{"id":42948,"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-premier-provider.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"u-s-english-language-net-search-program-premier-provider","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/u-s-english-language-net-search-program-premier-provider.html","title":{"rendered":"U.S. English-Language Net Search Program Premier Provider Services Agreement &#8211; Netscape Communications Corp. and Excite Inc."},"content":{"rendered":"<pre>                                                CONFIDENTIAL TREATMENT REQUESTED\n\n\n\n                       NETSCAPE COMMUNICATIONS CORPORATION\n\n                    U.S. ENGLISH-LANGUAGE NET SEARCH PROGRAM\n\n                       PREMIER PROVIDER SERVICES AGREEMENT\n\n\n\nOBJECTIVE: To direct users of a Netscape client software Internet browser\nproduct (including the Netscape Navigator 2.x and subsequent versions of\nNetscape client software) (\"BROWSER\") to U.S. English-language Internet search\nand directory services.\n\n\n\nTERMS AND CONDITIONS:\n\n1. PREMIER PROVIDER. The entity (\"PREMIER PROVIDER\") named on the signature page\nto this agreement (\"AGREEMENT\") will be a premier search and directory service\nfor the U.S. English-language HTML page accessible by the public via the\nInternet at the Universal Resource Locator (\"URL\")\nhttp:\/\/home.netscape.com\/home\/internet-search, or such other URL as Netscape may\ndesignate from time to time in writing (the \"PAGE\"). The Page is part of the\ncollection of U.S. English-language HTML documents accessible by the public via\nthe Internet at the URL http:\/\/home.netscape.com and\/or at such other URL or\nURL's as Netscape may designate (\"NETSCAPE'S U.S. ENGLISH-LANGUAGE WEB SITE\").\nThe Page may also be accessed by Internet users of the Netscape-distributed\nEnglish-language version of the Browser by pressing or \"clicking\" on the Net\nSearch Button, by visiting the Page by way of a bookmark pre-loaded in certain\nversions of the Browser toolbar as described herein, or such other methods as\nNetscape may specify from time to time. Notwithstanding the foregoing, Netscape\nreserves the right to determine other means whereby users may access pages which\nprovide Internet search and directory services on Netscape's U.S.\nEnglish-language Web Site including, but not limited to, through the use of\nmirror sites and pointers based on a user's IP address, and which pages are\nseparate and distinct from the Page described in this Agreement.\n\n\n2. PREMIER  PERIOD.  Netscape  will maintain the Premier  Graphic,  as defined \nbelow, on the Page for the following one-year period (\"PREMIER PERIOD\"):\n\n\n               From:   May 1, 1997\n\n\n               Until:   April 30, 1998\n\n\n3. SERVICES PROVIDED BY NETSCAPE.\n\n        3.1. Premier Graphic. The Premier Provider will supply Netscape with\nHTML and\/or GIF files, or files of such other format as may be designated from\ntime to time in writing by Netscape, which conform to the specifications in\nExhibit A (\"PREMIER GRAPHIC\") which Netscape will place on the Page during the\nPremier Period. Premier Provider shall retain all right, title and interest in\nand to the Premier Graphic (including the copyright ownership thereof), and\nPremier Provider hereby grants Netscape a royalty-free worldwide license,\nwithout payment or other charge therefor, to use, display, perform, reproduce\nand distribute the Premier Graphic, and such other licenses with respect to the\nPremier Graphic necessary to fulfill the intention of this Agreement. The\nPremier Graphic shall contain a functional search field and, if available,\ndirectory tree. The specifications of the Premier Graphic and its placement on\nthe Page are set forth on Exhibit A hereto, and Premier Provider's compliance\nwith the content as well as the technical, visual and functional specifications\nset forth in Exhibit A are a material obligation of Premier Provider under this\nAgreement. Netscape may, upon notice to Premier Provider, revise Exhibit A,\nprovided that the Premier Graphics for each of the participants in this U.S.\nEnglish-language Net Search Program -- Premier Provider shall remain the largest\nand most prominent category of search graphics on the Page, shall remain\nequivalent in size for each of the Premier \n\n\n\n\nProviders, and shall not differ substantially, including, without limitation,\nany reduction in the size of the Premier Graphic, from the current\nspecifications for the Premier Graphics set forth in Exhibit A.\n\n        3.2. Stack. Netscape will produce the Page as set forth on Exhibit A.\nThe Premier Graphic of each of the services appearing in the Premier Provider\ncategory will appear to be overlapped in a stack (the \"STACK\"). A Premier\nGraphic will be accessible by the end user by pressing or \"clicking\" on a tab\nfor the relevant Premier Provider's service. Netscape will produce the Page such\nthat when an end user presses or \"clicks\" on hypertext links (\"PREMIER LINKS\")\nplaced by Premier Provider on the Premier Graphic, the end user's Browser will\naccess Premier Provider's applicable HTML pages located at the applicable URL's\n(\"PREMIER URL'S\") for such pages on the collection of English-language HTML\ndocuments Premier Provider maintains as its primary web site whose home page is\nlocated at the URL http:\/\/www.excite.com (\"PREMIER PROVIDER'S WEB SITE\").\n\n        3.3. Rotation. Netscape will rotate the display of Premier Graphics\nwhich will appear on the top of the Stack when the Page is served to an end user\nwho has not selected a Premier Graphic as a default, as described in Section\n3.4. Subject to the provisions of Section 3.4, Premier Provider's Premier\nGraphic will appear on the top of the Stack [***********] (\"ROTATION\nPERCENTAGE\") of the time in which the Page is served up to end users who have\nnot selected a particular Premier Graphic or selected a default Premier Graphic\nwhen accessing the Page. Premier Provider acknowledges that the above-stated\nrotation percentage is an annualized target. Netscape shall use reasonable\ncommercial efforts to serve up the Premier Graphic at such rotation frequency\nwith a [************************************] throughout the Premier Period.\n\n        3.4. End User Default. Netscape shall produce the Page such that the end\nuser may select which Premier Graphic, or the premier graphic supplied by\ncertain marquee providers participating in the Net Search Program, the end user\nwould prefer to have served on the top of the Stack. If an end user selects a\ndefault Premier Graphic, the Premier Graphic selected by the end user will be\nserved on top of the Stack when that end user accesses the Page. If an end user\nhas elected to have a particular Premier Graphic appear on top of the Stack on a\ndefault basis, the other Premier Graphics will not appear on the top of the\nStack unless selected by the end user.\n\n        3.5. Alphabetical Listing. Premier Provider will supply Netscape with\ntext describing Premier Provider's search service (\"Alphabetical Text\"), which\nshall be no more than fifty (50) words in length and which Alphabetical Text\nNetscape may edit in Netscape's sole discretion. (The Alphabetical Text together\nwith Premier Provider's name are collectively referred to herein as the\n\"ALPHABETICAL LISTING\"). During the Premier Period, Netscape will place the\nAlphabetical Listing on an HTML page linked to the Page and which linked HTML\npage lists Internet search services (the \"ALPHA PAGE\"). Netscape will produce\nthe Alpha Page such that when an end user presses or clicks on a link\n(\"ALPHABETICAL LINK\") embedded in the Alphabetical Listing, the end user's\nBrowser will access Premier Provider's applicable HTML page located at the\napplicable URL for such page on Premier Provider's Web Site (\"ALPHABETICAL\nURL\"). Premier Provider hereby grants Netscape a worldwide license to use,\ndisplay, perform, reproduce and distribute the Alphabetical Listing,\nAlphabetical Link and Alphabetical URL and such other licenses with respect to\nthe Alphabetical Listing, Alphabetical Link and Alphabetical URL necessary to\nfulfill the intention of this Agreement.\n\n        3.6. Page Specifications. The specifications of the Premier Graphic, the\nStack, the Alphabetical Listing and their placement on the Page and Alpha Page\nare set forth on Exhibit A hereto; provided however, that Netscape may, within\nreasonable limits and upon notice to Premier Provider, (i) change the location\nof the Stack on the Page, the Premier Graphic or the Alphabetical Listing on the\nPage or Alpha Page, (ii) redesign or reconfigure the Stack, the Page, the Alpha\nPage, Netscape's U.S. English-language Web Site, and\/or the manner in which an\nend user interacts with any of the pages of Netscape's U.S. English-language Web\nSite, or (iii) revise \n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n\n\n\n                                       2\n\n\nExhibit A, with the changes described in (i), (ii) and (iii) of this sentence to\napply to all Premier Providers equally, and Premier Provider shall promptly, and\nin any event, within no more than thirty (30) days following receipt of the\nnotice, supply Netscape with a revised Premier Graphic and Alphabetical Listing\nwhich conform to the specifications of the revised Exhibit A. In the event that\nNetscape revises Exhibit A and Premier Provider must supply conforming\nmaterials, such conforming materials shall be received by Netscape and fully\nfunctional within five (5) days (excluding holidays) prior to the revised\nPremier Graphic, Stack or Alphabetical Listing being posted on Netscape's U.S.\nEnglish-language Web Site. If Netscape has not received such revised and\nconforming materials within such five (5) day time period described above, or if\nthe materials supplied by Premier Provider do not function in accordance with\nthe specifications set by Netscape, then Netscape shall either (i) post previous\nversions of Premier Provider's supplied materials, or (ii) make such changes as\nnecessary to bring the materials into conformity with the new specifications,\nuntil such time as the specifications of Exhibit A are again revised. The\nschedule of planned updates for the Page are set forth in Exhibit E, as such\nExhibit E may be revised from time to time.\n\n        3.7. Update of Premier Graphic. Premier Provider may elect to revise or\nupdate its Premier Graphic, provided that such Premier Graphic complies with the\nspecifications of Exhibit A. Netscape shall provide Premier Provider with a\nschedule of material due dates and planned Page updates.\n\n        3.8. Emergency Engineering Support. Netscape will provide, free of\ncharge, up to an aggregate of one (1) hour per month of emergency engineering\nsupport services time per update to help Premier Provider service any newly\nrevised Premier Graphic(s) so that the Premier Graphic complies with the new\nspecifications. Netscape will use reasonable commercial efforts promptly to\nremedy any material malfunctioning of the tabbing mechanism for the Premier\nGraphics, any material misplacement of the Alphabetical Listing or any material\nmalfunctioning of the Premier Links or Alphabetical Link under the control of\nNetscape, provided Premier Provider will fully cooperate with Netscape to remedy\nany such material malfunctioning or misplacement, and provided further that\nNetscape 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. Premier Provider may report malfunctions to Netscape at the\nemail address srchprod@netscape.com. Notwithstanding the foregoing, Netscape has\nno obligation to perform services in connection with malfunctions resulting from\nsoftware not supplied by Netscape.\n\n\n4.  ADDITIONAL PREMIER PROVIDER BENEFITS.\n\n        4.1. Advertising Services. During the Premier Period, Netscape will\nprovide Premier Provider with total advertising services valued at the level set\nforth in Section 7.1(i). During the Premier Period, Premier Provider may\npurchase additional advertising on Netscape's U.S. English-language Web Site for\nadvertising that will run during the Premier Period for the service of Premier\nProvider at a discount of [**********] off Netscape's then standard rates for\nsuch advertising. Premier Provider shall execute Netscape's Sponsorship\nAgreement, a copy of which is attached as Exhibit C, with respect to postings of\nPremier Provider's advertisement (\"PREMIER PROVIDER'S ADVERTISEMENT\"). Premier\nProvider and Netscape shall mutually agree to the schedule and the placement of\nPremier Provider's Advertisement on Netscape's U.S. English-language Web Site.\nPremier Provider shall supply Netscape with the graphic files and other\nmaterials and information within the timeframes and as set forth in the\nspecifications of the applicable Netscape advertising program and as reasonably\nrequested by Netscape to produce the Premier Provider's Advertisement. Premier\nProvider's Advertisement shall not contain any Internet search functionality as\nsuch Premier Provider's Advertisement is served to end users.\n\n        4.2. Limit on  Premier  Providers.  Netscape  shall  limit the  number \nof companies whose tabs appear on the Stack at any one time to a total of five\n(5) entities.\n\n\n*Certain information on this page has been omitted and filed separately with the\n Commission. Confidential treatment has been requested with respect to the\n omitted portions.\n\n\n\n\n\n                                       3\n\n\n        4.3. Preset Bookmark. Netscape shall include a graphic HTML link to\nPremier Provider's URL (\"PREMIER PROVIDER'S BOOKMARK\") in the bookmark section\nof the Netscape Communicator client software versions 4.x. Premier Provider\nhereby acknowledges that Premier Provider's Bookmark, although preset in the\nshipping version of the Netscape Communicator 4.x distributed by Netscape, may\nbe reconfigured, customized or deleted by an end user. Should a user upgrade\ntheir version of the Communicator, the bookmarks which the user has loaded at\nthe time of the upgrade will be carried forward and installed as part of the\nupgraded Communicator software.\n\n        4.4. Infoblock.  Premier Provider shall be accorded  consideration  for\nthe possible inclusion of Premier Provider's service as a default \"Infoblock\",\nor similar opportunity, in Netscape's Constellation client software, subject to\nterms and conditions as Netscape may determine in its sole discretion.\n\n\n5.  EXPOSURE GUARANTEE\n\n        5.1. Occurrence of Exposures. An exposure (\"EXPOSURE\") occurs upon the\nserving up to an end user of: (i) Premier Provider's Premier Graphic on the top\nof the Stack, (ii) Premier Provider's Web Site in conjunction with a search\nquery executed by an end user through entering the search terms in the URL\nwindow of the Browser, (iii) Premier Provider's Web Site as a result of an end\nuser clicking on a link (excluding Premier Links) to Premier Provider's Web Site\non Netscape's U.S. English-language Web Site, (iv) the page on Premier\nProvider's Web Site linked to Premier Provider's Bookmark (the \"BOOKMARKED\nPAGE\") in conjunction with the program described in this Agreement, (v) Premier\nProvider's Web Site as a result of an end user clicking on or performing a\nsearch through a Disabling Device (as defined below), or (vi) other Premier\nProvider content as a consequence of an end user accessing a promotional page on\nNetscape's U.S. English-language Web Site if the parties agree that such\npromotional page traffic shall constitute an Exposure. The Premier Graphic may\nbe served on the top of the Stack to an end user by the following means: (i) the\nPremier Graphic appears as part of the Stack rotation, as described in Section\n3.3, (ii) the Premier Graphic has been set as an end user's default selection,\nas described in Section 3.4, and (iii) an end user selects or clicks on the\nPremier Graphic tab in the Stack.\n\n        5.2. Minimum Guaranteed Exposures. Netscape a total of\n[******************************]  Exposures  (such  number of Exposures  being \nreferred to as the \"MINIMUM GUARANTEED EXPOSURES\") during the Premier Period.\n\n        5.3. Make-Good.  If, at the end of the Premier Period,  Premier  \nProvider's content has not, in the aggregate, received total Exposures equal to\nor greater than the Minimum Guaranteed Exposures, and provided that Premier\nProvider has complied with its obligations hereunder, Netscape will:\n[*******************************************************************************\n********************************************************************************\n********************************************************************************\n********************************************************************************\n*************************************************************].\n\n        5.4.\n        [***********************************************************************\n********************************************************************************\n********************************************************************************\n********************************************************************************\n*************************************************************************]\n\n                                       4\n\n* Certain information on this page has been omitted and filed separately with\n  the Commission. Confidential treatment has been requested with respect to the\n  omitted portions.\n\n\n\n6.  PREMIER PROVIDER OBLIGATIONS. In addition to the other obligations set forth\nherein, Premier Provider shall:\n\n        6.1. Netscape Now. Display the \"Netscape Now\" button\n[****************************] of Premier Provider's [***********] on Premier\nProvider's Web Site, on any\n[***********************************************************************], and\nuse best 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 version\nas is then available). Premier Provider 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\n[***********************************] and\n[*****************************************] than the virtual button or other\ngraphic\n[**********************************************************************].\nPremier Provider shall use reasonable commercial efforts promptly to remedy any\nmisplacement of the Netscape Now button on its home page or other pages or any\nmalfunctioning of the button, provided Netscape will fully cooperate with\nPremier Provider to remedy any such misplacement or malfunctioning, and provided\nfurther that Premier Provider shall not incur liability for any failure to\nremedy such misplacement or malfunctioning if such remedy is not within the\nreasonable control of Premier Provider. In the event that Netscape replaces the\nNetscape Now program with a successor program, Netscape shall advise Premier\nProvider and Premier Provider shall produce the page to conform to such\nsuccessor program, provided Premier Provider's obligations under such successor\nprogram shall not be materially increased. Netscape hereby grants Premier\nProvider a nonexclusive, nontransferable, nonassignable, nonsublicensable\nlicense to perform and display the Netscape Now button directly in connection\nwith fulfilling the foregoing obligation. Premier Provider's use of the Netscape\nNow button shall be in accordance with Netscape's reasonable policies regarding\nadvertising and trademark usage as established from time to time by Netscape,\nincluding the guidelines of the Netscape Now Program published on Netscape's\nU.S. English-language Web Site. Premier Provider acknowledges that the Netscape\nNow button is a proprietary logo of Netscape and contains Netscape's trademarks.\nIn the event that Netscape determines that Premier Provider's use of the\nNetscape Now button is inconsistent with Netscape's quality standards, then\nNetscape shall have the right to suspend immediately such use of the Netscape\nNow button. Premier Provider understands and agrees that the use of the Netscape\nNow button in connection with this Agreement shall not create any right, title\nor interest in or to the use of the Netscape Now button or associated trademarks\nand that all such use and goodwill associated with the Netscape Now button and\nassociated trademarks will inure to the benefit of Netscape. Premier Provider\nagrees not to register or use any trademark that is similar to the Netscape Now\nbutton. Premier Provider further agrees that it will not use the Netscape Now\nbutton in a misleading manner or otherwise in a manner that could tend to\nreflect adversely on Netscape or its products. If Premier Provider fails to\nhonor the commitment set forth in this Section 6.1, Netscape shall be relieved\nof its obligations described in Section 5.3;\n\n        6.2. Server Software. [***********] current version of Netscape core Web\nserver software product (currently comprised of Netscape Enterprise Server and\nNetscape FastTrack Server) to maintain Premier Provider's Web Site and, if\nrequested, provide Netscape of evidence of such use. Netscape will provide\nPremier Provider with \"Expert-Expert\" product support, as described in Exhibit\nF, free of charge for any Netscape software deployed by Premier Provider in\naccordance with this obligation;\n\n        6.3. Site Features. [********] HTML Frames, layers, dynamic HTML pages,\nJava, JavaScript or the then current client software technology (or subsequent\nfeatures displayable by \n\n                                       5\n\n* Certain information on this page has been omitted and filed separately with\n  the Commission. Confidential treatment has been requested with respect to the\n  omitted portions.\n\n\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 Premier Provider's Web Site,\nprovided that Premier Provider shall use reasonable commercial efforts to\nimplement the Site Features on Premier Provider's Web Site in a location and in\na fashion as Netscape may agree, and (ii) at least one (1) HTML page located at\neach Premier URL (or on an HTML page located further down the directory tree\nfrom the page located at the Premier URL; provided Premier Provider will use\nreasonable efforts to implement the Site Features as high in such directory tree\nstructure as possible), and, where appropriate, on all other HTML pages of\nPremier Provider's primary Web site; provided Premier Provider shall not be\nrequired to implement the Site Features on pages of any secondary Web site of\nPremier Provider that Premier Provider is required to construct to satisfy\nPremier Provider's obligations under any third party contract existing as of the\ndate of this Agreement. Netscape shall use reasonable commercial efforts to help\nPremier Provider implement changes in order to comply with new Site Features;\n\n        6.4. Mailto Link. Include on the page served to an end user in\nconjunction with the results of the end user's search query a \"mailto\" link\nwhich users of Premier Provider's service can use to direct questions or help\nrequests to Premier Provider. Netscape shall also include such a \"mailto\" link\non the Page. Premier Provider will use reasonable efforts to reply promptly, but\nin any event within one (1) week, to any such question or help request; and\n\n        6.5. Disabling Devices. Premier Provider agrees to establish and \nmaintain controls and procedures sufficient to timely and accurately\n[*************************************************]. In the event that the\n[***********************************] in any\n[***************************************************] that the Page is served up\nto end users [*********************************]. For purposes of this\nAgreement, the term \"DISABLING DEVICE\" shall mean any means or functionality\nprovided, directly or indirectly pursuant to an agreement between Premier\nProvider and a third party (other than an on-line end user agreement that\naccompanies such means or functionality), by Premier Provider which (i) alters\nor modifies, or enables end users to alter or modify, the Browser standard user\ninterface or configuration (other than Browsers that are altered or modified by\nthird parties to accommodate search functionality and that have been granted the\nright by Netscape to make such alterations or modifications), (ii) disables any\nfunctionality of the Browser (other than search functionality of Browsers that\nis disabled by third parties that have been granted the right by Netscape to\ndisable such search functionality), or (iii) modifies the functioning of pages\nserved from Netscape's U.S. English-language Web Site; provided that a Disabling\nDevice shall not include any such means or functionality implemented by an end\nuser prior to the Premier Period.\n\n                                       6\n\n* Certain information on this page has been omitted and filed separately with\n  the Commission. Confidential treatment has been requested with respect to the\n  omitted portions.\n\n\n7.  PAYMENT TO NETSCAPE.\n\n        7.1. Payment.  For the  benefits  and  services  provided  by  Netscape\nto Premier Provider for the one (1) year Premier Period, Premier Provider shall\npay Netscape a total of [********] (the \"PAYMENT\") comprised of the following:\n\n         [*********************************************************************\n\n         **********************************************************************\n\n         **********************************************************************\n\n         **********************************************************************\n\n         **********************************************************************\n\n         **********************************************************************]\n\n        7.2  Timing of Payment.  Premier Provider shall pay the Payment as \nfollows:\n\n               [*********] upon the execution of this Agreement;\n\n               [*********] no later than June 30, 1997;\n\n               [*********] no later than September 30, 1997;\n\n               [*********] no later than December 31, 1997; and\n\n               [*********] no later than March 31, 1998.\n\n        7.3. Overage Payments. If, during the Premier Period, the number of\nPremier Provider's Exposures exceeds the number of Minimum Guaranteed Exposures,\nPremier Provider shall remit to Netscape additional payments (\"OVERAGE\nPAYMENTS\") equal to [***************************] Exposures received in excess\nof the Minimum Guaranteed Exposures, subject to the terms of Section 7.4.\nNetscape shall invoice Premier Provider on a quarterly basis for such Overage\nPayments. Premier Provider shall remit to Netscape [**************************]\nof such Overage Payment (the \"PAYABLE PORTION\") within thirty (30) days of\nreceipt of such invoice and Premier Provider shall immediately grant to Netscape\na credit, for application against the cost of Netscape's participation in\nadvertising programs on Premier Provider's Web Site in accordance with Section\n7.7, equal to [*******************] of such Overage Payment (the \"CREDIT\nPORTION\").\n\n        7.4. Payment Cap. Notwithstanding the foregoing, the total amount \npayable by Premier Provider to Netscape as described in this Section 7 shall not\nexceed [******************************************] (the \"PAYMENT CAP\")\nincluding all amounts due under Section 7.1 and Section 7.3;\n[*******************************************************************************\n********************************************************************************\n********************************************************************************\n********************************************************************************\n*********************].\n\n        7.5. Interest. Any portion of the Payment or the Overage Payments which\nhas not been paid to Netscape within the applicable time set forth above shall\nbear interest at the lesser of (i) one percent (1%) per month, or (ii) the\nmaximum amount allowed by law.\n\n        7.6. No Taxes. All payments due hereunder are exclusive of any\napplicable taxes. Premier Provider shall be responsible for all applicable\nnational, state and local taxes, value added or sales taxes, exchange, interest,\nbanking, collection and other charges and levies and assessments pertaining to\npayments other than U.S. taxes based on Netscape's net income. If\n\n                                       7\n\n* Certain information on this page has been omitted and filed separately with\n  the Commission. Confidential treatment has been requested with respect to the\n  omitted portions.\n\n\nPremier Provider is required by law to make any deduction or to withhold from\nany sum payable to Netscape by Premier Provider hereunder, (i) Premier Provider\nshall effect such deduction or withholding, remit such amounts to the\nappropriate taxing authorities and promptly furnish Netscape with tax receipts\nevidencing the payments of such amounts, and (ii) the sum payable by Premier\nProvider upon which the deduction or withholding is based shall be increased to\nthe extent necessary to ensure that, after such deduction or withholding,\nNetscape receives and retains, free from liability for such deduction or\nwithholding, a net amount equal to the amount Netscape would have received and\nretained in the absence of such required deduction or withholding.\n\n        7.7. Credit against Payment. Premier Provider shall provide Netscape\nwith committed advertising inventory and services valued at\n[********************************************************] as such inventory and\nservices are valued based on Premier Provider's advertising rate card, and\nNetscape will provide to Premier Provider a credit of a total of\n[********************************************************] off the Payment\notherwise due under this Agreement, as such credit is determined by the value of\nthe advertising services Netscape receives from Premier Provider based on\nPremier Provider's advertising rate card. Such advertising inventory and\nservices shall be mutually agreed upon by the parties including placement and\navailable advertising key words or other value added targeting services.\n\n\n8.      USAGE REPORTS.\n\n        8.1. Provide Usage Reports. Netscape and Premier Provider will each\nprovide the other, via email to the email address set forth below, with usage\nreports (\"USAGE REPORTS\") containing the information and in the format set forth\nin Exhibit B hereto. The Usage Reports shall cover each one-month time period of\nthe Premier Period, and the parties shall use reasonable commercial efforts to\ndeliver the Usage Reports within fifteen (15) days following the end of each\nmonth. If, due to technical problems, a party is unable to provide any portion\nof a Usage Report in any given month, the previous month's Usage Report data\nwill be substituted as a proxy for the unavailable data. The parties may, by\nmutual written agreement, alter the content and format of the Usage Reports.\n\n        8.2. No Liability. NETSCAPE AND PREMIER PROVIDER WILL USE REASONABLE\nCOMMERCIAL EFFORTS TO ENSURE THE TIMELY DELIVERY, ACCURACY AND COMPLETENESS OF\nTHE USAGE REPORTS, BUT NEITHER PARTY WARRANTS THAT THE USAGE REPORTS WILL\nCONFORM TO ANY PUBLISHED NUMBERS AT ANY GIVEN TIME. NEITHER PARTY SHALL BE HELD\nLIABLE FOR ANY CLAIMS AS THEY RELATE TO SAID USAGE REPORTS.\n\n\n9.      TERMINATION.\n\n        9.1.   Methods of Termination.\n\n               a. Termination on Breach. Either party may terminate this\nAgreement if the other party materially breaches its obligations hereunder and\nsuch breach remains uncured for fifteen (15) days following notice to the\nbreaching party of the breach or as otherwise provided in Section 10.\n\n               b. Termination for Convenience. Premier Provider may terminate \nthis Agreement for its convenience (\"TERMINATION FOR CONVENIENCE\") upon sixty\n(60) prior written notice to Netscape.\n\n        9.2.   Effect of Termination. Except as specifically provided otherwise\nin this Agreement, upon termination of the Agreement, all rights and obligations\nhereunder shall cease and each party will promptly and at the direction of the\nother party, either return or destroy, and will not take or use, any items of\nany nature that belong to the other party and all items containing or related to\nConfidential Information of the other party. Notwithstanding the \n\n                                       8\n\n\nforegoing, (a) if this Agreement is terminated by Premier Provider other than as\na Termination for Convenience, or is terminated by Netscape because of a breach\nby Premier Provider, Premier Provider shall remain liable for the value of the\npayments which are due or, but for the breach, would otherwise become due and\npayable under the terms of this Agreement, and (b) if this Agreement is\nterminated by Premier Provider as a Termination for Convenience, Premier\nProvider shall remain liable for the value of the payments which are due or\nwould otherwise become due and payable under the terms of this Agreement. The\nfollowing provisions shall survive the expiration or termination of this\nAgreement for any reason: Section 7.6 (No Taxes), Section 8.2 (No Liability),\nSection 9.2 (Effect of Termination), Section 11 (Responsibility), Section 12\n(Limitation of Liability), and Section 13 (General).\n\n\n10.     RIGHT TO REFUSE. Netscape will have the right to review the contents and\nformat of the Premier Graphic, the Alphabetical Listing, the Bookmarked Page and\nPremier Provider's Advertisement. If Netscape, in its sole discretion, at any\ntime determines that the Premier Graphic, the Alphabetical Listing, the\nBookmarked Page or Premier Provider's Advertisement contains any material, or\npresents any material in a manner that Netscape deems inappropriate for any\nreason, Netscape will inform Premier Provider of the reason Netscape has made\nsuch determination and may (i) refuse to include the Premier Graphic or the\nAlphabetical Listing in the Page or Premier Provider's Advertisement on\nNetscape's U.S. English-language Web Site, and\/or (ii) immediately terminate\nthis Agreement if Premier Provider has not revised to Netscape's reasonable\nsatisfaction the Premier Graphic, the Alphabetical Listing, the Bookmarked Page\nor Premier Provider's Advertisement within one (1) business day of written\nnotice from Netscape. If Netscape, in its sole discretion, at any time\ndetermines that the Premier Provider's Web Site contains any material, or\npresents any material in a manner, that Netscape deems inappropriate for any\nreason, Netscape may immediately terminate this Agreement upon notice to Premier\nProvider. Netscape reserves the right to refuse to include in the Page any\nPremier Graphic, or any Alphabetical Listing in the Alpha Page, that does not\ncompletely conform to the specifications set forth in Exhibit A, and any Premier\nProvider's Advertisement that does not completely conform to the specifications\nof the applicable advertising program.\n\n\n11.     RESPONSIBILITY. Premier Provider is solely responsible for any legal\nliability arising out of or relating to (i) the Premier Graphic, the\nAlphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page and\nPremier Provider's Advertisement, and\/or (ii) any material to which users can\nlink through the Premier Graphic, the Alphabetical Listing, Premier Provider's\nBookmark, the Bookmarked Page and Premier Provider's Advertisement. Premier\nProvider represents and warrants that it holds the necessary rights to permit\nthe use of the Premier Graphic, the Alphabetical Listing, the Premier URL, the\nAlphabetical URL, the Premier Links, the Alphabetical Link, Premier Provider's\nBookmark, the Bookmarked Page and Premier Provider's Advertisements by Netscape\nfor the purpose of this Agreement; and that the permitted use, reproduction,\ndistribution, or transmission of the Premier Graphic, the Alphabetical Listing,\nPremier Provider's Bookmark, the Bookmarked Page, Premier Provider's\nAdvertisements and any material to which users can link through the Premier\nGraphic, Alphabetical Listing, Premier Provider's Bookmark, the Bookmarked Page\nand Premier Provider's Advertisements will not violate any criminal laws or any\nrights 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 or\nentity, or otherwise violate any applicable local, state, national or\ninternational law. Premier 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 Premier Provider's breach of any of the\nforegoing representations and warranties.\n\n                                       9\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 LIABILITY\nOF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR\nALLEGED DAMAGES ARISING UNDER SECTION 11) WHETHER IN CONTRACT OR TORT OR ANY\nOTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED THE PAYMENT DUE FROM\nPREMIER PROVIDER HEREUNDER.\n\n\n13.     GENERAL.\n\n        13.1. Governing Law. This Agreement shall be subject to and governed in\nall respects by the statutes and laws of the State of California without regard\nto the conflicts of laws principles thereof. The Superior Court of Santa Clara\nCounty and\/or the United States District Court for the Northern District of\nCalifornia shall have exclusive jurisdiction and venue over all controversies in\nconnection herewith, and each party hereby consents to such exclusive and\npersonal jurisdiction and venue.\n\n        13.2. Entire Agreement. The parties agree that by signing this\nAgreement, the Net Search Program - Premier Provider agreement between the\nparties dated March 8, 1996, as amended, (the \"1996 Net Search Agreement\") shall\nbe terminated, and any outstanding rights, duties or obligations between the\nparties as described in the 1996 Net Search Agreement shall be extinguished.\nThis Agreement shall be the sole recital of the rights, duties and obligations\nof the parties with respect to Netscape's U.S. English-language Web Site and\nPremier Provider participation in the Net Search Program and shall supersede and\nreplace in its entirety the U.S. English-Language Net Search Program - Premier\nProvider Services Agreement entered into between the parties on March 17, 1997.\nThis Agreement, including the exhibits and attachments referenced on the\nsignature page hereto, constitutes the entire Agreement and understanding\nbetween the parties and integrates all prior discussions between them related to\nits subject matter. No modification of any of the terms of this Agreement shall\nbe valid unless in writing and signed by an authorized representative of each\nparty.\n\n        13.3. Assignment. Premier Provider may not assign any of its rights or\ndelegate any of its duties under this Agreement, or otherwise transfer this\nAgreement (by merger, operation of law or otherwise) without the prior written\nconsent of Netscape. Any attempted assignment, delegation or transfer in\nderogation hereof shall be null and void.\n\n        13.4. 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\nnationally-recognized private express courier, and shall be deemed to have been\ngiven on the date of receipt if delivered personally, or two (2) days after\ndeposit in mail or express courier. Either party may change its address for\npurposes hereof by written notice to the other in accordance with the provisions\nof this Subsection. The addresses for the parties are as follows:\n\n                                       10\n\n\n        Premier Provider:                    Netscape:\n\n        Excite, Inc.                         Netscape Communications Corporation\n\n                                             501 East Middlefield Road\n        ------------------------------\n                                             Mountain View, CA 94043\n        ------------------------------\n                                             Fax: (415) 528-4123\n        ------------------------------\n        Attn: General Counsel                Attn: General Counsel\n\n\n        13.5. Confidentiality. All disclosures of proprietary and\/or\nconfidential information in connection with this Agreement as well as the\ncontents of this Agreement shall be governed by the terms of the Mutual\nConfidential Disclosure Agreement either entered into previously by the parties\nor entered into concurrently with this Agreement, a copy of which is attached\nhereto as Exhibit D. The information contained in the Usage Reports provided by\neach party hereunder shall be deemed the Proprietary Information of the\ndisclosing party. Notwithstanding the foregoing, Netscape may, in its sole\ndiscretion, make publicly available client software market share information\ncontained in the Usage Reports submitted by Premier Provider, provided that\nNetscape shall not indicate that Premier Provider is the source of the\ninformation.\n\n        13.6. 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        13.7.  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        13.8.  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        13.9. 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        13.10. 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        13.11. 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                                       11\n\n\n\nThe parties have duly executed this Agreement as of the later of the two (2)\ndates set forth below.\n\n\n PREMIER PROVIDER:                           NETSCAPE:\n                                             \n EXCITE, INC.                                NETSCAPE COMMUNICATIONS CORPORATION\n                                             \n By:  \/s\/ Robert C. Hood                     By:  \/s\/ Jennifer Bailey\n    --------------------------------------      ------------------------------\n Print Name:  Robert C. Hood                 Print Name:  Jennifer Bailey\n            ------------------------------              ----------------------\n Title:  EVP-CAO\/CFO                         Title:  VP of Electronic Mktg.\n       -----------------------------------         ---------------------------\n Date:  3-21-97                              Date:  3\/21\/97\n      ------------------------------------        ----------------------------\n                                             \n Premier Provider Address:                   Netscape Address:\n                                             501 East Middlefield Road\n -----------------------------------------   \n                                             Mountain View, California  94043\n -----------------------------------------   \n                                             USA\n -----------------------------------------   \n                                             \n Attention:                                  Attention:  General Counsel\n           -------------------------------   \n Facsimile:                                  Facsimile:\n           -------------------------------             -----------------------\n Email:                                      Email:\n       -----------------------------------         ---------------------------\n                                            \nAttached Exhibits:\n\n          Exhibit A:  Specifications of the Page\n\n          Exhibit B:  Usage Reports\n\n          Exhibit C:  Form of Sponsorship Agreement\n\n          Exhibit D:  Mutual Confidential Disclosure Agreement\n\n          Exhibit E:  Schedule of Planned Updates\n\n          Exhibit F:  Description of Expert-Expert Product Support\n\n\n\n\n                                       12\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7487,8328],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42948","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-excite-inc","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\/42948","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=42948"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42948"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42948"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42948"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}