{"id":42950,"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-net-search-premier-provider-agreement-netscape.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"u-s-net-search-premier-provider-agreement-netscape","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/u-s-net-search-premier-provider-agreement-netscape.html","title":{"rendered":"U.S. Net Search Premier Provider Agreement &#8211; Netscape Communications Corp. and Lycos Inc."},"content":{"rendered":"<pre>\n[LOGO]\nNETSCAPE\n\n                              Netscape Agreement #\n\n                                      6050\n                              ____________________\n\n\n                   U.S. NET SEARCH PREMIER PROVIDER AGREEMENT\n\nNetscape Communications Corporation, 502 E. Middlefield, Mountain View,\nCalifornia 94043, a Delaware corporation, ('Netscape'), and Lycos, Inc., 400-2\nTotten Pond Road, Waltham, MA 02451, a Delaware corporation ('Premier\nProvider'), hereby enter into the following agreement ('Agreement'), effective\nas of the date of the last signature on the Agreement ('Effective Date'):\n\n1. Premier Provider. Premier Provider will be one of the premier search and\ndirectory services (the 'Premier Providers') for the U.S. English-language HTML\npage accessible via the Internet at http:\/\/home.netscape.com\/escapes\/search (or\nsuch other URL as Netscape may designate from time to time in writing) (the\n'Page') that provides Internet search and directory services on the collection\nof HTML pages maintained by Netscape, with a homepage of\nhttp:\/\/home.netscape.com or at such other URL(s) as Netscape may designate)\n('Netscape's Web Site'). The Page may also be accessed by Internet users of the\nNetscape-distributed English-language version of its internet browsing software\n(the 'Browser') by clicking on the Net Search button, by clicking on bookmarks\npre-loaded in certain versions of the Browser toolbar as described herein, or by\nsuch other methods as Netscape may specify from time to time. Netscape reserves\nthe right to determine additional means through which users may access the Page,\nincluding, but not limited to, the use of mirror sites and pointers based on a\nuser's IP address.\n\n2. Premier Period. Netscape will maintain the Premier Graphic, as defined below,\non the Page in accordance with Section 3 from July 1, 1999 through June 30, 2000\n(the 'Premier Period').\n\n3. Services Provided by Netscape.\n\n      3.1. Premier Graphic. Premier Provider will supply Netscape with files in\nHTML, GIF, or such other format as Netscape may designate from time to time (the\n'Premier Graphic'). Netscape will place these files on the Page during the\nPremier Period. Premier Provider will retain all rights to the Premier Graphic,\nbut hereby grants Netscape a royalty-free worldwide license, without charge, to\nuse, display, perform, reproduce, modify and distribute the Premier Graphic as\nnecessary to fulfill the intention of this Agreement The Premier\n\n\nGraphic will contain a functional search field and, if available, directory\ntree. The Premier Graphic will conform to the specifications of Exhibit A, which\nalso describes the placement of the Premier Graphic on the Page.\n\n      3.2. Stack. Netscape will produce the Page as set forth on Exhibit A. The\nPremier Graphics on the Page will appear to be overlapped in a stack (the\n'Stack'). The Premier Graphic will be accessible by an end user by clicking on a\ntab for the Premier Provider's service. When an end user clicks on hypertext\nlinks ('Premier Links') placed by Premier Provider on the Premier Graphic, the\nend user's Browser will access pages ('Premier URLs') on the collection of\nEnglish-language HTML documents Premier Provider maintains as its primary web\nsite, with a home page of http:\/\/www.lycos.com or such other address as Premier\nProvider may provide in writing ('Premier Provider's Web Site'). Netscape\nreserves the right to use, in its sole discretion, those portions of the Page\nnot used by the Stack. The Premier Graphic may be served on the top of the Stack\nto an end user by the following means: (i) random rotation, as described in\nSection 3.3; (ii) end user default selection, as described in Section 3.4; or\n(iii) an end user selection of the Premier Graphic tab in the Stack.\n\n      3.3. Rotation. Netscape will rotate the display of the Premier Graphics to\nbe displayed on the top of the Stack when each Page is served to an end user who\nhas not selected a Premier Graphic as a default, as described in Section 3.4.\nSubject to the provisions of Section 3.4, the Premier Graphic will appear on the\ntop of the Stack of each Page fifteen percent ('Rotation Percentage') of the\ninstances in which the Page is served up to end users who have not selected a\ndefault Premier Graphic when accessing the Page, prior to any selection of a\nparticular Premier Graphic tab; provided that, if (i) Premier Provider acquires\nWired Digital Inc. ('Wired') and Wired's 'HotBot' search service and (ii) the\nU.S. Net Search Premier Provider Agreement between Wired and Netscape, dated as\nof May  , 1999 (the 'HotBot Agreement') (pursuant to which the Premier Graphic\nfor the HotBot service is entitled to appear on the top of the Stack of each\nPage one percent of the instances in which the Page is served up to end users\nwho have not selected a default Premier Graphic when accessing the Page (the\n'HotBot Rotation Percentage')) is assigned to Premier Provider, then Premier\nProvider, at its discretion on a monthly basis during the term of this\nAgreement, may notify Netscape in writing that Premier Provider wishes to vary\nthe relative distribution of the rotation percentages between the Rotation\nPercentage and the HotBot Rotation Percentage for the following month (e.g., 12%\nfor the Lycos search service and 4% for the HotBot search service, or 10% Lycos\nand 6% HotBot, etc.), further provided that in no event will the sum of such\nrevised Rotation Percentage and the HotBot Rotation Percentage exceed sixteen\npercent, and any such variation by Premier Provider of the relative distribution\nof such rotation percentages shall be made in accordance with\n\n\n                                       2\n\n\nNetscape's normal Page update schedule as set forth in Exhibit A. Premier\nProvider acknowledges that the Rotation Percentage is an annualized target, and\nthat Netscape may adjust the display of the Premier Graphic to occur at a rate\nabove or below the Rotation Percentage at any particular time, subject to\nNetscape's obligations to deliver the Rotation Percentage averaged over the\ncourse of the Premier Period.\n\n      3.4. End User Default. An end user may select which of the Premier\nGraphics he or she would prefer to have displayed on the top of the Stack upon\nthe calling up of the Page. If an end user selects a default Premier Graphic,\nthe Premier Graphic selected by that end user will be displayed on top of the\nStack each time he or she accesses the Page until he or she eliminates or alters\nthe default selection.\n\n      3.5. Page Specifications. Exhibit A sets forth the specifications of the\nPremier Graphic, the Stack, and their placement on the Page. Netscape may, upon\nnot less than thirty business days advance written notice to Premier Provider,\n(i) change the location of the Stack or the Premier Graphics on the Page, (ii)\nredesign or reconfigure the Stack, the Page, Netscape's Web Site, and\/or the\nmanner in which an end user interacts with any of the pages of Netscape's Web\nSite, or (iii) otherwise revise Exhibit A, subject to Netscape's obligation to\ndeliver the Rotation Percentage averaged over the course of the Premier Period,\nand provided that the display of Premier Providers' graphics will remain the\nlargest and most prominent category of search graphics on the Page and that the\nPremier Graphic will remain equal in size to graphics of other Premier\nProviders. In the event Netscape revises Exhibit A, Premier Provider will supply\nNetscape with a Premier Graphic that conforms to the revised specifications\nwithin thirty days after it receives notice of the revision and no fewer than\nfive business days prior to the date Netscape specifies for the posting of the\nrevised Premier Graphic or Stack. If Netscape has not received such revised and\nconforming materials in a timely fashion or if the materials supplied by Premier\nProvider do not function in accordance with the specifications set by Netscape,\nthen Netscape will either (i) post previous versions of Premier Provider's\nsupplied materials, or (ii) make such changes as necessary to bring the\nmaterials into conformity with the new.\n\n      3.6. Update of Premier Graphic. Premier Provider may elect to revise or\nupdate its Premier Graphic on a weekly basis in conjunction with Netscape's Page\nproduction schedule, provided that the new version of the Premier Graphic\ncomplies with the specifications of Exhibit A.\n\n\n                                       3\n\n\n4. Additional Premier Provider Benefits.\n\n      4.1. Pre-loaded Bookmark. During the Premier Period, Netscape will include\na graphic HTML link ('Bookmark') for the Premier Provider to the Page in the\nbookmark section of the U.S. English-language version of 4.x versions of the\nBrowser. End users may reconfigure, customize, or delete the Bookmark. During\nthe Premier Period, if Netscape offers to include a graphic HTML link for any of\nthe other Premier Providers to the Page in the bookmark section of the U.S.\nEnglish-language version of 5.x versions of the Browser, Netscape will also\noffer to include the Bookmark for Premier Provider in such version of the\nBrowser.\n\n      4.2. Limit on Premier Providers. Netscape will limit the number of\ncompanies whose tabs appear on the Stack at any one time to a total of no more\nthan nine entities.\n\n5. Exposures. An exposure ('Exposure') occurs upon: (i) the serving up to an end\nuser of the Premier Graphic on the top of a Stack as described in sections\n3.2, 3.3, and 3.4; (ii) an end user clicking on a link programmed by Netscape\ndirectly to Premier Provider's search functionality on Premier Provider's Web\nSite (excluding Premier Links) or executing a search query directed to Premier\nProvider's Web Site from any location on Netscape's Web Site with search\nfunctionality other than the Page; (iii) the Page when accessed by a click from\nthe Bookmark; (iv) a link through a disabling device only if and to the extent\npermitted under Section 6.3; or (v) any other Premier Provider content as a\nconsequence of an end user accessing a promotional page on Netscape's Web Site\nif the parties agree that such promotional page traffic will constitute an\nExposure.\n\n6. Premier Provider Obligations. In addition to the other obligations set forth\nherein, Premier Provider agrees to the following provisions.\n\n      6.1. Netscape Now. Premier Provider will display the then-current version\nof the 'Netscape Now' button as provided by Netscape or the equivalent successor\nbutton or the words 'Download Netscape Now' (or successor text reasonably\ndesignated by Netscape) ('the Netscape Now button\/text') prominently on (i) the\nhome page of Premier Provider's Web Site or (ii) on all pages linked to a\nPremier URL; provided that Premier Provider shall not be required to display the\nNetscape Now button\/text on pages of (a) any secondary web site of Premier\nProvider that Premier Provider is required to construct to satisfy Premier\nProvider's obligations under any unaffiliated third party contract, or (b) any\nunaffiliated third party's web site. When an end user clicks on the Netscape Now\nbutton\/text, the end user's Internet client software or online service will\naccess the applicable HTML page located at a URL supplied\n\n\n                                       4\n\n\nby Netscape. On any page on which it is displayed, the Netscape Now button\/text\nwill be displayed in the same format (i.e., button, text, or graphic) and equal\nto or greater in size and prominence than the button, text, or graphic for any\nother third party Internet client software, online service, software provider,\n'push' content delivery system, or other online service. Premier Provider will\nuse its best efforts to remedy promptly any misplacement or malfunctioning of\nthe Netscape Now button\/text on its pages. Netscape will fully cooperate with\nPremier Provider to remedy any such misplacement or malfunctioning. Premier\nProvider will not be liable for any such misplacement or malfunctioning outside\nits reasonable control. Netscape hereby grants Premier Provider a non-exclusive,\nnon-transferable, non-assignable, non-sublicensable license to use, reproduce,\nand display the Netscape Now button\/text in connection with fulfilling the\nforegoing obligation. Premier Provider's use of the Netscape Now button\/text\nwill be in accordance with Netscape's reasonable policies regarding advertising\nand trademark usage as established from time to time by Netscape, including the\nguidelines of the Netscape Now Program published on Netscape's U.S.\nEnglish-language Web Site. Netscape may immediately suspend Premier Provider's\nuse of the Netscape Now button\/text if Netscape determines that such use\nviolates quality standards. The use of the Netscape Now button\/text in\nconnection with this Agreement will not create any right to the Netscape Now\nbutton\/text or associated trademarks and that all goodwill associated with the\nNetscape Now button\/text and associated trademarks will inure to the benefit of\nNetscape. Premier Provider agrees not to register or use any trademark that is\nsimilar to the Netscape Now button\/text text. Premier Provider further agrees\nthat it will not use the Netscape Now button\/text in a manner that could mislead\nend users or reflect adversely on Netscape or its products. Premier Provider's\ncompliance with the terms and conditions of this section are a material\nobligation of the Agreement.\n\n      6.2. Mailto Link. Premier Provider will include on the page served to an\nend user in conjunction with the results of the end user's search query on\nPremier Provider's service a 'mailto' link to its support services that users of\nPremier Provider's service can use to direct questions or help requests to\nPremier Provider. Netscape will also include such a 'mailto' link to its support\nservices on the Page. Premier Provider will use reasonable efforts to reply\npromptly, but in any event within one week, to any such question or help\nrequest.\n\n      6.3. No Disabling. Without Netscape's prior consent, Premier Provider will\nnot provide or implement any means or functionality that would (i) alter,\nmodify, or enable end users to alter or modify, the Browser standard user\ninterface or configuration, (ii) disable any functionality of the Browser or any\nother Internet browser software, or (iii) modify the functioning pages served\n\n\n                                       5\n\n\nfrom Netscape's Web Site. Premier Provider's compliance with the terms and\nconditions of this section are considered a material obligation of the\nAgreement.\n\n      6.4. Use of Premier Graphic Space. Premier Provider will maintain the\nPremier Graphic for the purpose of promoting Premier Provider's Internet search\nand directory services, any associated online services provided under Premier\nProvider's brand and\/or any associated content provided by Premier Provider.\nPremier Provider will not use the space allotted the Premier Graphic, or links\ntherein, for the benefit of a third party without first obtaining Netscape's\nprior written consent. The Premier Graphic will not compare Premier Provider's\nservices with other services or promote any internet browser or internet access\nservice provider. Netscape will require all Premier Providers to comply with\nmaterially the same restrictions on the use of their respective Premier\nGraphics.\n\n      6.6. Premier Provider Website Operating Standards. Premier Provider will\ncomply with the website operating standards as forth in Exhibit C.\n\n7. Payment to Netscape.\n\n      7.1 Payment [***]\n\n\n      *** A CONFIDENTIAL PORTION OF MATERIAL HAS BEEN OMITTED AND\n          FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\n\n                                       6\n\n\n      7.2. Timing. Premier Provider will pay the Participation Fees upon\nexecution of this Agreement. All Traffic Payments will be payable on a quarterly\nbasis (with quarters ending September 30, 1999; December 31, 1999; March 31,\n2000; and June 30, 2000), based on total Exposures delivered for that quarter\nmultiplied by the CPM Rate.\n\n      7.3. Payment Terms. All amounts payable to Netscape hereunder will be paid\nin U.S. dollars within thirty days after receipt by Premier Provider of the\ncorresponding invoice submitted by Netscape. Any part of the Payment not paid to\nNetscape within this period will bear interest at the lesser of one percent per\nmonth or the maximum amount allowed by law.\n\n      7.4. Taxes. Premier Provider will pay all amounts in this Agreement in\nU.S. dollars, which as stated include only amounts, without reduction for any\nrelated U.S. or foreign local, state, national taxes, duties, leaves, or\nassessments, however described or calculated (excluding taxes based on\nNetscape's net income). Participant will make, and indemnify Netscape against,\nany such payments and promptly give Netscape corresponding receipts. Netscape\nand Participant will cooperate in minimizing any applicable tax and in obtaining\nany exemption from or reduced rate of tax available under any applicable law or\ntax treaty.\n\n8. Usage Reports.\n\n      8.1. Provision of Usage Reports. Netscape and Premier Provider will each\nprovide the other with usage reports ('Usage Reports') containing the\ninformation and in the format set forth in Exhibit B hereto. The Usage Reports\nwit cover each one-month time period of the Premier Period, and the parties will\nuse reasonable commercial efforts to deliver the Usage Reports within fifteen\ndays following the end of each month. If, due to technical problems, a party is\nunable to provide any part of a Usage Report in any given month, the following\ndata will be used for each day for which data is missing: ninety percent of the\nusage figures reported for the same day of the week most recently reported\n(e.g., if data for the day seven days prior is available, ninety percent of the\nusage figures for such day; if not available, the data for the day fourteen days\nprior, and so on).\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 will be liable\nfor any\n\n\n                                       7\n\n\nclaims related to the usage reports other than Premier Provider's obligation\nunder Section 7.\n\n      8.3. Audit of Records. Each party (the 'Auditing Party') shall have the\nright, once during the term of this Agreement and once during the twelve month\nperiod after termination of this Agreement, to have a mutually acceptable,\nindependent third party inspect the relevant books and records of the other\nparty ('Audited Party') in order to verify the accuracy of the Audited Party's\nUsage Reports hereunder. The auditor may not be paid on a contingency or other\nbasis related to the outcome of the inspection, and shall execute a\nconfidentiality agreement with the Audited Party in a form mutually acceptable\nto the parties that prohibits the auditor from disclosing information obtained\nin connection with the inspection other than disclosure to the Auditing Party of\nany inaccuracy in any Usage Report. The Auditing Party shall maintain in\nconfidence any information obtained in connection with the inspection. Any such\ninspection shall be conducted during the Audited Party's regular business hours,\nin such a manner as not to interfere with the Audited Party's normal business\nactivities, and shall be at the Auditing Party's expense; provided, however,\nthat if such inspection reveals that the Audited Party's Usage Reports are\ninaccurate by more than ten percent (10%) for the period inspected, the Audited\nParty shall reimburse the Auditing Party for the reasonable fees charged by the\nauditor. Prompt adjustment shall be made to correct for any inaccuracies\ndisclosed by such inspection.\n\n9. Term &amp; Termination.\n\n      9.1. Methods of Termination. This Agreement will remain in effect from the\nEffective Date through the end of the Premier Period. Either party may terminate\nthis Agreement before the end of the Premier Period if the other party\nmaterially breaches its obligations hereunder and such breach remains uncured\nfor fifteen days following written notice to the breaching party of the breach\nor as otherwise provided in Section 10. In addition, Premier Provider may\nterminate this Agreement for convenience to the extent permitted in accordance\nwith Section 7.1.\n\n      9.2. Effect of Termination\/Survival of Obligations. Except as specifically\nprovided otherwise in this Agreement, upon the expiration or termination of the\nAgreement, all rights and obligations will cease (other than Premier Provider's\npayment obligations hereunder to the extent accrued on or prior to the\ntermination, which will become due upon termination). The following provisions\nwill survive the expiration or termination of this Agreement for any reason:\nSection 7.1 (Payment), Section 7.4 (Taxes), Section 8.2 (No Liability), Section\n9.2 (Effect of Termination), Section 9.3 (No Compensation),\n\n\n                                       8\n\n\nSection 11 (Responsibility), Section 12 (Limitation of Liability), and Section\n16 (General).\n\n      9.3. No Compensation. Premier Provider will not be entitled to and hereby\nwaives its rights to any compensation, damages, or payments in respect to\ngoodwill that has been established or for any damages on account of prospective\nprofits or anticipated sales, and Premier Provider will not be entitled to any\nreimbursement for training, advertising, market development, investments,\nleases, or other costs expended before the expiration or termination of this\nAgreement, regardless of the grounds for termination of this Agreement.\n\n10. Inappropriate Content. Netscape will have the right to review the contents\nand format of the Premier Graphic, the Bookmark, and Premier Provider's Web\nSite. If Netscape, in its reasonable discretion, at any time determines that the\nPremier Graphic, Bookmark, or Premier Provider's Web Site contain any material\nthat Netscape deems inappropriate for any reason or that fails to comply with\nExhibit A, Netscape will inform Premier Provider of the reason Netscape has made\nsuch determination and may refuse to include the Premier Graphic in the Page.\nNetscape may terminate this Agreement if Premier Provider has not revised to\nNetscape's reasonable satisfaction material to which Netscape has objected\nwithin five business days of written notice from Netscape.\n\n11. Responsibility \/ Indemnity.\n\n      11.1. Responsibility of Premier Provider. As between Netscape and Premier\nProvider, Premier Provider is solely responsible for any liability arising out\nof or relating to the 'Services', defined as: (i) the Premier Graphic, the\nBookmark, Premier Provider's Web Site, the Premier URLs, and\/or the Premier\nLinks, (ii) any material to which users can link through any of the foregoing,\nand\/or (iii) any use of Premier Provider's search and directory service pursuant\nto this Agreement. Premier Provider represents and warrants that it holds the\nnecessary rights to permit the use of the Services by Netscape for the purpose\nof this Agreement; and that the permitted use, reproduction, distribution, or\ntransmission of the Services will not violate any laws, government regulations,\nor rights of 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, or invasion of privacy or right of publicity.\n\n      11.2. Indemnity. Either party will defend and indemnify the other party\nand its officers, directors, agents, affiliates, distributors, franchisees, and\nemployees from any third-party claims ('Liabilities'), resulting from\n\n\n                                       9\n\n\n      the indemnifying party's material breach of any duty, representation, or\nwarranty of this Agreement. If a party entitled to indemnification hereunder\n(the 'Indemnified Party') learns of any potentially indemnifiable claim or other\nproceeding against it (an 'Action'), the Indemnified Party will give the other\nparty (the 'Indemnifying Party') prompt written notice. That notice will\ndescribe the basis for indemnification and include copies of all relevant\npleadings, demands, and other papers related to the Action that the Indemnified\nParty possesses. The Indemnifying Party will have ten days after delivery of\nsuch notice to respond. If the Indemnifying Party elects to defend the Action or\ndoes not respond within ten days, the Indemnifying Party will be obliged to\ndefend the Action, at its own expense, controlling the defense of the Action and\nusing counsel reasonably satisfactory to the Indemnified Party. The Indemnified\nParty will cooperate, at the expense of the Indemnifying Party, in the defense\nof the Action and have the right to participate, at its own expense, in that\ndefense. If the Indemnifying Party responds within the required ten days and\nelects not to defend an Action, the Indemnified Party will be free, without\nwaiving its rights hereunder, to compromise or defend (and control the defense\nof) such Action. In such case, the Indemnifying Party will cooperate, at its own\nexpense, with the Indemnified Party in defending against the Action and have the\nright to participate, at its own expense, in the defense of the Action. In any\nother case, any compromise or settlement of an Action will require the prior\nwritten consent of both parties, which they will not unreasonably withhold or\ndelay.\n\n12. Limitation of Liability \/ No Additional Warranties.\n\n      12.1. Limitation of Liability. Except as provided in Section 11.2, neither\nparty will be liable to the other for indirect, incidental, consequential,\nspecial or exemplary damages (even if it knows of the possibility of such\ndamages) arising from this agreement, including, but not limited to, loss of\nrevenue, anticipated profits, or lost business. Except as provided in Section\n11.2, neither party will be liable to the other for more than the aggregate\namount payable hereunder as of the date liability accrued.\n\n      12.2. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS\nAGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,\nANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED\nWARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED\nWARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF\n\n\n                                       10\n\n\nPERFORMANCE, WITHOUT LIMITING THE FOREGOING, NETSCAPE SPECIFICALLY DISCLAIMS ANY\nWARRANTY REGARDING OVERALL TRAFFIC LEVELS, TRAFFIC PERFORMANCE, OR REVENUES TO\nBE DERIVED UNDER THIS AGREEMENT.\n\n13. Course of Dealing. In consideration of Premier Provider's participation in\nthe Premier Program, Premier Provider will not change the form or function of\nPremier Provider's Web Site in a manner that directly results in a material\nadverse effect to users of Netscape's Internet browser software as compared to\nits performance at the time the Agreement was executed.\n\n14. Alternative Dispute Resolution.\n\n      14.1. Negotiation. The parties will act in good faith and use commercially\nreasonable efforts to promptly resolve any claim or dispute between them or any\nof their subsidiaries, affiliates, successors and assigns related to this\nAgreement ('Dispute'). If the pates cannot resolve a Dispute within ten days,\nthey will escalate it to the senior business representative of each party with\nresponsibility for the contractual relationship. If those representatives are\nunable to resolve the Dispute during a ten-day period, they will consider\nretaining a mediator to assist in discussions. Neither party will seek binding\noutside resolution of the Dispute unless the parties have been unable to resolve\nthe Dispute through such negotiation.\n\n      14.2. Arbitration. Except for Disputes relating to issues of (i)\nproprietary rights, including but not limited to intellectual property and\nconfidentiality, and (ii) any provision of this Agreement that expressly or\nimplicitly provides that the parties will mutually agree, any Dispute not\nresolved by negotiation will be resolved by arbitration. Such arbitration will\nbe conducted by the American Arbitration Association ('AAA') in Washington, D.C.\n(in the event that Premier Provider initiates the arbitration) or the county in\nwhich Premier Provider maintains its principal place of business (in the event\nthat Netscape initiates the arbitration) and will be initiated and conducted in\naccordance with the Commercial Arbitration Rules ('Commercial Rules') of the\nAAA, including the AAA Supplementary Procedures for Large Complex Commercial\nDisputes ('Complex Procedures'), as such rules will be in effect on the date of\ndelivery of a demand for arbitration, except to the extent that such rules are\ninconsistent with the provisions set forth herein. Notwithstanding the\nforegoing, the parties may agree not to apply the Complex Procedures to any\ngiven Dispute. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state\nlaw, will govern the arbitrability of all\n\n\n                                       11\n\n\nDisputes. Either party will have the right to seek injunctive relief from any\ncourt of competent jurisdiction pending the outcome of the arbitration.\n\n      14.3. Arbitration Process. The arbitration panel will consist of three\narbitrators. Each party will name an arbitrator within ten days after the\ndelivery of the Demand. The two arbitrators named by the parties may have prior\nrelationships with the naming party that in a judicial setting would be\nconsidered a conflict of interest. The third arbitrator, selected by the first\ntwo, will be a neutral Premier Provider, with no prior working relationship with\neither party. If the two arbitrators are unable to select a third arbitrator\nwithin ten days, a third neutral arbitrator will be appointed by the AAA from\nthe panel of commercial arbitrators of any of the AAA Large and Complex\nResolution Programs. If a vacancy in the arbitration panel occurs after the\nhearings have commenced, the remaining arbitrator or arbitrators may not\ncontinue with the hearing and determination of the controversy, unless the\nparties agree otherwise.\n\n      14.4. Discovery. The arbitrators will allow such discovery as is\nappropriate to the purposes of arbitration in accomplishing a fair, speedy and\ncost-effective resolution of the Disputes. The arbitrators will refer to the\nFederal Rules of Civil Procedure then in effect in setting the scope and timing\nof discovery. The Federal Rules of Evidence will apply in toto. The arbitrators\nmay enter a default decision against any party who fails to participate in the\narbitration proceedings.\n\n      14.5. Arbitration Award \/ Confidentiality. The arbitrators will have the\nauthority to award compensatory damages and injunctive relief only. The arbiters\nwill accompany any award with written findings of fact and conclusions of law\nrelied upon in reaching the decision. The arbiters' award will be final,\nbinding, and non-appeallable, and judgment upon such award may be entered by any\ncourt of competent jurisdiction. The parties will keep confidential the\nexistence, conduct and content of any arbitration, except as may be required by\nlaw or by any governmental authority or for financial reporting purposes.\n\n      14.6. Costs and Fees. Each party will pay all costs associated with the\npresentation of its own case. The parties will share equally the costs of the\narbitration. Notwithstanding the foregoing, the arbitrators may award and\nallocate expenses and costs to the prevailing party as the interests of justice\nmay require.\n\n15. [RESERVED]\n\n\n                                       12\n\n\n16. General.\n\n      16.1. Governing Law \/ Jurisdiction. This Agreement will be interpreted,\nconstrued and enforced in all respects in accordance with the laws of the\nCommonwealth of Virginia except for its conflicts of laws principles.\n\n      16.2. Entire Agreement. This Agreement, including the exhibits and\nattachments referenced on the signature page hereto, constitutes the entire\nagreement and understanding between the parties and integrates all prior\ndiscussions between them related to its subject matter. No modification of any\nof the terms of this Agreement will be valid unless in writing and signed by an\nauthorized representative of each party.\n\n      16.3. Assignment. Premier Provider may not assign any of its rights or\ndelegate any of its duties under this Agreement, or otherwise transfer this\nAgreement (whether by merger, operation of law, or otherwise), without the prior\nwritten consent of Netscape in its sole discretion. Any attempted assignment,\ndelegation or transfer in derogation hereof shall be null and void.\n\n      16.4. Notices. Any notice or other communication under this Agreement will\nbe given in writing and will be deemed to have been delivered: (i) on the\ndelivery date if delivered personally to the other party; (ii) one business day\nafter deposit with a commercial overnight carrier, with written verification of\nreceipt; or (iii) five business days after the mailing date if sent by U.S.\nmail, return receipt requested, postage and charges prepaid, or any other means\nof rapid mail delivery for which a receipt is available. In the case of\nNetscape, such notice will be provided to both the Senior Vice President for\nBusiness Affairs, America Online, Inc. (fax 703.265.1206) and the General\nCounsel, Netscape Communications Corporation (fax 650.988.1132), each at the\naddress of Netscape set forth in the first paragraph of this Agreement. In the\ncase of Premier Provider, the notices will go to Premier Provider's General\nCounsel, at the address for Premier Provider set forth in the first paragraph of\nthis Agreement.\n\n      16.5. Confidentiality. Each party acknowledges that either party may\ndisclose proprietary or confidential information or material ('Confidential\nInformation') to the other party during the course of this Agreement. All\nConfidential Information will be so marked or designated at the time of\ndisclosure or within ten days thereafter. Confidential Information will not\ninclude information or material made public by the disclosing party or developed\nby, known to, or made known to the receiving party from an independent source\nwhich is not subject to a duty to keep such information or material\nconfidential. The information contained in the Usage Reports provided\n\n\n                                       13\n\n\nby each party hereunder will be deemed the Confidential Information of the\ndisclosing party. Each party agrees that during the term of this Agreement and\nfor three years after it terminates, it will not disclose the other party's\nConfidential Information, other than to its employees or agents who need to\naccess such Confidential Information to perform obligations under this\nAgreement. Netscape will have the right to share information with America\nOnline, Inc., subject to the terms of this Section. Netscape may, in its\ndiscretion, make public client software market share information contained in\nthe Usage Reports submitted by Premier Provider in a form aggregated with data\nprovided by other Premier Providers. Either party may disclose Confidential\nInformation without the consent of the other party where such disclosure is\nrequired by law, regulation, or government or court order. In such event, the\ndisclosing party will provide at least five business days prior written notice\nof such proposed disclosure to the other party. If any government authority\nrequires such disclosure, the disclosing party will: (i) redact mutually\nagreed-upon portions of this Agreement to the fullest extent permitted by the\nrequiring body, and (ii) ask that such portions receive confidential treatment\nto the fullest extent permitted by law. Upon the expiration or termination of\nthis Agreement, each party will promptly, return or destroy (at the option of\nthe party receiving the request) all of the other party's Confidential\nInformation.\n\n      16.6. Force Majeure. Neither party will be responsible for any failure to\nperform its obligations under this Agreement due to causes beyond its reasonable\ncontrol, including but not limited to, acts of God, war, riot, embargoes, acts\nof civil or military authorities, fire, floods or accidents.\n\n      16.7. Waiver. The failure of either party to insist upon strict\nperformance by the other party of any provision of this Agreement or to exercise\nany right under this Agreement will not be construed its a waiver that party's\nright to assert or rely upon any such provision or right in that or any other\ninstance.\n\n      16.8.Headings. The headings to the Sections and Subsections of this\nAgreement are merely for convenience and do not affect the meaning of the\nAgreement.\n\n      16.9. Independent Contractors. The parties are dealing with each other\nhereunder as independent contractors. Nothing contained in this Agreement makes\neither party the joint venturer, employee, or partner of the other party or\ngives one party the authority to bind the other.\n\n      16.10. Severability. In the event any provision of this Agreement is held\nto be unenforceable, such provision will be reformed only to the extent\nnecessary\n\n\n                                       14\n\n\nto make it enforceable, and the other provisions of this Agreement will remain\nin fall force and effect.\n\n      16.11. Further Assurances. Each party will take such action (including,\nbut not limited to, the execution, acknowledgment, and delivery of documents) as\nmay reasonably be requested by the other party for the implementation or\ncontinuing performance of this Agreement.\n\n      16.12. Remedies. Except where otherwise specified, the rights and remedies\ngranted to a Party under this Agreement are in addition to, not in lieu of, any\nother rights or remedies it may have at law or equity.\n\n      16.13. Counterparts. This Agreement may be executed in two or more\nCounterparts, each of which will be deemed an original, but all of which\ntogether will constitute a single instrument. A facsimile of this Agreement,\nincluding the signature pages hereto, will be deemed to be an original.\n\n\n                   [THE FOLLOWING PAGE IS THE SIGNATURE PAGE]\n\n\n                                       15\n\n\nIN WITNESS WHEREOF, the parties have caused their authorized representatives to\nexecute this Agreement:\n\n\nPremier Provider:                       Netscape:\n\nLYCOS, INC.                             NETSCAPE COMMUNICATIONS\n                                        CORPORATION\n\nBy: \/s\/ Jeffrey M. Snider               By: \/s\/ Eric Keller      \n   --------------------------------        -------------------------------------\nPrint Name: JEFFREY M. SNIDER           Print Name: ERIC KELLER\n           ------------------------                -----------------------------\nTitle: GENERAL COUNSEL                  Title: VICE PRESIDENT  \n      -----------------------------           ----------------------------------\nDate: 6-7-99                            Date: 6-10-99           \n     ------------------------------          -----------------------------------\n\nAttached Exhibits:\n\n      Exhibit A: Specifications of the Page \/ Site Sample Specifications\n\n      Exhibit B: Sample Formats of Usage Reports\n\n      Exhibit C: Premier Provider Website Operating Standards\n\n\n                                       16\n\n\nEXHIBIT A\n\nSpecifications of the Page \/ Site Sampler Specifications\n\nThe accompanying screen shot displays the current overall look of the Page.\n\nAs of July 1, 1999, Net Search will support the highest iterations of Netscape\nNavigator versions 2.x, 3.x, 4.x for both Macintosh and PCs. (See Net Search\nSampler Test Specifications, External for complete list.) Other browsers,\nincluding early versions of Microsoft Explorer, will be routed to a simple\nversion of the Page that encourages users to download a more current version of\nNetscape's browser. The specifications are as follows:\n\nPage Update Schedule: Changes to Netscape Net Search will be made once a week,\ntypically late Thursday evenings (exceptions to this schedule will be made for\nconflicting holidays). Changes received by the end of day Thursday will go live\nthe following Thursday. Changes received on Friday will be considered part of\nthe following change cycle, and will not be implemented until the second\nThursday following.\n\nThe Site Sampler. The site sampler will consist of one graphic logo, a text\nentry field, a search button, and directory listings. All samplers will have a\nuniform gray background, #CCCCCC. The size of the complete sampler will be \n480 x 180 pixels. Netscape will place each element in the same position on each\nsampler. There are three deliverables the Premier Providers can alter: The\ngraphic logo, the copy for a search button, and directory listings.\n\nThe Graphic\n\no     The graphic should be a logo less than or equal to 50 pixels tall and 200\n      pixels wide.\no     Logos should be dithered to a gray background.\no     The file size may not be any larger than 3K. Graphics any larger than 3K\n      will be returned.\no     Likewise, animated GIFs will not be accepted.\no     To minimize dithering and ensure that the users across all platforms see\n      what you expect them to see, we recommend use of the Netscape Color Cube.\n\nThe Search Button Copy: A standard 20-character text entry field will be\nprovided. Please submit your choice of copy for the search button, which will be\npositioned next to it. If no copy is specified, the word 'Search' will be used.\nThe copy must be 10 characters (including punctuation) or less.\n\nThe Directory Listings:\n\no     All submissions should consist only of text links only. No graphics of any\n      kind (other than the logo) will appear within the sampler, and font size\n      will remain uniform throughout all samplers. The table will support\n      exactly 24 links within exactly 4 columns. The two leftmost columns will\n      contain exactly four links, the two rightmost columns will contain exactly\n      eight links. For changes to the sampler listing, simply send the link text\n      and URL to choover@netscape.com (please make sure to indicate link order).\no     All links should be created such that the back button in the user's\n      browser takes them back to the Page. Redirects that keep the back button\n      from working properly will not be accepted.\no     Links that wrap on any platform will not be accepted. Each link can\n      contain up to 15 characters without wrapping. Netscape will provide\n      'wrap-checking services,' if needed, for companies that do not have the\n      specified platform configuration.\no     FONT SIZE may be set to -1, if desired. BOLD and ITALIC tags may also be\n      used. Please check your table carefully to mike sure it doesn't expand\n      when you use these tags. If you have 6 links in a column, you will\n      probably have to remove one if you're using the BOLD tag.\n\n\n                                       17\n\n\nCompatibility: All sites linked to from anywhere within the search page,\nincluding those links found within samplers, MUST support all browsers supported\nby the search page (Navigator 2, 3, 4; IE 3, 4, 5; see above for more\ninformation). If a link points to a site that does not support a particular\nbrowser, a one-week grace period will be allowed to implement a fix. If the site\ndoes not support a particular browser after the grace period, the link will be\nremoved until a fix is implemented. Once a fix is implemented, the link will be\nreinstated according to the search page change schedule detailed above.\n\no     Compatibility issues typically arise around Netscape Navigator 2.x\n      browsers. Experience has shown that two common errors cause most of the\n      issues:\n      1.    Navigator 2.x requires HEIGHT and WIDTH attributes within image\n            tags, and,\n      2.    Navigator 2.x is very sensitive to nesting errors.\no     Eliminating nesting errors and adding the appropriate image attributes\n      will mitigate most browser incompatibility issues. Please test all sites\n      linked to from Net Search with Navigator 2.x, available for download from\n      Netscape's product archive at\n      http:\/\/home.netscape.com\/download\/archive\/index.html.\n\nDelivery: Content providers should email logos and Links to Netscape at\nchoover@netscape.com. If you are providing multiple files, please place them in\na folder labeled with the content provider's name.\n\nPICS: We request that all Premier providers label their sites with PICS labels\nif they haven't already done so\n\nPICS, the 'Platform for Internet Content Selection' is an Internet rating\nstandard designed to help parents, teachers and employers screen out material\nthey feel is inappropriate for children or employees. PICS gives Web publishers\na standard way to describe the content of Web sites or Web pages; it gives Web\nbrowsers a standard way to read the description.\n\nNetscape will be supporting PICS in the 4.06. release of Communicator with its\nNetWatch feature. As a Netscape search participant, labeling your site is\nimportant if NetWatch is to launch successfully. As an Internet content\nprovider, labeling your site is important if you want users who may have enabled\na variety screening products to see the pages you have provided there.\n\nIt should take no more than 30 minutes to procure and place the PICS labels you\nwill need for the home page of your site. In most cases, you will spend no time\nmaintaining these labels. The steps to follow are detailed below.\n\n      1. Register Your Site with RSACi and SafeSurf.\n\n      NetWatch currently supports two PICS labeling schemes: one from the\n      Recreational Software Advisory Council on the Internet and another from\n      SafeSurf.\n\n      Register with RSACi at http:\/\/www.rsac.org\/homepage.asp\n\n      Register with SafeSurf at http:\/\/www.safesurf.com\/classify\/index.html\n\n      You typically will want to register the 'entire site' with RSACi and 'an\n      entire directory' with SafeSurf. All ratings should be set to the lowest,\n      or Least objectionable, level unless\n\n\n                                       18\n\n\n      there is a need to do otherwise. The process for rating multiple areas of\n      a single site and the ratings themselves are described in more detail at\n      both the RSACi and SafeSurf sites.\n\n      When specifying your e-mail address, you will want to use or set up a\n      separate account or an alias, and will want to make sure you have a filter\n      on any alias. You most likely will be getting a lot of spam. RSACi no\n      longer includes the e-mail address in its labels; SafeSurf should be\n      making the e-mail address optional in the near future.\n\n      If your home page goes by multiple names -- for example, home.netscape.com\n      and www.netscape.com -- you will have to request an additional set of\n      labels.\n\n      Note that these Labels will be e-mailed to the address you specify when\n      registering.\n\n      2. Place the Labels After the [HEAD] Tag Exactly as You Receive Them.\n\n      As mentioned above, these labels will come to you at the e-mail address\n      you specify when registering.\n\n      Copy the labels exactly as they appear in the message, and paste them\n      immediately after the [HEAD] tag in the source code of your home page.\n      Note that you only should copy the label from an HTML-based mail system.\n      If you copy the label from a UNIX-based mail system, you most likely will\n      break it.\n\n      3. Update Your Registration or Request New Labels When Things Change\n\n      Maintenance of these labels should not be required. However, if you want\n      to update your registration (RSACi) or request new labels (RSACi and\n      SafeSurf), just begin the process again at Step 1.\n\n\n                                       19\n\n\nEXHIBIT B: Sample Formats of Usage Reports\n\nSample report provided by Premier Provider to Netscape each month:\n\n             Netscape Browsers      MSIE Browsers        AOL Browsers\n             -----------------      -------------        ------------\n\n             Netscape % of total    MSIE % of total      AOL % of total \n             browsers = 50%         browsers = 25%       browsers = 25%\n\n             Breakdown of Netscape  Breakdown of         Breakdown of\n             Browsers:              MSIE Browsers:       AOL Browsers:\n\n             4.x=50%                4.x=50%              4.x=50%\n\n             3.x=25%                3.x=25%              3.x=25%\n\n             2.x=20%                2.x=20%              2.x=20%\n\n             1.x=5%                 1.x=5%               1.x=5%\n\nSample report provided by Netscape to Premier Provider each month:\n\n                                      User          Other\n             Random      Default      Selected      Exposures          Total\n             Exposures   Exposures    Exposures     (Home Page, etc.)  Exposures\n\nJune 1       1M          200K         400K          500K               2.1M\n\nJune 2       1.1M        200K         500K          500K               2.3M\n\nJune 3       1.2M        200K         600K          500K               2.5M\n\n...\n\nJune 31      1.8M        300K         8OOK          500K               2.4M\n\nTotal Premier Provider\nExposures\n\nAggregate Exposures for\nall Premier Providers\n\n\n                                       20\n\n\nEXHIBIT C: Premier Provider Website Operating Standards\n\nPremier Provider Website. Premier Provider will: (1) be responsible for all\ncommunications, hosting, and connectivity costs and expenses associated with its\nWebsite; (2) provide all hardware, software, telecommunications lines, and other\ninfrastructure necessary to meet traffic demands on its Website from the Page;\n(3) design and implement the network between the Page and its Website so that\n(a) no single component failure will have a materially adverse impact on users\nof the Page seeking to reach the Premier Provider's Website, and (b) no single\nServer will run at more than 70% average utilization for a 5-minute peak in a\ndaily period. In this regard, Premier Provider will provide Netscape, upon\nrequest, with a detailed network diagram regarding the network infrastructure\nsupporting its Website.\n\nOptimization; Speed. Premier Provider will use commercially reasonable efforts\nto ensure its Website is designed and populated in a manner that minimizes\ndelays for users of the Page seeking to access it. At a minimum, Premier\nProvider will ensure that it initiates data transfers within no more than\nfifteen seconds on average. Before the start of the Premier Period, Premier\nProvider will permit Netscape to conduct performance and load testing of the its\nWebsite (in person or through remote communications), until Netscape is\nreasonably satisfied with the results of any such testing.\n\nTechnical Problems. Premier Provider agrees to use commercially reasonable\nefforts to address promptly material technical problems over which Premier\nProvider exercises control) affecting use by end users of the Page of its\nWebsite (including, without limitation, infrastructure deficiencies producing\nuser delays). In the event that Premier Provider is unable to resolve such a\nproblem promptly, Netscape wild have the right to reduce or stop the traffic it\nprovides to Premier Provider until such time as Premier Provider corrects the\nproblem.\n\nMonitoring. Premier Provider will ensure that the performance and availability\nof its Website is monitored on a continuous (24 X 7) basis. Premier Provider\nwill provide AOL with contact information (including e-mail, phone, pager and\nfax information, as applicable, for both during and after business hours) for\nPremier Provider's principal business and technical representatives, for use in\ncases when issues or problems arise with respect to its Website.\n\n\n                                      21\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8096,8328],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42950","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-lycos-inc","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__programming","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\/42950","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=42950"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42950"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42950"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42950"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}