{"id":42945,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/u-s-english-language-net-search-program-distinguished-provider.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"u-s-english-language-net-search-program-distinguished-provider","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/u-s-english-language-net-search-program-distinguished-provider.html","title":{"rendered":"U.S. English-Language Net Search Program Distinguished Provider Services Agreement &#8211; Netscape Communications Corp. and GoTo.com Inc."},"content":{"rendered":"<pre>[LOGO]\n\n                      NETSCAPE COMMUNICATIONS CORPORATION\n                    U.S. ENGLISH-LANGUAGE NET SEARCH PROGRAM\n                   DISTINGUISHED PROVIDER SERVICES AGREEMENT\n                                  Cover Sheet\n                                     ------\n\n                                        \n                                 GoTo.com Inc.\n-------------------------------------------------------------------------------\n      Full legal name of Distinguished Provider ('Distinguished Provider')\n  \n\n\n130 West Union Street, Pasadena, CA 91103 USA\n--------------------------------------------------------------------------------\nAddress of Distinguished Provider's           City       State     Zip\/Country\nPrincipal Place of Business\n\nContact Person: Talmadge O'Neill\n\nContact Person's Phone: 626-535-2872 Fax: 626-535-2701 E-mail talmadge@goto.com\n                        ------------      ------------        -----------------\n\n\n\nDistinguished Provider is organized in the state of           Delaware\n                                                     ---------------------------\n\n\nIMPORTANT NOTICE; UPON EXECUTION BY THE PARTIES, THIS NETSCAPE COMMUNICATIONS\nCORPORATION ('NETSCAPE') U.S. ENGLISH LANGUAGE NET SEARCH PROGRAM-DISTINGUISHED\nPROVIDER SERVICES AGREEMENT, OF WHICH THIS PAGE IS A COVER SHEET, ALLOWS\nDISTINGUISHED PROVIDER TO PARTICIPATE IN THE NET SEARCH PROGRAM AS DESCRIBED\nHEREIN. BY SIGNING THIS COVER SHEET, DISTINGUISHED PROVIDER AGREES TO ALL THE\nTERMS AND CONDITIONS ATTACHED (COLLECTIVELY, THE 'AGREEMENT'). FAILURE TO\nCOMPLY WITH THIS AGREEMENT MAY RESULT IN TERMINATION.\n\nOBJECTIVE: To direct users of a Netscape client software Internet browser\nproduct ('Browser') to U.S. English-language Internet search and directory\nservices.\n\nDistinguished Provider Category :    Search for Products &amp; Services\n                                 -----------------------------------\nTerritory: United States\n           -------------\n\nLocal Language: U.S. English\n                ------------\n\nDistinguished Period: 1 year, from June 1, 1998 (Launch) to May 31, 1999.\n                      ------------------------------------------------------\n\nEffective Date: Date of Netscape's Acceptance\n                -----------------------------\n\n\n   DISTINGUISHED PROVIDER            NETSCAPE COMMUNICATIONS CORPORATION\n      GoTo.com, Inc.\n\nBy: \/s\/ JEFFREY BREWER               By:\n   ----------------------------         --------------------------------\n\nName: Jeffrey Brewer                 Name:\n     --------------------------           ------------------------------\n\nTitle: CEO                           Title:\n      -------------------------            -----------------------------\n\nDate: 5\/13\/98                        Date of Acceptance ('Effective\n     --------------------------      Date')\n                                           -----------------------------\n                                     Address: 501 East Middlefield Road,\n                                     Mountain View, CA 94043\n\n                                       1\n\n\n\n              DISTINGUISHED PROVIDER SERVICES TERMS AND CONDITIONS\n\n1.  Distinguished Provider.  The entity ('Distinguished Provider') named on \nthe Cover Sheet to this agreement ('Agreement') provides a featured search \nand directory service for the U.S. English-language HTML page accessible by the \npublic via the Internet at the Universal Resource Locator ('URL') http:\/\/home.\nnetscape.com\/escapes\/search, or such other URL as Netscape may designate from\ntime to time in writing (the 'Page'). The page is part of the collection of\nU.S. English-language HTML documents accessible by the public via the Internet\nat the URL http:\/\/home.netscape.com and\/or at such other URL or URL's as\nNetscape may designate ('Netscape's U.S. English-language Web Site'). The Page\nmay also be accessed by users of the Netscape-distributed English-language\nversion of the Browser by pressing or 'clicking' on the Net Search Button, or\nsuch other methods as Netscape may specify from time to time. Notwithstanding\nthe foregoing. Netscape reserves the right to determine other means whereby\nusers may access pages which provide Internet search and directory services\non Netscape's U.S. English-language Web Site including, but not limited to,\nthrough the use of mirror sites and pointers based on a user's IP address, and\nwhich pages are separate and distinct from the Page described in this Agreement.\n\n2.  Distinguished Period.  Unless sooner terminated as provided for in this \nAgreement, Netscape will maintain the Distinguished Listing (as defined below) \non the Page from the evening of June 1, 1998 until May 31, 1999 \n('Distinguished Period'). The parties may, upon mutual written agreement no \nless than 30 days prior to the end of the Distinguished Period, extend the term \nof this Agreement for an additional 12 month period upon terms and conditions \nagreed to by the parties: provided, however, nothing contained herein shall \nobligate either party to agree to extend the term of this Agreement.\n\n3.  Exposure on Page.  (a) Netscape will list Distinguished Provider's name in \nthe Distinguished Provider portion of the Page ('Distinguished Listing')(below \nthe logos of any Premier Provider participating in Netscape's Net Search \nProgram). Distinguished Provider shall retain all right, title and interest in \nand to the Distinguished Listing. The specifications of the Distinguished \nListing and its placement on the Page are set forth on Exhibit A hereto. \nNetscape may, upon notice to Distinguished Provider, (i) change the position of \nthe Distinguished Listing on the Page, (ii) revise Exhibit A, or (iii) redesign \nor reconfigure Netscape's U.S. English-language Web Site, the Page and\/or the \nmanner in which an end user interacts with any of the pages of Netscape's U.S. \nEnglish-language Web Site, and Distinguished Provider shall promptly (and in \nany event, within no more than 1 week following receipt of the notice) supply \nNetscape with a revised Distinguished Listing which conforms to the \nspecifications of the revised Exhibit A. (b) Netscape will produce the Page, as \nset forth on Exhibit A which Exhibit Netscape may revise from time to time, \nsuch that when an end user presses or 'clicks' on the Distinguished Listing, \nthe end user's Browser will access\/ ('Distinguished Link') Distinguished \nProvider's applicable HTML page located at the applicable URL (as supplied by \nDistinguished Provider) for such page on Distinguished Provider's Web site \n('Distinguished URL'). Distinguished Provider hereby grants Netscape a \nroyalty-free worldwide license to use, display, perform, reproduce and \ndistribute the Distinguished Listing. Distinguished Link and Distinguished URL \nand such other licenses with respect to the Distinguished Listing, \nDistinguished Link and Distinguished URL necessary to fulfill the intention of \nthis Agreement. (c) Netscape will use reasonable commercial efforts to remedy \nany material misplacement of the Distinguished Listing on the Page or any \nmaterial malfunctioning of the Distinguished Link under the control of \nNetscape, provided Distinguished Provider will fully cooperate with Netscape to \nremedy any such material malfunctioning or misplacement, and provided further \nthat Netscape shall not incur liability for any failure to remedy such material \nmalfunctioning or misplacement if such remedy is not within the reasonable \ncontrol of Netscape.\n\n4.  Fees and Taxes.  (a) For the benefits provided to Distinguished Provider \nduring the Distinguished Period, Distinguished Provider shall pay Netscape in \naccordance with the following tiered pricing based on clicks:\n\nTier 1: Up to 5,000 average Clicks per day = US$20,000 per \nmonth\n\nTier 2: 5,001-15,000 average Clicks per day = US$30,000 per \nmonth\n\nTier 3: 15,001-45,000 average Clicks per day = US$40,000 per \nmonth\n\nTier 4: 45,001-90,000 average Clicks per day = US$50,000 per \nmonth\n\nTier 5: 90,001 or more average Clicks per day = US$60,000 per \nmonth\n\n('Click' means an action typically resulting from a user positioning his mouse \ncursor on a clickable hyperlink and selecting or clicking on that hyperlink. \nClicks are counted as a redirection of a user's click through the Netscape \nserver access logs to the Distinguished Providers Page).\n\nNetscape will invoice Distinguished Provider monthly based on the average  \ndaily Clicks for the first month. If the average daily Clicks per month for \nsuccessive months is lower or higher than the initial month, Netscape will \nprovide an adjusted invoice accordingly. In the event a termination date falls \nshort of a full month, then Netscape will invoice Distinguished Provider \nprorata for that portion of the month prior to termination. During the first \nmonth only, Netscape will also provide Distinguished Provider with weekly Click \nreports. (b) All amounts payable to Netscape must be paid in a single payment \nwithin 30 days of the date of Netscape's invoice. All payments shall be made by \nwire transfer or remittance in accordance with Netscape's instructions on such \ninvoice. Past due amounts shall bear interest at the lower of 1-1\/2% per month \nor the maximum rate allowed by law until paid in full. All payments by \nDistinguished Provider are in U.S. Dollars and are exclusive of any applicable \ntaxes. Distinguished Provider shall pay, indemnify and hold Netscape harmless \nfrom all import duties, customs fees, levies or imposts, and all sales, use, \nvalue added, consumption, withholding or other taxes of any nature, other than \ntaxes on Netscape's net income, including penalties and interest, and all \ngovernment permit or license fees assessed upon or with respect to any payments \nby Distinguished Provider (except to the extent Distinguished Provider provides \nNetscape with a valid tax exemption certificate). If any applicable law \nrequires Distinguished Provider to withhold amounts from any payments to \nNetscape hereunder, (i) Distinguished Provider shall effect such withholding, \nremit such amounts to the appropriate taxing authorities and promptly furnish \nNetscape with tax receipts evidencing the payments of such amounts, and \n(ii) the sum payable by \n\n                                       2\n\n \n\nDistinguished Provider upon which the deduction or withholding is based shall\nbe increased 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\n5.  Additional Distinguished Provider Benefits. (a) Every 3 months during the\nDistinguished Period, Netscape will provide Distinguished Provider at no charge\nwith 500,000 page views of banner advertising service on Netscape's U.S.\nEnglish-language Web Site, as such services are described in the Banner\nAdvertising Terms and Conditions attached hereto as Exhibit C (or such\nadvertisement's equivalent, in Netscape's reasonable discretion) during the\nDistinguished Period. The advertising shall be scheduled at Netscape's\ndiscretion as inventory becomes available and shall end no later than the end of\nthe Distinguished Period; provided Distinguished Provider supplies Netscape with\nthe graphic files and other materials and information within the timeframes and\nas set forth in the specifications of the applicable Netscape advertising\nprogram and as reasonably requested by Netscape to produce the advertisement.\nDistinguished Provider shall enter into Netscape's standard form of advertising\nagreement. (b) During the Distinguished Period, Distinguished Provider may\npurchase additional advertising on Netscape's U.S. English-language Web Site for\nadvertising that will run during the Distinguished Period for the service of\nDistinguished Provider at a discount of 10% off Netscape's then standard rates\nfor such advertising.\n\n6.  'Netscape Now' Button Display. In addition to the other obligations set\nforth in this Agreement, Distinguished Provider will Display the 'Netscape Now'\nbutton prominently above the fold of either (i) Distinguished Provider's home\npage on Distinguished Provider's Web site, or (ii) on all pages linked to the\nDistinguished URL, and use best efforts to include the following statement (or a\nstatement designated by Netscape and generally used by Netscape as a successor\nto the following statement or in connection with any successor program to\nNetscape's Netscape Now program) next to the Netscape Now button: 'This site is\nbest viewed with Netscape Communicator. Download Netscape Now!' (or such higher\nnon-beta version as is then available). Distinguished Provider will produce the\npage such that when an end user presses or clicks on the Netscape Now button (or\nsuch other button used in connection with any successor program to the Netscape\nNow program), the end user's Internet client software will access the applicable\nHTML page located at a URL supplied by Netscape. On any page on which the\nNetscape Now button, or a successor button, is displayed, the Netscape Now\nbutton shall be top-most and left-most, and equal to or greater in size and\nprominence than the virtual button or other graphic for any third party Internet\nclient software or software provider. Distinguished Provider shall use\nreasonable commercial efforts promptly to remedy any misplacement of the\nNetscape Now button on its home page or other pages or any malfunctioning of the\nbutton, provided Netscape will cooperate with Distinguished Provider to remedy\nany such misplacement or malfunctioning, and provided further that Distinguished\nProvider shall not incur liability for any failure to remedy such misplacement\nor malfunctioning if such remedy is not within the reasonable control of\nDistinguished Provider. In the event that Netscape replaces the Netscape Now\nprogram with a successor program, Netscape shall advise Distinguished Provider\nand Distinguished Provider shall produce the page to conform to such successor\nprogram, provided Distinguished Provider's obligations under such successor\nprogram shall not be materially increased. Netscape hereby grants Distinguished\nProvider a nonexclusive, nontransferable, nonassignable, nonsublicensable\nlicense to perform and display the Netscape Now button directly in connection\nwith fulfilling the foregoing obligation. Distinguished Provider's use of the\nNetscape Now button shall be in accordance with Netscape's reasonable policies\nregarding advertising and trademark usage as established from time to time by\nNetscape, including the guidelines of the Netscape Now Program published on\nNetscape's U.S. English-language Web Site. Distinguished Provider acknowledges\nthat the Netscape Now button is a proprietary logo of Netscape and contains\nNetscape's trademarks. In the event that Netscape determines that Distinguished\nProvider's use of the Netscape Now button is inconsistent with Netscape's\nquality standards, then Netscape shall have the right to suspend immediately\nsuch use of the Netscape Now button. Distinguished Provider understands and\nagrees that the use of the Netscape Now button in connection with this Agreement\nshall not create any right, title or interest in or to the use of the Netscape\nNow button or associated trademarks and that all such use and goodwill\nassociated with the Netscape Now button and associated trademarks will inure to\nthe benefit of Netscape. Distinguished Provider agrees not to register or use\nany trademark that is similar to the Netscape Now button. Distinguished Provider\nfurther agrees that it will not use the Netscape Now button in a misleading\nmanner or otherwise in a manner that could tend to reflect adversely on Netscape\nor its products.   \n\n7.  Distinguished Provider Obligations. Distinguished Provider will: (a) Use at\nleast 1 current version of Netscape core Web server software product (currently\ncomprised of Netscape Enterprise Server) to maintain Distinguished Provider's\nWeb site and, if requested, provide Netscape of evidence of such use: \n(b) Implement HTML Frames, layers, dynamic HTML pages, Java, JavaScript or the \nthen current client software technology (or subsequent features displayable by \nthe Browser, within the beta testing period of the availability of such \nfeatures) ('Site Features') for display with those Internet software clients \ncapable of displaying the site Features on (i) the Distinguished Provider's Web \nsite, provided that Distinguished Provider shall use reasonable commercial \nefforts to implement the Site Features on Distinguished Provider's Web site in a\nlocation and in a fashion as Netscape may agree, and (ii) at least 1 HTML page \nlocated at the Distinguished URL (or on an HTML page located further down the \ndirectory tree from the page located at the Distinguished URL; provided \nDistinguished Provider will use reasonable efforts to implement the Site \nFeatures as high in such directory tree structure as possible), and, where \nappropriate, on all other HTML pages of Distinguished Provider's Web site: \nprovided Distinguished Provider shall not be required to implement the Site \nFeatures on pages of any secondary Web site of Distinguished Provider that \nDistinguished Provider is required to construct to satisfy Distinguished \nProvider's obligations under any third party contract existing as of the \nEffective date of this Agreement. Netscape shall use reasonable commercial \nefforts to help Distinguished Provider implement changes in order to comply with\nnew Site Features: (c) Include on the page served to an end user in conjunction \nwith the results of the end user's search query a 'mailto' link which users of \nDistinguished Provider's service can use to direct questions or help requests to\nDistinguished Provider. Distinguished Provider will use reasonable efforts to \nreply promptly, but in any event within 1 week, to any such question or help \nrequest: and (d) Not provide or implement any means or functionality which would\n(i) alter or modify, or enable end users to \n\n                                       3\n\nalter or modify, the Browser standard user Interface or configuration, \n(ii) disable any functionality of the Browser or any other Internet browser \nsoftware, or (iii) modify the functioning of pages served from Netscape's U.S.\nEnglish-language Web Site.\n\n 8.  Usage Reports.  (a) Distinguished Provider will provide Netscape, via\nemail to the email address set forth below, with usage reports ('Usage Reports')\ncontaining the information and in the format set forth in Exhibit B hereto. The\nUsage Reports shall be delivered within 15 days following the end of each month\nduring the Distinguished Period. The parties may, by mutual written agreement,\nalter the content and format of the Usage Reports. (b) Netscape will provide\nDistinguished Provider with monthly click reports within 15 days following the\nend of each month during the Distinguished Period. Such reports will contain\nthe daily clicks for each day of that month, the monthly total of clicks and\nthe daily average of clicks for that month.\n\n 9.  Termination.  Either party may terminate this Agreement if the other party\nmaterially breaches its obligations hereunder and such breach remains uncured\nfor 15 days following notice to the breaching party of the breach or as\notherwise provided in Section 10. At anytime during the first 28 calendar days\nof the Distinguished Period, Distinguished Provider may terminate this\nAgreement for convenience upon 7 days prior written notice to Netscape.\nThereafter, either party may terminate this Agreement for convenience upon 90\ndays prior written notice to the other party. Upon any termination or\nexpiration of this Agreement, Netscape shall immediately cease providing to\nDistinguished Provider the benefits described herein, including, without\nlimitation, the benefits described in Sections 3 and 5 hereof.\n\n10.  Right to Refuse.  Netscape will have the right to review the contents and\nformat of the HTML page located at the Distinguished URL and the Distinguished\nListing. If Netscape, in its sole discretion at any time determines that the\nHTML page located at the Distinguished URL or the Distinguished Listing\ncontains any material, or presents any material in a manner, that Netscape\ndeems inappropriate for any reason. Netscape will inform Distinguished Provider\nof the reason Netscape has made such determination and may (i) refuse to\ninclude the Distinguished Listing in the Page, and\/or (ii) immediately\nterminate this Agreement if Distinguished Provider has not revised to\nNetscape's reasonable satisfaction the HTML page located at the Distinguished\nURL or the Distinguished Listing within 1 business day of written notice from\nNetscape. If Netscape, in its sole discretion, at any time determines that the\nDistinguished Provider's Web site contains any material, or presents any\nmaterial in a manner, that Netscape deems inappropriate for any reason,\nNetscape may immediately terminate this Agreement upon notice to Distinguished\nProvider. Netscape reserves the right to refuse to include in the Page any\nDistinguished Listing that does not completely conform to the specification\nset forth in Exhibit A.\n\n11.  Responsibility For Distinguished Listing.  Distinguished Provider is solely\nresponsible for any legal liability arising out of or relating to the\nDistinguished Listing and\/or any material to which users can link through the\nDistinguished Listing. Distinguished Provider represents and warrants that it\nholds the necessary rights to permit the use of the Distinguished Listing,\nDistinguished URL and Distinguished Link by Netscape for the purpose of this\nAgreement; and that the permitted use, reproduction, distribution, or\ntransmission of the Distinguished Listing and any material to which users can\nlink through the Distinguished Listing will not violate any criminal laws or\nany rights of any third parties, including, but not limited to, infringement or\nmisappropriation of any copyright, patent, 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\nor entity. Distinguished Provider 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 Distinguished Provider's breach of any\nof the foregoing representations and warranties.\n\n12.  Limitation of Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE\nOTHER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON\nBREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR\nNOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE\nLIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER WHETHER IN\nCONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED\nTHE PAYMENT DUE FROM DISTINGUISHED PROVIDER HEREUNDER. THE LIMITATIONS IN THIS\nSECTION DOT NOT APPLY TO SECTION II (RESPONSIBILITY) OR SECTION 13\n(CONFIDENTIALITY).\n\n13.  Confidentially.  (a) 'Confidential Information' shall mean this Agreement\n(including but not limited to any monthly reports and invoices) and all\ninformation a party discloses to the other which has been either \n(i) characterized in writing as confidential at the time of its disclosure or \n(ii) orally characterized as confidential at the time of disclosure, except for\ninformation which the receiving party can demonstrate: (a) is previously\nrightfully known to the receiving party without restriction on disclosure: \n(b) is or becomes, from no act or failure to act on the part of the receiving\nparty, generally known in the relevant industry or public domain: (c) is\ndisclosed to the receiving party by a third party as a matter or right and\nwithout restriction on disclosure; or (d) is independently developed by the\nreceiving party without access to the Confidential Information. Each receiving\nparty shall at all times, both during the term hereof and for a period of at\nleast 5 years after termination, keep in confidence all the disclosing party's\nConfidential Information using a standard of care the receiving party uses with\nits own information of this nature, but in no event less than reasonable care.\nThe receiving party shall not use the disclosing party's Confidential\nInformation other than in the course of its duties hereunder. Neither party\nacquires any intellectual property rights under this Agreement or through any\ndisclosure hereunder, except the limited right to use such Confidential\nInformation in accordance with this Agreement. The Confidential Information\nunder this Agreement is delivered 'AS IS' and all representations or\nwarranties, whether express or implied, including warranties or conditions for\nfitness for a particular purpose, merchantability, title and non-infringement\nare hereby disclaimed. Without the prior written consent of the disclosing\nparty, the receiving party shall not disclose the disclosing party's\nConfidential Information except on a 'need to know' basis to an employee or\ncontractor under binding obligations of confidentiality substantially similar to\nthose set forth herein. If a receiving party is legally compelled to disclose\nany of the disclosing party's Confidential Information, then, prior to such\ndisclosure, the receiving party will (x) assert the privileged and confidential\nnature of the Confidential Information and (y) cooperate fully with the\ndisclosing party in protecting against any such disclosure and\/or obtaining a\nprotective order narrowing the scope of such disclosure and\/or use of the\nConfidential Information. In the event such protection is not obtained, the\nreceiving party shall disclose the  \n\n\n\n                                       4\n\n \n   \n\nConfidential Information only to the extent necessary to comply with applicable\nlegal requirements. The information contained in the Usage Reports provided\nhereunder shall be deemed the Confidential Information of both parties. Either\nparty may use such Confidential Information internally, but shall not disclose\nsuch Confidential Information to any third party. Notwithstanding the\nforegoing, (a) Information contained in the Usage Reports which is available to\nNetscape through other sources shall not be Distinguished Provider Confidential\nInformation; and (b) Netscape may aggregate the Information in the Usage\nReports with information from other sources, and the aggregated information\nshall not be Distinguished Provider Confidential Information.\n\n14.  Records; Audit.  Netscape shall maintain accurate records reflecting the\nnumber of billable Clicks recorded on Netscape's server access logs. At\nDistinguished Provider's expense, Distinguished Provider shall have the right,\nat a mutually agreeable time during normal business hours and upon at least 15\nbusiness days prior notice, to conduct an audit to verify Click data upon which\ninvoices are based. \n\n15.  General.  (a) The parties hereto are independent contractors and shall\nhave no power or authority to bind the other party or to assume or create any\nobligation or responsibility, express or implied, on behalf of the other party\nor in the other party's name. This Agreement shall not be construed to create\nor imply any partnership, agency, joint venture, or any other form of legal\nassociation between the parties. (b) Distinguished Provider may not assign this\nAgreement in whole or in part, by operation of law or otherwise, without\nNetscape's prior written consent, and any attempted assignment of this\nAgreement by Distinguished Provider without such consent will be null and void.\nNetscape may assign this Agreement or its rights hereunder, or delegate its\nduties hereunder. This Agreement shall apply to and bind any permitted\nsuccessor or assigns of the parties hereto. (c) Any dispute hereunder will be\nnegotiated between the parties commencing upon written notice from one party to\nthe other. Settlement discussions and materials will be confidential and\ninadmissible in any subsequent proceeding without both parties' consent. If the\ndispute is not resolved by negotiation within 45 days following such notice,\nthe parties will refer the dispute to non-binding mediation conducted by\nJAMS\/EndDispute. The parties will share the costs of mediation. If the dispute\nis not resolved after 45 days of mediation, the parties will refer the dispute\nto binding arbitration by JAMS\/EndDispute in Santa Clara County, California.\nThe results of any arbitration will be final and non-appealable, except that\neither party may petition any court of competent Jurisdiction to review any\ndecision relating to intellectual property matters (including the scope of\nlicense rights), vacating or modifying erroneous conclusions of law or findings\nof fact not supported by substantial evidence. The arbitrator may fashion any\nlegal or equitable except punitive or exemplary damages, which both parties\nwaive. The arbitrator will render a written decision, which may be entered in\nand enforced by any court of competent jurisdiction, but which will have no\npreclusive effect in other matters involving third parties. The losing party\nwill pay the costs of the arbitration and the reasonable legal fees and\nexpenses of the prevailing party, as determined by the arbitrator. The parties\nwill jointly pay arbitration costs pending a final allocation by the\narbitrator. At any point in the dispute resolution process, either party may\nseek injunctive relief preserving the status quo pending the outcome of that\nprocess. Except as noted, the parties waive any right to judicial process.\nCalifornia law, without regard to its conflict-of-law provisions, will govern\nthis Agreement. The U.S. Arbitration Act and JAMS\/EndDispute rules will govern\nthe arbitration process. Absent fraudulent concealment, neither party may raise\na claim more than 3 years after it arises or any shorter period provided by\napplicable statutes of limitations. (d) Neither party will be liable to the\nother party for any failure or delay in performance caused by reasons beyond\nsuch party's reasonable control, and such failure or delay will not constitute\na breach of this Agreement. (e) Any notices under this Agreement shall be in\nEnglish, in writing, and sent by confirmed facsimile internationally-recognized\nexpress delivery service, or certified or registered mail, return receipt\nrequested, to the address specified in the Cover Sheet, or such other address\nas the party specifies in writing. Notice by confirmed facsimile or express\ndelivery service will be deemed received and effective upon delivery. Notice by\ncertified or registered mail will be deemed received and effective 5 days after\ndispatch. Notices to Netscape shall be to the attention of the Legal\nDepartment, Netscape Communications Corporation, 501 East Middlefield Road,\nMountain View, California 94043. (f) The waiver of any breach or default of this\nAgreement will not constitute a waiver of any subsequent breach or default, and \nwill not act to amend or negate the rights of the waiving party. (g) If one or \nmore of the provisions contained in this Agreement is determined to be invalid,\nillegal or unenforceable in any respect under any applicable statute or rule of \nlaw, then such provision will be considered inoperable to the extent of such \ninvalidity, illegality or unenforceability, and the remainder of this Agreement \nwill continue in full force and effect. The parties hereto agree to replace any \nsuch invalid, illegal or unenforceable provision with a new provision that has \nthe most nearly similar permissible economic and legal effect. (h) This \nAgreement may be executed in two or more counterparts, each of which shall be \ndeemed an original, but all of which together shall constitute one and the same \ninstrument. For purposes hereof, a facsimile copy of this Agreement, including \nthe Cover Sheet hereto, shall be deemed to be an original. Notwithstanding the \nforegoing, the parties shall deliver original execution copies of this Agreement\nto one another as soon as practicable following execution thereof. \n(i) Distinguished Provider will not issue a press release regarding the \nactivities described in this Agreement without Netscape's prior written consent.\nDistinguished Provider will not disclose the existence of this Agreement until \nafter Netscape publicly issues a press release regarding this Agreement. \n(j) This Agreement is the complete and exclusive agreement between the parties\nwith respect to the subject matter hereof, superseding and replacing any and all\nprior agreements, communications, and understandings (both written and verbal) \nregarding such subject matter. This Agreement may only be modified, or any \nrights under it waived, by a written document executed by both parties. (k) In \norder to bind the parties to this Agreement, their duly authorized \nrepresentatives have executed the Cover Sheet to this Agreement.\n                                       5\n\n                                   EXHIBIT A\n                    NetSearch Distinguished Provider Program\n                 Preliminary Specification - Subject to Change\n\nDescription:\nDistinguished Providers will be listed under one of three columns on the Net\nSearch page. The column headings are probably: Explore the Web, Find a Business\nor Person, Search for a Product or Service.\n\nMaintenance:\nThe Net Search page will be updated every Thursday. Name or URL changes are due\na minimum of one week prior to the requested change date, and will be\nimplemented the following Thursday. Changes should be emailed directly to\nAudrey Crane, audcrane@netscape.com\n\nSpecifications:\nListings may not include any alteration in font face, style, size or color.\n\nListings should fit in the table attached (see Appendix A) without wrapping on\nthe reference platform. Wrapping will be checked on our 'worst-case' system,\nconfigured as follows: A PC running Windows 95, with the settings configured\nfor small fonts, resolution set at 640x480, and a Viewsonic P775 (17 inch)\nmonitor. We will use Netscape Navigator version 4.05, with the Proportional\nFont set at 12pt Times New Roman, and the Fixed Font set at 10pt Courier New\n(all default settings).\n\nNet Search Distinguished Provider Description Pages\n\nDescription:\nThree pages will be linked to from the headers of each of the Distinguished\nProvider columns on the Net Search page. The pages themselves will include a\nbrief description of the category. They will also include brief descriptions\nand a logo of each Distinguished Provider, listed in the same order as they are\nlisted on the Net Search page.\n\nSpecifications:\n\n     Copy: Seventy-five words or less in paragraph format. Please take this\n     opportunity to provide the user with helpful content by describing the\n     unique features that set your service apart, and avoid using directly\n     competitive terms, such as 'best', 'top', 'fastest', etc. For guidelines,\n     http:\/\/www.useit.com\/alertbox\/9710a.html has some useful information,\n     especially the promotional writing vs. concise and objective writing.\n     Netscape reserves editorial rights to alter copy in any way deemed\n     necessary to keep the copy within Netscape's editorial style.\n\n     Logo: Logo must be less than 100 pixels wide and 70 pixels tall. In\n     addition, the height multiplied by the width must be less than or equal to\n     2500 pixels. (For example, if the logo is 100 pixels wide, it can only be\n     25 pixels tall. If the logo is 50 pixels wide, it can be 50 pixels tall. If\n     the logo is 35 pixels wide, it can be 70 pixels tall.)\n\n     URL: The description label and logo will link to each Distinguished\n     Provider's URL as listed in the Distinguished Provider column on the\n     NetSearch page itself. A different URL may be used as submitted by a\n     provider, with the condition that the URL is not a redirect that disables\n     the users ability to use the back button in the browser to get back to the\n     NetSearch page. In order that users who have rating or blocking software\n     installed and\/or operating, we ask that our Distinguish Providers label\n     their site with an appropriate rating. Netscape software supports two types\n     of ratings labels, see Appendix B for an explanation and details.\n\n\nMaintenance:\n\n                                       1\n\n     These three pages will be updated every Thursday. Logo or copy changes are\n     due a minimum of one week prior to the requested change date, and will be\n     implemented the following Thursday. Changes should be emailed directly to\n     Audrey Crane, audcrane@netscape.com\n\n\n\n\n     Technical or production related questions should be directed to:\n\n\n\n\n     Audrey Crane \n     Producer, NetSearch \n     audcrane@netscape.com \n     650-937-4021\n\n                                       2\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8328],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42945","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42945","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=42945"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42945"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42945"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42945"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}