EXHIBIT 10.7
INTERACTIVE SERVICES AGREEMENT
COVER SHEET
This Interactive Services Agreement ("Agreement"), of which this page is a cover
sheet "Cover Sheet"), is entered into between America Online, Inc., a Delaware
corporation ("AOL"), with offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, acting
through its subsidiaries Netscape Communications Corporation ("Netscape") and
Digital City, Inc. ("DCI"), (collectively, "ND" and respectively, "N/D"), and
iOwn, Inc., a California corporation "Participant"), with offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, effective as of the date of AOL's
signature below ("Effective Date").
Brief Description of Service: Participant will develop and manage, subject to
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the terms of this Agreement, (i) a co-branded mortgage center for Netscape
Netcenter ("Netscape Mortgage Center"); and (ii) a co-branded mortgage area for
DCI ("DCI Mortgage Area", collectively with the Netscape Mortgage Center,
"Mortgage Areas") which will contain consumer oriented home financing content,
community programming, access to a variety of home financing providers,
functionality that enables Netscape Members and DCI Members, respectively, to
search for competitive home financing rates and the ability to complete online
applications for mortgages, equity lines and home refinancing. A detailed
description of the Service is set forth in Exhibit A.
Territory: United States
Local Language: U.S. English
Service Period: [*], except as
otherwise extended by the terms of this
Agreement.
Addresses for Notice:
iOwn, Inc. America Online, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer USA
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: Deputy General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: Sr. Vice President for Business Affairs
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇▇ Coie, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
[*] Confidential Treatment Requested
The parties hereto have executed this Agreement as of the Effective Date.
PARTICIPANT AMERICA ONLINE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: President Title: Director - Business Affairs
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Date: June 30, 1999 Effective Date: June 30, 1999
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Tax ID/EIN#:________________
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This Agreement includes the following Exhibits:
Exhibit A: The Service
Exhibit B: Priority Response Times
Exhibit C: Payment
Exhibit D: User Registration and Privacy
Exhibit E: Usage Reporting Requirements
Exhibit F: Definitions
Exhibit G: General Terms and Conditions
Exhibit H: Named Entities
Exhibit I: Participant Content for Index Page
Exhibit J: Detailed Netscape Carriage Plan
Exhibit K: Participant Standard Report
Exhibit L: Press Release
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INTERACTIVE SERVICES AGREEMENT
In consideration of the mutual covenants contained herein, the parties agree as
follows:
1. LICENSE GRANT
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1.1 Participant License. Participant hereby grants to N/D, a non-exclusive,
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worldwide and royalty-free right to store, display, perform, frame, reproduce,
distribute, re-distribute, transmit, re-transmit and otherwise use the: (i)
Service and (ii) Licensed Content, including any data, information, content and
other intellectual property included in the Licensed Content within the Netscape
Network and DCI Network.
2. THE SERVICE
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2.1 Description of Service. Participant will provide N/D, with the Licensed
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Content and other technology and services as may be required under this Section
2 and Exhibit A (the "Service") for inclusion in the Netscape Network and DCI
Network and as otherwise set forth in Exhibit A. Participant grants N/D the
option, in their respective discretion, to add any new content developed by
Participant and made available to its partners to the Service. Participant also
grants N/D the option, in their respective discretion, to add links for the
Licensed Content to supplement third party content, on the Service Index Page.
The Service does not include the Index Pages, however, it does include Service
Index Pages. Traffic on all Service Pages and Index Pages shall be considered to
be N/D traffic, as appropriate. The specifications for the Service are set forth
within the mock-ups and site maps, if any, provided as part of Exhibit A.
2.2 Index Pages. The Index Pages will be produced, hosted, served and
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maintained on N/D servers, as appropriate. Each such page will include areas for
co-branding, advertising, content and sponsorships. Participant will provide to
N/D, without limitation, the content listed on Exhibit I for use on the Index
Pages. N/D may add additional sections and services to the Service Index Page
from time to time.
2.3 Service Pages. N/D shall provide the specifications and production
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schedule (if any) for the navigation, templates (including headers and footers),
architecture, and look and feel of the Service Pages in accordance with the
mock-ups and site maps, if any, provided as part of Exhibit A. N/D may amend the
content required on the Service Pages and/or the mock-ups or site maps provided
as part of Exhibit A from time to time upon reasonable notice to Participant
and, if Participant is unable to provide any such amended content, then N/D may
supplement the Service accordingly. Notwithstanding the foregoing, Participant
shall maintain substantially the same prominence, positioning and exclusivity as
set forth in Exhibit A. The Service Pages shall not include any link outside of
Netcenter or the DCI Service, respectively, other than Participant's Application
Page. Where appropriate, Participant will modify links within the Service to re-
circulate users to other N/D services. The Service Pages shall: (i) be served,
produced and managed by Participant, including but not limited to hiring and
managing creative, technical, customer support, and general staff as
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needed; (ii) be hosted and maintained solely on Participant's servers; (iii)
include a field providing search functionality to Netscape's Net Search link;
and (v) be co-branded in accordance with Section 2.4. Participant acknowledges
that all web site traffic on the Services is to be allocated to N/D and not
Participant. Within twenty (20) days from the Effective Date, Participant will
send a letter on Participant's letterhead, executed by an officer of Participant
to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of Media Metrix (35 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ 10010), requesting that the site traffic for the Services be reassigned
from Participant to N/D. The letter addressed to Media Metrix must include the
URL for each of the Services. Such URL must be specific to N/D, such as
▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇ and can not be an extension of a URL such as
▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇. The procedure for reassigning web site traffic outlined in
this Section 2.3, is subject to change without prior notice by Media Metrix. In
the event that the procedure to reassign web site traffic is changed or Media
Metrix is no longer the primary provider of web site audience measurements,
Participant shall take whatever actions are necessary to insure that the
allocation of all web site activity on each of the Services is allocated to N/D
and not Participant, including, if necessary, hosting the Services on a
▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ domain respectively.
2.4 Co-Branding. The Service Pages will be co-branded by N/D, as appropriate,
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and Participant in accordance with the site maps provided as part of Exhibit A
(if any). The co-branding will be subject to N/D's Guidelines, as appropriate,
and will include Participant's company name and logo. There may be certain
Service Pages that are Participant branded only as mutually agreed in writing by
the parties.
2.5 Service Implementation. Participant shall provide updated content for the
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Service Pages and the Index Pages in a manner consistent with the descriptions,
if any, set forth in Exhibit A or as N/D may reasonably require. Participant may
not make any modifications, additions, or subtractions to the Service Pages as
such Service Pages are described in Exhibit A without N/D's written permission.
All content supplied by Participant for the Service will meet N/D's, as
appropriate, performance requirements and specifications with regard to page
size, loading speed and speed of access to database driven content as set forth
in Exhibit A. Any Participant content used on the Mortgage Areas or the
Netcenter Personal Finance Index Page or the Netscape Real Estate Index Page
will include Participant attribution by using Participant's name and logo.
Participant hereby grants N/D a nonexclusive, nontransferable, worldwide,
royalty free license to use Participant's name and logo for such purpose subject
to any Participant usage guidelines provided to N/D. Participant shall be
responsible for the production, technology deployment, content programming, and
creation of graphic user interfaces of the Service, all in accordance with
Netscape's written Guidelines, as appropriate. N/D shall use reasonable efforts
to consult with Participant in regard to Service Page design, however, N/D shall
have final design approval right over all Service Pages. N/D shall be
responsible for producing the specific design and user interface elements (e.g.
graphics, html, etc.) of each template utilized in publishing the Mortgage
Areas. The Service shall use substantially the same technology and advantages
that Participant uses in its own proprietary service(s), if any, unless
otherwise mutually agreed by the parties. The Service shall not be substantially
disadvantaged or suffer from inferior production, programming or performance
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relative to Participant's similar Internet services, or any similar Internet
service that Participant might make available to, or operate on behalf of, third
parties. The Service shall perform substantially in accordance with the
performance standards of its own proprietary services, including, but not
limited to, load time, timeliness of content, and quality of programming.
Participant's obligation to produce the Service, including production services,
technology deployment and content programming that meets or exceeds standards
established by Participant on Participant's Web Site or services (or any web
site or services Participant manages for any third party) and general industry
standards is a material obligation of Participant under this Agreement.
2.6 Commerce. Except as otherwise set forth in this Agreement, Participant
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shall not conduct any merchandising through the Service Pages through auctions,
clubs or any other method, other than home financing, without N/D's prior
written consent.
2.7 Advertising. Participant shall ensure that Netscape Members and DCI
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Members accessing the Service Pages and linking to the Participant Web Site from
the Service Pages do not receive advertisements, promotions or links for any
entity reasonably construed to be in competition with the Netscape Network or
DCI Network, as appropriate, with Netscape Network software or Products or
otherwise in violation of the applicable Netscape Network or DCI Network then-
standard advertising policies or exclusivity commitments or other contractual
preferences to third parties.
2.8 Service Name. The Service name will be as mutually agreed upon by N/D, and
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Participant. If the Service name includes a co-branding component that is not
generic or descriptive, Participant shall not independently use the Service name
without N/D's prior written consent nor shall Participant use the Service name
with N/D's name, as appropriate, expunged.
2.9 Technical Support. Participant will provide technical support to N/D to
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ensure that content is correctly received and displayed by N/D in accordance
with the priority response times set forth as Exhibit B. Participant shall
appoint a technical contact to whom N/D, may address all technical questions
relating to the Service, and use its best efforts to promptly remedy any
material malfunctioning of the Service. Participant shall be solely responsible
for the purchase, implementation, maintenance and support of all software and
hardware required to fulfill its obligations under this Agreement. N/D shall
provide Participant with reasonable amounts of technical support and shall
provide consolidated account management. In the event Participant requires
extraordinary levels of N/D technical support, N/D will provide technical
support to Participant upon N/D standard terms, conditions and rates.
2.10 Quality Assurance. Participant shall provide N/D with a quality assurance
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("QA") test plan and results satisfactory to N/D or a test plan and results from
a N/D approved QA testing laboratory (at the cost of the Participant). The tests
will cover the below browsers on both Mac and Windows operating systems:
Navigator/Communicator 4.0x; Navigator 3.04;
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Navigator 2.02/1.12/1.22 (32 bit only); Internet Explorer 4.x (Windows only);
and Internet Explorer 3.x (Windows only).
3. PAYMENT
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For the mutual benefits provided under this Agreement, payments shall be made in
the amount and subject to the terms set forth in Exhibit C.
4. NETSCAPE PROGRAM REQUIREMENTS
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(This Section Applies to the Netscape Mortgage Center Only)
4.1 User Registration. If end users are required to register to access certain
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features within the Service, the Service's user registration processes will be
integrated with Netscape's "Universal Registration" system and be consistent
with Netscape's then-current privacy policy, each as set forth on Exhibit D.
The parties will use best efforts to integrate the Participant and Netscape user
registration processes using the Netcenter universal registration SDK, unless
such integration meaningfully reduces the ratio of users completing registration
versus users viewing the registration page or is prohibited by the privacy
policy of either party.
4.2. Core Services. Participant will integrate Netscape's then-current
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Core Services into the Service. Netscape may modify the Core Services from time
to time and notify Participant of any such changes for the Service.
5. NETSCAPE PRODUCTS AND TECHNOLOGY
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(This Section Applies to the Netscape Mortgage Center Only)
5.1 Use and Promotion of Netscape Technology. Participant will: (i) within the
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Service, ensure compatibility with the client software used by Netcenter
members, especially the latest version of Netscape Communicator client software;
(ii) consider the use of at least one current version of Netscape core Web
server software product to maintain Participant's Web Sites, to be obtained by
Participant pursuant to Netscape's standard licensing terms; (iii) display the
"Netscape Now" button (or successor Netscape marketing button) prominently on
the Participant's Web Site on the Service Pages, on any page to which the
Service links (except links to third party advertisers), and on any page on
Participants Web Site which contains an unpaid virtual button or other text or
graphic for any third party Internet client or server software, software
provider or online service; and (iv) promote only Netscape client and server
software and online services within the Service.
5.2. Course of Dealing. In consideration of the treatment of the Service as a
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fundamental part of the Netcenter service, until such time as Microsoft fully
publicly documents and makes available its operating systems' programming
interfaces sufficiently to enable
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Netscape to make use of all of the facilities and resources of those operating
systems on a basis equal to that of Microsoft Participant agrees to the
following:
5.2.1 No Disadvantage. Participant shall not make any content available solely
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to users of client software or services other than Netscape's, or disfavor or
disadvantage users of Netscape client software or services in any way relative
to users of other Internet client software or services.
5.3. No Disabling. Participant shall not provide or implement any means or
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functionality that would (i) alter, modify or enable end users to alter or
modify, any Netscape client software, standard user interface or configuration
(collectively, the "Software"), (ii) disable any functionality of the Software
or any other Internet browser software, or (iii) modify the functioning of pages
served from Netscape's Web Site.
5.4. E-Mail Link. Participant shall make commercially reasonable efforts to
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include on the Service Pages an email link that users of Participant's
proprietary service can use to direct questions or help requests to Participant.
Participant will use reasonable efforts to reply promptly, but in any event
within 1 business day, to any such question or help request.
6. PRESS PLANS
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Participant and N/D agree to participate in a joint press announcement regarding
the Service that will take no later than ten (10) business days from the
Effective Date of this Agreement, unless the parties mutually agree otherwise.
The parties shall agree to the form and content of the joint press release which
shall be in substantial form as outlined in Exhibit L.
7. TERM & TERMINATION
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7.1. Term. Unless earlier terminated as set forth herein, the initial term of
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this Agreement shall commence on the Effective Date and expire [*] from the
Effective Date, except as otherwise extended by the terms of this Agreement.
This Agreement may be extended by mutual written agreement of the parties. The
parties agree that the term can be extended for a maximum of [*] successive
periods (each, an "Extension Term"). Each Extension Term shall be for [*], at
AOL's option for each Extension Term. AOL shall notify Participant if it desires
to extend and the period selected for the Extensions Term by providing
Participant with written notice of such election (which notice shall specify
whether AOL elects for such Extension Term to be for [*] no later than sixty
(60) days prior to the expiration of the initial term or the then-current
Extension Term, as the case may be. An Extension Term will not require placement
fees in addition to those described in Exhibit C, however, all other fees shall
continue to accrue during such Extension Term.
7.2 Termination for Convenience. [*]
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Upon such termination, N/D shall have delivered [*]
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[*] as set forth in Exhibit A and Participant shall have paid N/D [*] as a
placement fee plus any accrued but unpaid revenue share set forth in Exhibit C.
In the event that N/D has not delivered [*] as set forth in the foregoing
sentence, N/D shall deliver [*] the difference [*] as set forth in Exhibit A. In
the event that Participant has not paid N/D all accrued but unpaid revenue share
set forth in Exhibit C plus at least [*] in placement fees, Participant shall
pay any, accrued but unpaid revenue plus the difference between [*] and the
amount actually paid to N/D for placement fees. In the event that Participant
has paid more than [*] in placement fees, N/D will refund the overpaid revenue.
In the event of a termination for convenience, the foregoing obligations set
forth in this Section 7.2 shall survive the termination of the Agreement.
7.3 Termination for Breach. Either party may terminate this Agreement at any
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time in the event of a material breach by the other party which remains uncured
after thirty (30) days written notice thereof During the Term of this Agreement,
if AOL (i) ceases to promote, market and develop the standard Netscape browser
or (ii) if the default page of the standard Netscape browser ceases to be the
Netcenter home page, then AOL is in material breach of this Agreement, subject
to the terms of this Agreement.
7.4. Termination for Bankruptcy/Insolvency. Either party may terminate this
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Agreement, immediately following written notice to the other party if the other
party (i) ceases to do business in the normal course, (ii) becomes or is
declared insolvent or bankrupt, (iii) is the subject of any proceeding related
to its liquidation or insolvency (whether voluntary or involuntary) which is not
dismissed within ninety (90) calendar days or (iv) makes an assignment for the
benefit of creditors.
7.5. Performance-Based Termination. AOL may terminate this Agreement upon
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thirty (30) days written notice to Participant if AOL determines, in its
reasonable discretion, that the Service is underdelivering a significant
majority of traffic after [*] or if any regulation or law makes provision of the
Service commercially unreasonable.
7.6. Site and Content Preparation. Except as otherwise set forth in Exhibit
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A, Participant shall achieve Site and Content preparation within sixty (60) days
from the Effective Date of this Agreement. "Site and Content Preparation" shall
mean that Participant shall have completed production of the Service and the
Licensed Content in accordance with this Agreement and completed all other
necessary work to prepare the Service and the Licensed Content and any other
related areas or screens to launch on the Netscape Network and DCI Network, as
contemplated hereunder. In the event Participant has not achieved Site and
Content Preparation within ninety (90) days from the Effective Date of this
Agreement, then in addition to any other remedies available, AOL shall have the
right to terminate this Agreement by giving Participant written notice thereof.
If Participant is delayed in achieving Site and Content Preparation due to a
failure by AOL to perform its obligations under this Agreement and Participant
notifies AOL in writing of such failure and the resulting delay,
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then the sixty (60) day and ninety (90) day periods referenced in this Section
shall each be extended by the amount of time of Participant's delay solely
attributable to such failure by AOL
7.7. Rights Upon Termination or Expiration.
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7.7.1. AOL Rights. Upon termination or expiration of this Agreement, AOL shall
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have the right, without any additional payment, charge or royalty to
Participant, to produce versions of the Service that do not include Participants
proprietary technology, logo or name or all other intellectual property but that
might employ a graphic user interface or underlying technology that is
substantially similar to the graphic user interface or underlying technology of
the Service. AOL shall not be liable to Participant in the event of termination,
expiration or failure to agree upon an extension of the term of this Agreement
for compensation, reimbursement or damages on account of the loss of prospective
profits, or anticipated sales, or on account of expenditures, investments,
leases or commitments in connection with the business or goodwill of
Participant.
7.7.2. Participant Rights. In the event of termination based upon (i) material
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breach by AOL or (ii) performance-based termination as described in Section 7.5
above, Participant will receive from AOL either (i) a prorated refund of
placement fees; or (ii) an advertising package of equivalent value, at
Participant's option. All other fees due AOL prior to the termination date shall
be due and payable as provided for in this Agreement.
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EXHIBIT A: THE SERVICE
Exhibit A-1: Description of the Service
A. Participant Responsibilities.
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1. The Service. Participant will develop and manage, subject to the terms of
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this Agreement, (i) a co-branded Netscape Mortgage Center; and (ii) a co-branded
DC1 Mortgage Area which will contain consumer oriented home financing content,
community programming, access to a variety of home financing providers,
functionality and other content as mutually agreed in writing, that enables
Netscape Members and DCI Members, respectively, to search for competitive home
financing rates and the ability to complete online applications for mortgages,
equity lines and home refinancing.
2. Programming Plan and Features. Participant will create a programming plan
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for the features to appear on the Mortgage Areas, which will be subject to N/D's
acceptance. The following list of features will be included in such programming
plan:
. Consumer-oriented educational information focused on mortgage/home equity
products;
. Integrated financial calculators used to make decisions around
purchasing/refinancing a home;
. Single online mortgage application to a variety of lenders;
. Pre-qualification capability;
. Unbiased, customizable search capability to deliver best product to suit
individual needs;
. Lender coverage in substantially all major U.S. markets including NY, CA,
PA, TX, MA, D.C.; and
. Current mortgage rate information (provided in Netscape's RDF-based feed
format or other format as Netscape may reasonably specify);
. Minimum of ten national mortgage lenders.
3. Quality of Service. Participant will provide N/D a most favored nation
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status in regard to quality, price and terms and conditions for any online
product offered on its Web Site relative to any online product within the
Service, including rate quoting and mortgage application services. Additionally,
Participant agrees that the Service will at all times be reasonably competitive
with the functionality, content and overall quality of all Mortgage Aggregators
competing with the Service.
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4. Ad Inventory. During the Term of the Agreement, Participant will deliver at
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no cost to N/D up to [*] of its ad inventory through banners, including ROS,
dependent upon remnant availability
5. AOL Products. Participant will incorporate any AOL created or co-branded
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mortgage products within the Service (the mortgage products will not include any
aggregation products).
B. N/D Responsibilities.
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1. Look and Feel. N/D will be responsible for maintaining and controlling the
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Netscape Look and Feel and DCI Look and Feel, respectively, for the Mortgage
Areas. N/D will also be responsible for the organization of the site template
screen inventory and the editorial discretion of the Service for content
substantially unrelated to home financing and for links and transactive services
that are not related to home financing. Participant shall be responsible for the
organization of the substantive content on the site and the editorial discretion
of the Service other than as provided for above. In no case will N/D request
changes to Participant's logo.
2. Advertising. N/D will be responsible for serving and selling advertising,
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revenue generating and promotional positions (including sponsorships) within the
Service. All promotional, advertising, sponsorship or otherwise commercial
elements within Participant's own proprietary service is excluded from the
Service. N/D reserve certain promotional/revenue positions within the Service
for their respective existing advertisers pursuant to preexisting obligations
and will not share revenue arising out of such existing obligations. Revenue
share shall be as set forth in Exhibit C. Notwithstanding the foregoing,
Participant may integrate third party content without revenue sharing, to
improve the Service provided that such content is integrated in a similar manner
on both the Service and Participant Web Site.
3. Promotional Commitments. In accordance with the Carriage Plan incorporated
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herein as Exhibit A-2, Netscape and DCI will provide Participant with the
following: (a) permanent positioning within the Netscape Mortgage Center and DCI
Mortgage Area; (b) promotional and navigational links to the Netscape Mortgage
Center and DO Mortgage Area throughout Netcenter and DCI Real Estate main page,
as applicable; (c) promotion of the Mortgage Areas and Service within Netcenter
and DO Service through a banner advertising program; and (d) Netscape will
promote the Mortgage Center and Service through a Netcenter search program.
Further, Netscape and Participant will work together to make mortgage related
information and links available through Netcenter's Site Central service for its
Real Estate related pages and templates. All banners promoting the Service will
be created by Participant and will be subject to approval by N/D. In the
editorial features within the Mortgage Center and Mortgage Areas, N/D will make
reasonable efforts to promote content and functionality provided by Participant
over any similar content and functionality provided by other N/D content
partners.
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4. Restrictive Provisions.
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(a) Mortgage Aggregators. N/D will not offer paid content, banners or
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links to Mortgage Aggregators within the Mortgage Areas, Mortgage Center, the
Service and the Netscape and DCI Real Estate Channels and in no event will N/D
offer any content, banner ads or links from Participant's list of Named Entities
within such areas. DCI will have a period of 45 days from the Effective Date in
order to complete or terminate preexisting obligations with Mortgage
Aggregators. In addition, Netscape will not offer paid content or links to
Mortgage Aggregators within the Netscape Personal Finance Channel. "Mortgage
Aggregators" means third party mortgage aggregators that provide access to rate
quotes from multiple mortgage providers or online applications to multiple
mortgage providers.
(b) Mortgage Originators. Netscape will not offer paid content, banners or
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links to third party mortgage originators within the Mortgage Areas, Mortgage
Center, or the Service, except for content, banners and links provided to
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Citibank or for two mortgage originators above the fold in the space Citibank
currently holds in the Mortgage Center, as set forth in the mock up, or any
equivalent position pursuant to Netscape's preexisting contractual obligations.
In no event will any Netscape existing obligation exceed 25% of total banner
inventory.
(c) Mortgage Content. Notwithstanding the restrictions listed in sections
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(a) and (b) above, in any editorial features that link to an external site from
the Mortgage Areas or from the Mortgage Center, N/D will make commercially
reasonable efforts to promote content and functionality provided by Participant
over any similar content and functionality provided by other N/D content
partners; provided that, no such content and functionality shall be provided by
any mortgage aggregator listed in Participant's list of Named Entities set forth
on Exhibit H, without the mutual consent of the parties.
5. Impression Guarantee. For the Term of this Agreement, N/D agrees to
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DCI will make commercially reasonable efforts to place ROS banners on pages
which do not have permanent placements.
III. Determination of Tiers
----------------------
The following table provides a general framework for determining Performance
Tiers.
Description of Tiers
--------------------
[*]
[*] Confidential Treatment Requested
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EXHIBIT A-3 MOCK UPS: "MORTGAGE CENTER"
Confidential
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EXHIBIT B: PRIORITY RESPONSE TIMES
Participant shall provide to N/D support services for the Service consistent
with the following support obligations:
1. OBLIGATIONS
-----------
1.1. Error Reporting. Errors may be reported on a 24 hours per day, 365 day per
---------------
year basis. During normal business hours, Participant's technical staff shall be
available to receive Error reports directly from end users or N/D by telephone.
Outside of normal business hours, Errors may be reported by pager, electronic
mail, voice mail, fax or telephonic recording capability. Participant shall
provide N/D with a pager number for both a primary and secondary pager which
will be carried by appropriate support personnel at all times and to which
Errors may be reported at any time.
1.2. Support Requests. Participant will Respond and use best efforts to correct
----------------
or provide a Workaround to Priority 1 and Priority 2 Errors that N/D or end
users identify, classify and report; and will use reasonable commercial efforts
to Respond to other Errors within the time frames set forth below.
----------------------------------------------------------------------------------------------------------------------
Priority Error Title and Explanation Notification Status Reports (in Target Repair Time
Mechanism & Required Response to Errors)
Time to Respond
----------------------------------------------------------------------------------------------------------------------
1 Fatal Error - Voice or Pager: Twice Daily 2 days
No useful work can be done. 15/30 minutes (7x24) (7x24)
7x24 coverage
----------------------------------------------------------------------------------------------------------------------
2 Severe Impact - Voice or Pager Twice Daily 5 days
Functionality disabled. Errors which 1 hour
result in a lack of application 7x24 coverage
functionality or cause intermittent
system failure.
----------------------------------------------------------------------------------------------------------------------
3 Degraded Operations - Voice or Pager Daily 10 business days
Errors causing malfunction of 1 hour (business days)
non-critical functions. E-mail 8 hours
business day coverage
--------------------------------------------------------------------------------------------------------------------
4 Minimal Impact - Voice or Pager Weekly Next Release
Attributes and/or options to 2 hours (business days)
ancillary features do not E-mail 8 hours
operate as stated. business day coverage
--------------------------------------------------------------------------------------------------------------------
5 Enhancement Request. Voice or Pager Weekly No Requirement
8 hours (business days)
business day coverage
--------------------------------------------------------------------------------------------------------------------
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EXHIBIT C: PAYMENT
1. Placement Fee. Participant will pay AOL a total placement fee of [*]
-------------
for guaranteed placement on Netcenter and the DCI Service. Payments shall be due
as follows:
[*]
2. Revenue Share.
-------------
(a) Participant shall also pay AOL [*] for every Netscape Sourced Member or
DCI Sourced Member clicking to the first mortgage application data entry page
(currently requires obtaining a password) starting with the [*] Member, (as
aggregated among the various N/D Members), establishing a password on the Full
Application or Pre-Approval sections of the Service (e.g., enters email and
password and clicks "New User" button on the loan application index page
▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇) (a "Registrant").
------------------------------------------------------
(b) N/D shall pay Participant [*] of the banner Net Revenue from
advertisers on the Service. "Net Revenue" shall mean gross revenues minus [*].
Parties will discuss AOL's right to sell advertisements or Participant's Web
Site.
3. Taxes. All payment amounts in this Agreement are in U.S. dollars and are
-----
exclusive of any applicable taxes and shall be made free and clear of without
reduction for, (and Participant shall be responsible for and shall indemnify
Netscape against) any applicable U.S. and foreign, state and local taxes, value
added or sales taxes, withholding taxes, duties or levies and assessments,
howsoever designated or computed, pertaining to the payments under this
Agreement (excluding taxes based upon the net income of AOL). Participant shall
promptly furnish AOL with tax receipts evidencing the payment of any taxes
referred to in the preceding sentence. AOL and Participant shall cooperate with
each other in minimizing any applicable tax and in obtaining any exemption from
or reduced rate of tax available under any applicable law or tax treaty.
4. Payment Schedule. Unless otherwise stated above, any payments due AOL under
----------------
this Agreement during the Term shall be payable 30 days from the end of each
calendar quarter in which such payments are accrued. Unless otherwise stated
above, any payment due Participant under this Agreement during the Term shall be
payable 30 days from the end of each calendar quarter in which AOL has received
payment for such shared revenue.
5. Warrants. Participant will grant to AOL the following warrants to purchase 1
--------
share of Participant's common stock at a strike price of $10 per share pursuant
to a separate written warrant agreement:
[*] Confidential Treatment Requested
Confidential
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. Warrants for 25,000 shares of common stock on the Launch Date.
. Additional warrants for 25,000 shares of common stock, if, after 12
months from the Launch Date, Netscape has delivered at least [*] of the
total [*] Impressions and DCI delivers at least [*] of the [*].
[*] Confidential Treatment Requested
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EXHIBIT D: USER REGISTRATION AND PRIVACY
I. REGISTRATION PROCESS
To the extent that Participant desires to offer a registration process,
Participant will be responsible for the implementation of the Service
Registration. The functionality, design, and integration of the Service
Registration process will be subject to Netscape's approval, terms and
conditions as defined in this Agreement. Such specifications, terms and
conditions may be revised by Netscape from time to time upon 30 days prior
notice to Participant. Participant will implement changes within a 30 day period
unless the parties mutually agree otherwise.
II. DATA COLLECTED BY PARTICIPANT DURING SERVICE REGISTRATION PROCESS
Participant will determine the data to be collected in the Service Registration
process considering Netscape's recommendations and technical restrictions.
Participant shall use commercially reasonable efforts to transfer top level user
registration information collected during the Service Registration process and
data collected by any other means, to Netscape in real time data transfer,
unless otherwise agreed to by the parties. Netscape reserves the right to
request that the information collected during the Service Registration as
identified above be supplied in a Netscape specified format and timeframe.
III. USE OF PERSONAL DATA
Netscape and Participant shall jointly own and use all top level user
registration information and Participant shall own all other end user
application data and information obtained in connection with the Service and:
(i) shall have the right to aggregate such end user data and information and use
such aggregated data only for such party's internal use and provision to
Participant's strategic partners, except as required for legal, audit or tax
purposes; and (ii) shall not disclose to any third party such end user data and
information without the end user's prior approval; and (iii) may use information
collected about the users during registration or from any other means ("End User
Information") only for the purpose of marketing Netcenter programs or mortgage
or home financing products to the users. It is a material obligation of this
Agreement that Participant shall adhere to Netscape's then-current privacy
policy, set forth at ▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇_▇▇▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇ or at
such other URL as Netscape may designate from time to time. The parties will
cooperate to create guidelines for Participant's disclosure of aggregate
statistical information concerning Service's demographics and use to
advertisers. If Netscape determines that Participant or third party in contract
with Participant is not complying with the terms of use of personal data
published on Netscape's Web Site at
http:/▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇, or such other URL as Netscape may
determine from time to time, Netscape may provide notice to Participant under
Section 6.2 of the Agreement for material breach.
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IV. SOLICITATION OF NETSCAPE MEMBERS
Notwithstanding any other conditions of this Agreement, during the Term, neither
Participant nor its agents will (i) solicit or participate in the solicitation
of Netscape Sourced Members when that solicitation is for the benefit of any
entity (including Participant) which could reasonably be construed to be or
become in competition with Netscape or (ii) promote any services which could
reasonable construed to be in competition with services available through
Netscape. Participant may not send any Netscape Sourced Member unsolicited e-
mail communications without a "Prior Business Relationship." For purposes of
this Agreement, a "Prior Business Relationship" shall mean that the Netscape
Sourced Member has either (i) applied for or purchased Products from Participant
or (ii) voluntarily provided information to Participant through a contest,
registration, or other communication, which included clear and conspicuous
notice to the Netscape Sourced Member that the information provided by the
Netscape Sourced Member could result in an e-mail being sent to that Netscape
Sourced Member by Participant or its agents. A Prior Business Relationship does
not exist solely by virtue of a Netscape Sourced Member's visit to the Service
(absent the additional elements described above). In any commercial e- mail
communications to Netscape Sourced Members which are otherwise permitted
hereunder, Participant will provide the recipient with a prominent and easy
means to "opt-out" of receiving any future commercial e-mail communications from
Participant.
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EXHIBIT E: USAGE REPORTING REQUIREMENTS
---------------------------------------
Upon mutual agreement of the parties, not to be unreasonably withheld, N/D may,
from time to time, modify (e.g., replace, add or delete): (a) the format of the
reports required, (b) the frequency of the reports, or (c) the data required
therein, upon reasonable advance notice to Participant.
All of the foregoing usage reports shall be delivered separately for each
Territory.
1. Report Frequency.
The weekly report period is Friday to Thursday, with weekly reports due the
following day, Friday by noon PST.
2. Report Delivery
The report shall be emailed to [*] for Netscape and [*] for DCI in the Weekly
Report Format.
3. Page View Weekly Report Specifications: The report must cover the following
information:
3. 1. Breakdown of Total Page
Views by day for the entire co-branded site.
4. Participant Information
Participant provides to Netcenter and DCI Report Teams the following information
upon execution/signature of contract:
- Participant Name
- Participant Contact Name
- Participant phone number and e-mail
- Participant technical contact phone, pager and e-mail
5. Page View Weekly Report Format
The following example is received weekly by NOON Thursdays via e-mail to: [*]
for Netscape and [*] for DCI Subject: Partner Traffic Report for
from through
[*] Confidential Treatment Requested
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date,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-yyyy,mm-dd-
yyyy Total Page Views, xl,x2,x3,x4,x5,x6,x7
Definitions
date = mm-dd-yyyy
channelname = an alphanumeric string excluding colons (:), or commas (,).
Spaces are allowed. subchannelname = an alphanumeric string excluding embedded
colons (:), or commas (,), separated from a channel by a colon. Spaces are
allowed.
xl,x2,x3... = the actual number of Page Views for each date.
Example
[*]
6. Participant Standard Report
Participant will provide to Netscape and DCI Report Teams the report as more
fully described in Exhibit K on a weekly basis.
7. Access Logs
Access logs will be subject to review or audit by I/Pro, or another reputable
third party auditor, at N/D's request in addition to the audit requirements set
forth in the Agreement
8. Registrant Reports
Participant to furnish to N/D a monthly report of the total number of
Registrants establishing a password during that monthly period.
9. N/D Reports
N/D will provide Page View data for the Impressions in the carriage plan on a
quarterly basis, or more frequently, if generally available. The parties will
work together to generate or track click-through data per creative element, if
generally and technically available, on a quarterly basis or more frequently, if
generally available and shall share such data. N/D will also provide ASIS
reports, when implemented, for banners on a daily basis.
[*] Confidential Treatment Requested
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EXHIBIT F: DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
-----------
"Affiliates" means any corporation, partnership, joint venture or other entity
or person controlled, controlling or under common control with Netscape or DCl,
as applicable. For purposes of this definition, the term "control" shall mean
the direct or indirect beneficial ownership of more than nineteen percent (19%)
of the voting interests (representing the right to vote for the election of
directors or other managing authority) in an entity.
"Channel(s)" or "sub-Channel(s)" means one or more of the topic-specific areas
providing content and links on Netcenter or the DCI Service, all as determined
by N/D from time to time, Core Services, e-commerce opportunities or links, and
other tools, resources, and applications pertaining to the specific topic.
"Confidential Information" means any information relating to or disclosed in the
course of negotiating and implementing the Agreement, which is, or should be
reasonably understood to be, confidential or proprietary to the disclosing
party, including, but not limited to, the content of negotiations between the
parties, the material terms of this Agreement, information about Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data and the number of users establishing a password on the Full
Application or Pre-Approval sections of the Service. "Confidential Information"
shall not include information (a) already lawfully known to or independently
developed at any time by the receiving party, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully obtained from any
third party and not required to be kept confidential.
"Content" means text, images, video, audio (including, without limitation, music
used in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
"Core Servicee" means services and applications that generally apply to all N/D
links or channels, as N/D may amend from time to time. As of the Effective Date,
"Core Services" consist of discussion group, chat, personalization, personal
home page, member directory, email, instant messaging, white and yellow pages
and search features and functions.
"DC1 Subscribers" means users of the DCI Service.
"DCI Network" means (i) the DCI Service and (ii) any other service owned,
operated, distributed, licensed, or authorized to be distributed by or through
DCI or its Affiliates worldwide through which such party elects to offer the
Licensed Content (which may include, without limitation, DCI-related Internet
sites, and international versions of the DCI Service.
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"DCI Service" means the standard, narrow-band U.S. version of the DCI brand
service on the World Wide Web and on the AOL Service, whether accessed through
the broad-band or narrow-band, specifically excluding (a) Any other DCI
Interactive Site, (b) any international versions of the DCI brand service, (c)
any independent product or service offered by or through the U.S. version of the
DC1 brand service, (d) any programming or Content area offered by or through the
U.S. version of the DCI brand service over which DCl does not exercise complete
operational control (including, without limitation, content areas controlled by
other parties and member-created content areas), (e) any programming or Content
area offered by or through the U.S. version of the DCI brand service which is a
branded subservice of such service, (f) any yellow pages, white pages,
classifieds or other search, directory or review services or content offered by
or through the U.S. version of the DCI brand service, (g) any property, feature,
product or service which DCI or its affiliates may acquire subsequent to the
Effective Date and (h) any other version of a DCl service which is materially
different from the narrow-band U.S. version of the DCI brand service, by virtue
of its branding, distribution, functionality, Content and services, including,
without limitation, any co-branded versions and any version distributed through
any broadband -distribution platform or through any platform or device other
than a desktop personal computer.
"DCI Sourced Member" means a DCI Member who immediately accesses the Service
from the DCl Service or has done so within 90 days.
"Error" means any instance where Participant-controlled portions of the Service
do not substantially conform to agreed-upon features and specifications.
"Guidelines" means Netscape's then-current commercial design, operational, and
usage guidelines which N/D may issue from time to time for the Services and the
Netscape Network and DCI Network.
"Impression" means the appearance of a Participant banner, Participant button,
Participant sponsorship or Participant integrated content served up on any page
within Netcenter and DCI Service, or link directing a user of the Service to the
Service Index Page, Service Pages or Participant's Web Site.
"Index Page" or "Index Pages" means that certain page or pages on Netcenter or
the DCI Service that serves as a gateway from Netcenter to a specific Netcenter
service or from a DCI Service to a specific DCI service, which gateway contains
a listing, or "index" of all services that are related to a certain topical
link, or "Channel." The Index Pages may consist only of the Service Index Page,
or any index page that may link from Netcenter or the DC1 Service to the N/D
Channel or N/D sub-Channel.
"Interactive Service" means an entity offering one or more of the following: (i)
online or Internet connectivity services (e.g., an Internet service provider);
(ii) an interactive site or service featuring a broad selection of aggregated
third party interactive content (or navigation thereto) (e.g., a navigational
service or search and directory service) and/or marketing a broad
Confidential
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selection of products and/or services across numerous interactive commerce
categories (e.g., an online mall or other leading online commerce site); (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means), including without limitation greeting cards.
"Launch Date" means the date the Netscape Mortgage Center Service is in place
and functioning on Netcenter.
"Licensed Content" means all Content provided by Participant or its agents to
N/D or their Affiliates for distribution through the Netscape Network or DC1
Network in connection with die subject matter of this Agreement.
"Members" means Netscape Members and/or DCI Members.
"Mortgage Center" means the co-branded area within Netscape as described in
Exhibit A and Exhibit J and which is represented as a general mock-up in Exhibit
A-3.
"Netcenter" means the standard, narrow-band U.S. version of the Netscape
Netcenter internet based interactive site marketed under the "Netcenter" brand,
whether accessed through the broad-band or narrow-band, without exclusivity
specifically excluding (a) any other Netscape or Netscape Affiliate owned or
operated internet based interactive sites, (b) the international versions of
Netcenter or any similar Netscape or Affiliate service or interactive site; (c)
"Netscape AOL Instant MessengerTm," "Netscape Custom Netcenter," Netscape
WebMail, or any similar independent product, service or property which may be
offered by, through or by Netscape; (d) any programming or content area offered
by or through the U.S. version of the Netcenter brand service over which
Netscape does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties), (e) any yellow pages,
white pages, classifieds or other search, directory or review services or
Content offered by or through the U.S. version of the Netcenter brand service,
(f) any property, feature, product or service which Netscape or its Affiliates
may acquire subsequent to the Effective Date and (h) any other version of a
Netscape service which is materially different from Netcenter by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded version of the service or any version distributed
through any other distribution platform or through any platform or device other
than a desktop personal computer.
"Netcenter Registration" means the portion of the registration that is
maintained, hosted, and controlled by Netscape and applies to multiple services
across Netcenter. Netcenter Registration includes the assignment of a user name,
password, and the collection of core Netcenter user profile data including but
not limited to: First name, Last name, Address, City, State, Country, Zip Code,
Email Address and Age. Netscape Registration means any registration that is
maintained, hosted, and controlled by Netscape and applies to Netscape's Web
Site.
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"Netscape Member" means authorized users of the Netscape Network, including
without limitation both registered members and Visitors to Netscape's Web Site.
"Netscape Network" means (i) Netcenter and (ii) any other product or service
owned, operated, distributed, licensed, or authorized to be distributed by or
through Netscape or its Affiliates worldwide through which such party elects to
offer the Licensed Content (which may include, without limitation, Netscape-
related Internet sites, "offline" information browsing products, and
international versions of the Netscape products or Netscape Web sites.
"Netscape Sourced Member" means a Netscape Member who immediately accesses the
Service from Netcenter or has done so within 90 days.
"Netscape's Web Site" means the collection of Local Language HTML documents
targeted at end users in the Territory and currently accessible by the public
via the Internet at the URL ▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ and/or at such other URL or
locations as Netscape may designate. Netscape's Web Site does not include any
future technologies or future uses of existing technologies which might embody a
collection of documents (other than HTML documents) on the Internet.
"Page Views" means the units of measurement that represent the number of
requests for a page of content. A page of content is, but is not limited to, a
static page such as an HTML document or a dynamically generated page such as
from a CGI script. Pages containing framesets shall not be counted as Page Views
and only the pages within the frameset containing principle content shall be
counted as Page Views.
"Participant's Web Site" means Participant's primary Local Language Web site,
which is currently accessible by the public via the Internet at the URL
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇.
"Products" means any product, good or service which Participant offers, sells or
licenses to Members through (i) the Service and (ii) any web site linked to
Participant' s Web Site.
"Respond" means and includes: taking and logging the Error call; in the case of
Priority 1 Errors, providing to the reporting party an action/resolution plan
within four (4) hours of initial call receipt and acknowledgment; and, in cases
of Priority 1 and 2 Errors, making best efforts on a continuing basis to cure
the Error until the Error is cured.
"Service" means the specific area within the Netscape Network and DCI Network,
as described in Exhibit A and Section 2.1 of this Agreement, which shall be
developed, managed or marketed by Participant pursuant to this Agreement,
including but not limited to the Licensed Content, any functionality or
services, message boards, chat and other Member supplied content areas contained
therein (but excluding any site or area outside of Netcenter or the DCI Service
that is linked to the Service (through a "pointer" or similar link) in
accordance with the terms and conditions of this Agreement.).
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"Service Index Page" means the page, linked to or accessible from Netcenter or
the DCI Service, that serves as the first available point of entry for an end
user accessing the Service from Netcenter or the Channel or sub-Channel or DCI
Service.
"Service Pages" means all pages of the Service excluding the Index Pages.
"Term" means the period beginning on the Effective Date and ending upon the
expiration or earlier termination of the Agreement. "Total Page Views" means the
sum of all Page Views for all co-branded content hosted by the Participant.
"Unique Visitors" means the number of different Visitors who access a site
within a specific time period as determined by N/D. To identify Unique Users,
web sites need a unique identifier, which may be obtained through some form of
user registration or identification system. The definition of "Unique Visitors"
may be changed by N/D from time to time upon notice to Participant.
"Visitor" means an individual who interacts with a web site.
"Visits" means a series of page requests by a Visitor without a specified period
of inactivity (usually 30 consecutive minutes). If a Visitor leaves the site and
comes back within that specified period of inactivity, it is counted as part of
the same Visit.
"Workaround" means a method by which a user of a product can, by making a
limited number of procedural or programming changes in a product, prevent the
occurrence or re-occurrence of an Error. Programming changes include adjustments
to set-up and configurations files or other settings that do not require
recompilation.
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EXHIBIT G: GENERAL TERMS AND CONDITIONS
I. SERVICE PAGES
Contests. Participant shall take all steps necessary to ensure that any
--------
contest, sweepstakes or similar promotion conducted or promoted through the
Service (a "Contest') complies with all applicable laws and regulations.
Participant shall provide N/D with (i) at least thirty (30) days prior written
notice of any Contest and (ii) upon N/D's request, an opinion from Participant's
counsel confining that the Contest complies with all applicable laws and
regulations.
DCI Look and Feel. Participant acknowledges and agrees that DCI shall own all
-----------------
right, title and interest in and to the Look and Feel of the Index Pages and the
Service Pages (the "DCI Look and Feel"), excluding any Participant owned
intellectual property. The distinctive and particular elements of graphics,
design, organization, presentation, layout, user interface, navigation, trade
dress and stylistic convention (including the digital implementations thereof)
within the DCI Network and the total appearance and impression substantially
formed by the combination, coordination and interaction of these elements.
Netscape Look and Feel. Participant acknowledges and agrees that Netscape shall
----------------------
own all right, title and interest in and to the Look and Feel of the Index Pages
and the Service Pages (the "Netscape Look and Feel"), excluding any Participant
owned intellectual property. In addition, Netscape shall retain editorial
control over the portions of the Service and Index Pages which frame the
Licensed Content including without limitation the Index Page and Service Pages
(the "Netscape Frames"). Netscape may, at its discretion, incorporate
navigational icons, links and pointers or other Content into such Netscape
Frames.
Management. Participant shall review, delete, edit, create, update and
----------
otherwise manage all Content available on or through the Service, including but
not limited to the Licensed Content and message boards, in a timely and
professional manner and in accordance with the terms of this Agreement, the
Guidelines, and any generally applicable service standards for interactive
content providers published by N/D. In managing the Service, Participant agrees
to refrain from editing or altering any opinion expressed by an end user within
the Service, except in cases when Participant (i) has a good faith belief that
the Content in question violates an applicable law, regulation, third party -
right or portion of N/D's Terms of Service or (ii) obtains N/D's prior approval,
as applicable. Participant shall ensure that the Service is reasonably current
and well-organized, and shall employ all necessary procedures to insure the
accuracy of the Licensed Content. Participant wan-ants that the Service and the
Licensed Content: (i) will conform to N/D's Guidelines, as applicable (ii) will
not infringe or violate any copyright, trademark, U.S. patent or any other third
party right, including without limitation, any music performance or other music
related rights; and (iii) will not contain any Content which violates any
applicable law or regulation. N/D shall have no obligations with
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respect to the Participant provided Content available on or through the Service,
including, but not limited to, any duty to review or monitor any such Content.
Changes to the Netscape Network or DCI Network. N/D reserve the right to
----------------------------------------------
redesign or modify the organization, structure, "look and feel," navigation and
other elements of the Netscape Network and DCI Network, including without
limitation, by adding or deleting channels, subchannels and/or screens. If N/D
eliminates or modifies an area of the Netscape Network or DO Network in a manner
that substantially modifies the nature of the distribution required under this
Agreement in a material adverse fashion, N/D, as appropriate, will work with
Participant in good faith to provide Participant with comparable distribution
reasonably satisfactory to Participant. N/D shall use commercially reasonable
efforts to provide Participant with prior written notice of such changes.
Duty to Inform. Participant shall promptly inform N/D, as appropriate of any
--------------
information related to the Licensed Content which could reasonably lead to a
claim, demand or liability of or against N/D and/or its Affiliates by any third
party.
Response to Questions/Comments; Customer Service. Participant shall respond
------------------------------------------------
promptly and professionally to questions, comments, complaints and other
reasonable requests regarding the Licensed Content by end users or on request by
N/D, and shall cooperate and assist N/D in promptly answering the same.
Classifieds. To the extent Participant desires to implement any classifieds
-----------
listing features through the Service, Participant shall obtain N/D's prior
written approval. Such approval may be conditioned upon, among other things,
Participant's conformance with any then- applicable service-wide technical or
other standards related to online classifieds.
Statements Through Netscape Network or DCI Network. Participant shall not make,
--------------------------------------------------
publish, or otherwise communicate through the Netscape Network or DCI Network
any deleterious remarks concerning N/D or their Affiliates, directors, officers,
employees, or agents (including, without limitation, N/D's business projects,
business capabilities, performance of duties and services, or financial
position) which remarks are based on the relationship established by this
Agreement or information exchanged hereunder. This section is not intended to
limit good faith editorial statements made by Participant based upon publicly
available information, or information developed by Participant independent of
its relationship with ND and their employees and agents.
Harmful Content. Participant is solely responsible for any liability arising
---------------
out of or relating to (i) the Service and/or (ii) any material to which users
can link through the Service. If N/D becomes aware that the Service contains any
material that violates any of the terms and conditions of this Agreement or any
N/D policy, or that N/D otherwise deems likely to cause N/D material harm, then
N/D will inform Participant and may elect not to include the offending Content
or the Service in N/D's web sites. ND reserve the right not to include in
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-30-
N/D's web sites all or any part of the Service that does not substantially
conform to the terms set forth herein.
II. TRADEMARKS
-----------
Trademark License. In designing and implementing Promotional Materials
-----------------
promoting the Service (as defined below) and subject to the other provisions
contained herein, Participant shall be entitled to use the following trade
names, trademarks and service marks of (a) Netscape: Netscape(R), Netcenter(TM),
and the Netscape N and Design logo, and (b) DCI: Digital City, DCI and DCI's
then current logo and N/D and their Affiliates shall be entitled to use the
trade names, trademarks and service marks of Participant associated with the
Service (collectively, together with the N/D marks listed above, the "Marks");
provided that each party: (i) does not create a unitary composite ▇▇▇▇ involving
a ▇▇▇▇ of the other party without the prior written approval of such other party
and (ii) displays symbols and notices clearly and sufficiently indicating the
trademark status and ownership of the other party's Marks in accordance with
Netscape's then current trademark guidelines available at
▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇_▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇ and applicable trademark
law and practice.
Rights. Each party acknowledges that its utilization of the other party's Marks
------
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each party agrees not to do anything contesting or impairing the trademark
rights of the other party, including registering or attempting to register the
Marks of the Title as a trademark, service ▇▇▇▇, Internet domain name, trade
name, or any similar trademarks or name, with any domestic or foreign
governmental or quasi-governmental authority which would be likely to cause
confusion with the Marks. Licensee may not register or use the Marks or the
Title or an abbreviation of the Marks of the Title as part of an Internet domain
name.
Quality Standards. Each party agrees that the nature and quality of its
-----------------
products and services supplied in connection with the other party's Marks shall
conform to quality standards communicated in writing by the other party for use
of its trademarks. Each party agrees to supply. the other party, upon request,
with a reasonable number of samples of any Materials publicly disseminated by
such party which utilize the other party's Marks. Each party shall comply with
all applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other party's Marks.
Promotional Materials/Press Releases. Each party will submit to the other party,
------------------------------------
for its prior written approval, which shall not be unreasonably withheld or
delayed, any marketing, advertising, press releases or other promotional
materials related to the Service and/or referencing the other party and/or its
trade names, trademarks and service marks (the "Promotional Materials");
provided, however, that, following the initial public announcement of the
business relationship between the parties in accordance with the approval and
other requirements contained herein, either party's subsequent factual reference
to the existence of
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-31-
a business relationship between N/D and Participant, including, without
limitation, the availability of the Service on the Netscape Network and DCI
Network, or use of screen shots of the Service (so long as the Netscape Network
and /or DCI Network is clearly identified as the source of such screen shots)
for promotional purposes shall not require the approval of the other party.
Once approved, the Promotional Materials may be used by a party and its
affiliates for the purpose of promoting the Service and the content contained
therein and reused for such purpose until such approval is withdrawn with
reasonable prior notice. In the event such approval is withdrawn, existing
inventories of Promotional Materials may be depleted.
Infringement Proceedings. Each party agrees to promptly notify the other party
------------------------
of any unauthorized use of the other party's Marks of which it has actual
knowledge. Each party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each party agrees to provide the other party,
at such other party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
11. REPRESENTATIONS AND WARRANTIES
------------------------------
Authorization. Each party represents and warrants to the other party that: (i)
-------------
such party has the full corporate right, power and authority to enter into this
Agreement, to grant the licenses granted hereunder and to perform the acts
required of it hereunder; (ii) the execution of this Agreement by such party,
and the performance by such party of its obligations and duties hereunder, do
not and will not violate any agreement to which such party is a party or by
which it is otherwise bound; (iii) when executed and delivered by such party,
this Agreement will constitute the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms; (iv) such
party's Promotional Materials, Licensed Content, Products, Services or any
content or links added to the Service when used pursuant to this Agreement, will
neither infringe on any copyright, U.S. patent or any other third party right
nor violate any applicable law or regulation and (v) such party acknowledges
that the other party makes no representations, warranties or agreements related
to the subject matter hereof which are not expressly provided for in this
Agreement.
Insurance. Participant, at its sole cost and expense, shall secure and maintain
---------
adequate insurance coverage as is necessary, as a reasonable prudent business.
Maintenance of the foregoing insurance shall in no way be interpreted as
relieving Participant of any responsibility or obligation whatsoever and
Participant may acquire, at its own expense, such additional insurance as
Participant deems necessary. Participant assumes full and complete liability for
all injuries to, or death of, any person, or for any damages to property arising
from the acts or omissions of Participant. Participant shall provide evidence of
insurance to N/D within 30 days of the Effective Date. Before any cancellation,
Participant shall provide N/D with 30 days' advance written notice.
IV. CONFIDENTIALITY
---------------
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Each party acknowledges that Confidential Information may be disclosed to the
other party during the course of this Agreement. Each party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
party, other than to its employees, or its other agents who must have access to
such confidential Information for such party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either party may issue a press release or other disclosure containing
Confidential Information without the consent of the other party, to the extent
such disclosure is required by law, rule, regulation or government or court
order. In such event, the disclosing party will provide at least five (5)
business days prior written notice of such proposed disclosure to the other
party. Further, in the event such disclosure is required of either party under
the laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing body
that such portions and other provisions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Securities and Exchange
Commission or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body; provided that, each party will redact all information
specifically identifying the dollar amount of this Agreement the level or
exclusivity and the term of the Agreement to the extent permitted under
applicable laws, rules and regulations.
V. TREATMENT OF CLAIMS
-------------------
Liability. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OF OR
INABILITY TO USE THE NETSCAPE NETWORK OR DCI NETWORK OR ONLINE AREA OR ANY OTHER
PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS PROVIDED BELOW IN THE
"INDEMNITY" SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE
THAN THE AGGREGATE AMOUNTS PAYABLE HEREUNDER AS OF THE DATE LIABILITY ACCRUED.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE NETSCAPE
NETWORK OR DCI NETWORK OR THE ONLINE AREA OR ANY N/D PUBLISHING TOOLS, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
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PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALLY OF THE FOREGOING, NCD
SPECIFICALLY DISCLAIM ANY WARRANTY REGARDING THE PROFITABILITY OF THE ONLINE
AREA.
Indemnity. Either party will defend, indemnify, save and hold harmless the
---------
other party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying party's material breach of
any duty, representation, or warranty of this Agreement, including gross
negligence or willful misconduct.
If a party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving,
any claim, action, suit, investigation, arbitration or other proceeding against
the Indemnified Party by any third parry (each an "Action"), the Indemnified
Party shall give the other party (the "Indemnifying Party") prompt written
notice of such Action. Such notice shall (i) provide the basis on which
indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party shall have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party shall be obligated to defend the Action,
at its own expense, and by counsel reasonably satisfactory to the Indemnified
Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party shall have the right to participate fully, at its own expense,
in the defense of such Action. If the Indemnifying Party responds within the
required ten (10) day period and elects not to defend such Action, the
Indemnified Party shall be free, without prejudice to any of the Indemnified
Party's rights hereunder, to compromise or defend (and control the defense of)
such Action. In such case, the Indemnifying Party shall cooperate, at its own
expense, with the Indemnified Party and its counsel in the defense against such
Action and the Indemnifying Party shall have the right to participate fully, at
its own expense, in the defense of such Action. Any compromise or settlement of
an Action shall require the prior written consent of both parties hereunder,
such consent not to be unreasonably withheld or delayed. In the event the
Indemnified Party agrees to a settlement or compromise without first obtaining
the written consent of the Indemnifying Party, then the Indemnifying Party shall
have no obligation, financial or otherwise, for any such settlement or
compromise so effected.
Acknowledgment. NCD AND PARTICIPANT EACH ACKNOWLEDGE THAT THE PROVISIONS OF
--------------
THIS AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION
BETWEEN THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE
TRANSACTIONS CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO
WARRANTIES AND LIABILITY CONTAINED IN THIS AGREEMENT ARE
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-34-
INTENDED TO LIMIT THE CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF
THIS SECTION SHALL BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER
ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VI. ARBITRATION
-----------
(a) The parties shall act in good faith and use commercially reasonable
efforts to promptly resolve any claim, dispute, claim, controversy or
disagreement (each a "Dispute") between the parties or any of their respective
subsidiaries, affiliates, successors and assigns under or related to this
Agreement or any document executed pursuant to this Agreement or any of the
transactions contemplated hereby. If the parties cannot resolve the Dispute
within such timeframe, the Dispute shall be submitted to the Management
Committee for resolution. For ten (10) days after the Dispute was submitted to
the Management Committee, the Management Committee shall have the exclusive
right to resolve such Dispute; provided further that the Management Committee
shall have the final and exclusive right to resolve Disputes arising from any
provision of this Agreement which expressly or implicitly provides for the
parties to reach mutual agreement as to certain terms. If the Management
Committee is unable to amicably resolve the Dispute during the ten (10) day
period, then the Management Committee will consider in good faith the
possibility of retaining a third party mediator to facilitate resolution of the
Dispute. In the event the Management Committee elects not to retain a mediator,
the Dispute will be subject to the resolution mechanisms described below.
"Management Committee" shall mean a committee made up of a senior executive from
each of the parties for the purpose of resolving Disputes under this Section and
generally overseeing the relationship between the parties contemplated by this
Agreement. Neither party shall seek, nor shall be entitled to seek, binding
outside resolution of the Dispute unless and until the parties have been unable
to amicably resolve the dispute as set forth in this paragraph (a) and then,
only in compliance with the procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights,
including but not limited to intellectual property and confidentiality, and (ii)
any provision of this Agreement which expressly or implicitly provides for the
parties to reach mutual agreement as to certain terms (which shall be resolved
by the parties solely and exclusively through amicable resolution as set forth
in paragraph (a), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration
Confidential
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of Disputes where the nature of the Dispute, including without limitation the
amount in controversy, does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each party
shall name an arbitrator within ten (10) days after the delivery of the Demand.
The two arbitrators named by the parties may have prior relationships with the
naming party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law,
shall govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply
in toto. The arbitrators may enter a default decision against any party who
fails to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages
only. Any award by the arbitrators shall be accompanied by a written opinion
setting forth the findings of fact and conclusions of law relied upon in
reaching the decision. The award rendered by the arbitrators shall be final,
binding and non-appealable, and judgment upon such award may be entered by any
court of competent jurisdiction. The parties agree that the existence, conduct
and content of any arbitration shall be kept confidential and no party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each party's financial statements.
(f) Each party shall pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with the presentation
of such party's case (collectively, "Attorneys' Fees"). The remaining costs of
the arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the parties and an award of Attorneys' Fees to the
prevailing party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively, "Non-
Arbitration Claims") shall be brought in a court of competent jurisdiction in
the Commonwealth of
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-36-
Virginia. Each party irrevocably consents to the exclusive jurisdiction of the
courts of the Commonwealth of Virginia and the federal courts situated in the
Commonwealth of Virginia, over any and all Non-Arbitration Claims and any and
all actions to enforce such claims or to recover damages or other relief in
connection with such claims or to enforce a judgment rendered in an arbitration
proceeding.
VII. MISCELLANEOUS
-------------
Auditing Rights. Each party shall maintain complete, clear and accurate records
---------------
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each party shall have the right, at its
expense, to direct an independent certified public accounting firm subject to
strict confidentiality restrictions to conduct a reasonable and necessary
copying and inspection of portions of the Records of the other party which are
directly related to amounts payable to the party requesting the audit pursuant
to this Agreement. Any such audit may be conducted after twenty (20) business
days prior written notice, subject to the following. Such audits shall not be
made more frequently than once every twelve months. No such audit of N/D shall
occur during the period beginning on June 1 and ending October 1. In lieu of
providing access to its Records as described above, a party shall be entitled to
provide the other party with a report from an independent certified public
accounting firm confirming the information to be derived from such Records.
Excuse. Neither party shall be liable for, or be considered in breach of or
------
default under this Agreement on account of, any delay or failure) perform as
required by this Agreement as a result of any causes or conditions which are
beyond such party's reasonable control and which such party is unable to
overcome by the exercise of reasonable diligence.
Independent Contractors. The parties to this Agreement are independent
-----------------------
contractors. Neither party is an agent, representative or partner of the other
party. Neither party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the parties or to impose any liability attributable to such a relationship upon
either party.
Notice. Any notice, approval, request, authorization, direction or other
------
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered personally to the party to whom the same is directed; (ii) one
business day after deposit with a commercial overnight carrier, with written
verification of receipt; or (iii) five business days after the mailing date,
whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of N/D, such notice will
be provided to both the Senior Vice President for Business Affairs, America
Confidential
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Online, Inc. [*] and the General Counsel, Netscape Communications Corporation
[*] or the AOL General Counsel (for DCI) [*], each at the address of AOL set
forth in the first paragraph of this Agreement. In the case of Participant
except as otherwise specified herein, the notice address shall be the address
for Participant set forth in the first paragraph of this Agreement, with the
other relevant notice information, including the recipient for notice and, as
applicable, such recipient's fax number or e-mail address, to be as reasonably
identified by NCD.
No Waiver. The failure of either party to insist upon or enforce strict
---------
performance by the other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement each
---------------------
party shall, upon the written request of the other party, return or destroy (at
the option of the party receiving the request) all of the other party's
Confidential Information.
Survival. Section 7.7 of the Interactive Services Agreement, Section III of
--------
Exhibit D to the Interactive Services Agreement, Section III, IV, V, VI and VII
of this Exhibit G of the Interactive Services Agreement, Section B5 of Exhibit
Al and Section 1 and 2 of Exhibit C shall survive the completion, expiration,
termination or cancellation of this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and supersedes
---------------
any and all prior agreements of the parties with respect to the transactions set
forth herein. Neither party shall be bound by, and each party specifically
objects to, any term, condition or other provision which is different from or
in addition to the provisions of this Agreement (whether or not it would
materially alter this Agreement) and which is proffered by the other party in
any correspondence or other document, unless the party to be bound thereby
specifically agrees to such provision in writing.
Amendment. No change, amendment or modification of any provision of this
---------
Agreement shall be valid unless set forth in a written instrument signed by the
party subject to enforcement of such amendment.
Further Assurances. Each party shall take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other party for the implementation or continuing
performance of this Agreement
Assignment. Participant shall not assign this Agreement or any right, interest
----------
or benefit under this Agreement without the prior written consent of AOL,
provided, however, that Participant may assign this Agreement without such
consent in connection with any merger, consolidation, any sale of all or
substantially all of Participant's assets or any other transaction in which more
than fifty percent (50%) of Participant's voting securities are transferred,
resulting in change-of-control of Participant which is not to an Interactive
Service
[*] Confidential Treatment Requested
Confidential
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and subject to all of the terms of this Agreement All other assumptions of this
Agreement by any successor to Participant (including, without limitation, by way
of merger or consolidation shall be subject to AOL's prior written approval
which shall not be unreasonably withheld or delayed. Any such notice of
disapproval shall specify with particularity all of the bases for the
disapproval. Subject to the foregoing, this Agreement shall be fully binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
Construction; Severability. In the event that any provision of this Agreement
--------------------------
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to a
--------
party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the party may possess at law or in
equity.
Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and
----------------------------
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles. Each party irrevocably
consents to the exclusive jurisdiction of the courts of the Commonwealth of
Virginia and the federal courts situated in the Commonwealth of Virginia, in
connection with any action to enforce the provisions of this Agreement to
recover damages or other relief for breach or default under this Agreement, or
otherwise arising under or by reason of this Agreement.
Export Controls. Both parties shall adhere to all applicable laws, regulations
---------------
and rules relating to the export of technical data and shall not export or re-
export any technical data, any products received from the other party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
--------
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
------------
shall be deemed an original and all of which together shall constitute one and
the same document.
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EXHIBIT H NAMED ENTITIES
Participant may update this list a maximum of once per quarter and may add up to
2 additional Named Entities per quarter up to a total maximum of 30 Named
Entities at any given time.
[*]
[*] Confidential Treatment Requested
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EXHIBIT I: PARTICIPANT CONTENT FOR INDEX PAGE
RateWatch
How much can you afford?
Rent vs. Buy
Refinance Decisions
Choose the Right Mortgage
Choose a Realtor
Estimated Closing Costs
Down Payment Strategies
Home Buying Process
HomeWatch
Rate Shopper
Home Valuation
Closing Costs
Glossary
Preapproval
Prequalification
Full Application
How Agents Work
Define Agent Needs
Find an Agent
Compare Schools
Community Reports
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EXHIBIT J: DETAILED NETSCAPE CARRIAGE PLAN
[*]
[*] Confidential Treatment Requested
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EXHIBIT K: WEEKLY REPORT
[*]
[*] Confidential Treatment Requested
EXHIBIT L: PRESS RELEASE
iOWN JOINS WITH AOL'S NETCENTER AND DIGITAL CITY IN A MULTI-YEAR, MULTI-MILLION
DOLLAR ALLIANCE
Alliance Brings iOwn's Mortgage Services to Millions Via AOL, Inc. Brands
Agreement Highlights AOL, Inc.'s Multi-Brand Strategy
Dulles, VA and San Francisco, CA, XXX XX, 1999 - America Online, Inc. (NYSE:
AOL), the world's leading interactive services company, and iOwn, Inc., a
leading online mortgage company, today announced a multi-year marketing and
e-commerce alliance to bring the convenience and value of iOwn's mortgage
services to the millions of visitors to AOL's Netcenter and Digital City sites.
According to the multi-year, multi-million dollar agreement, iOwn will be the
exclusive provider of mortgage aggregation services in the Netcenter and Digital
City Mortgage Centers and Real Estate areas. iOwn's mortgage-related services
will also be available on a non-exclusive basis in certain other finance-related
areas of Netcenter and Digital City.
iOwn will offer visitors to Netcenter and Digital City a variety of home finance
services, including real-time mortgage rates from a range of leading national
lenders, free loan prequalification and preapproval and the ability to apply for
mortgages online. iOwn enables consumers to better evaluate their home finance
choices, by providing detailed information, up-front on the entire mortgage
process, such as iOwn's exclusive closing costs estimates which are county and
even city specific.
"With iOwn, these AOL brands can offer consumers a one-stop location where they
can easily shop for, compare and apply for mortgages from a variety of leading
mortgage providers," said ▇▇▇▇▇ ▇▇▇▇▇▇▇, President of AOL Interactive Services.
"iOwn's suite of on-line mortgage services will help us simplify the home
financing process for visitors to our Netcenter and Digital City sites."
▇▇▇▇▇▇▇ added: "This agreement also reinforces the value of AOL's multi-brand
strategy. Our new pact with iOwn is the first cross-brand agreement for AOL,
Inc. to not feature the flagship AOL service and ▇▇▇.▇▇▇, and highlights the
tremendous advantage of our ability to offer our partners a variety of top
online brand resources that can best serve their unique needs."
"We are excited to work with these key AOL properties to give consumers the
information and tools they need to make confident home financing decisions,"
said ▇▇▇ ▇▇▇▇, iOwn CEO and President. "The Mortgage Center will provide
consumers with the ability to easily shop for the best rates, educate themselves
on the home financing process and apply online to take advantage of iOwn's
significant cost savings."
About America Online
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Founded in 1985, America Online, Inc., based in Dulles, Virginia, is the world's
leader in interactive services, Web brands, Internet technologies, and
e-commerce services. America Online, Inc. operates: two worldwide Internet
services, America Online, with more than 17 million members, and CompuServe,
with approximately 2 million members; several leading Internet brands including
ICQ and Digital City, Inc.; the Netscape Netcenter and ▇▇▇.▇▇▇ portals; and the
Netscape Navigator and Communicator browsers. Through its strategic alliance
with Sun Microsystems, the Company develops and offers easy-to-deploy,
end-to-end e-commerce and enterprise solutions for companies operating in the
Net Economy.
About ▇▇▇▇.▇▇▇
iOwn, Inc., (▇▇▇.▇▇▇▇.▇▇▇), is a leading Internet mortgage company that helps
consumers find both a home and a low-cost mortgage online. Through onsite
content, customized tools and experienced loan specialists, who support each
customer throughout the entire mortgage transaction, iOwn simplifies the home
buying and refinancing process, while passing on significant financial savings
to the customer. Consumers can use the site to shop and compare rates, search
for a home from a large selection of current home listings, investigate
neighborhoods, prequalify, preapprove and apply for their mortgage. iOwn was
founded in October 1996 as HomeShark, Inc., and has headquarters in San
Francisco, Calif., with a customer service center in Martinez, Calif.
Confidential
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