yahoo! Inc."},"content":{"rendered":"<pre>\n                       NETSCAPE COMMUNICATIONS CORPORATION\n                             CO-MARKETING AGREEMENT\n\nThis Co-Marketing Agreement (\"AGREEMENT\"), entered into by and between Netscape\nCommunications Corporation (\"NETSCAPE\"), a Delaware corporation located at 501\nEast Middlefield Road, Mountain View, California 94043, and Yahoo! Inc.\n(\"YAHOO\"), a California corporation with its principal place of business at 3400\nCentral Expressway, Ste. 201, Santa Clara, California 95051, is effective as of\nthe effective date set forth below (\"EFFECTIVE DATE\").\n\n                                    RECITALS\n\nA.   Netscape is in the business of developing, manufacturing, marketing and\n     distributing Internet related products and technology and providing\n     related services, and in connection with its marketing efforts,\n     maintains a U.S. English language World Wide Web site; \nB.   Yahoo is in the business of creating Internet-related content including\n     navigational and directory services; and\nC.   The parties wish to enter into this Agreement to cooperate in certain\n     co-marketing activities.\n\nNOW, THEREFORE, in consideration of the mutual covenants contained herein, the\nparties agree as follows:\n\n1.   DEFINITIONS.\n\nFor purposes of this Agreement, in addition to the capitalized terms defined\nelsewhere in this Agreement, the following terms shall have the meanings set\nforth below:\n\n\"CHANNEL\" means a major content category within the Service (and not as included\nin any client software), such as Entertainment, Sports, Business or Personal\nFinance, for example, separated from other content in a graphically defined\narea. \n\n\"CONTENT MODULE\" means a single content subject category provided by a Premier\nProvider within a Channel or Sub-Channel.\n\n\"CONTENT PROVIDER\" means a company which is participating in the Service by\nproviding to the Service content and\/or a link to a content-related site.\n\n\"CUSTOMIZED FRONT PAGE\" means the page on the Internet presented to an end user\nwho has registered for the Service and configured customized content to be\nserved up to the end user.\n\n\"DEFAULT FRONT PAGE\" means the page on the Internet which is the initial point\nof entry for an end user accessing the Service but who has not registered with\nthe Service.\n\n\"DESTINATIONS\" means that portion of Netscape's Web Site providing content\norganized by major categories and including Site Samplers for purposes of\npromoting Netscape customer's Web sites.  \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n\n\"DISTINGUISHED PROVIDER\" means a Content Provider which has a secondary listing\nrelative to a Premier Provider listing, and a smaller, less distinct promotional\nelement.  \n\n\"DISTINGUISHED PROVIDER DIRECTORY\" means the directory listing of Distinguished\nProviders within any Channel or Sub-Channel.\n\n\"FRONT PAGE\" means a Default Front Page or a Customized Front Page.\n\n\"LAUNCH DATE\" means the date on which the initial version of the Service is\naccessible to end users.\n\n\"NETSCAPE RESPONSIBLE ADVERTISING\" shall mean the Netscape Legacy Advertising,\ndescribed in Section 11.3 and Section 16.1, the Netscape Ad Inventory described\nin section 11.3, and the WNWC Advertising sold by Netscape described in section\n16.1.\n\n\"NETSCAPE'S WEB SITE\" the collection of U.S. English-language HTML documents\naccessible by the public via the Internet at the URL http:\/\/home.netscape.com\nand\/or at such other URL or URL's as Netscape may designate.\n\n\"PAGE VIEW\" means the serving up of an HTML page.\n\n\"PAYMENT\" means Twenty-Five Million Dollars ($25,000,000) as described in\nSection 14.1.\n\n\"PEOPLE PAGES\" means the service which allows users to perform searches to\nlocate people on the Internet.\n\n\"PREMIER PROVIDER\" means a Content Provider which has a prominent listing in the\nService, a graphic icon and a graphic promotional element.\n\n\"PREMIER PROVIDER DIRECTORY\" means the directory listing of Premier Providers\nwithin any Channel or Sub-Channel.\n\n\"SERVICE\" means the enhanced Web navigation service which organizes the most\nuseful sites on the World Wide Web as described in, and which is the subject of,\nthis Agreement.  The Service shall not include the What's New Page, the What's\nCool Page and the People Pages.\n\n\"SERVICE AD INVENTORY\" shall mean the electronic advertising inventory within\nthe Service, the People Pages, the What's New Page, the What's Cool Page and any\nother advertising inventory which Yahoo will manage as described in this\nAgreement, subject to the provisions of Section 16.  Service Ad Inventory shall\nnot include any of the Netscape Dedicated Channel as defined in Section 4.4. \n\n\"SERVICE NAME\" means the name of the Service to be decided upon the mutual\nagreement of the parties.\n\n\"SITE SAMPLER\" means a gif or a dynamically updated text Content Module which\nprovides appropriate content and links to a Content Provider's Web site.\n\n\"SUB-CHANNEL\" means a sub-category of a Channel content category, such as Golf,\nFootball or Skiing relative to a Channel for Sports.\n\n\"TERM\" means the two (2) year period of this Agreement, subject to the\nprovisions of Section 20.  \n\n\"WHAT'S COOL PAGE\" means the page on Netscape's Web Site currently located at\nthe URL http:\/\/________________ as such URL may change from time to time and\nwhich describes an edited list of distinctive Web sites.\n\n\"WHAT'S NEW PAGE\" means the page on Netscape's Web Site currently located at the\nURL http:\/\/________________ as such URL may change from time to time and which\ndescribes an edited list of new and noteworthy Web sites.\n\n\"YELLOW PAGES\" means the search and directory service which enables end users to\nlocate local businesses on the Internet to be included in the Service as\ndescribed in Section 7.\n\n2.   INTERNET NAVIGATION SERVICE.\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n  2.1.    DESCRIPTION OF THE SERVICE.  The Service will be modeled after, yet\ndifferentiated from, Yahoo's \"My Yahoo!\" personalized Internet navigational\nservice.  The Service shall include Site Samplers, or content-rich graphics\nsimilar to a Site Sampler, and possibly include other content such as third\nparty reviews.  Notwithstanding the foregoing, Yahoo shall develop, subject to\nNetscape's reasonable approval, the concept, look and feel of the Service which\nis separate and distinct from the My Yahoo! Service. The Service will be offered\nfree of charge to end users.  The parties anticipate that the Service will begin\non or before April 15, 1997.  On the Launch Date, the Destinations area will be\nremoved from Netscape's Web Site and shall cease to exist for the Term of this\nAgreement.  End users accessing Destinations will be redirected to the Service.\n\n  2.2.    CUSTOMIZATION.  The Service will include a Default Front Page as the\ninitial point of entry for end users accessing the Service.  The Default Front\nPage will have a default configuration of content with Channels, Sub-Channels\nand banner advertising, as the parties shall mutually agree.  Additionally, the\nDefault Front Page will include a link to a page which will guide end users\nthrough a customization process whereby the end user can customize the Service\nby selecting a preferred configuration of content, Channels and Sub-Channels\nwhich will be served to that end user on subsequent visits to the Service.   If\nan end user elects to customize the content they receive through the Service,\nthe end user will have to first register with the Service, as such registration\nis described in Section 3. Users can change the configuration of their\ncustomized content as often as they like.\n\n  2.3.    LOCATION OF SERVICE.  The Service will reside solely on Yahoo's\nservers and Internet connection.  The Toolbar button (as described in Section\n10.1) and Destination buttons (as described in Section 10.4) shall be hard coded\nwith a \"netscape.com\" domain and redirected to a \"yahoo.com\" domain.  The\nDefault Front Page shall be served under a \"netscape.com\" domain name.  All\nother pages of the Service will be served under \"yahoo.com\" domain name.  Yahoo\nshall not promote the Service from another Web site without Netscape's prior\nwritten consent.\n\n  2.4.    TARGET MARKET.  The Service's primary target market is the individual\nend user who would use the Service for their personal use at home or the office,\nand not directly targeted to business-to-business or trade service users.  The\nService will be available in U.S. English-language only and will be focused on\nthe North American market.\n\n  2.5.    NAME OF THE SERVICE.  The Service Name will be mutually agreed upon by\nNetscape and Yahoo.  Yahoo shall not independently use the Service Name without\nNetscape's prior written consent unless such use occurs in connection with\nYahoo's advertising sales and promotional efforts on behalf of the Service.  The\nService Name shall be displayed on every page of the Service and no other\nlocations without Netscape's prior written consent except in connection with\nsuch advertising sales and promotional efforts on behalf of the Service.  If the\nService Name includes a co-branding component, Yahoo may not use the Service\nName with Netscape's name expunged.  Yahoo may not use the Service Name\nindependent of the Service except as provided for above in this Section 2.5.  \n\n  2.6.    DESIGN OF SERVICE.  The Service shall be co-branded equally by\nNetscape and Yahoo.  Yahoo shall be responsible for creating the graphic user\ninterface including navigation, architecture, look and feel as well as the tone\nof the Service;  provided, however, that Netscape and Yahoo shall mutually agree\nto the initial design of the Service.\n\n3.   END USER REGISTRATION.\n\n  3.1.    REGISTRATION PROCESS.  End users who wish to customize the Service\nwill have to register.  The user registration page will be linked to the Default\nFront Page as well as all other appropriate pages in the Service.  Initially,\nthe Service will use My Yahoo!'s registration back-end database in conjunction\nwith a co-branded front-end form of registration presented to end users.  Such\nform of registration shall be substantially similar to Exhibit C.  At the time\nthe end user is asked to register, the end user will be notified as to what\npersonal data is required for them to provide, how the personal data will be\nused and who will have access to the data, as described in Exhibit C.  [XXXX]. \nThe parties hereto acknowledge that it is their intent to integrate the\nService's user registration process with Netscape's \"Universal \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n\nRegistration\" system when such system becomes available.  At such time as the\nregistration process is transferred to Netscape, Netscape shall use reasonable\ncommercial efforts to collect the same data from the Service registration\nprocess as was collected by Yahoo.  At such time as Netscape's \"Universal\nRegistration\" system is deployed, [XXXX].  Netscape and Yahoo shall use\nreasonable commercial efforts to coordinate the prompt transfer of user\ninformation from Netscape to Yahoo at such time as Netscape's \"Universal\nRegistration\" system is used in connection with the Service.\n\n  3.2.    ADDITIONAL USER INFORMATION.  [XXXX]\n  \n  3.3.    PERSONAL DATA CONFIDENTIAL.  [XXXX]\n\n4.   CHANNELS.\n\n  4.1.    WEB COVERAGE AND PROGRAMMING.  The Service will offer users a choice\nof the following [XXXX].   Additional Channels may be added upon the mutual\nagreement of the parties.\n\n  4.2.    CHANNEL AND SUB-CHANNEL COMPONENTS.  Each Channel and Sub-Channel will\ninclude the following components, as set forth in Exhibit A: [XXXX]  The Channel\nand Sub-Channel components will initially be pre-configured and presented to an\nend user on a default basis as the parties shall mutually agree.  Registered\nusers will be able to customize the content presented to them in a Channel.\n\n  4.3.    CHANNELS, SUB-CHANNELS AND CONTENT MODULES.  The parties shall\nmutually agree to the topics and number of Channels.  Yahoo will determine the\ncategories for Sub-Channels within each Channel.  Yahoo will provide an\ninternal, editorial review of Web sites and the content programming within a\nChannel, Sub-Channel or Content Module. \n\n  4.4.    NETSCAPE'S DEDICATED CHANNEL.  Netscape reserves the right to have\none (1) dedicated Channel in the Service (the \"NETSCAPE DEDICATED CHANNEL\"), and\nNetscape is responsible for the programming within, and the management of, the\nNetscape Dedicated Channel including Sub-Channels, Content Modules and Content\nProvider listings;  provided, however, that content programming within\nNetscape's dedicated Channel shall include no more than [XXXX].  Netscape shall\nuse reasonable commercial efforts ensure that Netscape's dedicated Channel\nconforms with the Service's general look, feel and tone.  All content included\nwithin the Netscape Dedicated Channel shall pertain to Netscape's products and\nservices and those of its strategic business relationships with respect to\nNetscape's core businesses.  No third party space within the Netscape Dedicated\nChannel may be sold.  No pages within the Netscape Dedicated Channel shall be\ndeemed to be part of the Service Ad Inventory for any reason.  \n\n  4.5.    ADDITIONAL NETSCAPE RESERVED INVENTORY.  [XXXX]\n\n5.   SEARCH FUNCTIONALITY.\n\n  5.1.    SEARCH FIELD.  A field providing search functionality will be included\non pages within the Service as the parties may mutually determine.  The search\nexecuted from the search field will initially only cover content within the\nService itself.  When the results to a search query are returned, a user will be\ngiven the option of expanding the scope of the search to encompass the World\nWide Web using one of Netscape's Net Search Program premier or marquee search\nengines.  The user will also be offered the choice of executing another search\nlimited to the content of the Service.  The parties acknowledge that although\nNetscape's Net Search Program is listed within the current version of\nDestinations, for the purposes of this Agreement, Net Search shall not be\nincluded in Destinations or the Service.\n\n  5.2.    SEARCH FIELD POSITIONING. The search field shall appear below the\nfold, or in such other location as the parties may mutually determine, on any\npage in which the search field is listed.  Netscape shall approve the search\nengine companies which appear as expanded search options as well as the\npositioning of the search engine companies on the page served to end users in\nconjunction with the end user's search results.  Yahoo shall not charge any of\nthe search engine companies for these listings.  Netscape reserves the right to\nreview the financial effect of the search field in the Service as such search \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\nfunctionality may impact Netscape's own Net Search Program and require that the\nsearch functionality in the Service be minimized or deleted.\n\n  5.3.    MONTHLY SEARCH REPORTS.  [XXXX]\n\nNetscape and Yahoo shall determine the format for this monthly report.  The\ninformation contained in the report shall be Netscape's and Yahoo's Confidential\nInformation;  however, Netscape reserves the right to provide the information\ncontained in the report to the Net Search Program companies.\n\n6.   CONTENT PROVIDER PARTICIPATION IN THE SERVICE.\n\n  6.1.    APPLICATION PROCESS.  Netscape shall determine the criteria by which\nContent Providers may participate in the Service.  Yahoo will be responsible for\nadministering the Content Provider application process and serve as the primary\npoint of contact for companies interested in becoming Content Providers.\n\n  6.2     ORGANIZATION OF CONTENT PROVIDERS.  A predetermined number of Content\nProviders, as mutually determined by the parties, will appear as Premier\nProviders in the Premier Provider Directory portion of the Channel or Sub-\nChannel and Distinguished Providers in the Distinguished Provider Directory of\nthe Channel or Sub-Channel.  Netscape and Yahoo shall mutually agree as to the\nexact number of Premier Providers and Distinguished Providers in a Channel or\nSub-Channel.  The Service shall include promotional areas, such as Site\nSamplers, for Premier Providers, as the parties shall mutually agree.  On any\npage in the Service which includes a Premier Provider Directory and a\nDistinguished Provider Directory, the Premier Provider Directory shall be more\nprominently displayed.  Within any Distinguished Provider Directory, Content\nProviders shall be displayed in the following order of decreasing prominence:\n\n  Distinguished Providers designated by Netscape;\n\n  Useful Content Providers displaying the Netscape Now button; and\n\n  Useful Content Providers not displaying the Netscape Now button;\n\nprovided, however, that: such Content Providers comply with the criteria\ndetermined by Netscape; Netscape reserves the right to determine the positioning\nof [XXXX] Content Provider participating in the Service; and such news provider\nshall count against Netscape's Premier Provider Allotment as described in\nSection 6.5.\n\n  6.3.    TRANSITION PERIOD.  Netscape shall use reasonable commercial efforts\nto assist Yahoo in transitioning Content Providers as participants in the\nService.  Within seven (7) days of the Effective Date, Netscape shall notify\nYahoo of companies which Netscape would like to have Yahoo list in the Service\nas Premier Providers or Distinguished Providers (the \"TRANSITIONAL CONTENT\nPROVIDERS\").  Until July 1, 1997, such companies shall appear as Premier\nProviders or Distinguished Providers in Channels and\/or Sub-Channels as Yahoo\nshall determine;  provided, however, that each such Premier Provider or\nDistinguished Provider shall be listed in the Service. In addition to the\nPremier Providers and Distinguished Providers designated by Netscape, other\nContent Providers may appear in the Premier Provider Directory or Distinguished\nProvider Directory, provided that such other Content Providers meet the\nselection criteria set forth in Exhibit F as such Exhibit F may be revised from\ntime to time as set forth in this Agreement, or as otherwise agreed upon by the\nparties. \n\n  6.4.    AFTER THE TRANSITION PERIOD.  Beginning on July 1, 1997, Yahoo shall\nreview and approve companies who want to participate in the Service as Content\nProviders.  Such approval of Content Providers shall be subject to a company's\ncomplying with Netscape's criteria which criteria shall be revised and\ncommunicated to Yahoo no later than May 1, 1997.  Beginning on July 1, 1997,\nPremier Providers participating in the Service as a result of having been\ntransferred by Netscape as described in Section 6.3 shall continue to\nparticipate in the Service provided that such Premier Providers comply with the\nrequirements for Premier Providers participating in the Service as set forth in\nSection 6.5.  Netscape reserves the right to refuse to include any Content\nProvider which does not meet with Netscape's \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\ncriterion for Content Providers.  Yahoo may require all Content Providers\nincluded in the Service to execute an agreement containing Yahoo's then-current\nstandard terms and conditions pertaining to the appropriate level of Content\nProvider (the \"STANDARD YAHOO CONTRACT\").  Special Content Providers (as defined\nSection 6.6, below) shall not be required to sign the Standard Yahoo Contract\nif, and only if, such Content Provider's participation in the Service consists\nsolely of a listing in a directory and no other content.  Notwithstanding\nanything else in this Agreement, Yahoo may refuse to include any Premier\nProvider or Distinguished Provider in the Service who does not execute the\nStandard Yahoo Contract, and may refuse to include any Premier Provider,\nDistinguished Provider or material, if Yahoo, in its reasonable determination,\ndeems such inclusion would lead to material injury, damage, or liability to\nYahoo.\n\n  6.5.    FEE CHARGED TO PREMIER PROVIDERS.  [XXXX] a fee to participate in the\nService or to place Content Modules in the Service, upon rates and terms to be\ndetermined by Yahoo with the understanding that Netscape and Yahoo shall\nconsider each other's advertising plans and packaging;  provided, however, that\nNetscape may offer Premier Provider placements free of charge to certain Content\nProviders  as long as such free of charge placements and listings do not exceed\n[XXXX] of the available inventory of Premier Provider placements in any given\nmonth (\"NETSCAPE PREMIER PROVIDER ALLOTMENT\").  Netscape shall not sell slots in\nits Netscape Premier Provider Allotment, but shall make such Premier Providers\naware of the value of such slot based on fees Yahoo is then charging for such\nslots.  \n\n  6.6.    SPECIAL CONTENT PROVIDERS.  Subject to Section 6.4, Yahoo shall\ninclude certain companies as Content Providers in the Service on a free of\ncharge basis regardless of such company's compliance with Netscape's criteria\n(the \"SPECIAL CONTENT PROVIDERS\").  The list of such companies to be included in\nthe Service is set forth in Exhibit B.  Within thirty (30) days of the Effective\nDate, Netscape shall notify Yahoo as to whether such companies shall be listed\nas Premier Providers or Distinguished Providers in the Service.  All Special\nContent Providers shall be counted against Netscape's Premier Provider\nAllotment.\n\n  6.7.    UPDATING OF DISTINGUISHED PROVIDERS AND PREMIER PROVIDERS.  On a bi-\nweekly basis, Netscape will send to Yahoo a revised list of companies which\nYahoo must include as Premier Providers (on a free of charge basis, subject to\nthe limits of Netscape's Premier Provider Allotment and subject to space\navailability) and Distinguished Providers (provided such Distinguished Providers\ncomply with Netscape's Content Provider criteria), if additions, deletions or\ncorrections are needed.  Yahoo shall update the list of Premier Providers and\nDistinguished Providers appearing in the Service, making the necessary additions\nor deletions within ten (10) business days of receipt of such revised list from\nNetscape.  The parties shall designate a contact person and a process for\nmanaging the updated list.\n\n  6.8.    INTEGRATED COMMUNITY.  Netscape and Yahoo acknowledge that the intent\nof the Service is to provide an \"integrated community\" experience for Netscape\nusers and not to provide Yahoo with any special prominence in listings relative\nto other Content Provider, unless such enhanced presence or positioning is\nagreed to by Netscape.  Promotion of Yahoo's Web site will be minimized to\nprevent diversion of user traffic from the Service.  Promotion of Yahoo within\nthe Service will be subject to Netscape's approval.\n\n  6.9.    TECHNICAL SUPPORT.  If Yahoo receives any questions from a prospective\nor existing Content Provider relating to specific development or technical\nsupport (such as how to develop on the Netscape platform), Yahoo will refer the\nprospective or existing Content Provider to the Netscape Developer Program as\ndescribed on Netscape's Web Site.\n\n7.   [XXXX]\n\n8.   PEOPLE PAGES. The People Pages will be managed by Yahoo under the Netscape\nbrand and will include the existing participants in Netscape's White Pages\nprogram unless otherwise agreed to by the parties.  The People Pages may be\nenhanced or modified upon the mutual agreement of Netscape and Yahoo.  [XXXX]\n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n\n9.   WHAT'S NEW PAGE AND WHAT'S COOL PAGE.  Beginning July 1, 1997, Yahoo shall\nmanage the What's New Page and the What's Cool Page portions of Netscape's Web\nSite.  Netscape shall have the right to designate up to [XXXX] of the entities\nto be included in the What's New Page per week, and Netscape shall nominate\nentities for Yahoo's consideration for inclusion in the What's Cool Page. \nNetscape shall not charge such entities for such inclusion.  The What's New Page\nand What's Cool Page will appear under Netscape's brand exclusively;  however,\nYahoo will be credited at no less than the level currently granted with\nproviding the content for the What's New Page and What's Cool Page.  The parties\nmay in the future decide to include the What's New Page and What's Cool Page as\npart of the Service.\n\n10.  PROMOTION OF THE SERVICE IN NETSCAPE'S PRODUCTS.  For as long as Netscape\noffers the other products and services described below, Netscape shall promote\nthe Service during the Term as follows:\n\n  10.1.   TOOLBAR BUTTON.  Netscape shall build a button for the Service which\nwill appear in the Toolbar section of the Netscape Communicator client software\nand in a comparable location in subsequent versions of Netscape's client\nsoftware.  The name of the button shall be determined by Netscape with\nconsideration given to Yahoo's preferences.  When an end user presses the\nbutton, the end user will be presented with a drop-down menu of headings in the\nfollowing order:  The Internet (or a name to be mutually agreed to by the\nparties), People, Yellow Pages, What's New Page and What's Cool Page or such\nother heading names as Netscape may determine; provided, however, that the The\nInternet heading, or such other name as may be decided, shall be linked to the\nFront Page, and no service similar to the Service shall be granted a button on\nthe toolbar.\n\n  10.2.   NETSCAPE'S WEB SITE.  The home page of Netscape's Web Site shall\nfeature a prominent link to the Service in a location and format as Netscape\nshall determine.\n\n  10.3.   PRE-LOADED BOOKMARK.  Netscape shall include a pre-loaded bookmark for\nthe Service in Netscape-distributed versions of the Netscape Communicator client\nsoftware and in a comparable location in subsequent versions of Netscape's\nclient software. \n\n  10.4.   DESTINATIONS BUTTON.  In versions of the Netscape Navigator which\ninclude or refer to a Destinations area of Netscape's Web Site, users selecting\nthe Destinations location will be redirected to the Front Page of the Service.\n\n  10.5.   CONSTELLATION.  In the Netscape Constellation client software, or\nderivative thereof, Netscape shall include a link to the Service which shall be\nat least as prominent as any similar service, provided that the Service is\nmodified to support the appropriate technologies within Constellation or its\nderivative.  Netscape and Yahoo shall mutually agree to new content changes and\nfunctionality.  \n\n  10.6.   IN-BOX DIRECT.  Netscape shall provide the Service with premier\npositioning within the In-Box Direct program and sign-up area, as Netscape shall\ndetermine such positioning in its discretion.\n\n  10.7.   IN-BOX DIRECT FOR SUITESPOT.  Netscape shall include in In-Box Direct\nfor SuiteSpot a premier listing for the Service, as optimized for Enterprise\nusers, and as Netscape shall determine in its discretion.\n\n11.  YAHOO'S OBLIGATIONS.\n\n  11.1.   PRODUCTION, TECHNOLOGY AND CONTENT PROGRAMMING.  Yahoo shall be\nresponsible for all production and content programming of the Service.  The\nService shall use substantially the same technology and advantages as Yahoo uses\nin its \"My Yahoo!\" service, unless otherwise agreed to by the parties.  The\nService shall not be disadvantaged or suffer from inferior production,\nprogramming or performance relative to the My Yahoo! service, or any similar\nservice which Yahoo might make available to, or operate on behalf of, third\nparties except with respect to proprietary features owned by, or made\nexclusively available to, third parties.  Except with respect to the Premier\nProviders and Distinguished Providers provided to Yahoo by Netscape hereunder\nand except as further constrained by the available pool of Premier Providers and\nDistinguished Providers, the Service shall perform substantially up to the same\nperformance standards as My Yahoo!, including, but not limited to, load time,\ntimeliness of content, \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\nand quality of programming.  Notwithstanding the foregoing, this Agreement does\nnot include a license to use the technology and services currently available in\nMy Yahoo! and licensed by Yahoo from Firefly, Inc. and other third party\ntechnologies which Yahoo is contractually precluded from including in the\nService.  Yahoo shall perform its duties described herein with substantially the\nsame diligence and vigor as it employs with respect to its own services and Web\nsites, or the services and Web sites Yahoo may operate for third parties, and\nYahoo shall not favor its own Web sites, or those of any third party, over the\nService.  With respect to features and functionalities offered within the\nService, Yahoo shall use reasonable commercial efforts to employ in the Service\nNetscape's technology, if available, rather than a technology which might\ncompete with Netscape products or services, provided that such use of Netscape's\ntechnology does not, in Yahoo's reasonable determination, unduly burden the\nperformance or production of the Service or unduly tax Yahoo's engineering,\nsupport or production resources.  Yahoo's obligation to produce the Service\nincluding production services, technology and content programming which meet or\nexceed standards established by Yahoo on its own Web site or services (or the\nWeb site or services Yahoo manages for any third party) and general industry\nstandards is a material obligation of Yahoo under this Agreement. \n\n  11.2.   ADVERTISING.  Yahoo shall be responsible for all production and\nprogramming of advertisements on the Service Ad Inventory, subject to Netscape's\nguidelines for advertising.  Commencing on the Effective Date and except as set\nforth in Section 16, Yahoo will manage and sell all advertising and sponsorships\nwithin the Service Ad Inventory, and Yahoo will manage the advertising product\nand services with the same degree of professionalism Yahoo exercises with\nrespect to Yahoo's own Web sites or the Web site Yahoo might manage on behalf of\nany third party.  Services which Yahoo shall provide include site auditing,\ntraffic analysis, functionality and other advertising services.  Yahoo may\nrequire all advertisers on the Service including the Netscape Responsible\nAdvertising to execute Yahoo's then current form of insertion order (\"IO\"). \nNotwithstanding anything else in this Agreement to the contrary, Yahoo may in\nits sole discretion refuse to include any advertising on the Service for any\nreason, provided that Yahoo may only refuse to include Netscape Legacy\nAdvertising, as defined in Section 11.3, if such advertisers refuse to sign the\nIO.  Netscape Legacy Advertisers who refuse to sign the IO (\"REFUSNIKS\") shall\nnevertheless be included as advertisers in the Service until such advertisers\nadvertising contracts with Netscape have expired.  \n\n  11.3.   NETSCAPE AD INVENTORY.  Yahoo shall honor all contracts for banner\nadvertising which Netscape has previously committed to post in the Destinations\narea of Netscape's Web Site (the \"NETSCAPE LEGACY ADVERTISING\").  A list of such\noutstanding Destinations advertising commitments is attached hereto as Exhibit\nD.  In any given month, Netscape shall be entitled to offer to third parties up\nto [XXXX] of the Service Ad Inventory in that month (\"NETSCAPE AD INVENTORY\"),\nprovided, however, that Netscape shall only offer the Netscape Advertising\nInventory for barter, and not for sale, and provided further that Netscape shall\nnot be entitled to place more than [XXXX] of the monthly Netscape Ad Inventory\nin any one Channel.  Notwithstanding the foregoing, the parties may mutually\nagree from time to time to make additional Service Ad Inventory available to\nNetscape for barter transactions.  In order to avoid conflicts with barter\ntransactions, Netscape shall designate a contact person to coordinate with Yahoo\nthe availability of Service Ad Inventory. \n\n  11.4.   EQUIVALENT EFFORT.  In selling advertising inventory and providing\nadvertising services hereunder, Yahoo will carry out such services with\nsubstantially the same diligence and vigor as it employs when selling, managing\nor maintaining similar advertising on its own services and Web sites.  Without\nlimiting the foregoing, Yahoo shall not unreasonably favor its own Web site, or\nthe Web site or services of any third party, over the Service.  \n\n  11.5.   REFUSE TO PUBLISH.  Netscape may, in its reasonable discretion, at any\ntime for any reason refuse to accept or publish, or direct Yahoo to refuse to\naccept or publish, a Content Provider listing, a Content Module, an\nadvertisement and\/or other content on the Service, the What's New Page, the\nWhat's Cool Page, the People Pages if such content directly, explicitly and\nmaliciously disparages Netscape or Netscape's products; pertains to the\npromotion, depiction, sale, use or endorsement of alcohol, tobacco, sexually\nexplicit materials, religious institutions; and such other areas as the parties\nmay mutually agree.  \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n  \n  [XXXX]\n  \n\n  11.7.   NETSCAPE NOW PROGRAM COMPLIANCE ON YAHOO'S WEB SITE AND THE SERVICE. \nYahoo shall display the \"Netscape Now\" button [XXXX], and use reasonable\ncommercial efforts to include the following statement (or a statement designated\nby Netscape and generally used by Netscape as a successor to the following\nstatement or in connection with any successor program to Netscape's Netscape Now\nprogram) next to the Netscape Now button: \"This site is best viewed with\nNetscape Navigator 3.0.  Download Netscape Now!\" (or such higher non-beta\nversion as is then available).  Yahoo will produce the page such that when an\nend user presses or clicks on the Netscape Now button (or such other button used\nin connection with any successor program to the Netscape Now program), the end\nuser's Internet client software will access the applicable HTML page located at\na URL supplied by Netscape.  On any page on which the Netscape Now button, or a\nsuccessor button, is displayed, the Netscape Now button shall be [XXXX].  Yahoo\nshall use reasonable commercial efforts promptly to remedy any misplacement of\nthe Netscape Now button on its home page or other pages or any malfunctioning of\nthe button, provided Netscape will fully cooperate with Yahoo to remedy any such\nmisplacement or malfunctioning, and provided further that Yahoo shall not incur\nliability for any failure to remedy such misplacement or malfunctioning if such\nremedy is not within the reasonable control of Yahoo. In the event that Netscape\nreplaces the Netscape Now program with a successor program, Netscape shall\nadvise Yahoo and Yahoo shall produce the page to conform to such successor\nprogram, provided Yahoo's obligations under such successor program shall not be\nmaterially increased.  Netscape hereby grants Yahoo a nonexclusive,\nnontransferable, nonassignable, nonsublicensable license to perform and display\nthe Netscape Now button directly in connection with fulfilling the foregoing\nobligation.  Yahoo's use of the Netscape Now button shall be in accordance with\nNetscape's reasonable policies regarding advertising and trademark usage as\nestablished from time to time by Netscape, including the guidelines of the\nNetscape Now Program published on Netscape's U.S. English-language Web Site. \nYahoo acknowledges that the Netscape Now button is a proprietary logo of\nNetscape and contains Netscape's trademarks.  In the event that Netscape\ndetermines that Yahoo's use of the Netscape Now button is inconsistent with\nNetscape's quality standards, then Netscape shall have the right to suspend\nimmediately such use of the Netscape Now button. Yahoo understands and agrees\nthat the use of the Netscape Now button in connection with this Agreement shall\nnot create any right, title or interest in or to the use of the Netscape Now\nbutton or associated trademarks and that all such use and goodwill associated\nwith the Netscape Now button and associated trademarks will inure to the benefit\nof Netscape. Yahoo agrees not to register or use any trademark that is similar\nto the Netscape Now button. Yahoo further agrees that it will not use the\nNetscape Now button in a misleading manner or otherwise in a manner that could\ntend to reflect adversely on Netscape or its products.  \n\n  11.8.   CONTENT PROVIDER COMPLIANCE.  Yahoo will require Content Providers to\nsubstantially abide by the criteria for participating in the Service as such\ncriteria are described in Exhibit F.  Yahoo shall use reasonable commercial\nefforts to monitor the Content Providers' compliance with the guidelines and, as\nnecessary, notify Content Providers of their non-compliance.  If a Content\nProvider fails to come into compliance after receipt of notification, Netscape\nshall direct Yahoo to reduce the listing status of a non-complying Content\nProvider or remove the Content Provider from the Service, as Netscape shall\ndetermine.  \n\n  11.9.   MARKETING COLLATERAL.  Yahoo will maintain on the Service marketing\ncollateral for the Service.  The collateral will be updated regularly and on an\nas-needed basis.  The marketing collateral, as well as application for Content\nProvider participation in the Service, as described in Section 6.1, shall be\nlocated in an easily accessible location.  Each party shall include a link to\nthe Service's marketing collateral in an appropriate area of the party's Web\nsite.\n\n  11.10.  SERVICE ENROLLMENT SUPPORT.  Yahoo shall provide information and sales\nsupport to Content Providers regarding participation in the Service.\n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n  11.11.  TECHNICAL SUPPORT OF SERVICE.  During the Term, Yahoo shall provide\ntechnical support services for the Service in a timely basis.  Yahoo shall\nappoint a technical contact to whom Netscape may address all technical questions\nrelating to the Service.  Yahoo shall use best efforts to promptly remedy any\nmaterial misplacement or malfunctioning of the Service.\n\n12.  JOINT ACTIVITIES.\n\n  12.1.   PRESS PLANS.  Yahoo and Netscape agree to participate in a joint press\nannouncement regarding the Service which will take place on a mutually agreed\nupon date.  The parties shall agree to the form and content of the joint press\nrelease.  Notwithstanding the foregoing, either party may issue its own press\nrelease, subject to the other party's prior approval of the content within the\nrelease.  With respect to major advertising and marketing deal announcements\nregarding the Service, Netscape and Yahoo shall have forty-eight (48) hours to\nrespond, in writing, to any proposed announcement.  In any press announcement\nregarding the Service, both Yahoo and Netscape's name and logo shall be included\nin the press release, and the names and logos shall appear with equal\nprominence.  Interviews with the press regarding announcement of the Service\nshall be coordinated between both Netscape and Yahoo.\n\n  12.2.   RESEARCH.  If Yahoo or Netscape conducts any research regarding the\nService, such research results shall be shared between both companies on a\ntimely basis.  If Yahoo or Netscape conducts a study on their respective primary\nEnglish-language Web site, both companies shall include the Service in the\nstudy, where appropriate.  Yahoo will conduct substantially the same level and\nas much research and data collection regarding the Service as Yahoo conducts\nwith respect to My Yahoo!\n\n\n  12.3.   QUARTERLY REVIEWS OF THE SERVICE.  Netscape and Yahoo agree to\nestablish quarterly reviews of the Service to evaluate the success of the\nService and agree to modifications and improvements to the Service.\n\n  12.4.   DESIGN REVIEWS AND OWNERSHIP.  The graphic user interface (\"GUI\") of\nthe Service shall be jointly owned by the parties, as mutually determined by the\nparties.  Netscape and Yahoo shall mutually agree to all major design changes in\nthe GUI, including, but not limited to, significant new artwork or functional\nchanges.  As part of the approval process for significant changes to the GUI,\nthe parties shall determine the ownership rights with respect to the newly added\nfeature or functionality, and either party may decline to add such feature or\nfunctionality to the GUI.  If either party has contributed to the GUI such\nfeatures or functionality owned by that party, the other party shall be granted\na royalty-free, irrevocable, perpetual world-wide license, without payment or\nother charge therefore, to use, display, perform, reproduce and distribute such\nfeature or functionality in connection with the GUI in the Service or any\nsuccessor service after the termination or expiration of this Agreement.  In no\nevent shall Netscape be entitled to a license or any ownership right in any\ncomputer code written by Yahoo in connection with the GUI.  Nothing contained\nherein shall prevent Netscape from independently developing features or\nfunctionality which are similar to the features and functionality owned by Yahoo\nand implemented in the Service, provided that no intellectual property of Yahoo\nis utilized and any use of such features or functionality are consistent with\nSection 18.2 of this Agreement.   The parties agree that Yahoo is not creating\nthe Service as a work made for hire.  Except as set forth above with respect to\nthe GUI, nothing in the Agreement shall be deemed to grant to Netscape an\nexpress or implied license or ownership right to any copyright, trademark, trade\nsecret or patent to any technology, content, or other material of Yahoo created\nfor or included in the Service, whether or not such were created at Netscape's\nrequest or with Netscape's cooperation.\n\n13.  [XXXX]\n\n14.  PAYMENT.\n\n  14.1.   PAYMENT AMOUNTS.  For the benefits and services provided by Netscape\nto Yahoo during the Term, Yahoo shall remit to Netscape a total of Twenty-Five\nMillion Dollars ($25,000,000) as the Payment, comprised of the following\ncomponents:\n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n  Ten Million Dollars ($10,000,000) as a guarantee against advertising revenue\n     in the first year of the Term, plus\n\n  Fifteen Million Dollars ($15,000,000) as a guarantee against advertising\n     revenue in the second year of the Term, provided Netscape delivers the\n     Netscape traffic requirements as described in Section 15.\n\n  14.2.   TIMING OF PAYMENT. Yahoo shall pay Netscape the Payment within fifteen\n(15) days after the dates set forth below:\n\nIn the first year of the Term:\n     One Million Five Hundred Thousand Dollars ($1,500,000) - June 15, 1997;\n     Two Million Two Hundred Fifty Thousand Dollars ($2,250,000) - September 30,\n          1997;\n     Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) - December\n          31, 1997;\n     Three Million Five Hundred Thousand Dollars ($3,500,000) - March 31, 1998;\n          and\n\nIn the second year of the Term:\n     Three Million Five Hundred Thousand Dollars ($3,500,000) - June 30, 1998;\n     Three Million Five Hundred Thousand Dollars ($3,500,000) - September 30,\n          1998;\n     Four Million Dollars ($4,000,000) - December 31, 1998; \n     Four Million Dollars ($4,000,000) - March 31, 1999;\nor, if any such date is not a business day, the next following business day.\n\n     14.3.     REVENUE COUNTED TOWARD GUARANTEE.  Any revenue received by\nNetscape after the Effective Date based on previous advertising services for\nDestinations which contracts are absorbed and honored by Yahoo will be applied\ntoward Yahoo guaranteed advertising revenue amounts, subject to the terms of\nSection 16.  The net revenue amount received by Netscape for such advertising\n(after deducting for bad debt (not to exceed 3%), cost of sales (not to exceed\n20%) and barter) shall be deducted from the payment due from Yahoo to Netscape\nin the calendar quarter in which such revenues are received.\n\n     14.4.     PAYMENT OF REVENUE SPLITS.  Within each of the first year of the\nTerm and the second year of the Term and to the extent cumulative revenues\ngenerated by the Service exceed the cumulative scheduled payments to date as\ndescribed in Section 14.2, Yahoo shall pay to Netscape Netscape's portion of the\nshared revenues, as such revenue sharing is described in Section 17, within\ntwenty-five (25) days of the end of the quarter in which the revenue is\nrecognized by Yahoo.  Such amounts will be applied to the following quarter's\nscheduled payments described in Section 14.2.\n\n     14.5.     INTEREST AND TAXES.  Any portion of the Payment which has not\nbeen paid to Netscape within the applicable time set forth above shall bear\ninterest at the lesser of (i) one percent (1%) per month, or (ii) the maximum\namount allowed by law.  All payments due hereunder are exclusive of any\napplicable taxes. Yahoo shall be responsible for all applicable national, state\nand local taxes, value added or sales taxes, exchange, interest, banking,\ncollection and other charges and levies and assessments pertaining to payments\nother than U.S. taxes based on Netscape's net income.  If Yahoo is required by\nlaw to make any deduction or to withhold from any sum payable to Netscape by\nYahoo hereunder, (i) Yahoo shall effect such deduction or withholding, remit\nsuch amounts to the appropriate taxing authorities and promptly furnish Netscape\nwith tax receipts evidencing the payments of such amounts, and (ii)  the sum\npayable by Yahoo upon which the deduction or withholding is based shall be\nincreased to the extent necessary to ensure that, after such deduction or\nwithholding, Netscape receives and retains, free from liability for such\ndeduction or withholding, a net amount equal to the amount Netscape would have\nreceived and retained in the absence of such required deduction or withholding.\n\n15.  TRAFFIC GUARANTEE.  \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n     15.1.     TRAFFIC TO THE SERVICE.  Netscape agrees to deliver to the Front\nPage of the Service, and the top page of a Channel (except the Netscape\nDedicated Channel) as the result of that Channel being accessed by a referring\nURL (by means of a bookmark or hypertext link, for example) which points to the\ntop page of the Channel, a combined total of [XXXX] in the first year beginning\non the Launch Date; and [XXXX] in the second year after the Launch Date, as such\ntraffic estimates are set forth in Exhibit E.  Notwithstanding anything else in\nthis Section 15.1, Netscape guarantees that at least [XXXX].\n\n     15.2.     OTHER TRAFFIC.  [XXXX]\n\n16.  ADVERTISING ON WHAT'S NEW PAGE AND WHAT'S COOL PAGE.\n\n     16.1.     NETSCAPE AD SALES.  Netscape will continue to manage the sale of\nthe banner advertising inventory on the What's New Page and What's Cool Page\nduring the second calendar quarter in 1997 until July1, 1997.  Netscape will\nreceive [XXXX] of this net advertising revenue (as calculated in Section 14.3,\nabove), provided such net revenue has been run and recognized before July 1,\n1997.  Such net revenue shall not be credited against Yahoo's payment guarantees\nas described in Section 14.2.  If net revenue has been booked but not run by\nNetscape prior to July 1, 1997, then such net revenue shall be credited against\nYahoo's payment guarantees, subject to the net revenue allocation described in\nSection 16.2.  Advertising booked and run prior to July 1, 1997 shall be defined\nas \"WNWC Ads\".  Advertising booked but not run prior to July 1, 1997 shall be\nconsidered \"Netscape Legacy Ads.\"\n\n     16.2.     ALLOCATION OF NET REVENUE.  Beginning on July 1, 1997, Yahoo will\nmanage the sale of the banner advertising inventory for the What's New Page and\nWhat's Cool Page.  The net revenue from such advertising sales (as calculated in\nSection 17.1) will be allocated [XXXX]  to Netscape and [XXXX] to Yahoo,\nincluding any amounts of net revenue booked, but not run, by Netscape during the\nsecond calendar quarter of 1997, up to a total advertising net revenue of\n[XXXX].  After [XXXX] in total advertising net revenue from the What's New Page\nand What's Cool Page is achieved (including any amounts booked and run by\nNetscape from the Launch Date until July 1, 1997), the net revenue will be\nallocated [XXXX] to Netscape and [XXXX] to Yahoo for the remainder of the Term. \nSuch net revenues shall be credited against Yahoo's payment guarantees.\n\n17.  REVENUE SPLIT. \n\n     17.1.     ALLOCATION.  For all pages in the Service and the People Pages,\nthe parties will share revenue as follows:  The net revenue will be allocated\n[XXXX] to Netscape, and  [XXXX] to Yahoo, where net revenue is defined as total\nrevenues less barter, bad debt (provided that charges against bad debt do not\nexceed three percent (3%) of the gross revenues), and cost of sales (at twenty\npercent (20%) of gross revenues).  This revenue percentage allocation applies to\nall revenues received by the parties under this Agreement other than revenues\nreceived by Netscape as described in Section 16.1.  Yahoo may keep an ongoing\nreserve of three percent (3%) for bad debt, and actual bad debt shall be\nreconciled at the conclusion of each twelve (12) month period. \n\n     17.2      ADJUSTMENTS.  If Netscape meets its traffic guarantee in the \nfirst year after the Launch Date, as described in Section 15, then, in the \nsecond year after the Launch Date: (i) Yahoo shall guarantee a minimum or \nFifteen Million Dollars ($15,000,000) in advertising revenue, as described in \nSection 14.1, and (ii) Netscape will guarantee the traffic commitment as \ndescribed in Section 15. [XXXX]\n\n     Any further adjustments shall be mutually agreed to by Netscape and \nYahoo in the fourth quarter of the first year after the Launch Date.  Such \nadditional adjustments shall be based on traffic trends in the third and \nfourth quarters of the first year after the Launch Date and actual traffic in \nthe fourth quarter of the first year after the Launch Date.\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n[XXXX]\n\n19.  REPORTING AND AUDIT RIGHTS.\n\n     19.1      REPORTING.  Within fifteen (15) days after the end of each month\nduring the Term:  (i)  Yahoo shall provide Netscape with a report in common log\nformat describing the total number of hits and page impressions for each of the\npages in the Service, and such other tracking information as the parties shall\nmutually agree, and (ii)  Netscape shall provide Yahoo with a report describing\nthe number of redirects of traffic to the Service from Netscape's Web Site, the\nWhat's New Page, the What's Cool Page and the People Pages, and such other\ntracking information as the parties shall mutually agree.\n\n     19.2      AUDIT RIGHTS.  Each June and December during the Term, the\nparties shall review the financial results (including gross revenues, bad debt\nand barter) for the Service.  Netscape shall have the right, upon no less than\nfifteen (15) days prior written notice to Yahoo, to cause an independent\nCertified Public Accountant to inspect, during Yahoo's normal business hours,\nthe records of Yahoo upon which Yahoo's revenue reports are based.  The costs of\nsuch audit shall be paid by Netscape provided, however, that if said inspection\nshall reveal an error in excess of (five) (5%) percent in monies due to\nNetscape, Yahoo shall pay for the audit.  Netscape's audit rights as described\nherein shall continue for two (2) months after the expiration or termination of\nthis Agreement.\n\n20.  TERM AND TERMINATION.\n\n     20.1.     TERM.  Unless earlier terminated pursuant to the provisions of\n20.2, the Term of this Agreement shall continue for [XXXX] after the Launch\nDate.  The Agreement shall be automatically extended for a [XXXX] period\nthereafter, provided that [XXXX] after the Launch Date, neither party has any\nobjection to the automatic renewal.  [XXXX] after the Launch Date, the parties\nagree to enter into [XXXX] for a period of [XXXX] during which time the parties\nshall [XXXX].  If, at the end of such [XXXX], no agreement is reached as to the\nterms of the renewal period, this Agreement shall expire at the end of the Term.\n\n     20.2.     TERMINATION FOR CAUSE.  Either party shall have the right to\nterminate this Agreement upon a material default by the other party of any of\nits material obligations under this Agreement, unless within thirty (30)\ncalendar days after written notice of such default the defaulting party remedies\nsuch default.  Netscape shall have the right to terminate the Agreement upon\nYahoo's breach of its representation and warranty set forth in Section 23.3.\n\n     20.3.     RIGHTS UPON TERMINATION OR EXPIRATION.  Upon expiration or\ntermination of this Agreement:  (i) Netscape shall have the right, without any\nadditional payment, charge or royalty to Yahoo, to produce a service similar to\nthe Service which does not include Yahoo's intellectual property (except as set\nforth in Section 12.4) or name but which might employ a graphic user interface\nwhich is substantially similar to the graphic user interface of the Service, and\n(ii) Yahoo shall no longer have the right to use the Service Name or produce the\nService.  In addition to the right to receive amounts payable at the time of the\ntermination of expiration of this Agreement, Sections 3.3, 12.4, 19.2, 20.3, 21,\n22 and 23 shall survive the termination or expiration of this Agreement for any\nreason.  Provisions of other Sections which, by their nature, must remain in\neffect beyond the termination or expiration of this Agreement shall survive.\n\n21.  WARRANTIES AND INDEMNIFICATION\n\n     21.1      TITLE.  Yahoo warrants that it has the right to perform the\nservices set forth in this Agreement, (i) it owns or licenses all rights, title\nand interest in and to the technology underlying the production of the Service,\n(ii) Netscape shall not be obligated to pay any fees or royalties for\nimplementing the Service other than as specifically set forth in this Agreement,\nand (iii) there are no pending or threatened lawsuits concerning any aspect of\nthe technology underlying the Service. \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n     21.2.     PERFORMANCE.  Yahoo warrants that the Service will function\nsubstantially in accordance with the specifications set forth in this Agreement\nand as the parties may determine from time to time.  Yahoo shall repair any\nmalfunctions of the Service within a reasonable period of time (not to exceed\ntwo (2) days) after notice of such condition.\n\n     21.3      RESPONSIBILITY.  Yahoo represents and warrants to Netscape that\nthe Content Provider listings (other than the Content Provider listings provided\nby Netscape and which Content Providers refuse to sign Yahoo's standard form for\nparticipation in the Service as Yahoo shall notify to Netscape), advertisements,\nContent Modules, other content managed by and technology utilized by Yahoo which\nwill appear on or be used in the Service, the What's New Page, the What's Cool\nPage and the People Pages will not violate any criminal laws or any rights of\nany third parties, including, but not limited to, infringement or\nmisappropriation of any copyright, patent, U.S. trademark, trade secret, music,\nimage, or other proprietary or property right, false advertising, unfair\ncompetition, defamation, invasion of privacy or rights of celebrity, violation\nof any antidiscrimination law or regulation, or any other right of any person or\nentity, or otherwise violate any applicable local, state, national or\ninternational law.  The foregoing representations and warranties shall not apply\nto any matter concerning or arising from the Refusniks, WNWC Ads, the Transition\nContent Providers prior to July 1, 1997, the Special Content Providers who have\nnot executed the Standard Yahoo Contract in accordance with Section 6.4, the\nNetscape Dedicated Channel, any trademarks, intellectual property, content or\nmaterials licensed from or provided by Netscape for use on or included in the\nService, the What's New Page, the What's Cool Page, or the People Page, or any\naction taken at Netscape direction, insofar as Yahoo is required by Netscape to\nundertake such activities or actions, or manage or include such content and\nmaterials, related to the activities described in this Agreement.  Netscape\nhereby represents and warrants to Yahoo that any material contained in or matter\npertaining to the Refusniks, WNWC Ads, the Transition Content Providers prior to\nJuly 1, 1997, the Special Content Providers who have not executed the Standard\nYahoo Contract in accordance with Section 6.4, the Netscape Dedicated Channel,\nany trademarks, intellectual property, content or materials licensed from or\nprovided by Netscape for use on or included in the Service, the What's New Page,\nthe What's Cool Page, or the People Page, or any action taken by Yahoo at\nNetscape's direction, insofar as Yahoo is required by Netscape to undertake such\nactivities or actions, or manage or include such content and materials, related\nto the activities described in this Agreement, will not violate any criminal\nlaws or any rights of any third parties, including, but not limited to,\ninfringement or misappropriation of any copyright, patent, U.S. trademark, trade\nsecret, music, image, or other proprietary or property right, false advertising,\nunfair competition, defamation, invasion of privacy or rights of celebrity,\nviolation of any antidiscrimination law or regulation, or any other right of any\nperson or entity, or otherwise violate any applicable local, state, national or\ninternational law.\n\n     21.4.     DISCLAIMER.  THE WARRANTIES PROVIDED BY YAHOO HEREIN ARE THE ONLY\nWARRANTIES PROVIDED BY YAHOO WITH RESPECT TO THE SERVICE. SUCH WARRANTIES ARE IN\nLIEU OF ALL OTHER WARRANTIES BY YAHOO, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO\nTHE SERVICE.\n\n     21.5.     INDEMNIFICATION.  Yahoo agrees to indemnify Netscape and to hold\nNetscape harmless from any and all liability, loss, damages, claims, or causes\nof action, including reasonable legal fees and expenses that may be incurred by\nNetscape, arising out of or related to Yahoo's breach of any of the\nrepresentations and warranties set forth in Section 21.3.  In connection with\nsuch indemnification, Netscape will (i) promptly notify Yahoo in writing of any\nsuch claim and grant Yahoo control of the defense and all related settlement\nnegotiations, and (ii) cooperate with Yahoo, at Yahoo's expense, in defending or\nsettling such claim; provided that if any settlement results in any ongoing\nliability to, or prejudices or detrimentally impacts Netscape, and such\nobligation, liability, prejudice or impact can reasonably be expected to be\nmaterial, then such settlement shall require Netscape's written consent.  In\nconnection with any such claim, Netscape may have its own counsel in attendance\nat all public interactions and substantive negotiations at its own cost and\nexpense.  Netscape agrees to indemnify Yahoo and to hold Yahoo harmless from any\nand all liability, loss, damages, claims, or causes of action, \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\nincluding reasonable legal fees and expenses that may be incurred by Yahoo,\narising out of or related to Netscape's breach of any of the representations and\nwarranties set forth in Section 21.3.  In connection with such indemnification,\nYahoo will (i) promptly notify Netscape in writing of any such claim and grant\nNetscape control of the defense and all related settlement negotiations, and\n(ii) cooperate with Netscape, at Netscape's expense, in defending or settling\nsuch claim; provided that if any settlement results in any ongoing liability to,\nor prejudices or detrimentally impacts Yahoo, and such obligation, liability,\nprejudice or impact can reasonably be expected to be material, then such\nsettlement shall require Yahoo's written consent.  In connection with any such\nclaim, Yahoo may have its own counsel in attendance at all public interactions\nand substantive negotiations at its own cost and expense.\n\n22.  LIMITATION OF LIABILITY.  EXCEPT FOR THEIR RESPECTIVE OBLIGATIONS AND\nLIABILITY UNDER SECTION 21.5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY\nLOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL\nDAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO\nTHIS AGREEMENT OR THE TECHNOLOGY 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. \n\n23.  GENERAL.\n\n     23.1.     GOVERNING LAW.  This Agreement shall be subject to and governed\nin all respects by the statutes and laws of the State of California without\nregard to the conflicts of laws principles thereof.  The Superior Court of Santa\nClara County and\/or the United States District Court for the Northern District\nof California shall have exclusive jurisdiction and venue over all controversies\nin connection herewith, and each party hereby consents to such exclusive and\npersonal jurisdiction and venue.\n\n     23.2.     ENTIRE AGREEMENT.  This Agreement, including the exhibits and\nattachments referenced on the signature page hereto, \nconstitutes the entire Agreement and understanding between the parties and\nintegrates all prior discussions between them related to its subject matter. No\nmodification of any of the terms of this Agreement shall be valid unless in\nwriting and signed by an authorized representative of each party.\n\n     23.3.     ASSIGNMENT.[XXXX]\n\n     23.4.     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\n     Yahoo:                             Netscape:\n     Yahoo! Inc.                        Netscape Communications Corporation\n     3400 Central Expressway, Ste. 201  501 East Middlefield Road\n     Santa Clara, CA  95051             Mountain View, CA 94043\n     Fax:  (408) 731-3510               Fax: (415) 528-4123\n     Attn: General Counsel              Attn: General Counsel\n\n     23.5.     CONFIDENTIALITY.  All disclosures of proprietary and\/or\nconfidential information in connection with this Agreement as well as the\ncontents of this Agreement, the financial arrangements described in this\nAgreement, the Content Providers, advertising sales, end user information and\nresearch related to the Service shall be governed by the terms of the Mutual\nConfidential Disclosure Agreement attached hereto as Exhibit G.  The information\ncontained in the reports provided by each party hereunder \n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\nshall be deemed the Proprietary Information of the disclosing party.\nNotwithstanding the foregoing, Netscape may, in its sole discretion, make\npublicly available the auditing of traffic results and indicate that Yahoo is\nthe source of the information. \n\n     23.6.     FORCE MAJEURE.  Neither party will be responsible for any failure\nto perform its obligations under this Agreement due to causes beyond its\nreasonable control, including but not limited to, acts of God, war, riot,\nembargoes, acts of civil or military authorities, fire, floods or accidents.\n\n     23.7.     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     23.8.     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     23.9.     INDEPENDENT CONTRACTORS.  The parties acknowledge and agree that\nthey are 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     23.10.    SEVERABILITY. In the event any provision of this Agreement is\nheld by a court or other tribunal of competent jurisdiction to be unenforceable,\nsuch provision shall be reformed only to the extent necessary to make it\nenforceable, and the other provisions of this Agreement will remain in full\nforce and effect.\n\n     23.11.    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     23.12     ATTORNEY'S FEES. In the event of any action, suit, or proceeding\nbrought by either party to enforce the terms of this Agreement, the prevailing\nparty shall be entitled to receive its costs, expert witness fees, and\nreasonable attorneys fees and expenses, including costs and fees on appeal.\n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\nThe parties have duly executed this Agreement as of the later of the two (2)\ndates set forth below.\n\nYAHOO:                                  NETSCAPE:\n    \nYAHOO! INC.                             NETSCAPE COMMUNICATIONS CORPORATION\n    \nBy: \/s\/ JEFFREY MALLETT                 By: \/s\/ JENNIFER BAILEY\n   -------------------------------         -------------------------------\nPrint Name: Jeffrey Mallett             Print Name: Jennifer Bailey\n           -----------------------                 -----------------------\nTitle: Senior Vice President            Title: VP of Electronic Marketing\n      ----------------------------            ----------------------------\nDate: 3\/17\/97                           Date: 3\/17\/97\n     -----------------------------           -----------------------------\n\nYahoo! Inc. Address:                    Netscape Address:\n3400 Central Expressway, Ste. 201       501 East Middlefield Road\nSanta Clara, CA  95051                  Mountain View, California  94043\nUSA                                     USA\nAttention: General Counsel              Attention:  General Counsel\nFacsimile:  (408) 731-3510              Facsimile:  (415) 528-4123\nEmail:  jplace@yahoo.com                Email:  roberta@netscape.com\n\nEffective Date:____________________\nAttached Exhibits:\n     Exhibit A:     Pro Forma Layout of Service\n     Exhibit B:     Netscape-Designated Content Providers\n     Exhibit C:     Form of End User Registration\n     Exhibit D:     Netscape Advertising Obligations\n     Exhibit E:     Traffic Estimates\n     Exhibit F:     Criteria for Content Provider Participation\n     Exhibit G:     Mutual Non-Disclosure Agreement\n\n\n                    [X]   CONFIDENTIAL TREATMENT REQUESTED\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8328,9377],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9613,9619],"class_list":["post-42142","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_companies-yahoo-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","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\/42142","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=42142"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42142"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42142"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42142"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}